Evidence

Front 1

General Considerations

Basic Threshold for Admissibility (Relevance & Competence)

Back 1

Generally, relevant evidence is admissible if it is competent.

"Relevant" evidends tends to prove (probativeness) any fact of consequence to the action (materiality).

Evidence is "competent" if it does not violate any exclusionary rule.

Front 2

General Considerations

Limited Admissibility & Jury Instructions

Back 2

Evidence may be admissible for one purpose but not another, or admissible against one party but not another.

In these situations, the court must, upon timely request, restrict the evidence to its proper scope and instruct the jury accordingly.

Furthermore, the court may exclude the evidence entirely if it determines that, even with a limiting instruction, the probative value of the evidence w/ respect to its legitimate purpose would be substantially outweighed by danger of unfair prejudice with respect to its illegitimate purpose.

Front 3

Relevance

Standard

Back 3

Evidence is relevant if it tends to make the existence of any fact of consequence to the outcome of the action more or less probable than it would be without the evidence.

Generally, the evidence must relate to the time, event, or person involved in the present litigation. An important factor is the evidence's proximity in time to the current events.

Front 4

General Considerations

Four-Step Inquiry for Admissibility

Back 4

1) Is the evidence RELEVANT?

2) Is there a proper FOUNDATION? (e.g., has the competency of the witness, the authenticity of the evidence, or the reliability of the scientific test been established?)

3) Is the evidence in the proper FORM? (e.g., questions are properly phrased, answers are within the requirements for lay and expert opinion, and documents comply w/ best evidence rule?)

4) Is the evidence within the scope of, or subject to an exception to, one of the following exclusionary rules?

- Discretionary exclusion for prejudice;

- Policy-based exclusions (subsequent repairs, settlement negotiations);

- Privilege;

- Hearsay;

- Parol evidence.

If all of these are satisfied, the evidence is admissible.

Front 5

Relevance

Situations Where Similar (Past) Occurrences Are Relevant to Present Litigation

(Overview)

Back 5

1) Causation (complex cases)

2) Prior False Claims or Same Bodily Injury

3) Similar Accidents or Injuries Caused by Same Event or Condition

4) Previous Similar Acts Admissible to Prove Intent

5) Rebutting Claim of Impossibility

6) Sales of Similar Property

7) Habig

8) Industrial or Busines Routine

9) Industry Custom as Evidence of Standard of Care

Front 6

Relevance

Situations Where Similar (Past) Occurrences Are Relevant to Present Litigation

(Causation - Complex Cases)

Back 6

Complicated issues of causation may be established by evidence concerning other times, events, or persons (e.g., damage to nearby homes caused by D's blasting is relevant to prove D's blasting damaged P's home).

Front 7

Relevance

Situations Where Similar (Past) Occurrences Are Relevant to Present Litigation

(Prior False Claims or Same Bodily Injury)

Back 7

Evidence that a person has previously filed similar tort claims or has been involved in prior accidents is generally inadmissible to show the invalidity of the rpesent claim.

But evidence that the party has made previous similar false claims or claims involving the same bodily injury is usually relevant to prove that:

- The present claim is likely to be false; or

- The plaintiff's condition is attributable in whole or in part to the prior injury.

Front 8

Relevance

Situations Where Similar (Past) Occurrences Are Relevant to Present Litigation

(Similar Accidents or Injuries Caused by Same Event or Condition, or Lack Thereof)

Back 8

Evidence of prior accidents or injuries caused by the same event or condition is admissible to prove:

- The existence of a dangerous condition;

- That the defendant had knowledge of the dangerous condition; and

- That the dangerous condition was the cause of the present injury.

Many courts are reluctant to admit evidence of the absence of similar accidents to show absence of negligence or lack of a defect. However, evidence of the absence of complaints is admissible to show the defendant's lack of knowledge of the danger.

