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Evidence Law
System of rules and standards by which the admission of proof at the trial of a lawsuit is regulated.

The material facts in the controversy are determined by proof that is filtered through the applicable rules of evidence:
-- testimony
-- writings
-- physical objects
-- and anything else presented to the senses of the jury.
Sources of Evidence Law
Federal Rules of Evidence
State Distinctions and some common law rules.
Federal Rules of Evidence
Applicable in all civil and criminal cases in the United States courts of appeal, district cases, Court of Claims, and in proceedings before United States magistrates.
Threshold Admissibility Issues
Shorthand summary of evidence law:

Material and Relevant evidence is admissible if competent.
Materiality
The proposition to be proved - materiality exists when the proffered evidence relates to one of the substantive legal issues in the case.

Key questions -
What issue is the evidence being offered to rove?

Is that legal issue material to the substantive cause of action or defense in the case?

Evidence is immaterial if the proposition for which it is offered as proof is not a legal issue in the case.
Relevance
Evidence that has ANY tendency to make a material fact more or less probable than it would be without the evidence. [Probative evidence contributes to proving or disproving a material issue.]

Very low threshold.
Competence
Evidence is competent is it does not violate an exclusionary rule.

Exclusionary Rules that prevent admissibility of relevant and material evidence are based on policies related to truth seeking policies external to litigation.
Evidence Classifications
(1) Direct (actual knowledge) or Circumstantial (Inference)
(2) Testimonial, Documentary, or Real
Limited Admissibility
(1) Admissible for One Purpose but Not Another
(2) Admissible Against One Party But Not Another
(3) Jury Must be Properly Instructed
Relevance
2 Types:
(1) Logical Relevance
(2) Discretionary, Pragmatic or Policy-Based Relevance
Logical Relevant Evidence
Evidence that has ANY tendency to make a material fact more or less probable than it would be without the evidence (FRE 401). Very Low Threshold.

Evidence may NOT be logically relevant (may be TOO REMOTE) if evidence involves some other
(1) Time
(2) Event
(3) Person
than one involved directly in litigation.

So general rule - must relate to time, event, or person in controversy Except - Certain Similar Occurrences are relevant.
Recurring Relevance Patterns - Similar Occurrences (Logical Relevance Exceptions to Time, Event, and Person)
(1) Causation
(2) Prior Accidents or Claims
(3) Intent or State of Mind in Issue
(4) Rebuttal Evidence
(5) Comparable Sales to Establish Value
(6) Habit Evidence
(7) Business Routine
(8) Industrial or Trade Custom
Causation
To prove cause and effect

Complicated issues of causation may often be established by evidence that concerns other times, events, or persons.

Hypo: P eats at D's restaurant and gets sick. P offers evidence that OTHERS who ate same type food at same time at same restaurant also got sick. Admissible? YES
Prior Accidents or Claims (Prior False Claims or Same Bodily Injury)
General Rule - P's prior accidents or claims not admissible EXCEPT
(1) to show common scheme/plan
(2) to show pre-existing injury for damages purposes.

Hypo: P seeks to show that in the last year six other drivers drove into the same bridge abutment involved in the case. Admissible? YES

General Rule - Other accidents involving the same instrumentality which occurred under the same or similar circumstances ARE admissible:
(1) to show notice or knowledge on part of D that instrument was defective
(2) to show dangerousness
Intent or State of Mind in Issue
To infer intent from prior conduct.

When a person's intent is relevant, lots of other things become admissible that otherwise would not be.

Hypo: P sues claiming pattern of gender discrimination in hiring. D employer denies intent to discriminate and claims that absence of women employees is because no women applicants were qualified. P offers to show that other well-qualified women were denied employment. Admissible? YES because it shows discriminatory intent of D employer.
Rebuttal Evidence
To Rebut Defense of Impossibility

Hypo: P ingests mouse while drinking coke and sues D Bottler. Bottler defends on ground that it is impossible for mouse to get into Cola. P offers evidence of ANOTHER recent incident in which a mouse was found in Cola. Admissible? YES
Comparable Sales to Establish Value
Sales price of other chattels or parcels of real property admissible IF:
(1) Same kind/description
(2) Same time
(3) Same place/context
Habit Evidence
Habit of person to act in certain way is RELEVANT to show that person acted in the same way on the occasion in question. However, if:
-Disposition Evidence (to be careful or careless), then INADMISSIABLE;
-Prior Bad Act Evidence, then INADMISSIBLE, but if
-Habit Evidence, then ADMISSIBLE.

