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215 Cards in this Set

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Three major areas of evidence coverage
1. relevance
2. witnesses and testimonial evidence
3. hearsay

(writings, privileges)
Types of relevance
1. logical relevance
2. discretionary, pragmatic, policy-based evidence
Logical relevance defined
evidence with tendency to make a material fact more probable or less probable then it would be without the evidence
First question to ask about any relevance
How is the evidence relevant?
When evidence involves some other time, event, person than one involved directly in the litigation
Determine whether evidence is logically relevant and admissible under the eights situations where similar occurrance evidence is admitted
8 situations where evidence of similar occurances is logicially relevant and admissible even though it involves some other person, even, or time
1. Causation (prove cause/effect)
2. prior accidents or claims
3. intent/state of mind
4. rebuttal evidence
5. comparable sales to establish value
6. habit evidence
7. business routine
8 industrial or trade custom
Is evidence of similar occurrances admissible to show causation?
Yes
Is evidence or a plaintiff's prior accidents or claims admissible?
No, unless
1) to prove common plan and scheme of fraud (that p often brings fraudulent suits)
2) where relevant on issue of damages to plaintiff (to show that injury stems from prior accident)
Situations in which prior accidents or claims evidence arises
1. when defendant wants to show prior accidents of p
2. when p wants to show prior accidents involving the same instrumentality
Is evidence of prior accidents involving the same instrumentality admissible?
Yes, when
1) the other accidents occurred under the same or similar circumstances, and
2) to show notice or knowledge of defendant that the instrumentality had defects
Is evidence of prior event admissible to infer intent of defendant?
Yes, under similar occurance rules allowing evidence even though it involves another event, person, or time
What is rebuttal evidence?
Evidence only admissible to rebut an opponents evidence, when the opponent has opened the door.

-Most common way to open door is to assert the defense of impossibility. Then P can offer evidence of another incident to rebut the defense of impossibility.
When is evidence of comparable sales admissible to establish value of property?
1. other property is of same kind
2. sale took place at about same time period AND
3. in same general geographical area
When is evidence of a person's habits admissible to show that the person acted the same way on the occasion in question?
--When the habit is specific and recurring
--Never in MA
Relevance of words describing behavior:
always, instinctively, invariably, automatically
Signal admissible evidence of habit
Disposition evidence
1) defined
2) admissibility
1. general evidence about character, such as disposition to be careful
2. Not admissible to infer conduct on occasion in question
Prior act evidence
1) defined
2) Admissibility
1) evidence of prior act
2) not admissible to infer conduct on occasion in question--only admissible on cross-examination of witness if p opens the door
Habit evidence in MA
Habit evidence is not admissible in MA.
- Business routine evidence (habit of org.) admissible in MA to show that business acted in conformity with usual business routine.
Is evidence of a business routine admissible?
Yes, even though involves other event.

Admissible to show that the business acted in conformity with usual business practice on the occasion in question.
Industrial or trade custom evidence
1) relevance
2) admissibility
1) Evidence of what non-parties trade or business does in a particular situation
2) admissible as non-conclusive evidence of the applicable standard of care
Types of discretionary/policy-based relevance
(where evidence is logically relevant but not admissible for policy reasons)
1. liability insurance
2. subsequent remedial measures
3. settlements
When is liability insurance admissible?
1) Not admissible to show person acted negligently
2) Not admissible to show ability to pay
3) Admissible when relevant to show ownership or control of property when in dispute
4) Admissible to impeach credibility of witness by showing interest, bias, motive (that witness has stake in outcome-eg. ins. claims manager of d)
When is evidence of subsequent remedial measures (subsequent repairs) admissible?
1) Not admissible to show negligence, culpable conduct, product defect, design defect, lack of warning.

2) admissible to show ownership and control of property when disputed

3) Admissible to impeach (show feasibility of precautionary measures when feasibility is controverted)
When is evidence of subsequent remedial measures admissible in MA?
1) Not admissible to show negligence, culpable conduct, product defect, design defect, lack of warning.

2) admissible to show ownership and control of property when disputed

3) Admissible to show feasibility of precautionary measures (NOT DIFF FROM FED: feasibility need not be controverted)
When are settlements admissible?
1) not admissible to prove fault, liability, or amt of damage

2) but make sure conversation is actually a settlement
What is meant by settlement?

Why relevant?
1. relevant bc inadmissible evidence

2. actual compromises
offers to compromise
offer to sttle disputed claim
offer to plead guilty in crim
withdrawn pleas of guilty
pleas of nolo contender
offer to pay med expenses (but accompanying admission of fact is admissible)
Requirements for settlement evidence to be inadmissible?
1. Must be a claim (identifiable claimant who may make claim, need not be litigation yet)

2. Claim must be disputed as to liability or amt.
Is an offer to pay medical expenses admissible?
No treated as settlement evidence. But any accompanying admissions are admissible.
When are admissions admissible evidence in MA?
All admissions are admissible unless in context of settlement and include words:
without prejudice or
for compromise purposes only
Analysis when determining whether character evidence is admissible?
1. What is the purpose of the character evidence?
2. Method of proving character?
3. Criminal or civil case?
4. What trait of character is involved?
What are the three common purposes for offering character evidence?
1. When character of the party is directly in issue
2. Character is circumstantial evidence of person's conduct at time of litigated event (to show acted in conformity w/ character)
3. Character to impeach credibility of witness (witness is not truthful)
What are the three techniques for proving character?
(permissible methods depend on purpose of evidence)
1. evidence of specific acts of conduct from which character can be inferred

2. opinion testimony

3. reputation testimony
Evidence may be admissible about which character traits?
Those specific traits substantivley of issue in case, like
larceny-honesty
perjury-truthfulness
assault-violence/peacefulness

* general evidence of good/bad person not specific enough
When is character evidence admissible in civil cases?
ONLY when character of person is itself a material issue in case.

