Evidence

Front 1

Types of Relevance?

Back 1

1. Logical Relevance

2. Discretionary, Pragmatic or Policy Based Relevance

Front 2

What is Logical Relevance?

Back 2

Evidence that has any tendency to make a material fact more probable or less probable than it would without the evidence.

(Does it help? If so, then relevant.)

Front 3

Warning Signals that something might not be logically relevant?

Back 3

Evidence might not be logically relevant if evidence (may be too remote) if it involves some other:

1. time
2. event
3. person

than the one involved directly in litigation

Front 4

What is Discretionary or Policy-Based Relevance?

Back 4

Relevant evidence may be excluded if its
PROBATIVE VALUE IS SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF:

1. unfair prejudice
2. confusion of issues
3. misleading the jury
4. undue delay
5. cumulative evidence
6. waste of time

(Judge has power to exclude logically relevant evidence when its probative value is substantially outweighed by one of these auxiliary considerations.)

Front 5

Logical relevance: Causation - prove cause and effect.

Back 5

Other people ate the same food as you at the same time at the same place - relevant to show food there caused you to get sick.

Examples of when similar occurrences will be relevant, even though it does involve some other time, event, or person.

Front 6

Logical relevance of Plaintiff's Prior Accidents or Claims

Back 6

Generally Plaintiff's prior accidents or claims are not admissible.

Exceptions:
1. to show common plan & scheme of fraud
2. if the prior accidents are relevant to the damage to the Plaintiff in this case (he previously injurred his back and was compensated for it.

Front 7

Logical relevance of other accidents involving the same instrumentality under the same or similar circumstances ?

Back 7

Admissible.
1. Tends to show NOTICE or MALICE on part of Defendant or
2. instrumentality is DANGEROUS / DEFECTIVE

Front 8

When can you use evidence of prior conduct to infer intent?

Back 8

Admissible if intent is at issue in case.
(prior refusals to hire women = infer descriminatory intent in a discrimination case)

Front 9

Logical relevance of rubuttel evidence?

Back 9

Admissible to rebut defense of impossibility.

(mouse found in other cans of coke to rebut coke's argument that impossible to have mouse in coke)

Front 10

Logical relevance of comparable sales?

Back 10

Admissible to establish value of sale price of other chattels or real property:

1. were of same general description/ KIND AND
2. sale took place during same general TIME as the one at issue AND
3. sale took place at same general PLACE as one at issue

(kind, time, place)

Front 11

Logical relevance of habit evidence?

Back 11

Habit of a person to act in a certain way is relevant to show the person acted in the same way on the occasion in question.

Front 12

Definition of habit?

(v. prior act evidence and disposition evidence)

Back 12

Habit = specificity and recurrence
(habits are described: "always" "instinctively" "invariably" "automatically")

disposition = personality trait, not admissible

prior act = less frequent that habit, not admissible. Evidence a person acted one way a couple times in the past cannot be used to show the person acted that way this time.

Front 13

Logical relevance of business routine?

Back 13

The routine practice of an organization is admissible just like habit.

Front 14

Logical relevance of industrial trade or custom?

Back 14

Admissible as non-conclusive evidence of standard of care.

(non-conclusive because the rest of the industry might be in excess of their care requirement or might not meet their care requirement)

Front 15

Relevance of liability insurance?

Back 15

Generally, not admissible to show person acted negligently or wrongfully or to show ability to pay.

Exceptions: Admissible when relevant to
1. show ownership or control
2. impeach credibility of witness by showing interest or bias

Front 16

Relevance of Subsequent Remedial Measures?

Back 16

Not admissible to show negligence, culpable conduct, a defect in a product, a defect in a product's design or a need for a warning or instruction, or any theory of strict liability.
(Rule is in interest of public safety)

Exceptions: Admissible to show
1. ownership and control
2. impeachment re: feasibility of precautionary measures (when feasibility is controverted)

Front 17

Relevance of Settlements?

Back 17

Not admissible to prove fault, liability, or amount of damage. This rule covers
1. offers to compromise
2. actual compromises
3. offers to plead guilty in a criminal case
4. withdrawn pleas of guilty
5. pleas of nolo contendere

Admissions of fact, liability or damage made in course of offer to compromise a CLAIM DISPUTED AS TO LIABILITY OR AMOUNT are not admissible.
(there must be an identifiable claimant)

Front 18

Relevance of an offer to pay medical expenses?