What is habit evidence (to distinguish from just plain character evidence)? Question of degree.

Key words:
(1) Specificity and
(2) Recurrence

"unconscious or invariable routine"

Clues:
Always
Instinctively
Automatic
(versus just merely occasionally or sometimes)
Business Routine
The routine practice of an organization is admissible just like habit.
Industrial or Trade Custom
Admissible as non-conclusive evidence of standard of care.
(Some evidence but doesn't win case)

Might help to ask whether opposite would be admissible.
Discretionary or Policy-Based Relevance
Under Rule 403, even relevant evidence may be excluded if its "probative value is substantially outweighed by the danger of":
(1) Unfair Prejudice
(2) Confusion of issues
(3) Misleading Jury
(4) Undue Delay
(5) Waste of Time
(6) Cumulative Evidence

NOTE - does not mention unfair surprise.

Both Federal and Mississippi Rules make clear they FAVOR the admissibility of relevant evidence.
Discretionary Policy-Based Evidence Exceptions
The areas of importance are:
Liability Insurance
Subsequent Remedial Measures
Settlements
Liability Insurance
General rule - Liability insurance not admissible to show person acted negligently or wrongfully or to show ability to pay. DO NOT PUSH ENVELOPE - DO NOT EVEN TRY TO BRING INSURANCE IN!!!

Exceptions - admissible when RELEVANT to
(1) show ownership or control, or
(2) impeach credibility of witness by showing interest or bias.
Subsequent Remedial Measures
Generally not admissible to show negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. PERMITTED TO PUSH ENVELOPE AND TRY TO GET IT IN - NO SHAME.

Exceptions - Admissible to show
(1) ownership and control
(2) impeachment - feasibility of precautionary measures.
Settlements
Not admissible to prove fault, liability, or amount of damage. DO NOT TRY.

A broad rule of exclusion that covers:
-acutal compromises
-offers to compromise
-offers to plead guilty in a criminal case
-withdrawn pleas of guilty
-please of nolo contendere (no contest)

Admissisions of fact, liability, or damage made in course of offer to compromise a claim disputed as to liability or as to amount are NOT admissible.

For rule of exclusion to operate -
(1) There must be "a claim"
(2) The claim must be disputed as to either liability or amount
(3) An offer to pay medical expenses is NOT admissible even though it is not a settlement offer. BUT if an admission of fact accompanies a naked offer to pay hospital or medical expenses, the admission may be admitted.

NOTE - The federal BUT NOT MISSISSIPPI rule does NOT prohibit (it allows) the introduction in a criminal case of statements or conduct (as opposed to offers to settle) made during compromise negotiations regarding a civil dispute by a gov't regulatory agency or enforcement agence (means time spent before FDA is admissible in criminal case).
Withdrawn Guilty Please and Offers to Plead Guilty NOT ADMISSIBLE
Protection may be validly waived.
Character Evidence - Special Problem in Relevance
The law of evidence disfavors the use of character evidence. It is thought unfair to attempt to prove someone acted in a particular way because had a certain character to so act. Character evidence also is thought to involve a trial in a host of collateral side issues. So generally character evidence is inadmissible.

4 Preliminary Questions:
(1) PURPOSE of offer of character evidence;
(2) METHOD of proving character;
(3) TYPE of case - civil or criminal; and
(4) what TRAIT of character is involved.
Purpose
What is Purpose of Offer of Character Evidence? (3)
(1) Character directly in issue - person's character is a material element in the case. Very Rare, usually involves proof of injury in a defamation case.

(2) Character as circumstantial evidence of person's conduct at time of litigated event. (Character evidence to prove conduct in conformity with character on occasion in issue.) - called PROPENSITY EVIDENCE.

(3) Character to impeach the credibility of a witness (i.e., bad character for truthfulness to impeach the credibility of a witness who testifies at trial).
Method
What method or technique to prove character? Possibilities are:
(1) Specific acts of conduct
(2) Opinion
(3) Reputation

All 3 may be used if character is directly an issues, such as in defamation case.