1) defamation-truth is defense

2) negligent entrustment-character of individual is element

3) wrongful death-decedent's character an issue for damage calculation
When is character evidence admissible to show crimnal disposition in order to infer guilt in crime at issue?
Not admissilbe unless the d opens the door by offering evidence of good character for pertinent trait
By what method can defendant use character evidence to show good trait pertinent to case?
Reputation or opinion.
NOT, by specific acts of good conduct bc could take too long.
After d opens door to p's use of character evidence, can p present evidence of d's specific acts of conduct?
Only on cross-examination. P cannot introduce own witnesses to testify to d's specific acts of conduct. (P can call witnesses to testify to opinion or reputation of d)
Can the accused present character evidence of victim to infer that victim was first agressor?
Yes, by reputation or opinion. After d has opened the door, the prosecutor can respond by showing reputation or opinion about the victim or the accused.
What does accused presentation of character evidence of victim open the door to?
1. prosecution showing reputation/opinion evidence for victim's good traits

2. reputation/opinion evidence about bad traits of d
When is evidence of past acts admissible?
1. when not to infer comformity with past acts (e.g. to show state of mind)

2. on cross-examination when defendant opened the door
Rape shield statute in crim cases
In criminal case of sexual misconduct:
1) no opinion or reputation evidence of v's sexual behavior
2) Specific instances of victims sexual behavior admissible only
(a) to prove third party was source of harm
(b) to show prior acts of consensual intercourse between parties
OR
(c) if exclusion would violate constitutional rights of accused
Rape shield statute in civil cases
Victim's sexual behavior only admissible when probative value substantially outweighs danger of harm to victim and unfair prejudice to party
and notice and in camera hearing held
When are prior crimes or acts of misconduct admissible to prove a material fact other than character of disposition?
When relvant to prove a material fact other than character or disposition, including but not limited to MIMIC:

1. motive
2. intent
3. mistake
4. identity
5. modus operandi
6. common plan scheme

(also opportunity, preparation, etc)
6. knowledge
7. identity
8. absence of mistake/accident
When can prior crimes or acts be admitted to show modus operandi?
When the crime was committed in a distinctive and unusal way---a true signature crime.
When can prior crimes or acts be admitted to show a common plan or scheme?
When evidence whow act done in prepration for or part of common plan.
In what cases do the MIMIC exceptions to the inadmissibliity of specific acts evidence apply?
civil and criminal
Rule 403:
Evidence may be excluded if judge believes the probative value is substantially outweighed by the danger of unfair prejudice.
Can evidence of prior acts be used in sexual assault and child molestation cases?
Yes, evidence of prior acts of sexual assault or child molestation may be admitted in civil or criminal cases charging d with these crimes.

* no need for arrest, charge or conviction for acts. Any evidence will do.
What is required to admit a writing?
1. Authentication:
testimonial foundation must be laid, unless evidence falls into self-authenticating category

2. Must meet best evidence rule
what is foundation?
testimony showing that hte writing is what it purports to be, is genuine
Methods of authentication
1. admission
2. eyewitness testimony
3. handwriting proof
4. meets ancient document rule
5. meets solicited reply doctrine
6. self-authenticating writings
Who can give handwriting proof?
1. lay witness familiar with signature (can't have become familiar in prep for litigation)
2. expert witness or jury to compare disputed signature with genuine signature (not lay witness)
Ancient document rule
Writing authenticated when:
1) 20 or more years old
**30 years in MA

2) regular on its face

3) found in a place of natural custody
Solicited reply doctrine
Writing authenticated when:

1. proof that disputed doc came in response to prior communication
How much evidence is necessary to lay a proper foundation?
"sufficient evidence to justify a jury finding of authenticity or genuineness"

--Don't need to convince judge of anything by any standard
Self-authenticating documents(no foundation reqd)
1. certified copies of public/business records
2. official publications
3. newspapers/periodicals
4. trade inscriptions/labels
5. acknowledged documents (signed twice, once to acknoledge valid sig in doc)
6. signatures on certain commercial docs, as provided by ucc
What happens in MA when a contract or writing is pleaded in a complaint and not denied in the answer?
It is prima facie authenticated and admissible.
How are photos authenticated?
Any witness who was familiar with the scene at the time of the event can state that the photo is "a fair and accurate representation of the scene.
How are photos authenticated when no witnesses?
1. show camera was functioning properly
2. show time at which camera was functioning
3. show how camera and film were handled until presentation in court.
Best evidence rule:
1. defined
2. applicability
1. expresses preference for original

2. only to writings, including films, photos, x-rays, recordings
Analysis under best evidence rule
When seeking to prove CONTENT of a writing, must

1. produce original document OR
2. reasonably account for absence and then copy or oral testimony is admissible to prove content of original
When does best evidence rule apply?
1. writings (including films, photos, xrays, recordings)

