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41 Cards in this Set

  • Front
  • Back
What is and what are the elements of the Spousal Immunity Privilege and who holds the privilege?
protects one spouse from testifying against another. Applies during marriage but to events at any time. In federal courts and majority of states (Virginia included), the testifying spouse holds the privilege. In minority states, the defendant spouse can prevent willing spouse from testifying.
What is the Confidential Marital Communications privilege; what are its elements and exceptions?
Protects confidential marital communications made during the marriage from being compelled to be disclosed except in suit between spouses or when violence/crimes against children of either are at issue.
VA Note: Both spouses hold this privilege both in refusing to testify and in preventing the other from testifying.
What are the elements of the attorney/client privilege?
1) confidential 2) communications 3) between attorney and client 4) for purpose of obtaining legal advice
What are the exceptions to the attorney/client privilege?
1) future crime/fraud
2) disputes between attorney and client
What is the Work Product Doctrine
Protects materials attorney creates in preparation for litigation from being disclosed. Mental impressions and strategies are especially protected.
What is the Doctor/Patient privilege, and where is it recognized?
Protects confidential communications between patient and doctor made for purposes of diagnosis or treatment. Not recognized in federal system, but the majority of states recognize it.
VA Note: only in civil cases and then only if phsyical/mental condition isn't at issue
What is the psychotherapist-patient privilege; where is it recognized?
protects communications between psychotherapist/social-worker/psychologist/psychiatrist and patient when communications made for purposes of treatment/diagnosis. Psych must assert privilege in patient's absence. Recognized in federal courts and in most states.
VA Note: in civil cases, psych can't be required to provide confidential information except for child abuse/neglect and physical/mental health at issue
What are the exceptions to the psychiatrist/patient privilege?
1) threat of future harm
2) patient's mental condition is at issue
3) commitment proceeding against patient
4) communication resulting from court-ordered exam
What is the privilege against compelled self-incrimination; what are the exceptions/exclusions?
The Fifth Amendment allows a witness to refuse to testify if it is likely to incriminate her. Applies only to present (not prior) statements and only for human beings (not corporations). If prosecution grants witness derivative use immunity (doesn't have to be transactional), then the privilege may not be asserted.
What privileges are recognized by the federal system?
1) spousal immunity
2) confidential marital communications
3) attorney/client
4) work product
5) psychiatrist-social worker/patient
List minor privileges
1) priest/penitent (strong in VA. belongs to priest)
2) accountant/client (not in VA)
3) journalist (applies in VA but yields to defendant's right to fair trial)
4) governmental (informant in criminal case and govt communications regarding official information.
What evidence is inadmissible under public policy exclusions?
1) whether someone has liability insurance
2) whether someone has taken subsequent remedial actions
3) offers to pay medical expenses
4) settlement offers or negotiations
5) plea negotiations (no contest pleas in criminal cases are admissible in subsequent civil cases in VA)
6) past sexual conduct*
What are the exceptions to the Rape Shield Laws
1) to show prior sexual conduct that provides an alternative explanation for physical evidence
2) to show the victim's past sexual relationship with the defendant to show consent
3) when the defendant's constitutional rights require it
4) in civil cases, when probative substantially outweighs prejudicial
when is a defendant's sexual history admissible?
When he's accused of sexual misconduct/crime, any evidence of past sexual misconduct/crime is admissible (regardless of conviction), though Rule 403 still governs.
What are the elements of hearsay?
1) out of court statement
2) intended as an assertion
3) offered for the truth of the matter asserted
What are examples of out-of-court statements?
1) something said by someone who is not in court
2) something written out of court
3) a gesture made out of court
Examples of non-hearsay out-of-court statements?
1) Legally operative facts (offered to show that a statement was made, not the content of the statement); statement as conduct/act
2) to show the effect on the recipient
3) to show declarant's state of mind
4) Impeachment evidence (a statement offered to show that a witness's statements are inconsistent)
What is not-hearsay?
1) Prior statements of testifying witnesses
2) Admissions by party-opponents (in VA, admissions by party opponents in current litigation may not only be admissible but may be CONCLUSIVE if unequivocal)
What are the three types of prior statements by testifying witnesses that are non-hearsay?
1) prior inconsistent statements made under oath at a trial, hearing, or deposition
2) Prior consistent statements, whether made under oath or not, offered to rebut charge of recent fabrication or improper motive;
3) Prior statement of identification
What are the subcategories of admissions by party-opponents?
1) Judicial admissions (guilty pleas)
2) adoptive admissions (party was present and understood or acknowledged or reasonable person would have disputed)
3) Vicarious admissions (employees, agents, co-conspirators)
What makes a declarant unavailable?
1) privilege
2) refusal
3) dead/too ill
4) lacks memory
5) absent and can't be found
Which exceptions to the hearsay rule depend on the declarant's being unavailable?
