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126 Cards in this Set
- Front
- Back
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Summary of Evidence Law
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Material and relevant evidence is admissible if competent
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Materiality
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Exists when the proffered evidence rlates to one of the substantive legal issues in the case.
**Framed by the pleadings |
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Rule 401: Definition of Relevance
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means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
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Relevance
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Evidence that has any tendency to make a material fact more probable or less probable than it would be without the evidence
**Very low threshold **Must relate to time, event, or person in controversy (with exceptions) |
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Rule 403: Exclusion of Relevant Evidence
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Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumulative evidence. |
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Exclusion of Relevant Evidence
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Under Rule 403, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of:
-unfair prejudice -confusion of the issues -misleading jury -undue delay -waste of time -cumulative evidence |
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Exception: Certain Similar Occurrences are Relevant
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Where evidence is admissible even though it does involve some other time, some other event or some other person not directly involved in litigation
--To prove causation to admissible --Prior accidents or claims not admissible --To infer intent from prior conduct --To rebut defense of impossibility --Comparable sales to establish value --habit evidence --business routine --industrial or trade custom |
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Prior Accidents or Claims
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Plaintiff's prior accidents or claims are not admissible
EXCEPT 1) to show common plan/scheme 2) to show pre-existing injury for damages purposes **Other accidents involving the same instrumentality which occurred under the same or similar circumstances are admissible to show notice or knowledge that instrument is defective or to show dangerousness. |
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Intent or State of Mind in Issue
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To infer intent from prior conduct
**To prove the party's present motive or intent when such element are relevant |
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Rebuttal Evidence
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--to rebut a defense of impossibility
*EX. If D denies negligent speeding on the ground that his automobile could never go about 50mph P may rebut by showing that on other occasions, even under different circumstances, the vehicle was traveling at 75mph. |
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Comparable Sales to Establish Value
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Sale price of chattels/real property admissible if:
(1) Same type (2) Same time (3) Same Place/Context as what is in controversy. *Evidence of prices quoted in mere offers is not admissible because to determine the sincerity of these offers would lead to collateral dispute. |
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Habit Evidence
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Habit of a person to act in a certain way is relevant to show that person acted in the same way on the occasion in question
Contrast with character evidence which describes one's disposition in respect to general traits. |
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Rule 402: Relevant Evidence Generally Admissible
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All relevant evidence is admissible, except as otherwise provided
by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. |
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Rule 406: Habit, Routine Practice
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Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the
presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. |
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What is habit?
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Key descriptive words are (a) specificity
(b) recurrence Look for "always", "invariably" and "instinctively" |
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Business Routine
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The routine practice of an organization is admissible just like habit.
Ex. Evidence of a regular mailing procedure, such as the custom of picking up letters from a certain table and mailing them would be relevant evidence to show that a letter was duly mailed. |
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Industrial Trade or Custom
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**Admissible as non-conclusive evidence of standard of care.
Unlike business routine, this is offered to prove the actions of the other persons in the same industry in an attempt to show adherence to or deviance from industry standard of care. |
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Discretionary (Legal) Relevance
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Three areas of importance:
(1) Liability Insurance (2) Subsequent Remedial Measures (3) Settlements |
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Liability Insurance
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Not admissible to show person acted negligently or wrongfully or to show ability to pay
Exceptions: (admissible when relevant to) (a) show ownership or control (b) impeach credibility of witness by showing interest or bias |
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Subsequent Remedial Measures
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Not admissible to show negligence, culpable conduct, a defect in product, a defect in a product's design, or a need for a warning or instruction
Exceptions: admissible to show--- (a) ownership and control (b) impeachment--feasibility of precautionary measures |
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Settlements
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Not admissible to prove fault, liability, or amount of damage
This covers: -actual compromises -offers to compromise -offers to plead guilty in a criminal case -withdrawn pleas of guilty -pleas of nolo contendere **admissions 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 Limitations: For rule of exclusion to operate, there MUST be a claim and it must be disputed as to either liability or amount. |
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Offer to Pay Medicals
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NOT admissible even though it is not a settlement offer.
