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90 Cards in this Set

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Hearsay definition
Any out of court statement by a person, which is offered to prove the truth of what it asserts.
A hearsay statement encompasses three areas....
a) Oral Assertions
b) Written assertions
c) Assertive conduct
Difference between assertive and NON assertive conduct
Assertive conduct is subject to the hearsay Rule

Non-Assertive conduct is not subject to the hearsay rule
What is assertive conduct (definition) ?
Any out of court conduct by a person intended as a substitute for words.
Examples of Assertive conduct
1) pointing a finger in a direction 2) shaking head as in yes or no 3) use of sign language 4) raising a hand in class 5( re-enactment of a crime/accident, etc.
What is non-assertive conduct?
Conduct by a person which is NOT intended to communicate a message and is not subject to the hearsay rule.
Examples of non-assertive conduct
1) Person observed limping down the street 2) Declarant observed hiding from the police 3) Declarant hides or destroys evidence or intoxicated, etc.
Test to determine whether the conduct is assertive or non-assertive?
Was the conduct of the declarant intended or not intended to assert/communicate some message, fact or opinion?
Can a statement made for the first time at trial be hearsay?
No, a statement made for the first time at trial cannot be hearsay because there is no out of court statement.
What happens if the statement is offered for something other than to prove the truth of the statement?
Then, it cannot be hearsay.
Out of court statements that are NOT hearsay
Remember the CAPPP Rule

1) Co-conspirator statements
2) Admissions by a party opponent
3) Prior inconsistent statements
4) Prior consistent statements by a witness
5) Prior identification of a person
(Kansas: All of the above are exceptions to the hearsay rule)
Burden of proof in co-conspirator statements and requirements
Preponderance of the evidence
Requirements:
(1) the conspiracy existed
(2) the declarant was a member of the conspiracy
(3) the person against whom the statement is made was also a member of the conspiracy
(4) the statement was made during the existence of the conspiracy and
(5) the statement was made in furtherance of the conspiracy.
An Admission is admissible under the rules if...
1) the statement is made by a party to the lawsuit, and
2) is offered in evidence by the opponent party
Forms of Admission
1) Personal Admission
2) Adoptive admissions
3) Silence, if the party heard and understood the accusation or damaging statement and a reasonable person would have denied.
4) Agency-Type of Admissions
5 Vicarious Admissions
Requirements for a prior inconsistent statement
It has to be under oath. If under oath, then it's not hearsay and is admissible as substantive evidence.

Kansas does NOT require it to be under oath to be admissible as substantive evidence and is an exception to the hearsay rule.
What is a prior consistent statement?
It's a prior consistent statement by a testifying witness which is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

Kansas: Exception to the hearsay rule.
What is a prior identification of a person?
Prior identifications are most often offered in criminal cases where the victim or eyewitness to a crime has, after the crime, identified the defendant in a lineup or photo array.
2 important rules in prior identification cases
1) if the declarant DOES NOT testify at trial or refuses to answer any questions on cross, a 3rd party may NOT testify to declarant's prior ID.

2) If the victim does testify at trial, but is unable to "recall" the prior ID or denies ever picking a defendant at a line up, then any other witness MAY testify to declarant's prior ID.
What is the res gestae rule?
KANSAS RULE: Statements offered to explain a witness's actions or the conduct of another person or put events in sequence or place other statement in context are not hearsay.
If a witness testifies to his own out of court statements, are the witness's statements subject to the hearsay rule?
Yes, as not made under oath and was not subject to cross.

So it's admissible ONLY if there is a hearsay exception or is excluded from the hearsay rule. Also remember it has to be offered by a party opponent.
EXCEPTIONS TO THE HEARSAY RULE: What is a present sense impression?
Statement by a declarant which explains some event while the event is occurring, or description made immediately thereafter.

Kansas rule does not include "immediately thereafter."
EXCEPTIONS TO THE HEARSAY RULE: What is an excited utterance?
A startling event is required.