AND

2. party wants to prove CONTENT of a writing

AND

3. Fact to be proved does NOT have existence independnet of writing

AND WRITING IS

4. legally operative documents (docs that by their existence create or destroy a legal relationsihp in dispute, eg. will, divorce decree, deed, contract)

OR

5. when witness's sole knowledge comes from doc and witness wants to recite orally what he read
When see writing on exam, what questions to ask?
1. authentication
2. hearsay
3. best evidence
Facts that have an existence independnet of a writing

1. why relevant
2. common examples
1. Best evidence rule doesn't apply

2.
fact of birth w/out birth cert.
fact of payment w/out receipt
Collateral documetns
1. defined
2. why relevant
1. writings of minor importance
2. best evidence rule doesn't apply
Exceptions to best evidence rule
(when copeis are admissible)
1. public records: certified copies admissible

2. voluminous documents:
summaries, etc admissible if (a) originals woudl be admissible if offered and (b) originals made accessible to opposing party

3. duplicates (any copy except handwritten) are admissible unless:
(a) a genuine quesiton is raised about authenticity of original OR
(b) unfair to admit duplicate in lieu of original
When is a witness competent?
1. Communicable personal knowledge
2. Can appreciate obligation to tell the truth (take the oath)

* Dead man's statute doesn't apply
Common law disqualifications for lack of competency (abandoned)
infancy, lack of religious belief, mental incompetency, prior convictions, interest (except dead man's statute)
Dead man's statute: when applicable
1. applicable in 1/2 states, NOT MA

2. Not applicable in fed court unless ct is applying state law in state w/ dead man's statute
When is a witness competent?
1. Communicable personal knowledge
2. Can appreciate obligation to tell the truth (take the oath)

* Dead man's statute doesn't apply
Common law disqualifications for lack of competency (abandoned)
infancy, lack of religious belief, mental incompetency, prior convictions, interest (except dead man's statute)
Dead man's statute: when applicable
1. applicable in 1/2 states, NOT MA

2. Not applicable in fed court unless ct is applying state law in state w/ dead man's statute
Dead man's statute defined
An interested survivor can't testify for his interest

against the decedent or decedent's rep

about communications or transactions with the decedent in a civil case

unless there is a waiver
Elements of dead man's statute
1. W must be interested, have direct stake in outcome

2. W must testify for her own interest

3. W must testify against decedent

4. W must testify about communications/transactions with the decedent

5. It must be a civil case

6. There must not have been a waiver (e.g. failure to object, when decedent gets before jury via deposition made before death)
How do we know whether dead man' statute applies on exam?
Question tells you that the state whose contract law applies has a dead man statute.
Objectionable questions in court
1. narrative
2. leading
3. Misleading or compound or argumentative
When are leading questions permitted?
1. cross examination
2. direct examination for preliminary matters
3. when difficult to elicit testimony bc witness old, feeble, child, dumb, forgetful, etc.

4. When examining adverse party or someone under control of adverse party or hostile witness
What is a misleading, compound, argumentative question?
The kind of question that assumes the truth of something in dispute.
Can witness use writings to aid testimony?
Witness can only read testimony from previously prepared document to aid oral testimony in two situations:

1. refreshing recollection
2. recorded recollection
When can a writing be used to refresh recollection?
When a witness's memory fails
What kind of writing can be used to refresh recollection?
ANY writing

eg. w's own statement
another's statement
Can an opposing party see writing used to refresh recollection? Put in evidence? Use in cross-ex?
Yes
What is a misleading, compound, argumentative question?
The kind of question that assumes the truth of something in dispute.
Can witness use writings to aid testimony?
Witness can only read testimony from previously prepared document to aid oral testimony in two situations:

1. refreshing recollection
2. recorded recollection
When can a writing be used to refresh recollection?
When a witness's memory fails
What kind of writing can be used to refresh recollection?
ANY writing

eg. w's own statement
another's statement
Can an opposing party see writing used to refresh recollection? Put in evidence? Use in cross-ex?
Yes
When is recorded recollection used?
When witness can't remember something

that she once had personal knowledge about,

her OWN WRITING can be admitted in place of testimony

if writing is shown to be reliable
How do recorded recollection and refreshing recollection compare?
1. Recorded recollections are admitted in place of testimony. Refreshing recollectoins are not admitted, unless by opposing party.

2. Recorded recollections ok when w never remembers. Refreshing recollections only give w hints, she must then remember independently.

3. since refreshing recollections not admitted, no need for foundations, hearsay, best evidence, etc. Recorded recollections require foundation, but are exempt from hearsay rule.
Foundation requirements for admission of writings for purpose of recorded recollections.
1. At one time, w must have had personal knowledge

2. The writing was made by w, under supervision of w, or adopted by w at time of making.

3. Writing must have been made at time when knowledge was fresh in w's memory.

4. The writing must be reliable or reasonably accurate. Ask witness whether she thought it accurate when made

5. The writing must be necessary, w must not be able to remember all or part of details of transactions
How is recorded recollection or learned treatises brought into evidence?
Read to jury. They don't get actual writing.

**both are admitted under exceptions to the hearsay rule
When is lay opinion admissible?
1. when rationally based on perception of witness (w has personal knowledge)

2. And when helpful to trier of fact (meaning relevant)
When is expert opinion admissible?
1. subject matter is appropriate for expert testimonry

2. witness is qualified as expert.

