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135 Cards in this Set

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Hypo:

Witness testifies for df to facts of accident. PL offers to show that witness is claims manager of DF liability Insurance Co.- The same Co. that will have to pay if df is found liable.

Admissible.
yes, admissible to show interest or motive.
what is the rule for the subsequent remedial measure?

what is the exception.
not allowed in to show

1. fault
or
2. defect.


Can come in to show
1. control
2. ownership.
Hypo:

Df denies ownership of building where Pl was injured. Pl offers to show that Df made repairs to the building.

Admissible.

why?
Yes, only to show

1. ownership
2. control
3. impeachment

because Public Policy wants people to fix the problems and issue.
Hypo

Pl walks into a glass door that was practically invisible. Df contends there was and is no way to avoid such an accident. PL offers to show that, after the accident, Df put red sticker on the door to make the door more visible.

Is this Admissible
Yes,

impeach that door could not have been any safer.
What is the rule for exclusion of settlement.
Not admissible to prove fault, liability, damages.

Must be: check list.

1. actual compromise.
2. offer to compromise
3. offer to plead to guilty in criminal case
4. withdraw of plead to guilt.
5. Pleas of nolo contendere.
----offers to liability or amount is not admissible.
----admissions of fact/ liability is not admissible.
Hypo:

Without prior contract, neighbor approaches PL to be and says "Are you the fellow who was bitten by my dog? Let's settle." IN a later lawsuit Pl offers to testify to neighbor's admission of dog ownership.

Admissible?
yes, exception to hearsay rule.
Party admission.

Also= there was no claim yet.
Hypo:

Df say to Pl "I admit that i owe you the full amount of 10k on promissory note, but if you want your money you'll have to sue me for it. On the other hand, if you want to settle now, i'll pay you 5k for full release. Can pl show Df admitted to liability on the note.
Yes, this is blackmail

and there is claim in dispute.
Hypo:

Pl seeks to show that in the last year six other drivers drove into the same bridge?

is this Admissible?

why?
1. this evidence would be admissible under the theory of common recurrence.

Here, 6 other people drove into the same bridge that pl did.

Here, the evidence would go to show that the city had warning that the bridge was defective and dangerous.

Here, the evidence would go to show city had notice and knowledge of the danger.

it would come in for the jury to decide.
Hypo:

Pl sues claiming the pattern of gender discrimination in hiring def.
Employer denies INTENT to discriminate and claims that Absence of woman EMployee is because there were no other well-qualified woman for the job.

Admissible?
The records of no woman employee would be admissible to show df intent.

but not to show dispositive discrimination practices.
this would be debatable from both sides and would have to left up for the jury to decide.
Hypo:

Pl ingested mouse while drinking coke and sues Df ( bottler Co). Bottlers df on the grounds that it is impossible for a mouse to get into the cola. PL offers evidence of another recent incident in which a mouse was also found in the cola.

Admissible?
The evid. is admissible under the theory of the rebuttable for impossibility theory.

This can only be used if the df has defended under the theory of impossibility.
What is the rule for comparable sales of estimated value?
comparing prices of things and land.

The sale prices of other chattels or parcels of real property are admissible if

1. the property were same kind = other chattel/ parcels were of same general description.

2. the property was sold at same time as the one being compared to.

3. the property was being sold at the same place as the one being compared to.
what is the habit evidence rule?


what kind of evidence would not be allowed for habitual evidence?
evidence of habit is admissible if.

1. the habit is descriptive and specific in its description

2. the habit occurs often enough to be considered automatic or semiautomatic (habitual).