1) Former testimony if: a) given under oath, b) where the opposition party had opportunity and similar motive for cross-examination
2) Dying Declarations
3) Statements against interest (a) against declarant's interest when made and (b) a reasonable person wouldn't have made it unless he/she believed it was true)
4) statements of personal/family history
5) forfeiture by wrongdoing (ie, killing a witness)
Hearsay exceptions where declarant's availability is immaterial
1) present sense impression
2) Excited utterance
3) statements of condition (mental, emotional, physical)
4) statements for purpose of medical diagnosis/treatment
5) recorded recollection
6) business records
7) public records and reports
8) learned treatises
9) judgment of previous conviction
10) records of vital statistics
11) records of religious organizations
12) marriage/baptismal certificates/family records
13) records/statements/documents affecting an interest in property
14) ancient documents
15) market reports and commercial publications
16) reputation concerning personal/family history, boundaries or general history, or character
17) Statements that carry a guarantee of trustworthiness, are offered as evidence of a material fact and are more probative than any other evidence, and notice of the nature of the statement is provided to opposing party before trial
Hearsay exceptions, declarant's availability immaterial
1) present sense impression
2) Excited utterance
3) statements of condition (mental, emotional, physical)
4) statements for purpose of medical diagnosis/treatment
5) recorded recollection
6) business records
7) public records and reports
8) learned treatises
9) judgment of previous conviction
10) records of vital statistics
11) records of religious organizations
12) marriage/baptismal certificates/family records
13) records/statements/documents affecting an interest in property
14) ancient documents
15) market reports and commercial publications
16) reputation concerning personal/family history, boundaries or general history, or character
17) Statements that carry a guarantee of trustworthiness, are offered as evidence of a material fact and are more probative than any other evidence, and notice of the nature of the statement is provided to opposing party before trial
What are the five ways a declarant can be shown to be unavailable
1) privilege
2) refusal
3) doesn't remember
4) health/death
5) can't be found
What are the five "declarant unavailable" hearsay exceptions?
1) Prior testimony
2) dying declarations
3) statements against interest
4) statements of personal/family history
5) Forfeiture by wrongdoing
What's required for a dying declaration?
1) statement made by person who BELIEVES she's dying
2) IMMINENTLY
3) statement pertains to CAUSE of death
NOTE: Dying declarations are only admissible in HOMICIDE prosecutions or civil matters.
What's required for a statement against interest?
1) statement was against interest of declarant at time it was made
2) a reasonable person wouldn't have said it if it wasn't true
Present Sense Impression
statement made while declarant perceived event or directly after
Excited utterance
statement made under stress or excitement caused by event
When is a statement of a declarant's condition admissible and for what purposes?
When the condition is in question, a statement regarding the condition is admissible to prove the EXISTENCE of the condition, but NOT THE CAUSE
When is a declarant's statement regarding state of mind admissible and for what purposes?
When the statement expresses his PRESENT INTENT, it is admissible to show both that intent and THAT HE ACTED IN CONFORMITY WITH THAT INTENT (Hillman Doctrine).
What is required for a statement for purposes of medical treatment or diagnosis to be admissible?
The statement must describe (1) present conditions or medical history; (2) must be made to a healthcare provider (3) for the purpose of obtaining medical treatment/diagnosis.
What are the elements of the Recorded Recollection exception?
1) record concerns a matter of which the witness once had knowledge
2) record was prepared or adopted by the witness when the matter was fresh
3) the record accurately reflects the witness's knowledge
4) the witness states that she can't remember enough now to testify from memory
NOTE: The proponent party may not introduce the record into evidence, though the opposing party can.
What are the elements of the Business Records Exception and when does it apply?
1) a record or other writing that is made IN THE COURSE OF REGULARLY CONDUCTED BUSINESS is admissible if
2) the custodian of the record can establish that the record was made at the time of the event, and
3) that the record was made by a person with knowledge of the event
4) who was under a duty to report it, and
5) that the person regularly made such records during the regular course of business
VA NOTE: price tags are admissible in shoplifting cases and make out a prima facie case of an item's value (rebuttable presumption subject to cross by defendant)
What types of statements are admissible under the Public Records and Reports Exception?
1) activities of public office or agency
2) the observations of a person under a duty to report (except for police officers' observations against the criminal defendant)
3) Factual findings of a legal investigation, when offered against the government in a criminal action or against either party in a civil action.
What is required for the Learned Treatise Exception?
1) that the treatise is established as a reliable authority by witness testimony
2) that the witness relied on the treatise during direct examination
NOTE: The treatise itself is not admitted into evidence; the relevant statements are simply read into evidence.
When is a Judgment of Previous Conviction admissible?
To prove any fact essential to sustain the judgment, provided all the other rules allow the conviction to be admitted.
Which two Constitutional restrictions affect hearsay rules?
1) the Sixth Amendment's Confrontation Clause and
2) the Due Process Clause of the 5th and 14th Amendments
Under what circumstances will the COnfrontation Clause allow hearsay to be admitted?
1) when the statement is TESTIMONIAL, and
2) the declarant is UNAVAILABLE and
3) the defendant has had the OPPORTUNITY TO CROSS-EXAMINE the declarant on the issue
What makes statements Testimonial?
1) made under interrogation
2) with primary purpose of ascertaining prior criminal conduct