3. Expert possess reasonable certainty or probability regarding opinion

4. Opinion must be supported by proper factual basis.
What subject matter of expert witness testimony meets the "appropriate subject matter" requirement for expert opinion testimony?
Must convince judge, by preponderance of evidence, that the opinion testimony is:

1. Reliable (methodology)
2. Relevant (fits facts of case)
Qualification requirement for expert testimony
Any qualifications, including experience. Need not be formal, academic.
Define requirement that expert opinion testimony must be supported by proper factual basis.
Three types of facts satisfy requirement:

1. facts w/in personal knowledge of expert

2. facts supplied to expert in court, usually via hypo. Facts must be already admitted evidence

OR

3. Facts of a type that experts in field use in their normal practice (e.g. radiologists report okay, don't need to have seen x-rays)

**in MA, all facts upon which expert relies must be admissible.

**In fed rules, facts of type that experts in normal practice would use need not be admissible.
What is the biggest barrier to admission of a learned treatise?
Hearsay.
When is learned treatise admissible under federal rules?
Treatise established as authoritative is

Always admissible for truth or to impeach contrary opinion by opposing party.

--Learned treatise exception to the hearsay rule

--Only admissible for truth in MA when used to contradict opposing expert on cross-ex.
When is learned treatise admissible in MA?
--Only admissible for truth in MA when used to contradict opposing expert on ctross-examination

- But treatise established as authoritative it is admissible if used to impeach contrary opinion by opposing party.
How is a treatise established as authoritative?
1. When opposing party actually relied on treatise

2. By eliciting admission of treatise's authority in cross-examination

3. By calling own expert witness to testify that text is authoritative

4. Judicial notice
What kind of right dow a party have to cross-examine?
Party has an absolute right to cross-examine a witness who testifies live.

--If a witness refuses to answer cross ex questions after testifying on direct, direct tesimony must be stricken.
On what topics can a party cross-examine under fed and MA rules?1
1. Any relevant matter to case in MA

2. Under fed rules, cross-examination cannot exceed the scope of direct.
Collateral matters doctrine
Can't introduce extrinsic evidence to impeach/contract a witness.

Collateral matters: matters relevant only to contradict witness, not relevant to substantive issues.

Extrinsic evidence: anything other than cross-examination of witness
What is extrinsic evidence
Anything other than cross-examination of witness (including documents, bringing other witnesses)
Can one bolster her own witness?
ONLY after there has been an appropriate impeachment.
Is a prior consistent statement admissible to bolster a party's testimony?
No, unless prior impeachment.

--Hearsay if offered for truth.

--If offered to corroborate w's testimony, impermissible bolstering without prior impeachment.
When are prior consistent statements admissible?
When the statement is one of identification, it can be admitted for its truth

Requirements
- witness must be in court and cross-examinable
Can one bolster her own witness?
ONLY after there has been an appropriate impeachment.
Is a prior consistent statement admissible to bolster a party's testimony?
No.

--Hearsay if offered for truth.

--If offered to corroborate w's testimony, impermissible bolstering without prior impeachment.
When are prior consistent statements admissible for purposes other than rehabilitation?
When the statement is one of identification, it can be admitted for its truth

Requirements
- witness must be in court and cross-examinable
In MA, may one impeach one's own witness?
1) Can impeach own witness by prior inconsistent statement.

2) Cannot attack the character of one's own witness.
What are the techniques for impeaching an adversary's witness?
1. prior inconsistent statement

2. showing of witness's bias, interest, or motive to misrepresent.

3. prior conviction of crime

4. specific acts of deceit or lying which didn't result in conviction may be inquired on cross-examination

5. introduce testimony of w's bad reputation or opinion about w's lack of truthfulness.
In MA, may one impeach one's own witness?
1) Can impeach own witness by prior inconsistent statement.

2) Cannot attack the character of one's own witness.
What are the techniques for impeaching an adversary's witness?
1. prior inconsistent statement

2. showing of witness's bias, interest, or motive to misrepresent.

3. prior conviction of crime

4. specific acts of deceit or lying which didn't result in conviction may be inquired on cross-examination

5. introduce testimony of w's bad reputation or opinion about w's lack of truthfulness.
For what purpose is prior inconsistent statements admissible in MA and fed?
1. Admisssible to impeach. To show contradiction.

2. In fed court, admissible to show truth ONLY when prior inconsistent statement given under oath and at formal proceeding.

3. In MA, admissible to show truth ONLY when prior inconsistent testimony in grand jury testimony and

(a) testimony not coerced
(b) w's own statement and not that of interrogator, eg. leading questions
(c) must be some corroboratoin of w's prior inconsistent grand jury testimony
Must a foundation be laid before extrinsic evidence can be admitted to impeach an adversary's witness based on his prior inconsistent statement?
1. Under fed rules, must give witness opportunity to explain/deny the inconsistent statement, but need not be before the extrinsic evidence to impeach is admitted.

2. In MA, no foundation is necessary to prove inconsistent statement unless impeaching one’s own witness.
Is extrinsic evidence admissible to impeach an adversary's witness?
Yes, it is admissible to show all techniques except to show specific acts of deceit or lying. This would be inefficient.
For what purpose is prior inconsistent statements admissible in MA and fed?
1. Admisssible to impeach. To show contradiction.

2. In fed court, admissible to show truth ONLY when prior inconsistent statement given under oath and at formal proceeding.