The first method - specific act - CANNOT be used if character evidence is being used to prove action in conformity (propensity).

Only specific act evidence may be used if evidence is offered under Rule 404(b) - Prior Bad Act.
Type
Civil or Criminal?
Trait
What Trait of Character? It must be the SPECIFIC trait which is substantively at issue in the case.
Character in CIVIL Cases
(a) Character evidence is NOT ADMISSIBLE when offered as circumstantial evidence to infer conduct at the time of the litigated event. In other words - NO PROPENSITY EVIDENCE IN CIVIL CASES.

(b) Character evidence IS ADMISSIBLE in a civil case when the character of a person (party) is itself a material issue in the case - character directly in issue, such as defamation case.

METHOD - If character is directly in issue and therefore admissible, it may be proved by any one of the specific techniques (specific acts, opinion, and reputation).
Character in CRIMINAL
Basic Rules (2):

(1) Bad character, whether in the form of specific acts of prior misconduct, prior crimes or convictions, bad opinion or bad reputation, is NOT ADMISSIBLE at the initiative of the prosecution if the SOLE PURPOSE is to show criminal disposition in order to infer guilt from disposition

UNLESS and UNTIL

(2) The accused is permitted to offer evidence of GOOD character for the pertinent trait in the form of reputation and opinion to show disposition in order to infer innocence. ONLY THEN may the prosecution respond by showing the bad character of the accused.

(3) After the accused offers evidence of good character, the prosecution may respond BY INQUIRY on cross-examination of the accused's good character witness about any SPECIFIC ACTS which would tarnish the accused's reputation or which would affect the opinion of the witness. CANNOT CALL WITNESSES TO TESTIFY THAT SPECIFIC BAD ACTS OCCURRED - CAN JUST ASK.

(4) After the accused offers evidence of good character the prosecution may also respond by calling prosecution witnesses to testify to BAD OPINIONS or BAD REPUTATION in regard to the character of the accused.
Victim Character - Generally
A D in a criminal case may take the initiative and start the "character battle" by introducing opinion or reputation evidence of the victim's "bad character" for a pertinent trait to establish the D's innocence. When a D opts to bring in "bad" propensity evidence of the victim, then the prosecution may rebut this evidence by: (2 things)
(1) bringing in "good" reputation or opinion evidence on this trait for the victim, or by
(2) UNDER THE FEDERAL RULES bringing in "bad" reputation or opinion evidence on this same trait for the defendant. (NOT MS)

In MS, the prosecution may generally introduce evidence of peacefulness of the victim to rebut any evidence that the victim was the first aggressor. Unlike federal practice, MS does NTO limit such rebuttal to homicide cases.
Victim Character - Sexual MIsconduct Cases
"Rape Shield Rule"

In a criminal case alleging sexual misconduct, defense evidence of the alleged VICTIM's sexual history (usually to prove consent) is limited as follows:
(1) No opinion or reputation;
(2) Specific instances of sexual behavior of the alleged victim are admissible ONLY:
(a) if offered to prove that the 3rd party was source of semen, injury or other physical evidence (the wrong person defense)
(b) to show prior acts of consensual intercourse between alleged victim and the accused (the consent defense), or
(c) if exclusion would violate constitutional rights of the accused (catch-all).

In CIVIL cases alleging sexual misconduct, evidence of the sexual disposition or behavior of the alleged victim is admissible ONLY if probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party. REVERSES 403 BALANCE TEST.

In MS, the probative value of the evidence, in BOTH civil and criminal cases, just outweigh the danger of unfair prejudice. Notice how this changes the standard burden found in rule 403.

In addition, in order for the alleged victim's sexual behavior to be admissible under these limited exceptions, the DEFENSE must give NOTICE and an IN CAMERA hearing must be held (before evidence is ever sent to jury).
Rule 404(b) - Prior Bad Acts
Used in civil cases, too - but often most confusing when applying against criminal cases.

Other crimes or prior acts of misconduct by the D are NOT admissible during the prosecution's case-in-chief if the only purpose is to prove criminal disposition, i.e. if offered to show that because of D's bad character he likely committed the crime currently charged.