Back 18

Not admissible even though it is not a settlement offer. But if an admission of fact accompanies a naked offer to pay hospital or medical expenses, the admission may be admitted.

Front 19

Character evidence - preliminary questions?

Back 19

1. purpose of offer of character evidence
2. method of proving character
3. type of case (civil, criminal)
4. what trait of character is invovled

Front 20

What purposes are their to offer character evidence?

Back 20

1. Character directly in issue: when a person's character is a MATERIAL ELEMENT in the case.

2. Character as circumstantial evidence of person's conduct at time of litigated event. (to prove conduct in CONFORMITY w/ character on occasion in issue)

3. Character to impeach the CREDIBILITY of a witness (bad character for truthfulness to impeach the credibility of a witness who testifies at trial)

Front 21

What methods or techniques can be used to prove character?

Back 21

1. specific acts of conduct

2. opinion (call a witness to give their opinion)

3. reputation (call a witness to testify about reputation)

Front 22

Character Evidence:
What trait of character can be at issue?

Back 22

it must be a specific trait which is
SUBSTANTIVELY IN ISSUE IN THE CASE.

Front 23

Use of character evidence in civil cases?

Back 23

1. character evidence is not admissible when offered as circumstantial evidence to infer conduct at the time of the litigated event.

2. Character evidence is admissible in a civil case when the character of a person (party) is itself a material issue in the case. (Character is directly in issue - for example defamation case where P was called a crook and D wants to admit evidence that had a character for stealing)

3. Method of Proof: if character is directly in issue and therefore admissible, it may be proved by any one of the specific techniques (specific acts, opinion, or reputation)

Front 24

Use of character evidence in criminal case?

Back 24

1. Bad character evidence (in whatever form) is not admissible at the initiative of the prosecution if the sole purpose is to show criminal disposition in order to infer guilt from disposition.
UNLESS AND UNTIL

2. The accused is permitted to offer evidence of good character for the pertinent trait in the form of reputation and opinion to show disposition in order to infer innocence. Only then may prosecution respond by showing the bad character of the accused.

3. After the accused offers evidence of good character, the prosecution may respond by inquiry on cross-examination of the accused's good character witness about any specific acts which would tarnish the accused's reputation or which would affect the opinion of the witness.
OR

4. After the accused offers evidence of good character the prosecuation may also respond by calling prosecution witnesses to testify to bad opinions or bad reputation in regard to the character of the accused.

Front 25

Admissibility of evidence about the victim's character in a self-defense plea?

Back 25

Accused may also, as part of a self defense plea, take the initiative to show the character of the victim as circumstantial evidence to infer that on the occasion i nquestion the alleged victim was the first aggressor.

Methods that may be used? reputation or opinion

Prosecutor could respond by showing good reputation or opinion concerning hte victim or by showing the bad reputation or a bad opinion regarding the accused himself.

Front 26

Admissibility of victim's sexual history (character evidence) in sexual misconduct cases?

Back 26

CRIMINAL CASE - Defense evidence of the alleged victim's sexual history to prove consent is limited:
1. No opinion or reputation
2. Specific instances of sexual behavior of the alleged victim are admissible only
a) if offered to prove a 3rd party was source of physical evidence
b) to show prior acts of consensual intercourse between victim and the accused or
c) if exclusion would violate constitutional rights of the accused

CIVIL CASE - evidence of the sexual disposition or behavior of the alleged victim is admissible only if probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party

For either type of case, for alleged victim's sexual behavior to be admissible under the limited exceptions, the defense must give notice an an in camera haring must be held.

Front 27

Admissibility of instances of prior misconduct by the accused - defendant's other crimes offered for a non character purpose?

Back 27

(applies in civil or criminal)

Prior crimes or prior acts of misconduct may be admitted at the intiative of the prosecution when the miconduct is relevant to prove a material fact other than character or disposition.
For example, admissible if relevant to show:
motive,
opportunity,
intent,
preparation,
common plan or scheme (robbed hardware store to get equipment to rob bank),
knowledge,
identity (incl. modus operandi)
or absence of mistake or accident.

MIMIC RULE - Motive, Intent, Mistake (absence of), Identity, Common plan or scheme

Front 28

What is modus operandi?

Back 28

Proof of identity via the distinctiveness of the crime.

(use of the fictional name Alloysius Kevorkian Peabody in two separate crimes for example)

Front 29

Prior Bad Acts: Special rule for cases involving sexual assualt and child molestation (re: prior similar acts)?