(1) Personal knowledge by the declarant of event which (2) causes stress on speaker who makes a (3) spontaneous statement which (4) relates to the exciting event while (5) speaker is still in a state of stress/shock.

statement 30 mins after accident - OK
statement by victim 1/5 hrs after a rape - ok
statement after a car accident "OMG I don't have a will ! -not ok, not related to accident
EXCEPTIONS TO THE HEARSAY RULE:
What is a statement of declarant's present state (then) state of mind?
A statement of declarant's then existing: PEM
1) Physical condition
2) Emotional condition
3) Mental condition (admissible hearsay if declarant's state of mind is relevant)
EXCEPTIONS TO THE HEARSAY RULE:
Joint statements of present (then) existing state of mind
X's statement that he intends to do an act with Y is admissible as evidence of both Xs and Ys subsequent conduct, specially if corroborated.
What is the Hillman doctrine?
Declarant's state of mind to show subsequent conduct by declarant to show intent, plan, design

Example: statement by murder victim two weeks before she was murdered, that she intended to end her relationship with defendant.
Is declarant's statement based on memory or belief admissible under the declarant's present state of mind?
No, because it is not trustworthy

Example: Declarant's statement that he believed defendant had embezzled money from the firm
Is the victim's state of mind admissible in homicide trials?
Usually not admissible, unless the acussed raises the issue of (1) suicide (2) accident.

Example: Victim's statement that she was afraid of D is admissible to rebut Ds claim that V committed suicide.
What is the will exception under the declarant's state of exception to the hearsay rule?
A statement by a testator that relates to the execution, revocation, ID, or terms of his will is admissible hearsay, even though it's based on memory or belief.

Example: "Yesterday, I revoked my will. Now my husband will get nothing"
EXCEPTIONS TO THE HEARSAY RULE: What is a state of the body?
A statement by a patient or another person to a medical person describing the (1) medical history (2) past or present symptomps (3) pain or sensations, or (4) the origin or cause of the condition is admissible hearsay provided the statement is relevant to either DIAGNOSIS or TREATMENT.

This exception does NOT include statements by a doctor or other medical personnel to a patient; nor statements between medical personnel.

KANSAS RULE: statements made to a physician for trial purposes are not admissible; only admissible if for treatment.
EXCEPTIONS TO THE HEARSAY RULE:
Describe the past recorded recollection
The testifying witness has a "present" memory problems and all reasonable attempts to refresh his memory have failed.
The witness previously wrote or adopted a statement, describing the matter while it was fresh in his memory.
Only the contents is read to the jury but it doesn't come into evidence unless is introduced by the opposing party.

Kansas: The writing is admissible as an exhibit.
EXCEPTIONS TO THE HEARSAY RULE:
Describe the business records exception
Business records that are KRAP

1) Kept in the regular course of business
2)Routine Record (regular practice of business)
3) At or near (entry contemporaneously recorded)
4) Personal knowledge by person making it with duty to record (but he didn't need to be employed at the time the rec. was made)
EXCEPTIONS TO THE HEARSAY RULE: Business Records Authenticated Methods
1) Custodian or qualified witness testifies
2) Written Affidavit filed by custodian
3)Stipulation by adverse party that records are authentic
EXCEPTIONS TO THE HEARSAY RULE: Absence of Business Records or Public Records
Custodian or qualified witness testifies that:
1) all records of this type are routinely recorded, and
2) a diligent search of the recs failed to disclose that the particular event occurred.
EXCEPTIONS TO THE HEARSAY RULE:
Public records and reports exception
The public record exception covers a wide variety of records produced by the government employees where there is a duty to record and report.

No need to prove the public record was routinely made or made near the event recorded
EXCEPTIONS TO THE HEARSAY RULE:
3 Categories of public records admissible under the hearsay exception
1) Activities of the agency

2) Matters Observed by Public Employee where a duty to observe and report exists

3) Factual findings in govt. reports in civil cases unless not trustworthy. BUT, in criminal cases, stuff observed by police officers is NOT admissible against the accused but is admissible against the prosecution.
EXCEPTIONS TO THE HEARSAY RULE:
Foundation requirements for the public records exception
1) Document is authenticated
2) Within 1 of the 3 categories allowed
3) A certified copy is self-authenticated
EXCEPTIONS TO THE HEARSAY RULE:
The Family records exception includes...
Statements of pedigree contained in family records, writings in family bibles, geneology, portraits, engraving on urns, tombstones, etc. Broad exception considered trustworthy.
EXCEPTIONS TO THE HEARSAY RULE: What is the market reports and commercial publications exception?
Statements in published tabulations, lists, directories, market quotations that are generally used and relied upon by the public or by persons in particular trades or occupations. i.e. phone book, blue book, etc.
EXCEPTIONS TO THE HEARSAY RULE: The Learned Treatises Exception includes...
Statements contained in an authoritative, reliable, published work in the field of MASH
1) Medicine 2) Art 3) Science 4) History
Can be used if the statement is used during the examination of an expert witness and it's authenticated.
Only the contents is admissible and may be read to the jury but not as an exhibit.
Kansas: allows as an exhibit
EXCEPTIONS TO THE HEARSAY RULE: Ways to authenticate a learned treatise
1) Reliance by expert
2) Admission by the expert that the text is reliable
3) Other experts say it's reliable
4) Judicial Notice by the court
5) Stipulation
HEARSAY EXCEPTIONS WHERE THE DECLARANT MUST BE UNAVAILABLE TO TESTIFY: When is a declarant is unavailable ?
Remember P R I S M

Privilege
Refuses to testify (KS NO)
Incapacitated, dead, sick (KS: witness disqualified)
Subpoena (KS if depo could have been taken, witness is not unavailable)
Memory: Lack thereof (KS NO)

If the proponent of hearsay wrongfully causes the declarant to be unavailable then the exception does not apply. Burden on proponent.
EXCEPTIONS TO THE HEARSAY RULE: Foundation requirements for the former testimony exception
1) Prior testimony at trial or proceeding
2) Under oath (KS in civil cases admissible even against one who was not a party to the earlier action if a prior party had a similar motive to examine the witness)
3) Opportunity to examine W at earlier hearing or depo
4) Party against whom the former testimony is now given had a similar motive to examine as the earlier party
4) W is presently UNAVAILABLE to testify
EXCEPTIONS TO THE HEARSAY RULE:Can a former grand-jury testimony by a prosecution witness be used in a criminal trial against the accused?
No, it cannot be used against the accused as former testimony.
EXCEPTIONS TO THE HEARSAY RULE:Foundation requirements for the dying declaration
Statements under belief of impending death
Remember C U B A

1) Cause of death: statement must relate to the cause of death
2)Unavailable (PRISM rule)death not required in civil cases
3) Belief of impending death
4) Admissible in ALL civil cases, but only admissible in homicide cases
EXCEPTIONS TO THE HEARSAY RULE: Kansas rules as to dying declarations
1) admissible in civil or crim
2) no need to relate only be relevant
3) declarant must be aware of impending death
3) declarant abandoned all hope of recovery
4) statement was voluntarily and in good faith
5) Declarant is dead
EXCEPTIONS TO THE HEARSAY RULE: Foudation requirements for Statements against interest
A statement of a non-party declarant may be admissible if:
1) statement is contrary to his financial or property interest or his civil or criminal interest
2) A reasonable person would not make such statement unless he thought it was true
3) declarant is unavailable to testify (KS: declarant need not be unavailable)
EXCEPTIONS TO THE HEARSAY RULE:Special rule in criminal prosecutions when statements against interest are used
If the accused offers a statement against declarant's penal interest, and it is offered to prove the innocence of the accused, additional evidence of corroborating circumstances must exist which clearly indicate the trustworthiness of the statment
EXCEPTIONS TO THE HEARSAY RULE:What are the 4 hearsay exceptions when the declarant must be unavailable to testify?
SFPD (San Francisco Police Dept)
1) Statement against interest
2) Former testimony
3) Pedigree
4) Dying declarations
EXCEPTIONS TO THE HEARSAY RULE:Forfeiture by wrongdoing rule
If a party wrongly intended to make a declarant unavailable, a hearsay statement by the declarant may be admissible, even if it is usually barred by hearsay.
EXCEPTIONS TO THE HEARSAY RULE: Is hearsay within hearsay admitted?
Multiple hearsay is admissible if each statement conforms to a hearsay exception (or is not hearsay)
EXCEPTIONS TO THE HEARSAY RULE: What is the residual or catch all exception?
An out of court statement not covered by the other exceptions but having equivalent guarantees of trustworthiness may be admissible hearsay. This one is very rare.

KS: does not have it, but has something similar called recent perception: a statement by an unavail declarant when the matter was recently perceived and while the recollection was clear and in good faith with no intent to falsify, is admissible hearsay. This one is a wrong answer on the MBE.
AUTHENTICATION: Authentication problems arise whenever a party offers into evidence 4 things, what are they?
1) Demonstrative evidence (things or objects to help the jury understand what's going on)
2) Real evidence
3) Documentary evidence (writings, x rays, tapes, etc)
4) Voice ID (phone conversations)
AUTHENTICATION: How much evidence is required to authenticate an item?
Only sufficient evidence for a reasonable juror to find the item is genuine (authentic). Once the jury finds it's genuine, the judge must admit the evidence.
AUTHENTICATION: How do you authenticate demonstrative evidence?
1) W has to be substantially familiar with the item
2) Exhibit "fairly and accurately" represent the scene shown
3) The exhibit will help assist the jury
4) Exhibit is not prejudicial, confuse or mislead the jury, waste time.
AUTHENTICATION: What is real evidence?
Tangible evidence: physical evidence with a real connection to the case.

Weapons, drugs, clothing, blood, fingerprints, hair fibers, etc.
AUTHENTICATION: When is real evidence admissible?
Real Evidence is admissible if it's:
1) relevant, and
2) properly authenticated
AUTHENTICATION: How do you authenticate a writing?
1) Witness admits he is the author
2) Eye-witness testifies she saw the author writing it
3) Opinion by lay witness if he was familiar with person's writing before trial
4) Opinion by expert
5) Jury can compare samples
6) Ancient document (i) 20 yrs or older KS 30 yrs (ii) found in proper place (iii) not suspicious on its face
7) Reply doctrine: writing in response to a communication sent to the author.
8) Circumstancial proof -catch all
AUTHENTICATION: How to authenticate a person's voice?
1) Direct evidence: W says "I recognize the person's voice because I heard it before the trial date"
2) Circumstancial evidence: (i) W recognizes voice (ii) speaker has knowledge of specific facts only known by a particular speaker (iii) W dialed speakers # and speaker answered and ID himself (iv) W looked up # in phone book, and speaker referred to matters relating to business
AUTHENTICATION: What are self authenticating documents?
Documents that are sufficiently reliable on their face as to be self-authenticating, so that no foundation witness is necessary to prove they're genuine.
AUTHENTICATION: Types of self-authenticating documents
Remember: CONTAC
1) Certified copy of public rec
2) Official or govt publications
3) Newspapers and periodicals
4) Trade inscriptions: any label or tag on a product
5) Acknowledged docs: notarized docts (but a notarized affidavit may be inadmissible because of hearsay)
6) Commercial paper (negot. inst. bill of lading)
BEST EVIDENCE RULE:
What is the best evidence rule?
If a party seeks to prove the contents of a writing, recording, photo, the original writing must be produced unless the proponent has a good excuse for its non-production.
BEST EVIDENCE RULE: What does it mean to prove the terms/contents of a writing?
If a writing itself creates or destroys a legal relationship the BER applies. The writing has independent legal significance: where legal rights, duties or consequences arise directly from a writing.
BEST EVIDENCE RULE: Examples of legally operative documents
Divorce decree, will, contract, deed, mortgage, lease, driver's license, written libel, book in copyright action, movie/film in obscenity action written consent to search for or Miranda Waiver
BEST EVIDENCE RULE: Can a witness testify as to something he read?
Maybe, where the personal knowledge of the witness is based solely on the contents of the writing (no independent personal knowledge), the best evidence rule will apply and cannot testify unless:
1) The original is produced, or
2) a good excuse is given for not producing it.

E.g. police officer discovers drug diary of D during lawful search. The officer may testify that he found the diary but not to its contents, unless he produces the original or give an excuse.
BEST EVIDENCE RULE: What is the independent source rule?
Refers to when a fact to be proved has an independent source from a writing. Since the fact occurred regardless of the writing, the BER doesn't apply.

e.g. Birth cert. not required to prove that a birth occurred ;sales receipt not required to prove goods or services were paid for; marriage cert. death cert. etc.
BEST EVIDENCE RULE: May a witness testify that "I remember paying the bill" or is the receipt required under the BER?
She can testify, the receipt is not required. But if she wants to testify "My records show that I paid the bill" then the records will be required.
BEST EVIDENCE RULE: What constitutes a writing, recording or photograph under the BER?
Writings and recordings are broadly defined and include every tangible process for recording words, pictures or sounds and also includes letters, words or numbers.
BEST EVIDENCE RULE: What is the Silent Witness Rule?
Most of the time photos or videos are only used to help the jury as to what happened, not to prove their contents (demonstrative evidence). Sometimes, however, they're used as substantive evidence to prove their contents -'silent witness."
BEST EVIDENCE RULE: What constitutes an original writing?
The writing or recording itself or any counterpoint intended to have the same effect is an original. There can be multiple originals.

3 substitutes for an original:
1) Copies are admissible unless there's a genuine question as to their accuracy.
2) Certified copy of public record (remember hearsay exception and satisfies BER and it's self-authenticating)
3) Summaries of voluminous records, usually business records.
BEST EVIDENCE RULE: What are the three foundation requirements for summaries of records?
1) original recs. (or duplicates) would be admissible hearsay if offered into evidence.
2) opponent party has reasonable pretrial access to originals.
3) summaries properly authenticated by person who prepared summaries.
BEST EVIDENCE RULE: What are the exceptions where the content of a writing can be proved without producing the original or duplicate?
Remember L O C S

1) Lost
2) Opponent party has original and refuses to deliver it to opposing party
3) Collateral purpose
4) Subpoena

Once there is a good excuse, any type of secondary evidence is now admissible to prove its contents.
BEST EVIDENCE RULE: Does the best evidence rule apply to chattels bearing inscriptions?
Not addressed by federal rules. Majority rule, BER doesn't apply, not required to produce chattel in court if impractical, authenticated picture OK.
PRIVILEGES: What are the 4 types of privileges?
1) Constitutional Privileges
2) Statutory privileges dr.-patient, victim-counselor, etc.
3) Common law privileges -atty-client, husband-wife
4) Court created: exec. privilege (president).

Privileges can be subdivided in 2 groups: 1) confidential communications (most important for bar purposes) 2) non-confidential (informant's privilege)
PRIVILEGE: What are the five problems involved in confidential privileges?
1) Is there a privileged relationship (recognized by law)
2) Was there a confidential communication related to the privilege
3) Did the holder of the privilege properly assert is?
4) Did the holder of the privilege waive the privilege?
4) Do any recognized exceptions to the privilege apply?
PRIVILEGES: How can a confidential information be privileged?
Oral, written or by conduct. But observations are not privileged.
PRIVILEGE: Who may assert a confidential privilege?
Only the holder of the privilege. The attorney or psychotherapist may assert is only on behalf of the client-patient.

Privileged communication SURVIVE the death of the client or patient and may be asserted by the executor.
PRIVILEGE: When is a privilege waived?
a) Failure to assert the privilege in a timely manner

b) Voluntary disclosure by the holder, except when it's disclosed to the spouse or priest.
PRIVILEGE: Are there exceptions to the privileged communications?
Yes

Attorney-Client:
1) crime-fraud exception
2) breach of duty between atty and client (malpractice, non-payment by client)
4) Joint-clients

Psycotherapist - patient
1) crime-fraud
2) court-ordered exams
3) patient places her mental condition at issue
4) duty to report (child abuse), etc.
PRIVILEGE: What are the 2 types of marital privileges in Kansas?
1) testimonial privilege in any civil or criminal action; can be invoked by any spouse; communications during marriage; termination of marriage ends privilege; the communicating spouse cannot be compelled to testify about the confidential communications and may prevent the other one from doing so.

2) Confidential marital communications: an accused/criminal defendant may prevent his spouse from testifying about any confidential communications that occurred during the marriage, whether or not they're still married, except:
a) the D is charged with a crime against the other spouse or has deserted the spouse
b) Is charged with a crime against their property or child of either spouse.
c) Accused first offers evidence of other confidential communications.
PRIVILEGE: What is the rule for communications during dispute resolutions in Kansas?
Communications between a party and a mediator are confidential. Except:
1) info that a mediator is required to report by law or court order
2) information needed in an action against the mediator
3) info needed to prevent a crime-fraud
4) threats of physical violence by the holder of the privilege against a member of his family, the mediator or a court employee.
PRIVILEGE: Is there a physician-patient privilege in Kansas?
Yes, confidential communications between a physician and a patient are privileged in (1) civil cases (2) misdemeanor prosecutions except vehicular battery and DUIs.

Exceptions:
1) felony prosecutions
2) where the condition of the patient is a material issue by the patient (insanity)
3) crime, fraud or a tort
4) to fraudulently obtain prescription drugs
PRIVILEGE: What are other privileges recognized in Kansas?
1) Cert. psychologist/client
2) Veterinarian/client
3) Religious beliefs
4) Political vote
5) Trade secrets
6) Communications to grand jury
OBJECTIONS: What is the contemporaneous objection rule?
A proper objection or a motion to strike by a party is required to preserve any evidentiary ruling for appeal.

Objections must be timely, specific, and for the correct reason. The trial court must make an adverse ruling to preserve the objection for appeal.
OBJECTIONS: When are no objections required to preserve appeal?
Only if the admitted evidence amounts to plain or fundamental error.
OBJECTIONS: What is offer of proof (proffer)?
If the judge excludes evidence, over objection, the proponent of the evidence must make an offer of proof on the record what the testimony or evidence would have been if admitted , otherwise nothing is preserved for appeal.
Types of Evidentiary Errors
1) Harmless error: most errors are harmless
2) Reversible error: affect a substantial right of a party, a serious mistake affecting the verdict.
3) Plain error: serious, prejudicial errors that affect a substantial right but are so obvious that no timely objection is required. KANSAS does not recognize it.
4) Constitutional error: may be harmless or reversible. Burden is on government to show the error was harmless beyond a reasonable doubt and did not affect the verdict.
What is a presumption?
A procedural device that requires the jury to draw a particular conclusion if certain facts are proved; it is a substitute for evidence.

If the party proves a basic fact, the jury is instructed to presume another fact exists called a presumed fact; proof of the presumed fact is not required.
What kind of presumptions are there?
1) Rebuttable: the opponent party may offer evidence to disprove the presumed fact
2) Irrebutable: Conclusive presumptions are very rare and are really rules of substantive law.
In what instances does the federal court apply state law?
Remember P C P

In diversity of citizenship cases, the federal court will apply the state law in 1) Privileges 2) Competency of witness 3) Presumptions
What is judicial notice?
In 2 instances the trial court may take judicial notice that certain facts relevant to trial are true without formal proof.
Judicial notice substitutes evidence as to not waste time with obvious stuff like "Christmas falls on 12/25."

In Kansas judicial notice is conclusive in both civil and criminal cases.