BUT

Prior crimes or prior acts of misconduct MAY BE ADMITTED at the initiative of the prosecution WHEN the misconduct is relevant to prove a material fact OTHER than character or disposition (i.e. to prove some relevant issue separate and distinct/apart from bad character.

Therefore, although prior accused misconduct is NOT ADMISSIBLE to show criminal disposition (unless the accused first offers good character evidence), it would be admissible if relevant to show motive, opportunity, intent, preparation, plan, knowledge, idenity or absence of mistake or accident. (no time limit)

MIMIC Rule - evidence relevant to show these things may be excluded if trial judge believes that probative value is substantially outweighed by danger of unfair prejudice.
Motive
Intent
Mistake, absence of
Identity, and
Common Plan or Scheme

NOTE - this evidence is established through specific acts - NOT by reputation or opinion evidence. In other words, treated just like any other type of relevant evidence.

In MS - objection to other crimes evidence is to be treated as a motion for the court to conduct Rule 403 balancing test and, if evidence admitted, for the court to give a limiting instruction.
Special Rule for Cases involving Sexual Assault and Child Molestation - Prior Bad Acts ALLOWED to show PROPENSITY
Under FRE 413, 414, and 415, in civil and criminal cases charging D with sexual assault or child molestation, the D's prior acts of sexual assault or child molestation may be shown by prosecution or plaintiff.

NOTE - MS has not adopted these rules but does something similar through case law.
WRITINGS
General Rule of Authentication - a writing is NOT ADMISSIBLE until it has been authenticated.
- a foundation must be laid showing that the writing is what it purports to be (that it is genuine.
-writings are not self authenticating.
-testimonial foundation required.
Methods of Authentication
(1) Direct Evidence
(2) Circumstantial Evidence
(3) Quantum of Proof
(4) Self-Authenticating Documents
(5) Authentication of Photographs
Authentication of Direct Evidence
in the form of
(1) Admission
(2) Eyewitness Testimony
(3) Handwriting Proof
-- Lay Witness (cannot give opinion and must be familiar with handwriting BEFORE litigation)
-- Expert Witness
-- Jury Comparison
Authentication of Circumstantial Evidence
in the form of:
(1) Ancient Document Rule (ex: birth records)
- 20 or more years
- regular on its face
- found in a place of natural custody

(2) Solicited Reply Doctrine - proof that the disputed document came in response to prior communication.
Quantum of Proof
How much evidence is necessary to lay proper foundation?

not necessary for judge to be convinced by preponderance of evidence - admissible and jury can determine weight.
Self-Authenticating Documents
General Rule - documents are not self-authenticating. BUT certain docs may be admitted without a foundation or testimonial sponsorship.

(1) Certified Copies of Public or Business Records (cer cop of mtg)
(2) Official Publications (like SS brochure)
(3) Newspapers and periodicals
(4) Trade Inscriptions or Labels (Label on can of peas)
(5) Acknowledged Documents (2 sigs better than one - swear under oath and notarized)
(6) Signatures on Certain Commercial Documents (as provided by UCC)
Authenticated Photographs
How do you authenticate a photograph?

Generally, any witness familiar with the scene can testify that it is fair and accurate representation of the scene.

Surveillance Cameras more complicated - must make sure foundation laid that it was working properly, time stamp, camera and film handled in proper manner, etc.
Best Evidence Rule
Requires that party seeking to prove CONTENT OF WRITING (includes films, photos, x-rays, and recordings) must EITHER:

(1) PRODUCE the original OR

(2) EXPLAIN/account for the absence of the original.

If the explanation for absence is reasonable, then a foundation has been laid for secondary evidence. Either a copy or oral testimony may be admitted to prove the CONTENT of the original.
Best Evidence Rule APPLIES to
(1) Legally operative documents

or

(2) Witness' SOLE knowledge comes from document
Best Evidence Rule DOES NOT apply to
(1) Facts independent of the writing,

(2) Collateral Documents (minor importance).
Modifications of Best Evidence Rule
(1) Public Records - certified copies admissible in place of originals

(2) Voluminous Documents - If originals are too voluminous to be produced in court, summaries, charts, or calculations are admissible in place of originals AS LONG AS
- originals would be admissible if offered and
- originals are made accessible to opposing party

(3) Duplicates - in place of originals, duplicate admissible to same extent as the original UNLESS
- a genuine question is raised about authenticity of the original
- it would be unfair to admit the duplicate in lieu of the original.