Back 29

Prior similar acts allowed to show propensity.

D's prior acts of sexual assualt or child molestation may be shown by prosecution or plaintiff (even if disposition evidence).

Front 30

General rule about admission of writings?

Back 30

A writing is not admissible until AUTHENTICATED by proof that shows the writing is WHAT THE PROPONENT CLAIMS IT IS.

(if you claim its a letter read by Bill, only need to show Bill had it and read it--not who wrote it, etc.)

(foundation laid to show the writing is genuine)

Front 31

Methods of authenticating writings?

Back 31

1. Direct Evidence
a. Admission
b. Eyewitness Testimony
c. Handwriting Proof

2. Circumstantial Evidence
a. Ancient Document Rule
b. Solicited Reply Doctrine

3. Quantum Proof

4. Self-Authenticating Documents
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 Commercial Documents

Front 32

Direct Evidence
Admission?
Eyewitness Testimony?
Handwriting Proof?

Back 32

Admission: Bill testifies he signed the k.

Eyewitness testimony: Mary testifies she saw Bill sign the K.

Handwriting Proof:
1. Lay Witness - any witness familiar w/ signature can testify (even if only slightly familiar)
2. Expert Witness - compare disputed signature to an actual signature
3. Jury Comparison: give jury disputed and an actual signature and let them decide for themselves

*Can't have lay witness compare w/ actual signature; can't have witness familiarize self w/ signature solely for purposes of litigaiton

Front 33

Circumstantial Evidence
Ancient Document Rule?
Solicited Reply Rule?

Back 33

Ancient Document Rule:
1. 20+ years old AND
2. regular on its face AND
3. found in place of natural custody

Solicited Reply Doctrine: proof that disputed document came in response to a prior communication
(like Bill sent a k to Mary and got it back signed)

Front 34

Quantum Proof?

Back 34

How much evidence is necessary to lay a proper foundation for authentication of a writing?
Sufficient evidence to justify a JURY finding of genuineness.

Front 35

Self-Authenticating Documents?

Back 35

General rule, documents are not self-authenticating.

Exceptions:
1. Certified copies of public or business records
2. official publications (pamphlet from DMV)
3. Newspapers and Periodicals
4. Trade inscriptions or labels (Green Giant label on a can of peas)
5. Acknowledged Documents (a signed k, plus an attached acknowledgment)
6. Signatures on certain commercial documents as provided by the UCC

Front 36

How do you authenticate a photograph?

Back 36

Only requires any person familiar with subject to testify that the photo is a fair representation.

If image from unattended camera?
If photo is taken when no person who could authenticate the scene is present, the photograph may be admitted upon a showing that the camera was properly operating at the relevant time and that the photograph was developed from film obtained from that camera.

XRays, Electrocardiograms, etc.:
Cannot be authenticated by witness testimony. It must be shown that the process used is accurate, the machine was in working order, and the operator was qualified to operate it. Also must establish a custodial chain to assure the x-ray has not been tampered with.

Front 37

What is the best evidence rule and when does it apply?

Back 37

Best evidence rule requires the party seeking to prove the content of a writing must either produce the original or account for the absence of the original. If explanation of absence is reasonable, then foundation has been laid for secondary evidence (copy or oral testimony that proves the content of the original)

Applies only in two situations:
1. legally operative documents (docs that create or destroy a legal relationship that is in dispute - deed, divorce decree, will, written k, etc.)

2. when witness' sole knowledge comes from a document (when witness wants to recite orally what he read)

*Best evidence rule does not apply to writings of minor importance.

Front 38

Modifications to the Best evidence rule?

Back 38

1. certified copies of public records are admissible in place of originals

2. voluminous documents - summaries, charts, etc. are admissible in place of originals so long as
a) originals would be admissible if offered and
b) originals are made accessible to opposing party

3. Duplicates - no need to explain the absence of original if you have a duplicate produced by a technique that avoids casual errors. (includes carbons, photographic copies, faxes, etc.)
UNLESS:
a) genuine question is raised about the authenticity of the original or
b) it would be unfair to admit the duplicate in lieu of the original

Front 39

If a witness qualified to give any testimony / competent to testify?