BUT If an admission of fact accompanies the naked offer to pay, the admission may be admitted. |
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Rule 407: Subsequent Remedial Measures
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When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction. This rule does not require the exclusion
of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. |
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Rule 408: Compromise and Offers to Compromise
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(a) Prohibited uses.—Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or
contradiction: (1) furnishing or offering or promising to furnish—or accepting or offering or promising to accept—a valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority. (b) Permitted uses.—This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness’s bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution. |
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Character Evidence: Four Preliminary Questions
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(1) Purpose of offer of character evidence
(2) Method of proving character (3) Type of case--civil or criminal (4) What trait of character is involved. |
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Purpose of Character Evidence
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(1) Character Directly in Issue
(2) Character as circumstantial evidence of person's conduct at time of litigated event (3) Character to impeach the credibility of a witness |
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Method or Technique to Prove Character
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(1) Specified Acts of Conduct
(2) Opinion (3) Reputation **All three methods may be used if character is directly an issue (ie defamation case) |
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Rule 409: Payment of Medical or Other Related Expenses
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Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible
to prove liability for the injury. |
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Rule 404: Character Evidence
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(a) Character evidence generally.—Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion,
except: (1) Character of accused.—In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution; (2) Character of alleged victim.—In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor; (3) Character of witness.—Evidence of the character of a witness, as provided in Rules 607, 608, and 609. (b) Other crimes, wrongs, or acts.—Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. |
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Character in Civil Cases
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Not admissible when offered as circumstantial evidence to infer conduct at the time of the litigated event.
**NO propensity evidence is admissible in civil cases It IS ADMISSIBLE in a civil case when the character of a person is itself a material issue in the case (such as a defamation case) **May be proven by one of the three techniques (specific acts, opinion, or reputation) |
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Character in a Criminal Case
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**Prosecution cannot initiate evidence of the bad character of the D merely to show that she is more likely to have committed the crime of which she is accused.
**Accused may introduce evidence of her good character to show her innocence of the alleged crime. *How Defendant Proves Character: (1) Reputation and Personal Opinion Testimony, (2) Testifying Places D's Credibility (not character) in Issue |
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How Prosecution Rebuts Defendant's Character Evidence
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(1) Cross Examination
(2) Testimony of Other Witnesses as to D's Bad Reputation |
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Victim Character
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A defendant 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: (1) bringing in good evidence 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 D. |
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Victim Character--Sexual Misconduct Cases
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Defense evidence of the alleged victim's sexual history is limited as follows:
(1) No opinion or reputation (2) Specific instances of sexual behavior of the alleged victim are admissible only: --if offered to prove that 3rd party was source of semen, injury, or other physical evidence --to show prior acts of consensual intercourse between alleged victim and the accused --if exclusion would violate constituational rights of the accused **In civil cases, sexual behavior of victim is only admissible if probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party |
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Rule 404(b): Prior Bad Acts
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The basic rule is that when a person is charged with one crime, extrinsic evidence of other crimes or misconduct is inadmissible if such evidence is offered solely to establish a criminal disposition.
BUT Prior crimes may be admitted at the initiative of the prosecution when the misconduct is relevant to prove a material fact other than character or disposition It would be admissible if relevant to show: Motive Opportunity Intent Preparation Plan Knowledge Identity Absence of Mistake/Accident **No special timing as to when this "other bad acts" evidence may be admitted. |
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Special Rule for Cases Involving Sexual Assault and Child Molestation.