MS - before a sound or similar recording may be admitted into evidence, the proponent must establish a 7 part case law test.
7 part MS Test for admitting Sound or Similar Recording:
(1) that the recording device was capable of taking testimony;
(2) the operator was competent;
(3) the recording is authentic and correct;
(4) there have been no changes, additions, or deletions;
(5) the manner of preservation;
(6) the identify of the speaker (KEY); and
(7) that the tape was voluntarily made.
WITNESSES AND TESTIMONIAL EVIDENCE
Competency component - generally, witnesses must have personal knowledge in order to testify.
Personal Knowledge and Oath
Perception
Memory
Communication
Sincerity (Oath or affirmation)
Common Law Disqualifications for testifying (which have been ABOLISHED)
WRONG ANSWERS

Lack of Religious Belief
Infancy (case-by-case)
Mental Incompetency (case-by-case)
Prior Convictions
Interest
Dead Man Acts
Typical Statute - an interested survivor cannot testify for his interest against the decedant or dec's reps about communications/transactions with the decedent in a civil case unless there is a waiver.

ONLY applies in fed court where state court has statute - MS abolished.
Spousal Competence (MS)
In MS, Rule 601(a) provides that "in all instances where one spouse is a party, the other spouse SHALL NOT be competent as a witness without the consent of both."

Two Exceptions:
(1) Controversies between spouses (like divorce)
(2) Criminal proceedings of either spouse for
- criminal act against any child
- contributing to the neglect or delinquency of a child
- desertion or nonsupport of a child under 16
- abandonment of a child
- assault against spouse (judge made)
Appraisers in Eminent Domain Case (MS)
MS law also provides that a person appointed by a court as required by law to make an appraisal in an eminent domain proceeding for the IMMEDIATE POSSESSION of land shall NOT be eligible to testify at trial. Report of appraiser likewise inadmissible.
Form of Examination of Witnesses
(1) Objectionable Questions
(2) Witness Use of Writings in Aid of Testimony
Objectionable Questions
(1) Narrative - too broad ("Tell us everything relevant that happened on that day.")

(2) Leading ("Isn't it true that the sound you heard was like a pistol shot or was it otherwise?")
EXCEPTIONS: (4)
- CROSS
- PRELIMINARY
- WITNESS ASSISTANCE (minors)
- ADVERSE PARTY

(4) Misleading or Compound or Argumentative ("Have you stopped beating your spouse?")
Witness Use of Writings in Aid of Testimony
Basic Rule: Witness usually cannot read testimony from previously prepared document BUT MAY use a writing in aid of oral testimony in two situations:

(1) Refreshing Recollection, and
(2) Recorded Recollection
Refreshing Recollection
When witness memory fails, anything can be used to job the memory of the witness.

NOTE - if used to refresh, defense counsel may see the document, use it in cross-examination, and can show to the jury to see what was read, BUT CANNOT introduce into evidence (side using to refresh can't either). Jury cannot use it as proof.
Recorded Recollection
If witness is unable to remember all or part of the details of a transaction about which she once had personal knowledge, her writing shown to be reliable may be admitted in place of her testimony.

(1) Foundation for recorded recollection REQUIRES a showing that:
- witness once had knowledge
- it was made or adopted by witness
- made timely
- accurate when made
- necessity

(2) Writing is admitted by being read into evidence (read to jury - hearsay but admissible)
List 2 types of Opinion Testimony
(1) Lay Opinion and
(2) Expert Opinion
Lay Opinion
Admissible IF:

(a) Rationally based on the perception of the witness and

(b) Helpful to the trier of fact.
Expert Opinion
4 Basic Requirements:
(1) Appropriate Subject Matter
(2) Witness Qualified in Subject Matter
(3) Expert must possess reasonable certainty or probability regarding the opinion, and
(4) Supported by proper factual basis.
"Appropriate Subject Matter"
Means the opinion must "assist" the trier of fact.
(1) Methodology must be reliable and
(2) the opinion must be relevant ("fit" the facts of the case).