Front 9

Relevance

Situations Where Similar (Past) Occurrences Are Relevant to Present Litigation

(Previous Similar Acts Admissible to Prove Intent)

Back 9

Similar conduct previously committed by a party may be introduced to prove the party's present motive or intent when such elements are relevant (e.g., history of school segregation admissible to show motive for current exclusion of minorities).

Front 10

Relevance

Situations Where Similar (Past) Occurrences Are Relevant to Present Litigation

(Rebutting Claim of Impossibility)

Back 10

The requirement that prior occurrences be similar to the litigated act may be relaxed when used to rebut a claim of impossibility (e.g., defendant's claim that car will not go above 50 m.p.h. can be rebutted by showing occasions when car went more than 50 m.p.h.).

Front 11

Relevance

Situations Where Similar (Past) Occurrences Are Relevant to Present Litigation

(Sales of Similar Property)

Back 11

Evidence of sales of similar personal or real property that are not too remote in time is admissible to prove value.

Prices quoted in mere offers to purchase are not admissible. However, evidence of unaccepted offers by a party to the action to buy or sell the property may be used against him as an admission.

Front 12

Relevance

Situations Where Similar (Past) Occurrences Are Relevant to Present Litigation

(Habit)

Back 12

Habit describes a person's regular response to a specific set of circumstances.

Under FRE 406, evidence of a person's habit may be admitted to prove that on a particulra occasion, the person acted in accordance with the habit.

Look for words like "instinctively" and "automatically" in the fact pattern.

Front 13

Relevance

Situations Where Similar (Past) Occurrences Are Relevant to Present Litigation

(Industrial or Busines Routine)

Back 13

Evidence that a particular business had an established business routine is relevant as tending to show that a particular event occurred.

Front 14

Relevance

Situations Where Similar (Past) Occurrences Are Relevant to Present Litigation

(Industry Custom as Evidence of Standard of Care)

Back 14

Industry custom may be offered to show adherence to or deviance from an industry-wide standard of care. However, industry custom is NOT conclusive on this point; e.g., an entire industry may be acting negligently.

Front 15

Relevance

Discretionary Exclusion of Relevant Evidence

(General 403 Balancing Test)

Back 15

A trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, or waste of time.

Under the FRE, "unfair surprise" is NOT a valid ground on which to exclude relevant evidence.

Front 16

Relevance

Exclusion of Relevant Evidence for Public Policy Reasons

(Overview)

Back 16

1) Liability Insurance

2) Subsequent Remedial Measures

3) Settlement Offers or Negotiations

4) Withdrawn Guilty Pleas or Offers to Plead Guilty

5) Offers to Pay or Payment of Medical Expenses

Front 17

Relevance

Exclusion of Relevant Evidence for Public Policy Reasons

(Liability Insurance)

Back 17

Evidence of insurance against liability (or lack thereof) is NOT admissible to show NEGLIGENCE or ABILITY TO PAY a substantial judgment.

However, it MAY be admissible:

- To prove ownership or control (if disputed);

- To impeach; or

- As part of an admission of liability.

Front 18

Relevance

Exclusion of Relevant Evidence for Public Policy Reasons

(Subsequent Remedial Measures)

Back 18

Evidence of repairs or other precautionary measures made following an injury is NOT admissible to prove NEGLIGENCE, culpable conduct, a defect in a product or its design, or a need for a warning or instruction.

However, it MAY be admissible:

- To prove ownership or control (if disputed);

- To rebut a claim that the precaution was not faeasible; or

- To prove that the opposing party has destroyed evidence.

Front 19

Relevance

Exclusion of Relevant Evidence for Public Policy Reasons

(Settlement Offers)

Back 19

Evidence of compromises or offers to compromise is NOT admissible to prove or disprove the validity or amount of a disputed claim.

Not even direct admissions of liability DURING compromise negotiations are admissible.

But REMEMBER: for the exclusionary rule to apply to settlement negotiations, there must be some indication that a party is going to make a claim (though he need not have filed suit yet); and the claim must be in dispute as to liability or amount.