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**Prior Similar Acts Allowed to Show Propensity
Under FRE 413, 414, 415, in civil or criminal cases charged Defendant with sexual assault or child molestation, the Defendant's Prior Acts of sexual assault or child molestation may be shown by prosecution or plaintiff. **MS has not adopted FRE 413, 414, 415---this is accomplished through case law. |
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Rule 405: Methods for Proving Character
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(a) Reputation or opinion.—In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable
into relevant specific instances of conduct. (b) Specific instances of conduct.—In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct. |
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Rule 903: Requirement of Authentication
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The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. |
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Methods of Authentication
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Direct Evidence in the Form of:
(1) Admission (2) Eyewitness Testimony (3) Handwriting Proof [by lay witness, expert witness, or jury comparison] Circumstantial Evidence in the form of: (1) Ancient Document Rule (2) Solicited Reply Doctrine |
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Ancient Document Rule
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(1) 20+ years
(2) Regular on its face (3) Found in a place of natural custody |
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Solicited Reply Doctrine
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Proof that disputed document came in response to prior communication
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Self-Authenticating Documents
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Certain writings may be admitted without a foundation or testimonial sponsorship
(a) Certified Copies of Public or Business Records (b) Official Publications (c) Newspapers and Periodicals (d) Trade Inscriptions or Labels (e) Acknowledged Documents (f) Signatures on Certain Commerical Documents |
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Photographs
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Are admissible only if identified by a witness as a portrayal of certain facts relevant to the issue adn verified by the witness as a correct representation of those facts.
**Not necessary to call the photographer to authenticate the photograph |
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Rule 1002: Best Evidence Rule
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To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.
**Requires that a party seeking to prove the content of a writing must either (1) produce the original document OR (2) account for the absence of the original **IF absence is reasonable, then a foundation has been laid for secondary evidence. Applies to: ---legally operative documents ---witness sole knowledge based on a document Does NOT apply to: ---Facts independent of the writing ---Collateral Documents |
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Modifications to Best Evidence Rule
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a) Public records: can submit certified copies
b) Voluminous documents: summaries, charts, or calculations are admissible in place of originals as long as originals would be admissible and are accessible to opposing parties c) Duplicates: admissible to the extent of the original unless there is a genuine question raised about authenticity or it would be unfair to admit. |
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Competency of Witnesses
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Personal Oath and Knowledge
**Perception **Memory **Communication **Sincerity |
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Witnesses' Common Law Disqualifications Abandoned
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-Lack of Religious Beliefs
-Infancy -Mental Incompetency -Prior Convictions -Interest |
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Dead Man Acts
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State Dead Man acts operate to disqualify witnesses in federal cases where state law provides the rule of decision.
**An interest survivor cannot testify for his interest against the decedent or decedent's representatives about communications or transactions with the decedent in a civil case unless there is a waiver Must have (1) Interested Witness (2) Testifying for Interest (3) Testifying against the dead person (4) Must be about transaction with decedent (5) Not in a criminal case (6) Can be a waiver **MS has no Dead Man Acts |
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Witness Spousal Competence
MS Rules of Evidence 601(a) |
In all instances where one spouse is party, the other spouse shall not be competent as a witness without the consent of both.
Exceptions: (1) Controversies between Spouses (2) Criminal Proceedings of either spouse in acts against a child |
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Forms of Examining a Witness: Objectionable
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Narrative
Leading Misleading/Compound Argumentative |
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Leading Questions Permitted:
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(1) Cross Examination
(2) Preliminary Questions (3) Witness Assistance (4) Adverse Party |
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Witness Use of Writings in Aid of Testimony
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Usually cannot read testimony from previously prepared document but may use a writing in aid of oral testimony in two situations
(1) refreshing recollection (2) recorded recollection |
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Refreshing Recollection
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When witness' memory fails, anything can be used to jog the memory of the witness.
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Recorded Recollection
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If witness is unable to remember all or part of the details of a transaction about which she once had personal knowledge, her own writing shown to be reliable may be admitted in place of her testimony
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Foundation for Recorded Recollection
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(1) Witness once had knowledge
(2) Made or adopted by a witness under her direction (3) Timely made (4) Accurate (5) Witness had insufficient recollection **Writing is admitted by being read into evidence |
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Lay Opinion Testimony
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Admissible if:
(1) Rationally based on the perception of the witness (2) Helpful to the trier of fact (3) Not based on scientific, technical, or other specialized knowledge |
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Situations Where Lay Opinion is Available
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-General Appearance or Condition of a Person
-State of Emotion -Matters Involving Sense Recognition -Voice/Handwriting Identification -Speed of Moving Object -Value of Own Services -Rational/Irrational Nature of Another's Conduct (Sanity) -Intoxication |
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Expert Opinion Testimony: Basic Requirements
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1) Subject Matter must be appropriate
2) Qualified 3) Reasonable certainty about opinion 4) Factual basis |
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Expert Opinion: Appropriate Subject Matter
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Opinion must assist the trier of fact
MUST be (conditions to admissibility): 1) Reliable 2) Relevant Must convince the judge by a preponderance of the evidence that these conditions have been met. |
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Expert Qualifications
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-Must have special knowledge, skill, experience, training or education sufficient to qualify him as an expert on the subjec tot which testimony relates.