Reliability and relevance (fit) are conditions to admissibility. That means that the proponent must convince the trial judge by a preponderance of the evidence that these conditions have been met.

In MS, recent amendments to Rule 702 and recent cases have stressed the judge's role as "gatekeeper" in excluding unreliable and irrelevant expert testimony.
Qualifications
need not be formal or academic

can be based on experience

In MS L can give expert opinion on law.
Expert must possess reasonable certainty or probability regarding the opinion.
Include following language in answer: "within a reasonable degree of medical or scientific certainty"
Opinion must be supported by a proper factual basis.
Facts supporting the opinion must be either:

(1) Within personal knowledge of expert

or

(2) Facts supplied in court through hypothetical

or

(3) Facts, though not within #1 or #2, are of the type experts reasonably rely on in field.
Opinion on Ultimate Issue
Opinons may encompass an ultimate issue - one that is to be decided by the trier of fact. However, Federal Rule 704 (but not MS rule) forbids an expert in a criminal case from stating an opinion as to whether the defendant did or did not have the mental state or condition constituting an element of the crime or a defense thereto. (John Hinkley Rule)
Learned Treatise
Special rule for use - special way of introducing expert testimony (book as substitute)

Basic rule = a learned text, treatise or article concerning a relevant discipline is admissible as an exception to the rule against hearsay if established as reliable by
(1) reliance by your expert on direct examination,
(2) admission on cross-examination of your opposing expert,
(3) testimony of any expert, or
(4) judicial notice.

Then, treatise is admitted by being read to the jury. Text itself is not received as evidence.
Credibility and Impeachment - Cross Examination
Party has absolute right to cross-examine a witness who testifies live. [Witness can refuse to answer cross but direct must be stricken - 6th amendment constitutional issue]

Scope of cross-examination
- Federal: scope of cross should not exceed scope of cross
- MS: 611(b) expressly provides that cross shall NOT be limited to subject matter of direct. Follows the English Rule of "wide open" cross.

Collateral Matters Doctrine - Impeachment by contradition of witness is limited. Cross is bound by witness' answers. No extrinsic evidence is allowed to contradict a witness as to a collateral matter.
- Extrinsic evidence is anything other than court questions (no other witnesses or documents)
- Collateral means evidence that is relevant ONLY to show contradiction. It is otherwise irrelevant to and inadmissible in the case.
Credibility and Impeachment Rules
Focus is on only ONE issue - the credibility of the witness (whether witness is lying).
Accrediting Your Own Witness
No bolstering own witness unless there has first been an appropriate impeachment.
Prior Consistent Statement (Cross-Examination, Impeachment)
Prior consistent statement would be admissible is the state is one of IDENTIFICATION.

Rule - a prior out-of-court statement of identification that was made by a party witness who testifies at trial is excluded from the definition of hearsay and, therefore may be admitted. (Line-up Rule)
Impeaching Own Witness
A party may impeach its own witness.

Limitation - a party cannot call a witness for the PRIMARY purpose of impeaching the witness. This is sometimes used to try to get otherwise inadmissible evidence before the jury. (US v. Hogan)
Impeaching Adversary's Witness
5 Basic Techniques:
(1) Prior Inconsistent Statement
(2) Showing Bias, Interest, or Motive
(3) Prior Convictions
(4) Specific Acts of Lying or Deceit
(5) Reputation for Truth and Veracity (rare)

3-5 character attacks
Two relevant questions to each impeachment technique:
(1) May you use extrinsic evidence to prove?

(2) What foundation must you lay before cross?
Prior Inconsistent Statements
Impeaching Adversary Technique

The credibility of a witness may be impeached by showing that on some prior occasion the witness made a state different from and inconsistent with a material portion of the witness' present in-court statement.
- In MS, before a party may introduce an UNSWORN inconsistent statement made by party's own witness, the party must show surprise or unexpected hostility.

(1) Generally admissible only to impeach - not for its truth - not affirmative or substantive evidence.