-----------------not be allowed in----------

A person acted in a certain way = shows that person acted the same way on the occasion in question.

or

1. prior bad acts/ unless to show same crime
2. Disposition ( likely to act in a certain way)
---all not admissible---
Hypo:

there was a accident at the intersection and df offers to testify that I ( df) am a cautious driver. Also, a witness of df. seen the df stop at the stop sign on two other occasion. The df witness has also seen df stop at the stop sign on to or more prior occasions.

which one of evid. can be admitted?
This all depends.

if this were an essay.

all of the evidence in which the df performed all of the acts 3 or more times will get admitted under the theory of habit evidence.

if this were a multiple choice.
The evidence would only get admitted only if the magic words were used: df always, instinctly, invariably, or automatically.
What is the rule for business records?
Business records will be admitted just the same as routine practices of a habit of a person.
what is the rule for trade customs?
The rule for trade customs will be admissible as non-conclusive evidence of standard of care.

meaning the evidence will be admitted but it will not be used as the evidence of standard of care.
--it might just goes to show how the industry use take of care of the issue.
Hypo:

M tries to get off the bus but the bus driver closes the door On M's foot and drags her. M sues the bus Co. alleging negligence in failing to install a safety device that would prevent their buses from moving when a passenger door is open. Bus Co. offers to show that no Bus Co. employs such device.

would this evidence be admissible?
the evidence that the bus Co. want to place in would be admissible.

However, it wouldnt come in on a conclusive liability issue.
--to show who is at fault.
--this would be too prejudicial and confuse the issue for the jury.
what is the rule for discretionary policy- Based on Relevance.

liability insurance.
Liability will not be admissible to show any kind of evidence of fault or ability to pay.

Gen: not admissible to show person acted negligently or wrongfully or to show the ability to pay.

---exception: Only admissible to show

1. control or ownership.
2. impeachment.
Hypo: W testifies for df to facts of accident. PL offers to show that the witness is bias. The witness is the claims manager for df liability insurance Co.- The same Co. that will have to pay if Df is found liable.

Is this admissible?
yes, to show.

1. motive.
2. interests.
3. or impeachment if the witness lies.
what is the rule for subsequent remedial measure?


what is the exception to the rule.
not admissible to show defect or fault.


it is admissible to show:

1. control
2. ownership.
Df denies ownership of building where PL was injured. Pl offers to show that Df made repairs to the building.

Admissible?
Not admissible if to show fault or defect.

Admissible to show control/ ownership only.
Hypo:

Pl walks into glass door that was practically invisible. Df contends there was no way to avoid such an accident. Pl offers to show that, after the accident, Df put a red sticker on the door to make them more visible.

Admissible?
Yes, to rebut the impossibility statement.

this type of evidence
1. only used if DF used impossibility to defend
2. impossible to make object any safer.
what is the rule for exclusion of settlement.
Not admissible to show prove fault/liability/damages.

these element must be present:

1. Actual compromise
2. offers to compromise
3. offers to plead guilty in criminal cases
4. withdrawn pleas of guilty
5. Pleas of nolo contender

Key:
must be in claim-litigation-Pl making.
Hypo:

Without prior contract, neighbor approaches Pl to be and say " are you the fellow who was bitten by my dog? Let's settle." In a later lawsuit Pl offers to testify to Neighbor's statement.

Admissible?
Yes, because there was not been a claim yet.

Also= party admission = exception to the hearsay rule.
------there must be a claim----
Hypo:

Df says to PL "I admit that i owe you the full amount of 10k on the promissory note, but if you want your money you'll have to sue me for it. On the other hand, if you want to settle now, i'll pay you 5k for full release.

Can Pl show that df admitted to liability on the note?
Yes.

party admission; real claim in dispute and blackmail.
what is the rule for offer to pay for medical expenses.
evidence is

1. not admissible
Hypo:

"let settle, i will admit i was negligent. Let's agree on the amount of damages."

is this admissible.
No-
--this is not a naked offering of admission.

* this was made as a part of discussion of disputed damages*
Hypo

"its all my fault. Let me pay your hospital bill."

admissible.
yes.

this is admissible
1. offering was made as a part of naked offering
2. Also, this is not settlement offer.
what are the preliminary questions for the Character evidence.
1. purpose of character evidence
a. is person character a direct issue.

2. Method of proving character
a. specific conduct
b. opinion
c. reputation.

3. type of cases civil or criminal

4. what trait does character is involved = must be specific trait which is substantially an issue in this case.
Hypo:

Pl sues df for personal injury damages alleging negligence arising out of a car accident. Pl offers a witness to testify that Df has reputation for recklessness.
NO- reputation was not attacked and Pl has not open the door for reputation.
what is the basic rule for character showing.
1. prosecution can not be the first person showing bad character.

2. prosecution can do this only after the accused has set out to show his good character.
Hypo

C is arrested and is on trial for assault of elderly woman. IN crt he looks clean/ upstanding young man. The prosecutor has his "rap sheet". Which shows his 6 priors for robbery, 3 prior for assault and 2 prior for perjury.

1. may the pros as his case in chief show the record.

2. May the pros. show C criminal background or any part of it = If C does not show is good character

3. Can the pros. show his disposition to be violent?

4. To impeach credibility=
1. No - df did not open the door ( talking or by taking the stand)

2. No- Df did not open the door ( or take the stand)

3. No- df didnt open the door.

4. yes can impeach his credibility.
* can also show the perjury conviction to show his lack for truthfulness.
MAy df take the initiative to show his good character ?
Df can at anytime to show good character.

however once he does this Pros. can take the opposition and show the opposite at anytime.
How can the accused show his good character=
--what method or tech can he use--
1. cannot use specific acts of conduct
2. can only use reputation and opinions.
what happens when C calls witness to testify to his good reputation for peacefulness.

What can the prosecution do?
Pros.
Can rebutt with cross examination of specific acts that would put his bad character on trial.
what is the rule for victim character/ self defense.
Accused may take the initiative = to show the act was self defense.

meaning = show character of the victim and that victim was the initial aggressor.
Hypo:

M shot V during a Bar brawl. M charged with murder but response with self-defense. M claimed that V attacked him and M fear for his life and shot V.

1. May now M call witness to testify to V bad reputation.

2. IF M attacks V character may Pros. respond by showing V had peaceful Rep?

3. After M attacks the character of V can pros. now call a witness to testify to M' bad reputation.

4. Can m call witness that would testify V used broken beer bottle to wound + almost kill 3 bar patrons in fight last year?

5. If
1. Yes, because

A. homicide case.
B. Killer claimed self defense.

2. Yes, pros. gets to respond.

3. Yes, cause M has now open the door.

4. NO, this will not be allowed. only reputation and opinion.
IF witness testifies witness told M about V other violent acts of violent some weeks before?

admissible?
why?
Yes, because

1. show state of mind
2. genuine fear
what is the rule for victim character - sexual misconduct cases.
victim reputation and opinion can not come into play.

--Specific instances of sexual behavior ok if--

1. show accused is not the source of semen, physical injury, or other physical evidence.

2. Show consent

3. if exclusion would violate constitutional right.
what is the rule for civil cases.
Admissible only if probative value substantially outweights the danger of harm.

df must give notice and in camera hearing must be held.
G is VP. G gambled and loss 500k. G is order to pay his debt. Did not know how he embezzled. HE later found out that auditor are coming = he burns down the bank. Now only he is only charged with arson.

Can the pros. bring in his
1. embezzlement
2. stealing
---and for what purpose.
usually can not show these things.
but now can bring it in to show: motive and opportunity.
Hypo:

Df is charged with murder of a detective. Pros. offers evid. that df killed wife of 3 yrs-

admissible?


what if detective was about to arrest df for killing his wife?
no can not bring it in.

this does not relate to a motive or prior state of mind.
this would just show guilt and predisposition.


2. admissible to show motive or prior state of mind.
Hypo:

Df is charged with receiving stolen goods, claims he was unaware of the goods were stolen. Prosec. offers that df has received stolen goods on 5 prior occasions from the same thief.

admissible?
yes,

1. knowledge
2. capable
3. opportunity.
M Vic is found with .45, murder weapon, next to the body. The pistol was owned by mayor but it was stolen from his house in a burglary 3 yrs ago. May the prosecution show that df who was charged with the murder of Vic burglarized the mayor's house and stolen the gun?
Yes ,

You can use it to identify and link it to the murder.
Def is charged with forging doc. Named on the prescriptions was forged, to get illegal drugs. Df denies he did it.

Can prosecutor prove other wise?

What if def is charged with doctor named was a tak named that was forged ?
No this is too much of propensity for a predisposition.

Yes the evidence would come in that df has the knowledge.
Hypo:

Df is charged with bank robbery. May the prosecution show that df stole the truck the day before the bank robbery?


What if the truck was used in the robbery that df was at ?
No

1. This has no probative value
2. It's implicating that df is the guilty party

Yes this would b ok

1. Show know common plan or scheme
2. Opportunity
Df was charged with bank robber. Pl offered to show motive by evide. That " was recently released from prison for sexual abuse of a child and needed money for support of his drug addiction.

Admissible?
No unfair prejudice and confusion of the issue.
what is the special rule for sexual assault + child molestation?
civil/ criminal.

1. Df prior act may be admitted by Prosecution or PL

2. Accused need not open the door

3. must have been charged.
---and not before the case has been---
conviction/arrest/charges.
What is the rule for writing?
Writing needs to be authenticated.

1. writing is usually not self authenticating

it needs to be verified.
Hypo

Df sues for df for breach of a writing k, Df denies he ever owned executed the k. Pl offers original k into evidence with Pl signature in it.

Admissible?
NO.

the writing needs to have foundation before it can be introduced into evidence.
What are the ways to get proof for writing evidence.
1. admission

2. eye witness testimony .

3. hand written proof.
What are the circumstantial evidence in form.
document that is

1. 20 yrs. or older
2. eye witness testimony
3. handwritten proof
what is the rule for solicited reply documents.
Proof that dispute doc. came in response to prior communication

ex.

I mailed to df and he returned and signed and stamped it.
Hypo

why mails offer to G and received back by return mail

what purports to be an acceptance signed by G.

Sufficient auth. if Y didnt not recognize G signature?
Yes, B/c solicited reply doc.
what is the rule for quantum of proof.
1. enough evid. necessary to lay proof foundation.

2. enough for the jury to find genuiness.
Hypo:

PL testifies he saw G sign the K. Df G testifies that he did not sign. Is k admissible if evidence is contradictory.
yes, only if proper foundation has been laid.
what is the rule for self authorizing document.
1. certified copies
2. official publications
3. newspaper and periodicals
4. acknowledgement document.
what is the rule for photo authentication.
anyone can look at a photo and state it was fair and accurate representation of the people in scene and the photo will now have been authenticated.
Hypo:

Mrs G witness accident. PL lawyer wants to get photo into evid. PL lawyer has no idea who took the Pic or when it was taken.

How can the photo be authenticated?
1. witness testimony

2. ask photo is
a fair and accurate depiction
of people and place in the scene.
what is the best evidence rule.
prove the contents of the writing.

1. must produce the original (if exists)
or
2. acct for the missing of origin.
when does the best evid. rule apply?

and not apply?
when trying to prove or disprove.
1. legal relationship.

not apply:
not apply if the party is not seeking to prove the contents of the document.
Hypo:

H is charge with murder and arrested and the letter is found that gives H motive to kill wife. Pros. wants to get the contents of the letter into evidence. Cop takes the stand then testifies about the letter.


1. improper authorization=

2. Hear say=

3. best evidence rule=
1. overruled--cop saw, read, and knew it was in H's possession.

2. overruled cop not trying to prove the contents of the letter = just prove motive.

3. applies if letter was destroyed and the cop can account to where the letter was at.
best evidence rule=

what happens if the person has facts independent of the writing?
If witness has personal knowledge of the facts contained in the letter.

--no need to explain the writing or its absence.
Hypo:

Did "S" make payment? witness testified that witness saw "s" pay 10k and get back a receipt.

Does the receipt have to be produced?
No

1. facts was gained independent of writing.

2. they are not trying to prove the contents of the writing.
what if the witness says " i know "S" paid because i read it in the receipt"? Does that receipt now have to be produced?
Yes.

1. best evidence rule apply
2. trying to prove the contents of the receipt.
Does the best evid. rule apply to collateral doc.
No

1. not for minor docs.
what are modification to the best evid. rule.
1. Public records = certified copies = can replace original

2. voluminous doc. = can be replaced by
a. summaries
b. chart
c. calculations
d. duplications.
Hypo:

age discrimination suit. Pl reviews 10 yrs of personnel record of df Co. and finds that every employee over 50 yrs has been fired for " insufficient initiative" Though a personnel expert, Pl offers a summary of the these findings.
Admissible?
yes,

this is ok because.
the records are too large.
what is the rule for dead man act.
interested survivor does not testify for his interest against the decedents or deceased rep. about communication unless there is a waiver.
Hypo:

Diversity action in Fed. Crt. Y sues G for breach of oral k. Df G admits he receives an offer but denies that he ever accepted it. Df G does before trial. the state whose K applies has dead man statute. At trial Pl Y testifies " G" said to me, " I accept your offer."

The most likely scenario to keep the statement out.

is

1. hear say
2. best evid.
3. parol evidence.
4. dead man statute.
hearsay.

out of crt statement and its contents trying to prove the matter that it is being asserted.
when can a witness use a writing aid?
2 situations.

1. refreshing recollection " when a witness memory fails = anything can be used to jog the witness memory.

2. recording of recollection
a. personal knowledge
b. statement was made at the time or near the time it was supposed to be made.
c. made by and adopted as his own.
d. the writing must be accurate at the time that it was made.
e. witness must remember parts or the whole of the thing.
Hypo:

G's house was burglarized. Df is charged. G is call to testify things went missing. G can not remember all that went missing.
Pros. has a list of all the things that was taken.

1. what can pros. do.

2. what if the df objects to the use of article.

a. improper auth.
b. best evid.
c. hearsay.
1. show her the list.

2.
a. no trying to have the exhibit come in = overruled

b. not trying to have the writing come into evid.

c. not out of court statement said for truth of the matter for which it is being asserted.
what is the rule for lay person opinion.
lay person can give opinion if it will help trier of facts

----can not do----
lay person can not give legal opinion/ conclusion.
which one of these statement is ok for a lay person.

1. that driver was going 25mph

2. that driver was negligent in driving that fast.
1. first one was ok because it was gen. observation.

2. this is not ok because this was a legal conclusion.
what is the rule for expert testifying.
ok if.

1. expert in their field
2. conclusion = reasonable certainty
3. opinion supported by proper factual basis.
Pl sues df for damages claiming serious injury resulting from Negligence of df injury is that pl has extra hole in his head " grey anatomy" on say hole on the side of the head is not good.

1. may pl start out by reading text to jury?

2. may the text be used to impeach contrary opinion by df expert?
1. must lay down proper foundation before being admitted into evidence.

2. yes, for impeachment purposes only.
What are the limitations to the treatises.
1. it must have proper foundation before it is admitted into evidence.

2. then and only then is it ok for a jury to hear it.
what is the rule for cross examination?
1. party had the right to cross exam
2. if the party being crossed has refuse to answer any question then the direct examination will be stricken from the records.
what is the rule for collateral matter.
1. side issue in the case
2. when asking about side issue = stuck with the answer
3. not allowed to contradict the witness on the matter.
eyewitness testifies PL describes the accident. On cross, witness said that he was present at maine and state street because he was coming home from grandmother's house. In fact he was coming from a whore house. May Df call witness to show that he was lying about where he was coming from.

why.
No-

1. this is collateral issue.
2. stuck with the answer that witness has given.
3. matter is unimportant.
Can you bolster your own witness before they are attacked?
NO-

can only do it when they are attack.
hypo:
Y testifies to material fact. there is no impeachment. G then takes the stand to tell jury that Y, the 1st witness has an excellent rep. for truth.

admissible?
No- this is bolstering while there has been not impeachment or attack on the character.
Y testifies to material fact. There is no impeachment. G takes the stand to testify that y told him the same thing months ago. Is Y prior consistent statement admissible to bolster Y testimony.
No - Gen. prior consistent statement is not allowed.

exception= Hearsay
1. consistent for identification
Hypo

1. v is mugged. shortly after V, in the presence of cops, picks df out of the line up and id mugger. 6 months later at trial df V makes in court ID as mugger. May V also testify that V pick Df out in proper conducted line up after the mugging.

2. same case instead V testifies to the ID, cop was present at the lineup and testifies that V picked df as mugger.

3. Same case: now V is confused at trial and testifies that he does not recognize df as the mugger. May the cop now testifies that V picked df at the time of line up.

4. Same case: now V doesnt testify as a witness at trial and now may cop testify to V line-up ID?
1. Yes, this prior consistent statement is for the sole reason of making an ID.

2. cop can bolster the pl ID making.

3. yes, cop was there and there is no HS here. Not a statement to be proved.

4. no, because now it would be hearsay and violation of the confrontation clause.
What is the rule for prior consistent statement.
ID witness must be present to answer the question from both parties.
what is the rule for prior inconsistent given under oath?
1. oath
2. trial
3. hearing
4. proceeding
5. deposition.
--statement is admissible for its truth.
Hypo

Pros. calls the witness to implicate the df in crime witness, however, exonerates df, May pros. use prior inconsistent written signed statement of witness impeachment
yes witness can only do this to impeach.
any diff. if prior inconsistent statement of witness was given under oath before grand jury that indicated df?
the statement that is given in a grand jury under oath will come in as substantial evidence.

but the inconsistent statement will be able to use for impeachment.
Pl sues df for damages alleging that df was speeding. at trial df testifies that at the time he was only going 15mph. Pl in rebuttal, then calls cop who testifies that df told the cop that df was going 70 over at the time of the accident.

IS the cop testimony admissible.
this is inconsistent statement.

1. can come into impeach.
2. here = HS exception + party admission.
what is the rule for evidence to come in to show bias/ interest/ motive.
evidence can come in to show such things.

however, proper foundation must be laid down first.
what is the rule for prior conviction to be used in current crime.
It can be used if

1. dishonesty or deceit ( in automatically)

2. if does not do dishonesty = can only come into impeach the person.

limitation: cant come in at all if the conviction is more than 10 yrs old.
what happens to a witness statement after impeachment.
1. can be bolsters
2. can make statement consistent.
3. can make statement admissible b/c under oath.
what is the rule for attorney client privilege.
1. confidential comm. between attorney and client.

2. made during private discussion of legal consult.

3. confidential unless waived.

-------destruction of privilege------

a. future crimes/ fraud
b. when conversation is put at issue/ client suing lawyer.
c. dispute about fees
d. joint client exception.
not privilege btwn 2 of them but there is for 3rd party.
what is the rule for doctor patient.
privilege if

1. patient seeking treatment for care
2. info must be confidential and necessary for treatment.

---waived if---
patient sues or defends by putting physical or mental condition at issue.
what is the rule for spousal immunity.
Criminal case only ( doesnt have to testify against one an other)

---the witness ( listener) holds privilege ( must be married at the time of trial) ---
what is the rule for confidential martial communication privilege.
Covers only confidential during marriage. ( both holds the privilege)

this does not apply to Intra-famiy injury cases
--assault of spouse or child, incest, child abuse--
Hypo

Wife see Husband kill person in front of 100's. She is a witness can prosecution make her take the stand.

why?

same facts but not the wife wants to testify?
can she?
1. No- spousal immunity

a. they were married at the time of trial.

2. yes- witness has the privilege.

a. the wife can testify if she wants but she can never be made to testify. ( only applies in criminal cases)
what is the rule for confidential marital communication privilege.
1. doesnt have to married at the time of the trial but communication will apply during married private communication.

2. protect only confidential info.

3. holder must be the spouse.
Hypo

1. wife wants to testify against husband in murder trial. Can he keep her off the stand.

2. can husband keep her from revealing confidential info made during their marriage.
1. no he can not keep her off the stand. the witness holds the privilege and only she can waive it.

2. yes both hold the privilege and both must agree to waive it.
what are the 3 hearsay questions.
1. is it out of court statement

2. what is precisely is the out of court statement

3. is it being offered for the truth.
when are statements not hearsay.
when the words themselves have other legal significance than what it is being used for like the truth.
Hypo:

witness seeks to testify that declarant " i accept your offer"

evidence is offered for oral k.
Admissible?
yes, to show the meeting of the mind

has other legal significance than for the truth.
Hypo:

Witness seeks to testify that declarant said to insurance agent " cancel my insurance"

Admissible.
This would be HS.

has not other legal significance but being used to show the truth of the matter.
Hypo:

witness seeks to testify that declarant said " take my car, go with it to miami." in order to prove that declarant gave permission to use his car."

admissible.
yes to show there was consent.
what are the hearsay exceptions.
1. party admission
2. former testimony
3. statement against interest.
4. dying declaration
5. excited utterance
6. present sense impression
7. business records
8. statement of existing intent.
9. present state of mind.
Hypo

police testify that vic told cop 'S mugged me' offered to show that cop had probable cause to make arrest.

Hs?
No, HS exception = effects on the listener.
Pl sues for injuries caused by fall on stair on the store. Pl calls witness to testify that 2 days before PL fell witness heard declarant tell store manager " your stairs are defective, someone is going to fall down on it."

Hs
No, had other legal significance = show store had notice.
Pl sues for wrongful discharged by employers and claims that discharged was motivated by discrimination. Employer offers in evid. 100's of letters written by customers complaining about PL. Offered to show mental state of employer.

HS.
No this was to show discrimination.

what declarant state of mind = H.S exception.
Hypo

'S' charged with murder Df is charged with insanity df testifies that on that day before the killing, he heard 'S' Say i am the pope.
Not HS.

because not offered to prove the truth but to show the df state of mind.
what is the rule for party admission.
declaration of a party offered against the party.

1. the statement need not be against the interest at the time of making it.

2. need not be based on personal knowledge

3. can be in form of legal conclusion.
what is the rule for vicarious admission:
statement by party's agent or servant concerning the matter within scope of agency/ employment/ during the relationship.
Hypo:

Negligent against Trucking co. truck driver crashes through Pl living room window and states " my brakes failed again; they failed 3 times last wk. i told my boss about it but he does nothing. Now, i'm going to miss my last delivery.

Does this statement come in?
HS
but it has an exception.
party admission ( agency theory)
what is the rule for former testimony?
To use it must be from the same party or privity.

1. person must now be unavailable to testify

2. party against whom testimony is being offered had opportunity to examine person and motive.

3. party against testimony is offered privity '' ''
Hypo:

In 1 vehicle accident, a bus leaves highway and crashes injuring passenger A+B. IN action 1, A sues the bus Co. and witness testifies. In action 2, B sues the bus Co. but witness is no longer available.

May passenger B use W's former testimony against Bus Co.
yes, because there is privity and the Bus Co. was able to cross the witness in the first case.
what is the rule for statement against interest.
1. declaration of person is unavailable.

2. against the person interest.

------limitation---------

a. expose declarant to criminal liability
b. offer in criminal case " corroborating circumstances that clearly indicate trustworthiness.
Hypo:

State Vs Saprano For murder Vic Witness testifies for Df that W heard G say " i know Saprano killed VIc."

admisible for statement against interest.
ok

1. person unavailable
2. against person interest.
3. corroborating = trustworthiness.
what is the diff. between statement against interest from admission of party?
statement against interest.

1. made against interest at time statement is made
2. statement can be made by anyone.
3. statement requires personal knowledge.
4. person making it must be unavailable.
what is the rule for dying declaration?
1. state of mind= impeding death.

2. must concern cause or circumstances of impeding death.

3. must be unavailable at the time
hypo:

V is dying stabbed in gutter. V looks up at cop and say "S did it". V promptly dies. A dying declaration?
No

1. mindset is not of death. = no

2. unavailable at time of trial =yes

3. not concerning cause or circumstances of impending death. = no
what is the rule for declaration of existing state of mind.
stating a presence of declarant thought or otherwise.
Hypo:

S is on trial for murder df pleads insanity. Df witness testifies that the eve of killing, witness heard S say " i believe i'm in the pope."

admissible.
declarant current state of mind.
what is the rule for present intent to do something in the future.
this is admissible if the person has present intent to commit a crime in the future.
Hypo:

Declarant announces " On mon. of next wk. i'm going to to meet with S" offered to prove that declarant did meet with S.

Admissible.
HS. except.

this is being offered to show present state of mind.
what is the rule for excited utterance.
1. startling event and statement.

2. made under the stress of excitement

3. concerning facts of the event.
what is the rule for present sense impression.
Description right away = no time lapse of event.
Hypo

V was killed in his apt on sunday. S is charged with his murder. Pros witness testifies on Sunday night witness called V and V said "s" is here.

admissible.
yes. under present sense impression.

description right away and there was not time lapse for the event.
what is the rule for declaration of past physical condition.
1. made to medical personnel
2. must be important to diagnosis/ treatment
( included diagnosis to be used in crt)
V is stabbed and goes to the hosp. and tells cop "i am dying, S did it" 2 days later, V is feeling much better and he tells nurse " G stabbed me. now it looks like i will survive." then V dies a week later. S is prosecuted for V murder. Officer is allowed to testify to V's dying declaration which implicates "s". In rebuttal, df calls nurse. May she testify to V statement to her that "G stabbed me"

why or why not?
Isnt the declarant, v suppose to be given an op to deny or explain the inconsistent statement.
1. not dying declaration because person didnt have right state of mind.

2. present sense
3. an can use that statement to impeach.
hypo:

V is found shot dead in his office. he had tape recorder in his hand and intruder came in and shot him. Cop came at to the scene. Played the tape " s- what are you doing here." The sound of the gun.

admissible.
1. HS but in as present sense impression.

2. record= needs foundation to be admitted into evidence.
best evidence rule.
cop testimony only come in if the tape recorder is missing and it missing can be explained.
what is the rule for business record.
1. record made at or near the time the from info. is transmitted.

2. kept in the regular course of business.

function exception-
allow to record to be substitute for in court testimony.
Hypo:

G is involved in car accident= G tells the nurse its all my fault, i was grossly negligent. Nurse records G words in the hospital. Pl also injured sues G for negl.

1. at trial can nurse testify to the record of G
statement.

2. may the record prove the statement.
test:

1. was the statement german to business record.

answer:

a. yes as administrator
b. No it is not apart of the business record ( not germane)
Hypo:

Accident at traffic light, cops arrive at the scene 30 min later. Cop does the skid-mark test.

which comes in

1. skid mark report
2. statemen of witness " S" an eye witness ran a red light.
3. statement of driver/ Driver said he ran the red light.
1. business records = comes in
2. presence sense impression = comes in
3. HS party admission= comes in.
what is rule for confrontation clause.
hearsay exception will be kept out if

1. exception is offered in criminal case

and

2. declarant is unavailable for trial

and

3. out of crt statement was testimonial ( knew that the statement will be used against them)

and

4. accused had no opportunity to cross.
Hypo:

S and G charged with murder of V and G tells police " S and I did the murder." G later pleads guilty but refuses to testify against S. In the prosecution of S seeks to testify that G told the cops that S and I did it. the out of crt statement is offered to under the statement against interest exception to HS.

The trial judge finds that statement fits the excepetion and is reliable.
--Admissible?
1. no = HS exception under criminal case w/o chance to cross.

2. declarant unavailable at the time of trial

3. out of crt statement was testimonial in nature.
Hypo:

W makes 911 calls and tell police H is trying to hurt her. In the call M identifies H as her attacker and m didnt show up at his trial.

call admissible.
1. HS

2. exception = presence acception.

3. doesnt come in because of the confrontation clause.
Hypo:

Police were called to investigate. W 1st told cop everything was ok. H was question separately by the cops and he reported that he and M argued but everything was ok now. M told the cops that H assaulted her and signed a statement to that effect. At H trial M did not testify.

May the cop testify to what M told him>
NO.
HS = exception presence impression but violates the 6th amendment right to confrontation.

1. out of crt statement.
2. declarant unavailable
3. accused had not opportunity to cross.