Need not be formal or academic. |
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Lay Opinion Testimony
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Admissible if:
(1) Rationally based on the perception of the witness (2) Helpful to the trier of fact (3) Not based on scientific, technical, or other specialized knowledge |
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Situations Where Lay Opinion is Available
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-General Appearance or Condition of a Person
-State of Emotion -Matters Involving Sense Recognition -Voice/Handwriting Identification -Speed of Moving Object -Value of Own Services -Rational/Irrational Nature of Another's Conduct (Sanity) -Intoxication |
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Expert Opinion Testimony: Basic Requirements
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1) Subject Matter must be appropriate
2) Qualified 3) Reasonable certainty about opinion 4) Factual basis |
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Expert Opinion: Appropriate Subject Matter
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Opinion must assist the trier of fact
MUST be (conditions to admissibility): 1) Reliable 2) Relevant Must convince the judge by a preponderance of the evidence that these conditions have been met. |
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Expert Qualifications
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-Must have special knowledge, skill, experience, training or education sufficient to qualify him as an expert on the subjec tot which testimony relates.
Need not be formal or academic. |
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Expert Opinion: Supporting Facts
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Opinion must be supported by proper factual basis.
Must be either: (1) Within personal knowledge of expert OR (2) Facts could be supplied in court by evidence or hypothetical OR (3) Facts (not in personal knowledge or in evidence) are common for that field **May encompass an ultimate issue to be decided by the trier of fact. (Except Fed Rules forbids in criminal case from mental state or condition) |
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Expert Opinion: Learned Treatise
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Expert may be cross examined concerning statements contained in any scientific publication as long as the publication is established as reliable authority.
May be established as reliable by: (1) Direct Testimony or Cross of the Expert (2) Testimony of Another Expert (3) Judicial Notice |
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Expert Limitations
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**Expert must testify (at trial or deposition) unless judge takes judicial notice
**Treatise is admitted by beind read to the jury. Text itself is not received as evidence. |
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Cross-Examination
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-Party has an absolute right to cross a witness who testifies (if witness refuses to be crossed, direct is stricken)
-Scope: should not exceed the scope of direct examination (this is not limited to subject matter of direct) |
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Cross Examination: Collateral Matters Doctrine
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Impeachment by contradiction of the witness is limited. Cross examiner is boudn by teh answers given by teh witness as to collateral matters.
**No extrinsic evidence is allowed to contradict a witness as to a collateral matter. |
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Impeachment: Accrediting/Bolstering
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Party may not bolster or accredit the testimony of his witness until the witness has been impeached
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Exceptions to Impeachment
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(1) Timely Complaint
(2) Prior Identification Statment |
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Impeachment Methods
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Through Cross Examination or Extrinsic Evidence:
(1) Prior Inconsistent Statements (2) Bias or Interest (3) Conviction of a Crime (4) Specific Bad Acts (5) Opinion/Reputation Evidence for Truthfulness (6) Sensory Deficiencies |
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Impeachment of Own Witness
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A party may impeach its own witness
LIMIT: A party cannot call a witness for the primary purpose of impeaching the witness. Sometimes used to get otherwise inadmissible evidence before the jury |
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US v. Hogan
"Hogan Rule" |
**Followed in MS
"The prosecution, . . . may not call a witness it knows to be hostile for the primary purpose of eliciting otherwise inadmissible impeachment testimony, for such a scheme merely serves as a subterfuge to avoid the hearsay rule." |
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Two Pertinent Questions to Impeachment Techniques
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(1) May you use extrinsic evidence to impeach?
(2) What foundation must lay to cross examine? |
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Impeachment: Prior Inconsistent Statements
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The credibility of a witness may be impeached by showing that on some prior occasion the witness made a statement different from and inconsistent with a material portion of the witness' present in-court statement.
MS: party must show surprise or unexpected hostility. --Admissible only to impeach, not for truth--unless given under oath. --Extrinsic evidence is admissible to prove. --Foundation: must give witness opportunity to explain |
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Impeachment: Bias, Interest, and Motive
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May be shown by extrinsic evidence after a foundation is laid by inquiry on cross examination of the target witness
**No evidence may be admitted to show that witness was justified in his bias. |
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Impeachment: Conviction of Crime
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**Must be an actual conviction of a crime
(1) Crimes Involving Dishonesty [must readily be able to establish the elements of the crime required dishonesty] (2) Felony not involving dishonesty is admissible to impeach in the discretion of the court **Misdemeanors are not admissible to impeach if they do not involve dishonesty ***Felony convictions are admissible if the court determines that the probative value outweighs the prejudicial value. **If not involving dishonesty, must be less than 10 years. **Extrinsic evidnece admissible, no foundation necessary. |
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Impeachment: Specific Bad Acts
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**Witness may be interrogated upon cross with respect to any immoral, vicious, or criminal act that may affect his character and show him unworthy of belief. Must be probative of truthfulness.
**No extrinsic evidence permitted **Must inquire in good faith. |
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Impeachment: Reputation/Opinion for Truth and Veracity
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**May ask other witnesses about general reputation for truth and veracity in the community in which she lives.
OR Do not allow the impeaching witness to state her opinion as to the character of a witness for truth and veracity. |
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Impeachment Rehabilitation
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**good reputation for truth may be shown in impeachment involved a character attack
**prior consistent statement to rebut an express or implied charge of recent fabrication or improper influence or motive **explanation on redirect examination |
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Testimonial Privilege: Attorney/Client Privilege
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Confidential communcations between atty and client made during professional legal consultation are privileged from disclosure unlessw waived by the client or representative of the deceased.
Elements: (1) Correct Party (2) Confidential Communication (3) Professional legal relationship |
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Exceptions to the A/C Privilege
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(a) Future Crime or Fraud
(b) At issue exception [when a client affirmatively puts communication in issue] (c) Disputes between the parties to the professional relationship (d) joint client exception [where 2+ parties communciate with atty about matter of common interest] (e) document attested by a lawyer |
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Limitations on Waiver of Privilege
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Waiver relating to something covered by the A/C privilege (or work related product) extends to an undisclosed communication only if:
(a) waiver is intentional (b) disclosed/undisclosed communications or info concern the same subject matter (c) must be considered together in fairness The disclosure does not operate as a waiver if: (a) disclosure is inadvertent (b) holder of privilege or protection took reasonable steps to prevent disclosure (c) holder promptly took reasonable steps to rectify the error |
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Physician/Patient Privilege
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Non-disclosure of confidential information acquired by the physician/psychotherapists [extended in MS to pschologists and persons reasonably believed to practice medicine]
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 MS Exceptions: (1) Proceedings for hospitalizations (2) Examinations by order of the court (3) Child Custody or related cases |
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Waiver of Doctor/Patient Privilege
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Waived if patient sues or defends by putting physical or mental condition in issue
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Spousal Privileges
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There are TWO:
(1) Spousal Immunity Privileges [doesn't have to testify] (2) Confidential Marital Communications Privilege **Neither applies to intra-family injury case |
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Spousal Immunity Privilege
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**One spouse can't be forced to give adverse testimony against the other in a criminal case
Requirements: (1) Valid marriage at the time of trial (2) Protects against any and all testimony Witness Spouse is the holder of the privilege, not the party spouse. |
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Confidential Marital Communications Privilege
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Spouse 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: (1) Married, not necessarily at time of trial but at time of protected communication (2) Protects only confidences not all testimony BOTH spouses hold the privilege. **Privilege outlasts the marriage **Applies to civil and criminal cases |
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Hearsay
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Out of court statement offered for the purpose of establishing the truth of the matter asserted.
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Application of Hearsay
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(1) Is it an out of court statement? [can be verbal, written, oral assertion of a fact, nonverbal conduct]
(2) What precisely is the out of court statement? (3) Is it being offered for the purpose of establishing its truth? |
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Specific Non-Hearsay Situations
(not being offered for truth) |
(1) Verbal Acts or Legally Operative Language [words spoken or written have relevant legal significance]
(2) Out of court statement offered not for its truth but to show its effect on the person who heard or read the statement (3) Out of court statement offered-not for truth-but as circumstantial evidence of declarant's state of mind (4) Out of court statement by witness testifying at the trial or hearing offered to impeach the witness |
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Non-Hearsay
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(1) Prior Statements by Witnesses
(2) Admissions by Party Opponent |
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Non-Hearsay: Prior Statements by Witnesses
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Certain statements by a person who testifies at the trial or hearing and is subject to cross examination about the statements are not hearsay.
(a) Prior Inconsistent Statement (b) Prior Consistent Statement (c) Prior Statement of Identification |
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Non-Hearsay: Admissions by Party Opponent
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**Statement made or act done that amounts to a prior acknowledgement by one of the parties to an action of one of the relevant facts.
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Admissions by Party Opponent
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**Need not be against interest at time of making statement
**Need not based on personal knowledge **Can be in form of legal conclusion |
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Vicarious Admission
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Statement by the party's agent or servant concerning a matter within scope of the agnecy or employment made during existence of the relationship
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Major Exceptions/Exclusions to the Hearsay Rule
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(a) Admission of Party
(b) Former Testimony (requires unavailability) (c) Statement Against Interest (requires unavailability) (d) Dying Declaration (requires unavailability) (e) Spontaneous Statements -Present state of mind at issue -State of existing intent to prove intended act -Excited utterance -Present sense impression -Declaration of present physical condition -Declaration of past physical condition (f) Business Records |
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Former Testimony
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Testimony given in earlier proceeding by person now available is admissible if
(i) party against whom testimony is offered had, during earlier proceeding, an opportunity to examine that person and motive to conduct exam was similar to the motiv it has now OR (ii) in civil case, party againt whom testimony is offered was in privity with a party to earlier proceeding who had opportunity and similar motive to examine (1) Must have had meaningful opportunity for cross AND (2) Unavailability of declarant |
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Unavailability
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(1) Exempted by privilege
(2) Refusal to testify (3) Fails to remember (4) Sick/Dead (5) Proponent of statement cannot procure declarant's attendance by process or other reasonable means MS: in case of a child, because of the substantial likelihood that hte emotional or psychological health of the witness would be substantially impaired if the |
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Statement Against Interest
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Declaration of a person, now unavailable as a witness, against that persons' pecuniary, proprietary, or penal interest (or statement which would expose declarant to civil liablity or which would tend to defeat a civil claim by declarant) at the time the statement was made.
Limit: A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless, "corroborating circumstances clerely indicate the trustworthiness of the statement" |
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Distinguish between Statement Against Interest from Admission of a Party
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**Statement against interest must be against interest at the time
**Statement against interest may be made by any person not necessarily by a party **Statement against interest requires personal knowledge **Statement against interest requires unavailability |
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Dying Declaration
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Statement made under a sense of impending death
**In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of the impending death Requirements: (1) State of Mind (2) Declarant need not die but must be unavailable at time of trial (3) Must be homicide or civil case (4) Must concern cause or circumstances of impending death |
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Spontaneous Statements
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Exceptions where unavailabilty is NOT required because the law regards prior statement as being at least as reliable as present in court testimony
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Excited Utterance
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Statement relating to startling event or condition is admissible when made while declarant was still under stress of excitement caused by event or condition.
Requirements: (1) Startling event (2) Made under stress of excitement (3) Concerns the facts of the startling event **Look at nature of event and time lapse and language of excitement. |
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Present Sense Impression
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Statement describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter.
**Unnecessary to have startling event or excitement **MUST have almost precise contemporaneous--no appreciable time lapse |
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Declaration of Present Pain, Suffering, or Physical Condition
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A declaration of then existing physical or mental condition is admissible to show the condition
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Statement for Purposes of Diagnosis or Treatment
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State made for purposes of diagnosis or treatment and describing medical history or past symptoms or the general character of the cause or external source of the symptoms insofar as reasonably pertinent to diagnosis or treatment.