(2) BUT if the prior inconsistent statement was given under oath AND at trial, hearing or other proceeding or in a deposition, such as statement is admissible for its truth. [for this, includes grand jury b/c sworn statement in a legal proceeding]

(3) Extrinsic evidence is admissible to prove the prior inconsistent statement (not collateral).

(4) Foundation - Before using the extrinsic evidence, witness should generally be afforded an opportunity to explain.

(5) Prior Inconsistent Statement of a Party qualifies as and ADMISSION.
Admission (nonhearsay)
Any words out of any human party opponent is an admission and admissible for its truth. (nonhearsay)
Bias, Interest, Motive
May be shown by extrinsic evidence after a foundation is laid by inquiry on cross of the target witness. In MS, rule 616 expressly provides that "evidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible."

Always relevant, never collateral. Can always show.
Prior Convictions
are usable to impeach IF the conviction is for the proper kind of crime.

(1) Crimini Falsi - Under Rule 609(a)(2), any crime (felony or misdemeanor) if it involves dishonesty ("deceit") or false statement. E.g., fraud, larceny by trick, embezzlement, perjury, forgery, false pretenses, credit card fraud, but NOT robbery or ordinary larceny b/c no deceit or false statement. NO DISCRETION TO EXCLUDE - automatic, no 403 balancing test needed. [Amendments to the rule make clear that this rule only applies if it can readily be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by witness.

or

(2) Under 609(a)(1), any felony (punishable by more than one year) not involving dishonesty or false statement is admissible to impeach in the discretion of the court.
- admissible subject to Rule 403. Only admissible against an accused (and in MS against any party) if the probative value outweighs the prejudicial effect (backwards).

(3) Convictions cannot be too remote - general guideline is 10 year - inadmissible even if it is crime of dishonesty or false statement. *10 years from later of date of conviction or date of release from confinement.

In MS a defendant who objects to evidence of a prior conviction the court finds admissible in a definitive ruling (such as motion in limine) DOES NOT waive or forfeit a claim of error by first offering the evidence).

- Extrinsic Evidence is admissible and no foundation necessary.
Specific Acts
Specific Acts of deceit or lying may be asked about in cross.

(1) Technique - Ask direct question "Did you do it?"

(2) Good faith required.

(3) Act inquired about MUST involve deceit or lying. [find out in pretrial generally - resumes, applications, etc.]

(4) NO extrinsic evidence permitted. Limited to cross only.
Bad Reputation or opinion for Truth and Veracity
Look up notes.
Rehabilitation After Impeachment
(1) Good reputation for Truth
(2) Prior Consistent Statement
Good Reputation for Truth (rehabilitation)
may be shown if impeachment involved a character attack (prior conviction; act of deceit/lying; bad reputation/opinion for truth).
Prior Consistent Statement (rehabilitation)
to rebut an express or implied charge of recent fabrication or improper influence or motive.
- NOT usually to rebut charge of prior inconsistent statement
- must be pre-motive statement (happened before motive to fabricate arose)
- admissible for its truth (Exception to Hearsay)
Privileges
(1) Attorney/Client
(2) Physician/Patient
(3) Husband/Wife
(4) Priest/Penitent (Parishioner)
Attorney/Client Privilege
Definition - (1) Confidential communications (2) between attorney and client (3) made during professional legal consultation are privileged from disclosure unless waived by the client or the representative of the deceased client (privilege survives death).
A-C Elements
(1) The right parties - Attorney (or representative) and Client (or representative)

(2) "Confidential Communication" - not physical evidence or existing documents

(3) "Professional legal relationship" - meaning
(a) intent by client to establish a professional legal relationship (retainer negotiations are covered/first visit) and
(b) predominantly legal advice must be sought (just running into L not enough).
A-C Exceptions
Situations where privilege does NOT apply (first 3 apply across the board to every type of privilege):

(1) Future crime or fraud

(2) At issue exception - when client or patient affirmatively puts communication at issue

(3) Disputes between the parties to the professional relationship (actions for fees or malpractice)

(4) Joint client exception - where 2 or more parties communicate with attorney about a matter of common interest. NO privilege between them.

(5) Document attested by a lawyer - where lawyer is an attesting witness.
New Federal Rule - Limits on Waiver
Waiver relating to something covered by the A/C privilege (or work-product protection) extends to an UNDISCLOSED communication ONLY if:
- the waiver is intentional
- the disclosed and undisclosed communications or information concern the same subject matter, AND
- they ought in fairness to be considered together.