Back 39

A witness is competent to testify if they have personal knowledge and take an oath (declare he will testify truthfully).
Requires:
1. Perception (witnessed)
2. Memory (remembered)
3. Communication (must be able to communicate some of what was witnessed and remembered)
4. Sincerity (oath or affirmation)

Common law disqualifications for witnesses (infancy, incompetancy, atheist) don't apply today.

Front 40

Dead Man Statutes?

Back 40

Not part of FRE, but will come in if Fed Ct is applying state law to decision in case.

An interested survivor can't testify for his interest against the decedent or decedent's representatives about communications or transactions w/ the decedent in a civil case unless there is a waiver.

(i.e. you can't testify Bill told you he was drunk just before he crashed the car you two were in and you are suing his estate for damages)

Front 41

Leading Questions?

Back 41

Generally improper.

Exceptions:
1. on cross-examination
2. to elicit preliminary or introductory matter
3. when witness needs aid to respond because of loss of memory, immaturity, or physical or mental weakness.
4. when the witness is hostile

Front 42

Improper Questions and Improper Answers?

Back 42

Questions that are misleading or compound or argumentative or unduly harassing/embarrassing (have you stopped beating your wife?) are improper and not permitted.

Answers that lack foundation (lack personal knowledge) and answers that are nonresponsive may be stricken.

Front 43

Narrative Questions?

Back 43

impermissible (tell us everything relevant that happened that day?)

Front 44

When can a witness use a writing in aid of oral testimony?

Back 44

Generally, a witness can't read testimony from a previously prepared document, but may use a writing in aid of oral testimony in two situations where the witness is unable to remember:

1. refreshing recollection

2. recorded recollection

Front 45

Refreshing recollection?

Back 45

when witness memory fails, anything can be used to jog the memory of the witness and then witness can giver her testimony (she can't read the document out loud into evidence)

Witness must say "I forget" or "I can't remember" etc to show they can't remember.

The writing can be anything and is not entered into evidence (so no authentication, hearsay problems, etc.)
However, anything used to refresh recollection can be used by opposing counsel; opposing counsel can enter into evidence.

Front 46

Recorded Recollection

Back 46

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.

A. Foundation for a recorded recollection requires a showing that:
1. at 1 time witness had personal knowledge
2. writing was made by the witness, under the supervision of the witness, or was adopted by witness
3. writing was timely
4. writing was reliable / reasonably accurate (just ask witness, 'is it reliable?')
5. necessity - witness must be unable to remember all or part of the details of the transaction

B. Writing is admitted by being read into evidence (jury doesn't get to look at it).

C. Recorded recollection is hearsay but it is a hearsay exception.

Front 47

Types of Opinion testimony?

Back 47

Lay Opinion
and
Expert Opinion

Front 48

When is lay opinion admissible?

Back 48

Generally not admissible. Except when:
1. Rationally based on the perception of the witness AND
2. Helpful to the trier of fact (a legal conclusion offered by witness is not helpful to the trier of fact)
3. (AND Not based on scientific, technical or other specialized knowledge)

Front 49

When is expert opinion admissible?

Back 49

An expert may sate an opinion or conclusion if:

1. RELIABLE AND RELEVANT - the subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact

2. QUALIFIED EXPERT - witness possesses special knowledge, skill, experience, training, or education

3. OPINION BASED ON REASONABLE PROBABILITY - expert's opinion not based on mere speculation

4. SUPPORTED BY PROPER FACTUAL BASIS - Opinion may be based on:
a) personal observation
b) facts made known to the expert at trial
c) facts not known personally but supplied to him outside the courtroom and of a type reasonably relied upon by experts in the particular field (allows hearsay, things not w/in experts personal knowledge, things not in evidence)

Front 50

Use of Learned Treatises and Authoritative Texts?

Back 50

A learned text, treatise or article concerning a relevant discipline is ADMISSIBLE AS AN EXCEPTION TO THE RULE AGAINST HEARSAY IF ESTABLISHES AS RELIABLE established by:
1. reliance by your expert on direct examination
2. admission on cross-examination of your opposing expert
3. testimony of any expert
4. judicial notice

*Notes:
Expert must testify at trial or deposition unless judge takes judicial notice.
Treatise is admitted by being read to the jury. Text itself is not received as evidence.

Front 51

Use of learned treatise to impeach contrary opinion by defense expert?

Back 51

Usually there is a hearsay problem, but can get into evidence to rebutt / impeach an expert if you first establish as authoritative and reliable.

Authoritative if:
1. opposing expert relied on the text
2. admission by opposing expert it is an authoritative text
3. may call own expert witness who says its an authoritative text and then read from it to rebut opposing expert
4. ask judge to take judicial notice that its an authoritative text in the field

This is a hearsay exception to the text may be offered for its truth.

Front 52

Credibility and impeachment: When can you impeach?

Back 52

1. cross-examination
2. extrinsic evidence

Front 53

Cross examination?

Back 53

1. Party has absolute right to cross-examine a witness who testifies live. (if witness refuses to answer any cross-examination qs after testifying on direct then direct must be stricken)

2. Cross-examination should not excess the scope of direct

3. Collateral Matters Doctrine: impeachment by contradiction of the witness is limited. Cross-examination of limited by the answers given by the witness as to collateral matters. No extrinsic evidence is allowed to contradict a witness as to a collateral matter.

Front 54

What is a collateral matter?

Back 54

Relevant only to show a contradiction - not relevant to anything else in the case.

Front 55

What is extrinsic evidence?

Back 55

documents, other witnesses, etc.

Front 56

When can you accredit / bolster your own witness?

Back 56

Not until there has first been an appropriate impeachment.

Front 57

Statements of prior identification?

Back 57

This is excluded from the definition of hearsay (not hearsay): prior consistent statements are admissible if the statement is one of identification
(doesn't need to be made by identifier - statement can be made by someone who witnessed the identification)

However, the person who made the identification must testify at trial (otherwise it is pure hearsay, violates D's right of confrontation)

Front 58

Techniques for impeachment?

Back 58

1. prior inconsistent statement
2. showing of interest, motive, or misrepresentation
3. prior conviction (character attack)
4. specific acts of deceit or lying that are admissible on cross (character attack)
5. bad reputation for truth/veracity (character attack)

For each technique - ask
Can you use extrinsic evidence?
If you can use extrinsic evidence, do you need to lay a foundation?

Front 59

Use of prior inconsistent statements?

Back 59

statements inconsistent with a material portion of the witness' present in court testimony:

1. generally admissible only to impeach - not for its truth

2. but if the prior inconsistent statement was given UNDER OATH at a trial, hearing, other proceeding, or deposition, such a statement IS admissible for its truth.

3. Extrinsic evidence admissible to prove the prior inconsistent statement.

4. Foundation required for extrinsic evidence: the witness, at some point, must be given an opportunity to explain or deny the prior inconsistent statement

5. Prior inconsistent statements of a party qualify as an admission (may be admitted for truth)

Front 60

Use of bias, interest, motive evidence?

Back 60

May be shown by extrinsic evidence after a foundation is laid by inquiry on cross-examination of the target witnesses.

Front 61

Use of prior convictions to impeach?

Back 61

Usable to impeach if the conviction is for the proper kind of crime:

1. Any crime if it involves dishonesty or false statement (fraud, perjury, etc.) - Judge has no discretion to exclude (for being prejudicial, etc.)

2. felony not involving dishonesty is available at the discretion of the court

3. Conviction can't be too remote: if more than 10 years have elapsed from date of conviction or release from confinement, the conviction is generally inadmissible - even if it is a crime of dishonesty

Extrinsic evidence of conviction is admissible if it is a certificate of conviction, no foundation necessary.

Front 62

Use of specific acts of deceit or lying on cross-examination to impeach?

Back 62

Technique: Just ask the person if they did it.
Good faith required: must have a reasonable basis for asking the question.
Act inquired about MUST involve deceit or lying.

No extrinsic evidence permitted - limited to cross-examination.

Front 63

Use of bad reputation for truth / veracity to impeach?

Back 63

Can use extrinsic evidence by calling a witness to testify to the trait. Witness may only give opinion - can't testify to specific acts.

Front 64

Techniques for rehabilitating after impeachment?

Back 64

1. Good reputation (opinion) for truth may be shown if impeachment involved a character attack (prior conviction, act of deceit, bad reputation)

2. Prior consistent statement to rebut an express or implied charge of recent fabrication or improper influence or motive (show consistent statement made before bias arose).
-must be a pre-motive statement
-is admissible for its truth; is excluded from the definition of hearsay

Front 65

Attorney Client Privilage?

Back 65

CONFIDENTIAL COMMUNICATIONS between ATTORNEY AND CLIENT made during PROFESSIONAL LEGAL CONSULTATION are privilaged from disclosure unless waived by the client or the representative of the deceased client.

Exceptions (applies to negate all professional privileges):
1. future crime or fraud
2. when a client or patient affirmatively puts the communication in issue in litigation ('i just followed the advice of my atty')
3. disputes between parties to the professional relationship (actions for fee, malpractice)
4. joint client exception - where 2 or more parties communicate with atty about a matter of common interest, there is no privilege between those two parties

Front 66

Physician / Psychiatrist Patient Privilege?

Back 66

The patient has a privilege against disclosure of confidential information acquired by the physician / psychiatrist in a professional relationship entered into for the purpose of obtaining treatment.

'confidential and necessary to facilitate professional treatment' - does not include bleeding from the head (not confidential)

Privilege is waived if patient sues or defends by putting physical or mental condition in issue.

Front 67

Husband Wife Spousal Privilege?

Back 67

Two privileges:

1. Spousal Immunity Privilege

2. Confidential Marital Communications Privilege

Neither applies in intra-family injury cases (assault of spouse or child, etc.)

Front 68

Spousal Immunity Privilege?

Back 68

One spouse can't be forced to give any testimony against the other in a criminal case (not civil).

Privilege is held by the spouse (spouse may choose to testify).

Must be a valid marriage at time of trial.

Front 69

Confidential Marital Communications Privilege

Back 69

A husband or wife shall not be required or, without the consent of the other, shall not be allowed to disclose a confidential communication made by one to the other during the marriage.

Must be married at the time of the communication (need not be married at the time of trial).

Protects only confidences (not all testimony).

Applies to civil and criminal cases.

Front 70

Situations in which state evidence law will apply in federal court IF state substantive lwa applies?

Back 70

(like in a typical diversity jurisdiction case)

1. presumptions and burdens of proof

2. competency of witnesses

3. privilages

Front 71

Definition of Hearsay?

Back 71

An out of court statement offered FOR THE PURPOSE OF establishing the truth of the matter asserted in the statement.

Front 72

Specific non-hearsay situations?

Back 72

1. Verbal Acts or Legally Operative Facts: where words spoken or written have relevant legal significance in the case by virtue of being spoken or written (like an oral k offer or a written k offer, conspiracy, bribery)

2. Out of Court Statement offered not for its truth but to show its effect on the person who heard or read the statement. (show action, inaction, reason for action)

3. Out of Court Statement offered not for its truth but as circumstantial evidence of declarant's relevant state of mind.

Front 73

Can a witness' own prior statement be hearsay?

Back 73

Yes if it's offered for the purpose of est. the truth of the content of the statement.

(not an admission because not being offered against the party)

Front 74

Prior statements of a witness which are excluded from the definition of hearsay?

Back 74

1. Prior inconsistent statements given under oath at a trial, hearing, other proceeding or deposition.

2. Prior Consistent Statements to rebut charge of recent fabrication or improper influence or motive.

3. Prior statement of identification made by a witness.

Front 75

Exceptions to the rule against hearsay?

Back 75

1. Admission of a party

2. Former testimony

3. Statement against interest

4. Dying declaration

5. Spontaneous statements
a) present state of mind in issue
b) statement of existing intent to prove intended act
c) excited utterance
d) present sense impression
e) declaration of present physical condition
f) declaration of past physical condition

6. Business records

Front 76

Admission of a party (opponent)?

Back 76

Exception to hearsay:
A statement by a party offered against the party.

Admission need not be based on personal knowledge ('it must have been my dog that did it!')

May be in the form of a legal conclusion ('i was negligent')

Vicarious Admission - includes a statement by teh party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.

Front 77

Former Testimony?

Back 77

Hearsay Exception

Testimony given in earlier proceeding by person now unavailable is admissible if:

1. Unavailability: declarant is unavailable if court exempts declarant from testifying due to privilege, failed memory, dead or sick, just can't find, etc.

2. meaningful opportunity to develop or cross-examine in the prior proceeding when the witness gave live testimony (note this will never include grand jury testimony) Live testimony must have been about:
a. same issue and motive
b. same party (party offered against must have been a party in the first proceeding or at least been in privity w/ a party if a civil proceeding)

Front 78

Statement Against Interest?

Back 78

Hearsay Exception

Declaration of a person, now unavailable as a witness, against that persons' pecuniary, proprietary or penal interest (etc) at the time the satement was made.

Limitation: A statement tending to expose the declarant to criminal liability and offered to exculpate teh accused is not admissible unless 'corroborating circumstances clearly indicate the trustworthiness of the statement.'

Front 79

Statement against interest v. statement against party?

Back 79

statement against interest must be against interest at the time the statement was made

statement against interest may be made by an person, not necessarily by a party

statement against interest requires personal knowledge

statement against interest requires unavailability

Front 80

Dying Declaration?

Back 80

Hearsay Exception

A statement made by a declarant whie believing that the declarant's death was imminent, concerning the cause of circumstances of the impending death.
Only applies to prosecutions for homicide and civil actions.

Declarant need not die, but must be unavailable at time of trial.

Front 81

Spontaneous Statements - Declaration of existing state of mind in issue?

Back 81

Hearsay Exception (Unavailability not required)

declaration of existing state of mind (admissible when declarant's state of mind is at issue in the case)

Front 82

Spontaneous Statements - statement of existing intent to prove intended act ?

Back 82

Hearsay Exception (Unavailability not required)
Declaration of existing intent to do something in the near future offered to infer that the intended future act was done.

Front 83

Spontaneous Statements - Excited Utterance?

Back 83

Hearsay Exception (Unavailability not required)

Excited utterance admissible when:

a) startling event - would cause excitement in a regular person

b) made under stress of excitement - no time lapse that would cause the excitement to abate

c) concerns the facts of the startling event - language of excitement ("Goodness!")

Front 84

Spontaneous Statements - Present Sense Impression?

Back 84

Hearsay Exception (Unavailability not required)

A statement describing or explaining an event or condition made while declarent was perceiving the event or condition or immediately thereafter.

Different from excited utterance in that it is unnecessary to have startling event or excitement.

But, must have almost precise contemporaneousness - no appreciable time lapse.

Front 85

Spontaneous Statements - Declaration of Present Pain, Suffering or Physical Condition?

Back 85

Hearsay Exception (Unavailability not required)

A declaration of then existing physical or mental condition is admissible to show the condition.
(my head hurts!)

Front 86

Spontaneous Statements - Declaration of Past Physical Condition?

Back 86

Hearsay Exception (Unavailability not required)

Statement 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.

Must be made to medical personnel.
Must be pertinent to either diagnosis or treatment (even if diagnosis is only for the purpose of giving testimony)

Front 87

Who determines preliminary questions of fact upon which admissibility depends?

Back 87

Questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence...

Decided by judges - but in making its determination the court is not bound by the rules of evidence.

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Can you impeach hearsay testimony?

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Yes, the credibility of the declarant can be attacked by any evidence which would be admissible for that purpose if declarant has been a live witness.
(if impeaching w/ prior inconsistent statement the usual foundation requirement does not need to be met)

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Mixing hearsay and writings

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Watch out for best evidence rules and hearsay rules in these combination situations.

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Business Records?

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Hearsay Exception

Allows the record to substitute for the in-court testimony of the employees.

Definition: records made at or near the time by, or from 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 that business to make the record unless the source of information or circumstances of preparation indicate a lack of trustworthiness.

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Typical Problem Areas w/ Business Records Exception?

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1. Does the exception apply? Usually turns on whether entry is germane to the business.

2. Multiple Hearsay Problem: watch out for double hearsay

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Sixth Amendment Right to Confrontation and Hearsay

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Supreme court recently held that out of court statements, even if they fit a hearsay exception, will not be admitted for violating the defendant's right to confrontation in a criminal case if:

1. out of court statement is offered against the accused in a criminal case
AND
2. the declarant is unavailable at trial
AND
3. the out of court statement was testimonial
AND
4. the accused had no opportunity to cross-examine the declarant's testimonial statement when it was made
UNLESS
5. the prosecution demonstrates that the defendant has forfeited his Confrontation Clause objection by wrongdoing that prevented the declarant from testifying at trial

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Sixth Amendment Right to Confrontation and Hearsay:
When is a hearsay statement testimonial?

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A hearsay statement is testimonial if declarant makes a statement that he or she anticipates will be used in the prosecution or investigation of the crime.

A hearsay statement is not testimonial if the questioning/interrogation was made in an effort to resolve an emergency.

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Sixth Amendment Right to Confrontation and Hearsay:
What is the forfeiture by wrongdoing exception applied?

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Forfeiture by wrongdoing exception applies only when the defendant procured the unavailability of the declarant by wrongdoing that was done with the intent (motive) of keeping the witness from testifying.