Requirement: (1) Made to medical personnel [MS: medical to include emotional and mental health] (2) Pertinent to either diagnosis or treatment |
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Admissions
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Statement need not have been against interest at the time it was made
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Adoptive Admissions
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Party may expressly or impliedly adopt someone else's statement as his own, thus giving rise to an "adoptive" admission
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Silence As an Admission
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If a party fails to response to accusatory statements where a reasonable person would have spoke up, his silence may be considered an implied admission.
Requirements: (1) Party must have heard and understood the statement (2) Party must have been physically and mentally capable of denyiing the statement (3) Reasonable person would have denied the accusation under teh same circumstances |
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Vicarious Admissions
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(1) Co-Parties: NOT receivable against other parties
(2) Authorized Spokesperson: ADMISSIBLE (3) Agent: Admissible if during the existence of employment relationship (4) Partners: with scope of partnership is ADMISSIBLE against other partners (5) Co-Conspirators: in furtherance of a crime or civil wrong is ADMISSIBLE. Testimonial admissions of a conspirator are admissible against another is ADMISSIBLE if opportunity to cross. |
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Statements of Personal or Family History
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Admissible under an exception to hearsay rule.
**Statements need not have been made before controversy **Usually must have been made by a family member **Personal Knowledge required |
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Preliminary Questions of Fact Upon Which Admissibility Depends
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Preliminary Questions concerning the qualification of a person to be a witness, the existence of privilege, or the admissibility of evidence shall be determined by the court.
*BUT in making its determination it is not boudn by the rules of evidence |
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Impeachment of the Hearsay Declarant
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When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked by any evidence which would be admissible for that purpose if declarant had testified as a live witness
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Business Records
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Records made at or near the time by, or form information transmitted by, a person with knowledge are admissible if kept in the regular course of business and if it was the regular course of business to make the record unless the source of info or circumstances of prep indicate a lack of trustworthiness.
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Multiple Hearsay Problem
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If the entry is germane to the business so that business records exception ordinarily applies BUT if the record includes a statement made by someone outside the business, this becomes an issue.
Reconsider the rationale: employees are under a duty to be accurate in reporting, observing, and recording. |
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Present Recollection Revived
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Witnesses are permitted to refresh their memories by looking at almost anything--either before or while testifying.
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Past Recollection Recorded
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If the witness' memory cannot be revived, a party may wish to introduce a memo that the witness made at or near the time of the event.
Use of the writing to prove the facts contained therein raises a hearsay problem |
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Official Records and other Official Writings
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Records, reports, statements, or data compilations, in any form, of a public office or agency are admissible to the extent that they set forth
(1) Activities of the office or agency (2) Matters observed pursuant to a duty imposed by law (excluding police observations in criminal case) OR (3) In civil actions and proceedings and against the government in criminal cases, facutal findings (including opinions and conclusions) resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. |
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Public Records Admissibility
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(1) Duty to Record
(2) Entry NEar Time of Event (3) Trustworthiness |
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Types of Public Records
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-Records of Vital Statistics
-Statement of Absence of Public Record -Judgments |
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Sixth Amendment Right of Confrontation
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Even though an out of court statement qualifies as an exception to the rule against hearsay, the accused's 6th Amendment right of confrontation may render the statement inadmissible when it is offered against the accused in a criminal case.
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Crawford v. Washington
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Out of court statements, even if they fit a hearsay exception, will not be admissible if:
(1) the out of court statement is offered against the accused in a criminal case AND (2) the out of court state was testimonial UNLESS the declarant was unvailable AND UNLESS accused had an opportunity to cross-examine the declarant's "testimonial" statement when it was made; OR UNLESS prosecution demonstrates that the D has forfeited his Confrontation Clause objection by wrongdoing that prevented the declarant from testifying at trial. |
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"Testimonial"
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A hearsay statement is testimonial if declarant makes a statement expecting it to be used in the prosecution or investigation of the crime
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