The disclosure does NOT operate as a waiver in a federal or state proceeding IF
- the disclosure is inadvertant;
- the holder of the privilege or protection took reasonable steps to prevent disclosure; and
- the holder promptly took reasonable steps to rectify the error.

A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court - in which event the disclosure is also not a waiver in any other federal or state proceeding.
Physician/Psychotherapist-Patient Privilege
Definition - The patient has a privilege against disclosure of confidential information acquired by the physician/psychotherapist in a professional relationship entered into for the purpose of obtaining treatment.

MS Law - extends the privilege to psychologists and to persons "reasonably believed by the patient to be authorized to practice medicine."
Doctor-Patient Key Elements
(1) Patient must be seeking treatment

(2) Information acquired must be confidential and necessary to facilitate professional treatment, including information acquired from members of the patient's family and in group therapy.
Doc-patient Exceptions under Mississippi Law
(1) Proceedings for Hospitalization - under MS law, there is NO privilege in a proceeding to hospitalize the patient for mental illness IF the physician or psychotherapist has determined that the patient is in need of hospitalization [actions under the Baker Act - involuntary committal of family member]

(2) Examination by Order of the Court - under MS law, no privilege if and to the extent the court orders an examination of the patient.

(3) Child Custody and Related Cases - Under MS law, there is NO privilege if the information is relevant to child custody, visitation, adoption, or termination of parental rights.
- In addition, after a hearing in chambers, court may order the release of relevant medical, mental health, or other records. In determining whether records are relevant, court should consider 5 factors:

(a) treatment was recent enough to be relevant

(b) there is independent evidence of impairment

(c) other evidence is available

(d) court-ordered evaluations would be adequate, and

(e) the severity of the disorder.
Doc-patient Waiver
Waiver is common especially b/c of Patient Litigation Exception. Privilege is waived if patient sues or defends by putting physical or mental condition in issue, for example in a personal injury action.
Husband-Wife Privileges
Dual Privileges - there are two spousal privileges with different rationales. They are:

(a) Spousal Immunity Privilege and

(b) Confidential Marital Communications Privilege

Neither applies to intra-family injury case (assault of spouse or child, incest, child abuse)
Spousal Immunity Privilege
Definition - One spouse cannot be forced to give adverse testimony against the other in a criminal case.

Requirements:
(1) Valid marriage at time of TRIAL.
(2) Protects against any and all testimony.
(3) Holder of privilege is witness spouse, not party spouse.
(4) Applies ONLY in criminal cases.
Confidential Marital Communications Privilege
Definition - A husband or a wife shall not be required or, without the consent of the other, shall not be allowed to disclose a confidential communication made by one to the other during the marriage.

Requirements (and differences from Spousal Immunity Privilege) -
(1) Married not necessarily at time of trial but at time of protected communication (this privilege outlasts the marriage).

(2) Protects ONLY confidences, not all testimony.

(3) Holder of privilege is either spouse, not just witness spouse. - Both must agree to waive.

(4)Privilege applies to civil and criminal cases.

Exceptions - Under MS law, by Rule there is not privilege (1) in actions between the spouses, (2) where one spouse is charged with a crime against any minor child, or (3) where one spouse is charged with a crime against the person or property of the other spouse or other members of the household.
Priest-Penitent Privilege
Definition - A "clergyman" is a minister, priest, rabbi, or other similar functionary of a church, religious organization, or religious denomination.

A communication is confidential if made privately and NOT intended for further disclosure except in furtherance of the purpose of the communication.

Scope - A clergyman's secretary, stenographer, or clerk shall not be excamined without the consent of the clergyman concerning ANY fact, the knowledge of which was acquired in such capacity.
Applicability of State Law in Federal Court
Three situations in which state evidence law will apply in federal court IF state substantive law applies (as in typical diversity case) - with respect to an element of a claim or defnse as to which state law applies the rule of decision:
(1) Presumptions and burdens of proof
(2) Competency of Witnesses,
(3) Privileges
Federal Privilege Law in Federal Question or in Federal Criminal Cases
"shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience."