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145 Cards in this Set
- Front
- Back
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Evidence
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Relevance
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Evidence is relevant if it has any tendency to make a material fact more probable or less probable than would be the case without the evidence
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Relevance Rule
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All relevant evidence is admissible unless (a) some specific exclusionary rule applies, or (b) the court makes a discretionary finding that the probative value of the evidence is substantially outweighed by:
- danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, wast of tiem or unduly cumulative |
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Similar Occurrences
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RULE: if evidence concerns some time, event or person other than that involved in the case at hand, the evidence is inadmissible. Probative value is usually outweighed by pragmatic considerations.
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Plaintiff's accident history
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GR: P's accident history is inadmissible b/c it shows nothing more than the fact that the P is accident-prone.
Exception: P's prior accidents admissible if the event that caused the Ps injuries is at issue |
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Similar Accidents Caused by Same Instrumentality or Condition
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GR: Other accidents involving D are inadmissible because they suggest nothing more than general character for carelessness.
Exception: Other accidents involving the same instrumentality or condition may be admitted for 3 potential purposes if the other accident occurred under substantially similar circumstances. (Including: existence of dangerous conditions, causation of accident or prior notice to the defendant) |
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Intent in Issue
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Rule: Person's prior conduct may provide inference of intent on later occasion
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Comparable Sales on Issue of Value
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Rule: Selling price of other property of similar type, in same general location, and close in time to period at issue, is some evidence of value of property at issue.
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Habit
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Rule: Habit of a person (or routine of a business) is admissible as circumstantial evidence of how the person (or business) acted on the occasion at issue in the litigation.
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Habit v. Character Evidence
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Character evidence refers to a person's general disposition or propensity. Character is usually not admissible to prove conduct on a particular occasion.
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Habit Definition
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Habit is a repetitive response to a particular set of circumstances. Habit has 2 defining characteristics:
1. frequency of conduct 2. particularity of conduct |
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Industrial Custom as Standard of Care
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Evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as t how a party in the instant litigation should have acted.
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Liability Insurance
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Evidence that a person has (or does not have) liability insurance is inadmissible for the purpose of proving fault or absence of fault
EXCEPTION: Evidence of insurance may be admissible for some other relevant purpose such as proof of ownership/control of instrumentality or location if that issue of control is disputed by the D or for the purpose of impeachment for bias |
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Limiting Instruction
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Note: A limiting instruction should be given to the jury whenever evidence is admissible for one purpose and not another. Judge should tell jury to consider the evidence only for the permissible purpose.
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Subsequent Remedial Measures
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Rule: Inadmissible for the purpose of proving negligence, culpable conduct, product defect, need for warning.
Exception: Subsequent remedial measures may be admissible for some other relevant purpose, such as proof of ownership/control or feasibility of safer condition if either is disputed by the D. |
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Settlements of Disputed Civil Claims
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In the event of a disputed civil claim the following are inadmissible:
The settlement, the offer to settle or statement of fact made during settlement discussions. |
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Settlements Exceptions
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1. Settlement evidence admissible for the purpose of impeaching witness on ground of bias.
2. MBE ONLY: Statements of fact made during settlement discussions in civil litigation with a governmental regulatory agency are admissible in a later criminal trial. |
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Plea Bargaining in Criminal Cases
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Following = Inadmissible
1. Offer to plead guilty 2. Withdrawn guilty plea 3. Plea of nolo contendere 4. Statements of fact made during any of the above NOTE: a plea of guilty is admissible in subsequent litigation based on the same facts under the rule of party admission |
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Offer to Pay Hospital or Medical Expenses
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Evidence that a party has paid or offered to pay an accident victim's hospital or medical expenses is inadmissible to prove liability.
NOTE: does not exclude other statements made in connection with an offer to pay. NC: Same as federal but also excludes evidence of payments and offers to pay other expenses, lost wages and property damages. |
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Character Evidence
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Character evidence refers to a person's general propensity or disposition.
Purposes for admissibility: 1. person's character is an essential element in case 2. Character evid. to prove conduct in conformity with character at the time of the event 3. Witness's bad character for truthfulness to impeach credibility |
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Character Evidence - Criminal Case
Defendant's Character |
Evidence of the D's character to prove conduct on a particular occasion is not admissible during the prosecutions case-in-chief.
*However, D, during the defense may introduce evidence of relevant character traits (by reputation or opinion testimony of a character witness) to prove conduct, thereby opening the door to rebuttal by the prosecution. |
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Character Evidence - Methods
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When character evidence is admissible through a character witness to prove conduct in conformity, the only proper methods are reputation or opinion.
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Character Evidence - Prosecutions Rebuttal
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IF defendant has "opened the door" by calling character witnesses the prosecution may rebut: (1) by crossing D's character witnesses with "have you heard?" or "did you know?" questions about specific acts of the D that reflect adversely on the particular character trait that D has introduced (PURPOSE = IMPEACH) or (2) by calling its own reputation or opinion witnesses to contradict D's witnesses
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Victim's Character - Self Defense
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IN addition to direct evidence that the alleged victim of an assault was the first aggressor the criminal D may introduce evidence of victim's violent character to prove victim's conduct in conformity
METHOD: character witness may testify to victim's reputation for violence and may give opinion |
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Prosecution's Rebuttal
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Evidence of victim's good character (with reputation or opinion). In addition, under FRE ONLY, prosecution may prove D's character for violence.
NC: Rebuttal is limited to evidence of victim's good character |
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Rule of Relevance - State of Mind
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If the D, at the time of the alleged self-defense, was aware of the victim's violent reputation or prior specific acts of violence, such awareness may be proven to show the D's state of mind - fear- to prove that he acted reasonable in responding as he did to the victim's aggression
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Victim's Character - Sexual Misconduct
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Under Federal "Rape Shield Law" in both criminal and civil cases, where D is alleged to have engaged in sexual misconduct, the following evidence about victim is ordinarily inadmissible:
1. opinion or reputation evidence about victim's sexual propensity or 2. evidence of specific sexual behavior of the victim. |
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Exceptions to Rape Shield Statute - Criminal Cases
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1. specific sexual behavior of the victim to prove that someone other than D was the source of semen or injury to the victim;
2. victim's sexual activity with the D if the defense is of consent; or 3. where exclusion would violate D's right of due process. (Purpose: to suggest the victim had a motive to falsely claim that the sexual contact with D was non-consensual) |
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Exceptions to Rape Shield Statute - Civil Cases
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The court may admit evidence of specific sexual behavior or sexual propensity of the victim if its probative value substantially outweighs the danger of harm to the victim and the unfair prejudice to any party.
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Character Evidence - Civil Cases
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GR: Character evidence is generally inadmissible to prove a person's conduct on a particular occasion.
- Evidence of person's character is admissible in civil action where such character is an essential element of a claim or defense. Only 3 situations (1) tor action alleging negligent hiring or entrustment (2) defamation (3) child custody disputes |
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Defendant's Other Crimes for non-Character Purposes
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GR: Other crimes or specific bad acts of the D are not admissible during the prosecutions case-in-chief if the only purpose is to suggest that because of D's bad character he is more likely to have committed the crime currently charged.
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Exceptions to Prior Bad Acts
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D's bad acts or other crimes may be admissible to show something specific about the charged crime. MIMIC
*Motive *Intent *Absence of Mistake or accident *Identity *Common Scheme or plan |
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Method of proof of MIMIC - purpose crimes:
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1. By conviction or
2. By evidence (witnesses, etc) that proves the crime occurred: conditional relevancy standard - prosecution need only produce sufficient evidence from which a reasonable juror could conclude that D committed the other crime. |
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NC Distinction
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The only permissible way in which the prosecution may prove the MIMIC crime is through proof of the facts and circumstances of the crime, even if the D was convicted of the crime.