3. In MA, admissible to show truth ONLY when prior inconsistent testimony in grand jury testimony and

(a) testimony not coerced
(b) w's own statement and not that of interrogator, eg. leading questions
(c) must be some corroboratoin of w's prior inconsistent grand jury testimony
Must a foundation be laid before extrinsic evidence can be admitted to impeach an adversary's witness based on his prior inconsistent statement?
1. Under fed rules, must give witness opportunity to explain/deny the inconsistent statement, but need not be before the extrinsic evidence to impeach is admitted.

2. In MA, no foundation is necessary to prove inconsistent statement unless impeaching one’s own witness.
Is extrinsic evidence admissible to impeach an adversary's witness?
Yes, it is admissible to show all techniques except to show specific acts of deceit or lying. This would be inefficient.
Is a prior inconsistent statement of a party admissible for truth?
Yes, because qualifies as an admission under the admission exception to the hearsay rule.
Is evidence of a witness's bias, interest or motive admissible?

For what purpose?
1. Yes admissible to impeach an adversary's witness.

2. For purpose of showing bias or motive, not for truth.

e.g. can show that witness received money in settlement from opponent
OR
that prosecutor's witness is awaiting trial
When are prior crimes usable to impeach an adversary's witness?
Only when specific acts of deceit or lying. Otherwise a prior CONVICTION is needed.
What convictions be used to impeach an adversary's witness in federal court?
1. Any crime that involves dishonesty (meaning deceit) of false statement is automatically admissible, unless too remote. Includes fraud, larceny by trick, embezzlement, perjury.

2. Felonies (crime punishable by more than 1 year) are admissible to impeach in the discretion of the court.

***If more than 10 years have elapsed from date of conviction or date of release from confinement (whichever later), the conviction is NOT admissible.
What convictions can be used to impeach an adversary's witness in MA courts?
1. The court has discretion to admit evidence of any crime that is not too remote.

2. Court generally admits evidence unless it is used to impeach defendant. If so, court generally balances under Rule 403.

3. Convictions cannot be too remote, defined as:

(a) Felonies when more than 10 years have elapsed are too remote. Except admissible if defendant convicted of other crime w/in past 10 years.

(b) Misdeameanors when more than 5 years have elapsed are too remote. Except admissible if defendant has been convicted of crime w/in past five years.
What extrinsic evidence is admissible to impeach an adversary's witness by showing his prior convictions?
Only the certificate of conviction.
How does one impeach by showing a witness's specific acts of deceit or lying?
**Not permissible in MA.

Only on cross-examination.

Ask whether the witness did it. No extrinsic evidence is permitted. If witness denies, atty is out of luck.
REquirements for impeaching a witness by showing specific acts of deception or lying
1. Must be on cross-examination

2. Must have good faith-reasonable basis for believing that the specific acts were done.

3. Act must directly involve deceit or lying.
When is rehabilitation of a witness after impeachment admissible?
1. Admissible when impeachment involved a character attack, such as prior conviction, act of deceit or lying, bad reputation/opinion for truth.

2. Not admissible when prior impeachment involved prior inconsistent statement or bias/motive/interest of witness.
When is positive reputation for truth evidence admissible?
Admissible to rehabilitate a witness after impeachment involving a direct character attack. (specific act of lying/deception, prior conviction, bad rep for truth)
When is a prior consistent statement admissible?
1) To rebut an express or implied charge of recent fabrication or improper influence or motive.

- the prior consistent statement must have been before the alleged motive arose

E.g. attorney over-coaching.

2) NOT admissible to rebut impeachment of prior inconsistent statement bc point of inconsistent statement testimony was to show that w was inconsistent, not to show truth.
For what purpose is a prior consistent statement admissible in MA/in fed cts?
1. In MA, only admissible to rehabilitate.

2. IN fed courts, prior consistent statemetn to rebut charges of recent fabrication or impropre influence

is admissible for its truth under the prior consistent statement exception to the hearsay rule.
Requirements for atty-client privilege to apply
1. attorney and client

2. Communication must be confidential (objects and pre-existing documents not privileged)

3. The communications must have been made during a professional legal consultation. This includes intent by the client to establish a professional legal relationship AND when predominatnly legal advice is sought.

4. Must not fall within an exception
a) future crime as fraud
b) at issue exception
c) disputes between parties to professional relationship
d) joint client exception
When does the attorney-client privilege apply to protect information from disclosure?
Confidential communications between attorney and client made during a professional legal consultation are privileged from disclosure unless waived by the client or the representative of the deceased client.
Are retainer negotiations protected by atty client privilege?
Yes
What happens to protected atty-client info after client's death?
privilege survives and can be asserted by representative of the deceased client.
Who can waive the atty-client privilege?
client
Requirements for atty-client privilege to apply
1. attorney and client

2. Communication must be confidential (objects and pre-existing documents not privileged)

3. The communications must have been made during a professional legal consultation. This includes intent by the client to establish a professional legal relationship AND when predominatnly legal advice is sought.

4. Must not fall within an exception
a) future crime as fraud
b) at issue exception
c) disputes between parties to professional relationship
d) joint client exception
When does the attorney-client privilege apply to protect information from disclosure?
Confidential communications between attorney and client made during a professional legal consultation are privileged from disclosure unless waived by the client or the representative of the deceased client.
Are retainer negotiations protected by atty client privilege?
Yes
What happens to protected atty-client info after client's death?
privilege survives and can be asserted by representative of the deceased client.
Who can waive the atty-client privilege?
client
future crime or fraud exception to the atty-client or psychiatrist-patient privilege
No protection of info that would facilitate future crimes or frauds
At issue exception to the atty-client and patient-psychiatrist privilege
info not protected when client or patient affirmatively puts communication in issue
Disputes between parties of professional relationship exception to professional privileges
Info relevant to actions for fee or malpractice is not protected
Joint client exception to professional evidentiary privileges
There is no protection covering info exchanged when 2 or more parties communicate with an atty about a matter of common interest. Atty can't divulge but either party can.
Is privileged atty-client info protected in MA when inadvertently disclosed?
Balance five factors:
1. reasonableness of precautions to avoid inadvertant disclosure

2. length of time since disclosure

3. Scope of production (more likley protected when many docs discovered)

4. Extent of inadvertant disclosure

5. interests of justice and fairness
Psychiatrist-patient privilege defined
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.
Requirements for psychiatrist-patient privilege to apply
1. Patient must be seeking treatment
--no privilege for non-treating physician
--no privilege for court appointed psychiatrist

2. Information acquired must be confidiential and necessary to facilitate professional treatment

3. No waiver or exceptions apply
Patient Litigant Exception in evidence law
Privilege is waived if patient sues or defends by putting physical or mental condition in issue.
IS there an ordinary doctor-patient privilege in MA and fed cts?
MA--No

Fed--Unclear
--If on exam, it won't exist because the patient is not seeking treatment or because of the patient litigation exception.
What are the two evidentiary privileges between husband adn wife?
1. spousal immunity privilege
2. confidential marital communications privilege
Spousal immunity privilege
One spouse can't be forced to give adverse testimony against the other in a criminal case
Requirements for spousal immunity privilege
1. married at time of trial
2. no restrictions on types of testimony protected. Protects against all
testimony
3. applies only in criminal cases
Who holds spousal immunity and confidential marital communications privileges?

In MA?
1. Spousal immunity privilege: witness spouse

2. Confidential marital communications privilege: both spouses (can only be waived by both spouses)

***confidential marital communications privilege can never be waived by either spouse in MA--No testifying allowed. Its basically a rule of incompetency.
when do spousal privileges NOT apply?
When case involves an injury between members of that family.
Confidential marital communications privilege defined
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.
REquirements for confidential marital communicaitons privilege
1. Married at time of protected communication (even if now divorced)

2. Protects only confidential communications

3. Applies in civil and criminal cases
Privilege for unemancipated minor children in MA
Unemancipated minor children living with parent are prohibited from testifying against that parent in criminal proceedings

UNLESS the victim is a family member living in the household
When does state evidence law apply in federal court?
In diversity cases, when state substantive law applies:

1. presumptions and burdens of proof

2. competency of witnesses (e.g. dead man's statute)

3. privileges
What type of federal law governs evidentiary privileges?
Federal common law
(AKA federal decisional law)
Definition of hearsay
Out of court statement offered for its truth
Rationale for excluding hearsay
Opponent has no opportunity to cross-examine the person who made the statement and whose perception, memory, and sincerity are at issue.
Three specific situations where hearsay not being offered for its truth
1. verbal acts or legally operative facts

2. Out of court statement offered to show effect on person who heard or read the statement

3. Out of court statement offered as circumstantial evidence of declarant's relevant state of mind
What are verbal acts or legally operative facts?

Why relevant?
1) relevant because these are excluded from the rule against hearsay because not offered for their truth.

2) words that have relevant legal significance by fact of being used

e.g. words of offer/acceptance
defamation
conspiracy
bribery
cancellation
misrepresentation
waiver
permission
What are out of court statements offered to show the effect on the person who heard or read the statemetn?

Why relevant?
1. relevant because excluded from rule against hearsay because not offered for their truth

2. For example, words to:
show notice
good faith
reason for action/inaction
motive
knowledge, etc.
Out of court statement offered as circumstantial evidence of declarant's relevant state of mind?

Why relevant?
1) Relevant because exception to rule against hearsay because not offered for truth.

2) For example, when insanity is at issue.
When can a witness's own prior statements be hearsay?
When offered for purpose of establishing truth

UNLESS fit an exception to or exclusion from rule against hearsay.

E.g. witness can say "I am innocent" but CANNOT SAY "I told them I was innocent."
Categorical exceptions from the hearsay rule for prior statements of a witness (need not be present at hearing in question)
1. prior inconsistent statements given under oath at a formal proceeding

2. prior consistent statemetns to rebut charge of recent fabrication, improper influence or improper motive.

3. prior statement of identification made by a witness.
What are verbal acts or legally operative facts?

Why relevant?
1) relevant because these are excluded from the rule against hearsay because not offered for their truth.

2) words that have relevant legal significance by fact of being used

e.g. words of offer/acceptance
defamation
conspiracy
bribery
cancellation
misrepresentation
waiver
permission
What are out of court statements offered to show the effect on the person who heard or read the statemetn?

Why relevant?
1. relevant because excluded from rule against hearsay because not offered for their truth

2. For example, words to:
show notice
good faith
reason for action/inaction
motive
knowledge, etc.
Out of court statement offered as circumstantial evidence of declarant's relevant state of mind?

Why relevant?
1) Relevant because exception to rule against hearsay because not offered for truth.

2) For example, when insanity is at issue.
When can a witness's own prior statements be hearsay?
When offered for purpose of establishing truth

UNLESS fit an exception to or exclusion from rule against hearsay.

E.g. witness can say "I am innocent" but CANNOT SAY "I told them I was innocent."
Categorical exceptions from the hearsay rule for prior statements of a witness (need not be present at hearing in question)
1. prior inconsistent statements given under oath at a formal proceeding

2. prior consistent statemetns to rebut charge of recent fabrication, improper influence or improper motive.

3. prior statement of identification made by a witness.
Exceptoins to the rule against hearsay
1. admission of party (exclusion from rule--non-hearsay)

2. former testimony

3. statement against interest

4. dying declaration

5. spontaneous statement

6. business records
Types of spontaneous statements adn why relevant
1. relevant bc exceptions to hearsay rule

2.
- present state of mind in issue
- statemetn of existing intent to prove intended act
- excited utterance
- present sense improession
- declaration of present physical condition
- declaration of past physicla condition
Admission of party defined and why relevant
1. relevant because non-hearsay/exclusion from hearsay rule (only an exception in MA)

2. declaration of a party offered AGAINST the party

- need not be against interest at time of making
- statement need not be based on personal knowledge
- Can be in form of legal conclusion
What is the relevance of:

a statement by a party's agent or servant concerning a matter within the scope of the agency or employment, made during existence of the relationship
It is a vicarious admission, admissible against teh employe under the admissions exclusion from the hearsay rule
Former testimony defined and relevance
1. relevant as exception to rule against hearsay

2. testimony given in an earlier proceeding by person now unavailable is admissible if (1) party agaisnt whom testimony was offered had opportunity to examine the person; and (2) motive to conduct cross-exam was similar.

In civil case, also admissible if party against whom testimony offered was in privity with a party in earlier proceeding who had opportunity and motive to examine.
Exceptoins to the rule against hearsay
1. admission of party (exclusion from rule--non-hearsay)

2. former testimony

3. statement against interest

4. dying declaration

5. spontaneous statement

6. business records
Types of spontaneous statements adn why relevant
1. relevant bc exceptions to hearsay rule

2.
- present state of mind in issue
- statemetn of existing intent to prove intended act
- excited utterance
- present sense improession
- declaration of present physical condition
- declaration of past physicla condition
Admission of party defined and why relevant
1. relevant because non-hearsay/exclusion from hearsay rule (only an exception in MA)

2. declaration of a party offered AGAINST the party

- need not be against interest at time of making
- statement need not be based on personal knowledge
- Can be in form of legal conclusion
What is the relevance of:

a statement by a party's agent or servant concerning a matter within the scope of the agency or employment, made during existence of the relationship
It is a vicarious admission, admissible against teh employe under the admissions exclusion from the hearsay rule
Former testimony defined and relevance
1. relevant as exception to rule against hearsay

2. testimony given in an earlier proceeding by person now unavailable is admissible if (1) party agaisnt whom testimony was offered had opportunity to examine the person; and (2) motive to conduct cross-exam was similar.

In civil case, also admissible if party against whom testimony offered was in privity with a party in earlier proceeding who had opportunity and motive to examine.
Requirements for admission of former testimony
Excepted from hearsay rule when:

1. meaningful opportunity to cross in prior hearing
(a) same issue and motive in both proceedings
(b) Crim case: party against whom the testimony was offered was also party in first case
Civil case: above or party against whome testimony offered was in privity with party from first case
AND
2. unavailability of the declarant
Is a grand jury testimony of an unavailable declarant against the accused in a criminal case admissible?
No, bc accused did not have chance to cross-examine in grand jury.
When is a witness unavailable?
court exempts from testifying bc:

1. privilege
2. memory failure
3. dead or sick
4. Can't attend
etc.
Statement against interest defined and relevance
1. relevant as exception from hearsay rule

2. Declaration of a person, now unavailable as witness, against that person's pecuniary, proprietary, or penal interest at the time the statement was made
Is a statement that exposes declarant to criminal liability and exculpates teh accused admissible?
Such 3rd party exceptions are admissible only when "corroborating circumstances clearly indicate the trustworthiness of the statement"

Otherwise violates hearsay rule.
Differences between admissions and statements against interest and why relevant.
1. relevant as exceptions to hearsay rule

2. Differences
(a) statement against interst must be against interest at time statement made
- admission must be against interest at trial

(b) statement against interst may be made by any person
-admission can only be made by party

(c) Statement against interest requires personal knowledge
-admission requires no personal knowledge

(d) statement against interest requires unavailability
Why very rare to have both admissions and statement against interest exceptions to teh hearsay rule apply?
Bc statement against interest requires unavailability

AND

Admission is necessarily by party
AND

Unlikely that party unavailable
Dying declaration defined and relevance
1. relevant as exception to rule against hearsay

2. In a prosecution for a homicide or in a civil proceeding, a statement made by a declarant while believing that the declaran'ts death was imminent, concerning the cause of circumstances of the impending death.
Requirements for dying declaration exception
1. made under a sense of impending death (on exam, declarant should say something about impending death)

2. Declarant must be unavailable at time of trial but need not die under fed rules (Need die under ma ruls)

3. Admissible in homicide or civil case under fed rules. ADmissible only in homicide case under MA rules.

4. Declaration must concern cause or circumstances of impending death.
What MA exception to the hearsay rule came into being after the dead man's statute was abolished?
MA allows admission of declaration of deceased person in civil cases when made:
1. in good faith and
2. on personal knowledge

**d not think he will die when he makes declaration
**can be made years before death.
Differences between admissions and statements against interest and why relevant.
1. relevant as exceptions to hearsay rule

2. Differences
(a) statement against interst must be against interest at time statement made
- admission must be against interest at trial

(b) statement against interst may be made by any person
-admission can only be made by party

(c) Statement against interest requires personal knowledge
-admission requires no personal knowledge

(d) statement against interest requires unavailability
Why very rare to have both admissions and statement against interest exceptions to teh hearsay rule apply?
Bc statement against interest requires unavailability

AND

Admission is necessarily by party
AND

Unlikely that party unavailable
Dying declaration defined and relevance
1. relevant as exception to rule against hearsay

2. In a prosecution for a homicide or in a civil proceeding, a statement made by a declarant while believing that the declaran'ts death was imminent, concerning the cause of circumstances of the impending death.
Requirements for dying declaration exception
1. made under a sense of impending death (on exam, declarant should say something about impending death)

2. Declarant must be unavailable at time of trial but need not die under fed rules (Need die under ma ruls)

3. Admissible in homicide or civil case under fed rules. ADmissible only in homicide case under MA rules.

4. Declaration must concern cause or circumstances of impending death.
What MA exception to the hearsay rule came into being after the dead man's statute was abolished?
MA allows admission of declaration of deceased person in civil cases when made:
1. in good faith and
2. on personal knowledge

**d not think he will die when he makes declaration
**can be made years before death.
Declaration of existing state of mind in issue defined and why relevant
1. excited as spontaneous statements exception to hearsay rule

2. e.g. admissible state of mind when witness testifies that defendant with insanity diefense said "I believe I am the Pope"
Declaration of existing intent to do soemthing in teh future offered to infer that the intended future act was done
Defined and Relevance?
1. RElevant as spontanesous statement exception to hearsay rule

2. Eg. admissible when witness testifies that Declarant said he was going to meet with X on Monday to prove that he did meet with X on Monday
Excited utterance relevance and defined
1. relevant as spontaneous statement exception to hearsay rule

2. statement relating to startling event or condition is admissible when made by declarant still under stress of excitement caused by event or condition
Requiremsnts for excited utterance exception to hearsay rule
1. Startling event
2. made under stress of excitement
3. concerns the facts of the startling event

**make sure no long time last and excitement didn't wear off

**look for words of excitement like, exclaim, scream, shout
Present sense impression defined and relevance
1. relevant as spontaneous statement exception to hearsay rule

2. A statement describing or explaining an event or condition made while declarant was perceiving teh event or condition or immediately thereafter.
Differentiate between excited utterance and present sense impression
1. both spontaneous statement exceptions to hearsay rule

2.
--excited utterance needs startling event or excitement.

--present sense impression can't have any time lapse. Excited utterance can have small time lapse if still excited.
Present sense impression exception to hearsay rule in MA
Not an exception in MA
Declaration of present pain, suffering or phsyical condition

Defined and relevance
1. relevant as spontaneous statement exception to hearsay rule

2. A declaration of then existing physical or mental condition is admissible to show the condition.

eg it hurts!
Declaration of past physical condition

Defined and relevance
1. relevant as spontaneous statemetn exception to hearsay rule

2. Statement made for purpose of diagnosis or treatment and descibing 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.
Requirements for declaration of past physical condition exception to hearsay rule
1. made to medical personnel

2. pertinent to diagnosis or treatment
(applies even when diagnosis only for purpose of giving testimony)
Who decides preliminary questions of fact upon which admissibliity depends?

Examples?
1. The judge decides and is NOT bound by rules of evidence.

2. E.g. state of mind of declarant in dying declaration exception, whether declarant speaking under stress in excited utterance exception
Who decides preliminary questions of fact upon which admissibliity depends?

Examples?
1. The judge decides and is NOT bound by rules of evidence.

2. E.g. state of mind of declarant in dying declaration exception, whether declarant speaking under stress in excited utterance exception
How can one impeach a hearsay declarant?
Just like any live witness. Typically done with prior inconsistent statements.
What to look for when writings admitted in exam questions
1. best evidence rule
2. hearsay
Business records requiremetns and relevance
1. exception to rule against hearsay

Requirements:
1. made at or near time
2. by person with knowledge
3. kept in regular course of business
4. regular course of business to make the record

UNLESS
5. the source or circumstances of prepartation indicate a lack of trustworthiness

*** indiv who made the record must be under a business duty to do so

*** The record must substitute for the in-court testimony of employee. If employee couldn't testify, then record not admissible.

***writing must be germane to business
6th amendment right to confrontation
Rule and relevance
1. Relevant to prevent out of court statemetns from being admitted against criminal defendant

2. Hearsay won't be admittied if:
(a) out of court statement offered against accused in criminal case

(b) declarant unavailable at trial

(c)out of court statemetn was testimonial (statemetn that anticipates will be used in prosecution or investigation of crime, e.g. witness statemetns, testimony, forensic lab reports)

(d) accused had no opportunity to cross the declarant's testimonial statement when made

UNLESS

(e) prosecution shows that d has forfeited confrontation clause objection by wrongdoing that prevented declarant from testifying at trial