*Upon D's request, prosecution must give pretrial notice of intent to introduce MIMIC evidence *In all cases, court weighs the probative value v. prejudicial effect |
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MIMIC in Civil Cases
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If relevant to a noncharacter purpose, MIMIC evidence can also be used in civil cases such as tort actions for fraud or assault.
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Other Sexual Misconduct to Show propensity in Sex-Crime Prosecution or Civil Action - FRE ONLY
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FRE ONLY: in a case alleging sexual assault or child molestation, prior specific sexual misconduct of the D is admissible as part of the case-in-chief of the prosecution (in a criminal case) or of the P (civil case) to show the D's propensity for sexual assault or child molestation
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NC Distinction
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Other sex crimes of D are liberally admitted when they were directed at the SAME VICTIM (tends to show fixation on same person).
If different victim, must satisfy MIMIC but even here, the courts have been liberal in allowing other sex crimes if the other crime is similar to the offense at issue and was committed close in time to the crime at issue |
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Authentication of Writings
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Whenever a writing appears on the exam be alert to 3 issues:
1. authentication 2. best evidence rule 3. Hearsay |
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Methods of Authentication
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1. Witness' personal knowledge
2. Proof of Handwriting (i) Lay person opinion - familiar with handwriting as result of experience in normal course of affairs (ii) expert comparison opinion (iii) jury comparison |
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Methods Continued
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3. Proof by circumstantial evidence - a party may rely on circumstantial evidence such as appearance, contents, etc,
4. Ancient Document Rule: authenticity may be inferred if document is at least 20 years old, facially free of suspicion and found in place of natural custody. |
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Methods Continued
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5. Solicited Reply Doctrine: Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.
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Self-Authenticating Documents
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Presumed Authentic:
Official publications; certified copies of public or private records on file in public office; newspapers or periodicals; trade inscriptions and labels; acknowledge document; commercial paper. |
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Authentication of Photographs
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Witness may testify on the basis of personal knowledge that the photograph is a "fair and accurate representation" of the people or objects portrayed
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Best Evidence Rule
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A party who seeks to prove the contents of a writing must either produce the original writing or provide an acceptable excuse for its absence .
*If the court find the excuse is acceptable, the party may then use secondary evidence - oral testimony or a copy |
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When Best Evidence Rule Applies:
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When a party is seeking to prove the contents of a writing:
1. The writing is a legally operative document 2. Witness is testifying to facts that she learned solely from reading about them in a writing |
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When Best Evidence Rule does NOT apply:
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When a witness with personal knowledge testifies to a fact that exists independently of a writing which records the fact
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What Qualifies as an "Original Writing"?
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1. Whatever the parties intended as original
2. Duplicate: any counterpart produced by any mechanical means that accurately reproduces the original 3. Handwritten copy is neither an original nor duplicate |
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Excuses for Non-Production of Original
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1. lost or cannot be found with due diligence
2. Destroyed without bad Faith 3. cannot be obtained with legal process NOTE: Court must be persuaded by preponderance of the evidence that excuse has been established; secondary evidence is then admissible |
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"Escapes"
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1. Voluminous Records: Can be presented through a summary or chart, provided that the original records would be admissible and they are available for inspection
2. Certified copies of public records 3. Collateral Document - not very important to the merits of the case *In the courts discretion, determines writing is collateral, content may be proven by secondary evidence |
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WITNESSES
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Competency of Witness in General
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(a) Personal Knowledge
(b) Oath or affirmation: Demonstration that witness appreciates duty to testify truthfully |
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"Dead Man" Statutes
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GR: (MBE) - witness is not ordinarily incompetent merely b/c she has an interest in outcome of litigation.
*BUT some states have "Dead Man" Statutes. The typical act provides that in a civil action , an interested witness is incompetent to testify in support of her own interest against the estate of a decedent concerning communications or transactions between the interested witness and the decedent. |
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FRE: Dead Man Statutes
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Under the FRE, there is no dead man's rules. Thus on MBE exam witnesses ordinarily are not incompetent on this ground.
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NC Dead Man Statute
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Interested witness incompetent ONLY if testimony concerns oral communications between witness and decedent
Exception: An interested witness may testify against the decedent's estate concerning the identity of the operator of a motor vehicle or observations of conduct. |
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Refreshing Recollection
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GR: Witness may not read from prepared memorandum; must testify on basis of current recollection
BUT: if witness's memory fails him, he may be shown a memorandum (or any other tangible item) to job his memory. |
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Safeguards
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The adversary has the right to:
1. inspect the memory - refresher 2. to use it on cross-examination 3. to introduce into evidence to impeach credibility of witnesses |
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Past Recollection Recorded (Hearsay Exception)
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Foundation for reading the contents of the writing into evidence:
1. showing writing to witness fails to job memory; 2. witness had personal knowledge at former time; 3. writing was either made by witness or adopted by witness; 4. the making or adoption occurred while event was fresh in the witness's memory; 5. witness can vouch for accuracy of writing when made or adopted. |
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Opinion Testimony - Lay witness
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(a) Lay opinion admissible if: rationally based on witness's perception (personal knowledge) and helpful to the jury in deciding a fact
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Expert Witnesses
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1.Qualifications: Education and/or experience
2. Proper Subject Matter: Scientific, technical or other specialized knowledge that will be helpful to the jury in deciding a fact |
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NC Special Rule:
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In medical malpractice actions, expert must be specialist in same field as D; and during year prior to incident at issue, expert must have spent majority of time in clinical practice or as instructor at medical school
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Basis of Expert Opinion
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Expert must have opinion based on "reasonable degree of probability or reasonable certainty"
NOTE: Expert may draw upon 3 permissible data sources: 1. personal knowledge 2. other evidence admitted at trial - usually made known to the expert by hypothetical 3. facts outside the record if type reasonably relied upon by experts in the particular field in forming opinions |
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Relevance and Reliability
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TO be admissible, expert opinion must be relevant to issue at hand and sufficiently reliable.
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Federal Daubert Test:
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"TRAP"
Testing of principles or methodology Rate of Error Acceptance by other experts in same discipline Peer review and publication |
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NC - Howardton Standard
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NC applies a more limited form of judicial gate keeping.
*In absence of precedent or when faced with a novel theory or technique, the trial court should consider the following nonexclusive "indices" of reliability (1) whether expert used an established technique (2) whether the expert has a background in using the technique (3) whether the expert uses visual aids to help the jury and (4) whether the expert has engaged in independent research in using the technique. |
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Learned Treatise in Aid of Expert Testimony
(hearsay exception) |
1. On direct of party's own expert: Relevant portion may be read into evidence as substantive evidence if established as reliable authority
2. On cross of the opponent's expert: Read into evidence to impeach and contradict opponent's expert. Comes in as substantive evidence BUT: learned treatise may not be introduced as exhibit |
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Ultimate Issue
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Opinion testimony is not objectionable just because it embraces an "ultimate issue" in the case
BUT: all other requirements of opinion testimony must be satisfied including the requirement that the opinion is helpful |
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Bolstering Own Witness
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Rule: Not allowed until after the witness' credibility has been attacked
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Exception to Bolstering own Witness
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Witness's prior identification of a person: might seem like hearsay but prior identification by trial witness is not barred by hearsay rule. It is labeled as "exclusion" from hearsay and comes in as substantive evidence
NOTE: witness who made prior identification must testify at trial and must be subject to current cross-examination |
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NC Distinctions
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1.All types of prior consistent statements of a witness are admissible to bolster the witness's credibility on direct
2. Witness's prior identification of a person is admissible, but only to bolster credibility and not as substantive evidence |
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Impeachment of Own Witness
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RULE: Permitted without limitation
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Impeachment Methods:
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Prior Inconsistent Statement
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GR: any witness may be impeached by showing that one some prior occasion, they made a material statement that is inconsistent with trial testimony
Purpose: admissible for impeachment only |
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FRE Exception to Prior inconsistent Statements
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A prior inconsistent statement of a witness may be admitted both to impeach and as substantive evidence (to prove the truth of the matter asserted in the prior statement) if the witness is currently subject to cross-examination and the prior inconsistent statement was made orally under oath, and made during formal hearing or trial or proceeding
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NC Rule - Prior Inconsistent Statements
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Prior inconsistent statements is generally admissible only to impeach, not as substantive evidence, even if made under oath at a prior trial or hearing.
Exception: In civil actions, NC allows a witness's prior deposition testimony to be used as substantive evidence if it is inconsistent with the witness's trial testimony |
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Confrontation with inconsistent statement
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Fed Rule: Confrontation timing is flexible: not to required immediately confront witness. But after proof by extrinsic evidence, witness must be given an opportunity to at some point to return to stand to explain or deny the pior in consistent statement
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Confrontation Exception
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Fed Rule Exception: No required to give any opportunity to explain or deny if the prior inconsistent statement is made by a witness who is the opposing party. Also the prior inconsistent statement of an opposing party can be used against that party as substantive evidence ("party admission" or "statement of opposing party")
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NC Rule - Confrontation of Prior Inconsistent statements
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NC: Not required to give any witness (non-party or opposing party) an opportunity to explain or deny the inconsistent statement
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Bias, Interest of Motive to Misrepresent
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Procedural Issue:
NC: Witness must be told of circumstances or statements that allegedly show bias and given immediate opportunity to explain or deny. FRE: Same as NC Note: if confrontation prerequisite is met, bias may be proven with extrinsic evidence. |
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Sensory Deficiencies
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Anything that could affect witness's perception or memory.
No confrontation required Extrinsic Evidence is Allowed |
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Bad Reputation or Opinion About Witness's Character for Truthfulness
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Any witness is subject to impeachment by this method
*No confrontation is required *Extrinsic evidence is allowed |
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Criminal Convictions
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Relevance: Person who has been convicted of a crime is more likely to lie under oath than is a person with an unblemished record
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Criminal Convictions - Federal Rule
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Permissible Types:
1) Conviction of any crime (felony or misdemeanor) as to which the prosecution was required to prove false statement as an element of the crime (i.e. truth telling crimes) 2) If conviction did not require proof of false statement, it must be a felony and court may exclude, in its discretion, if probative value on issue is outweighed by prejudicial affect |
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Time Limitation - Criminal Convictions - FRE
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As to both categories, the conviction or release from prison whichever is later, generally must be within 10 years of trial. If more than 10 years have elapsed, the conviction may not be used for impeachment UNLESS probative value is substantial on issue of credibility
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Method of Proof - Criminal convictions
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Ask witness to admit prior conviction or
introduce record of conviction (extrinsic). Not required to confront witness prior to introduction of record of conviction. |
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Criminal Convictions
North Carolina Rule |
*May impeach any witness with any type of conviction if crime was punishable by more than 60 days' confinement.
*No balancing of probative value v. prejudice. However, 10 year limitation applies |
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Inquiry about Bad Acts (without conviction) if they reflect adversely on witness's character for truthfulness
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The ONLY permissible procedure: Confrontation on cross-examination - NO extrinsic evidence permitted
NOTE: Cross must have good faith basis for the inquiry and permission to make the inquiry is subject to the court's discretion. Limited to acts of untruthfulness |
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Contradiction
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Rule: Extrinsic evidence NOT allowed for the purpose of contradiction IF the fact at issue is collateral (i.e. it has no significant relevance to the case or the witness's credibility)
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Rehabilitation
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1. Showing witness's good character for truthfulness: Only when impeachment of witness was for lying.
*Bring out a character witness - rep. or opinion |
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Rehabilitation - Prior consistent Statements
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2. Prior consistent statement to rebut a charge of recent fabrication:
*If the witness's trial testimony is charged as a recent fabrication, or as a product of improper influence, a prior consistent statement by the witness will be admissible to rebut the charge if the statement was made before the motive to fabricate arose. |
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Prior Consistent Statement Continued
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Purpose: A prior consistent statement that fits within the rule is admissible to rehabilitate credibility and as substantive evidence, that prior statement was true.
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NC Rule - Prior Consistent Statements
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NC: Witness's prior consistent statement can be used to bolster the witness's credibility under any circumstances but it snot admissible as substantive evidence.
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Attorney Client Privilege
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Elements:
1. Confidential communications; 2. between attorney and client (or representative of either); 3. made during professional, legal consultation; 4. unless privilege was waived by the client; 5. or an exception is applicable |
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Confidential Communications
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Rule: Client must intend confidentiality
Joint Client Rule: If two or more clients with common interest consult the same attorney, their communications with counsel concerning the common interest are privileged as to third parties. But if joint clients later have a dispute with each other concerning the common interest, privilege does not apply as between them. |
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Communication Note
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Privilege does NOT apply to client's knowledge of underlying facts ,pre-existing documents, or physical evidence.
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Professional Legal Consultation
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Primary purpose of the communication must be to obtain or render legal services, not business or social advice.
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Waiver
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1. Voluntary Waiver: ONLY the client has power to waive the privilege
2. Subject Matter Waiver: A voluntary waiver of privilege as to some communications will also waive the privilege as to other communications if: (1) the partial disclosure is intentional; (2) the disclosed communication concern the same subject matter and (3) fairness requires that the disclosed and undisclosed communications be be considered together. |
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Waiver - Continued
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3. Inadvertent Waiver: an inadvertent disclosure of a privileged communication will not waive the privilege so long as the privilege-holder took reasonable steps to prevent the disclosure, and takes reasonable steps to correct the error.
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Attorney-Client Exceptions
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1. Future Crime or Fraud
2. Legal Advice in Issue 3. Attorney Client Dispute |
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Physician-Patient Privilege (Creature of Statute)
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Elements:
(1) Confidential communication or information acquired by physician from patient 2) for purpose of diagnosis or treatment of medical condition NOTE: Also applicable to psychotherapists |
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Federal Distinction - Physician-Patient Privilege
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In Federal court actions based solely on federal law, privilege exits ONLY for psychotherapist. There is no privilege in federal court actions based solely on federal law for confidential communications with physicians as regards physical conditions
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Physician-Patient Exceptions
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If patient expressly or impliedly puts physical condition or mental condition in issue = EXCEPTION
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NC Exception
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Judge may lift physician-patient privilege if in his opinion disclosure is necessary to proper administration of justice
Note: Privilege not applicable in child abuse or neglect proceedings |
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Spousal Immunity - Criminal Cases Only
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RULE: A spouse cannot be compelled to testify about anything against the defendant spouse.
HOLDER: The witness-spouse, Not the Defendant Witness spouse may voluntarily testify against the D spouse if she chooses. |
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Confidential Communications between Spouses
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In ANY TYPE OF CASE: a spouse is not required and is not allowed in the absence of consent by the other spouse, to disclose a confidential communication made by one to the other during the marriage.
HOLDER: both spouses hold this privilege: either spouse can invoke it. |
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Exceptions to Spousal Privileges
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1. communications or acts in furtherance of jointly-perpetrated future crime or fraud
2. communications or acts destructive of family unit (i.e. child or spousal abuse) 3. in litigation between the spouses themselves (i..e breach of K) |
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Hearsay
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The out of court statement of a person (oral or written) offered to prove the truth of the matter asserted.
RULE: Hearsay is inadmissible unless an exception or exclusion apply. |
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Non-Hearsay Statements
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Some out of court statements may look like hearsay but are not hearsay if they are not offered to prove the truth of the matter asserted in the statement.
*If offered for some other purpose, credibility of the declarant is irrelevant. |
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Categories of Non-Hearsay
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1. Verbal Act (Legally operative words) - A situation where the substantive law attaches rights and obligations to certain words simply because they were spoken
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Categories of Non-Hearsay
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2. Words that show effect on person who heard or read the statement - if a person hears someone else make certain statements, this may be relevant to put the listener on notice of something, or to create fear, or to give the listener a motive or reasonable cause to do something without regard to whether the statement is true.
3. Circumstantial evidence of the speakers state of mind |
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Prior Statements of Trial Witness
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GR: A witness's own prior statement, if offered to prove the truth of the matter asserted in the statement, is hearsay an dis inadmissible unless an exception or exclusion applies
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Exclusions from Hearsay (non-hearsay)
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1. Witness's prior statement of identification of person
2. Witness's prior inconsistent statement if prior statement was made orally under oath and made during formal trial, hearing or proceeding or deposition; 3. Witness's prior consistent statement used to rebut charge of recent fabrication or improper motive or influence. |
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NC Distinction
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Prior identification and prior consistent statements come in only to bolster credibility, not as substantive evidence.
Prior inconsistent statement comes in only to impeach, except witness's prior inconsistent deposition testimony in civil actions can be used as substantive evidence. |
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Party Admissions (Statement of an Opposing Party)
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GR: Any statement made by a party is admissible if it is offered against the party
FRE: Exclusion or Non-Hearsay NC: Hearsay Exception |
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Adoptive Admission
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If a party expressly or impliedly adopts a statement made by another person, it is as though the party herself made the statement. Adoption by silence occurs when a party who hears another person's statement remains silent under circumstances in which a reasonable person would protest if the statement were false.
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Vicarious Party Admission
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Statement by agent/employee is admissible against principal/employer if statement concerns matter within scope of agency/employment and is made during the existence of the agency/employment relationship.
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Co-Conspirator's Statement
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The statement of a co-conspirator is admissible against a party who was a member of the conspiracy if the statement was made (1) during and (2) in furtherance of the conspiracy.
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Hearsay Exceptions for the Bar
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Forfeiture by wrongdoing; Former testimony; Statement against interest; dying declaration; excited utterance; present sense impression; present state of mind; Declaration of intent; present physical condition; statement for purpose of medical treatment or diagnosis; business records; public records;
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Note on Criminal Defendant's right of Confrontation
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*The 6th Amendment right of confrontation requires that the criminal D be "confronted" with the witnesses against him.
RULE: In the context of hearsay, the prosecution may not use a hearsay statement against the criminal D if the statement is testimonial, the declarant is unavailable and the D has had no opportunity for cross-examination. |
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Testimonial
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The meaning of testimony statements:
1. Grand jury Testimony = Testimonial 2. Statement sin response to police interrogation: testimonial IF the primary purpose of the questioning is to establish or prove past events potentially relevant to criminal prosecution. |
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Non-Testimonial
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If the primary purpose of the police questioning is to enable police assistance to meet an ongoing emergency = non-testimonial
"On-Going Emergency" = includes a situation in which the crime has recently ended, the perpetrator is armed and he still poses a threat to the victim, the police or the public at large. |
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Testimonial : Documents
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1. Business Records = non-testimonial
2. Sworn Affidavits = Testimonial 3. A forensic laboratory report - testimonial if its primary purpose is to accuse a targeted individual of criminal conduct. |
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Testimonial Continued
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NOTE: DNA reports are non-testimonial if it analyzes a sample of bodily fluid collected from a crime scene for the purpose of developing a DNA profile if no particular person is suspected at the time of the analysis. (I.e. Blind analysis)
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Testimonial Forensic Reports
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Note: Even if forensic reports are testimonial, no confrontation violation occurs if the prosecutor calls a testifying expert who performed an independent analysis of the data, and the testifying expert only generally refers to the report to show a partial basis for her opinion without reading the report to the jury or introducing it as an exhibit. Then the report is not being used for a hearsay purpose.
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Forfeiture Hearsay Exception
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Declarant Unavailable Due to D's Wrongdoing: Any type of hearsay statement is admissible against a D whose wrongdoing made the witness unavailable if the court finds: by a preponderance of evidence that D's wrongdoing designed to prevent witness from testifying.
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Former Testimony
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Rule: The former testimony of a now-unavailable witness, if given at a former proceeding or in a deposition, is admissible against a party who, on prior occasion, had an opportunity and motive to cross-examine or develop the testimony of the witness. Issue in both proceedings must be essentially the same.
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Grounds for Unavailability (PAILS)
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1. Privilege
2. Absence from the jurisdiction - cant find through due diligence or beyond the courts subpoena power 3. illness or death 4. lack of memory 5. Stubborn refusal to testify |
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NC Distinction
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Same as FRE except that in a civil actions, with regard to a declarant's prior deposition testimony, the following additional ground of unavailability qualifies:
*The deponent is more than 100 miles from the courthouse. |
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Statement against Interest
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An unavailable declarant's statement against his or her:
1. against pecuniary interest 2. against proprietary interest 3. against penal interest |
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Statement Against Interest
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*Must be against interest when made
*Any person can make statement against interest *Personal knowledge is required *Declarant must be unavailable |
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Penal Interest in Criminal Case NOTE
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Note: Additional requirement in criminal case: Statement against penal interest must be supported by corroborating circumstances showing trustworthiness of the statement.
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Dying Declaration
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Rule: Statement made under a belief of impending and certain death by a now-unavailable declarant concerning the cause or surrounding circumstances of the declarant's death.
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Type of Case
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Federal:
Criminal = Homicide Only Civil = Any type of civil case NC: Criminal and Civil = All types of cases |
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Excited Utterance
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Rule: Statement concerning a startling event and made while declarant is still under the stress of excitement caused by the event.
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Factors to Consider - Excited Utterance
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1. Nature of the event (is it traumatic)
2. Passage of time - close in time to the event the better 3. Visual Clues on the Exam = ! |
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Present Sense Impression
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Rule: Description of an event made while the event is occurring or immediately thereafter.
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Present State of Mind
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Rule: Contemporaneous statement concerning declarant's present state of mind, feelings, emotions
NC: Allowed homicide victim statement of fear of D |
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Declaration of Intent
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Rule: Statement of declarant's intent to do something in the future, including the intent to engage in conduct with another person.
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Present Physical Condition
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Rule: Statement made to anyone about declarant's current physical condition.
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Statement made for the purpose of obtaining medical treatment or diagnosis
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Rule: Statement made to anyone (usually medical personnel) for the purpose of obtaining medical treatment or diagnosis if it concerns the declarant's:
1. present symptoms 2. past symptoms or 3. general cause of condition, but not including statement describing the details of liability or the identity of a tortfeasor, unless it is the identity of the abuser in a DV or child abuse case. |
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Exception
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NOTE: This exception above does not include oral statements made by a physician to the patient.
NC: Medical diagnosis must include at least in part, the rendering of treatment |
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Business Records
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Elements
(1) records of any type of business; (2) made in the regular course of business; (3) the business regularly keeps such records; (4) made contemporaneously (at or about time of event recorded); (5) contents consist of information observed by employees of business or a statement that falls within an independent hearsay exception |
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Public Records
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Records of a public office or agency setting forth the activities of the officer or agency or matters observed pursuant to a duty imposed by law or findings of fact or opinion resulting from an investigation authorized by law.
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Public Records - Exclusion
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Police reports prepared for prosecutorial purpose are not admissible against D in a criminal case.
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Hearsay within Hearsay
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Rule If a hearsay statement is included within another hearsay statement, the evidence is inadmissible unless each statement falls within a hearsay exception.
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Impeachment of Hearsay Declarants
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opponent may use any of the impeachment methods to attack the credibility of a hearsay declarant. If the impeachment consists of a prior inconsistent statement, the usual requirement that the declarant be given opportunity to explain or deny is waived.
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