Front 20

Relevance

Exclusion of Relevant Evidence for Public Policy Reasons

(Withdrawn Guilty Pleas)

Back 20

Withdrawn guilty pleas, pleas of nolo contendere, and offers to plead guilty are inadmissible.

Front 21

Relevance

Exclusion of Relevant Evidence for Public Policy Reasons

(Offers to Pay Medical Expenses)

Back 21

Payment of or offers to pay the injured party's medical expenses are NOT admissible. (We want people to be charitable.)

However, ADMISSIONS OF FACT that ACCOMPANY such offers are ADMISSIBLE.

Front 22

Relevance

Character Evidence

(Means of Proving Character)

Back 22

Depending on teh juris., the purpose of the offer, and the nature of the case, one or all of the following methods of proving character may be available:

- Evidence of specific acts;

- Opinion testimony of a witness who knows the person; and

- Testimony as to the person's general reputation in the community.

Front 23

Relevance

Character Evidence

(Generally Not Admissible in Civil Cases)

Back 23

Unless character is DIRECTLY in issue (e.g., defamation, or negligent hiring), evidence of character offered by either party to prove the conduct of a person in the litigated event is generally not admissible in a civil case.

Front 24

Relevance

Character Evidence

(Defendant in Criminal Case - General Rule)

Back 24

The prosecution CANNOT initiate evidence of bad character of the defendent merely to show propensity (but can do so for other reasons--MIMIC).

The accused, however, may introduce evidence of her relevant good character trait to show her innocence of the alleged crime.

Front 25

Relevance

Character Evidence

(Defendant in Criminal Case - Methods for Def. Evidence)

Back 25

Under the FRE, a witness for the defendant may testify as to the defendant's good REPUTATION for the trait in question and may give his personal OPINION regarding that trait of the defendant.

Front 26

Relevance

Character Evidence

(Defendant in Criminal Case - How Pros. Rebuts)

Back 26

Once the defendant opens the door to a relevant character trait by introducing character evidence, the prosecution may rebut it by:

- Cross-examining the character witness regarding the basis for his testimony, including whether he knows or has heard of specific instances of the defendant's misconduct (but the pros. is limited to inquiring about this and is bound by the witness' answer--can't introduce extrinsic evidence).

- Calling qualified witnesses to testify to the defendant's bad reputation or give their opinions of the defendant's character (but no specific acts here).

Front 27

Relevance

Character Evidence

(Defendant in Criminal Case - Character for Truthfulness)

Back 27

Taking the witness stand in his own defense automatically places the defendant's credibility (i.e., character for truthfulness) at issue.

The prosecution is limited to impeachment evidence (as opposed ot substantive character evidence where it is a relevant character trait).

Front 28

Relevance

Character Evidence

(Victim in a Criminal Case - General Rule)

Back 28

Except in rape cases, the defendant MAY introduce reputation or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show the defendant's innocence. (Ex.: in assault case, evidence of victim's violent character is admissible to show that defendant acted in self defense).

Once the defendant has introduced evidence of a bad character trait of the victim, the prosecution may counter with reputation or opinion evidence of:

1) The victim's GOOD character for any pertinent trait; or

2) The DEFENDANT'S bad character for the same trait.

Front 29

Relevance

Character Evidence

(Victim in a Criminal Case - Homicide Cases)

Back 29

In a HOMICIDE case in which the defendant pleads self-defense, evidence of ANY kind that the victim was the first aggressor (e.g., eyewitness testimony that the victim struck first) opens the door to evidence that hte victim had good character for peacefulness.

This evidence can be introduced regardless of whether teh defendant has introduced character evidence of the victim's generally violent propensity.

Front 30

Relevance

Character Evidence

(Victim in a Criminal Case - Rape Shield Law - General Rule)

Back 30

In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or disposition of the victim is GENERALLY inadmissible.

Front 31

Relevance

Character Evidence

(Victim in a Criminal Case - Rape Shield Law - Exceptions in Criminal Cases)

Back 31

In a criminal case, specific instances of a victim's sexual behavior ARE admissible to prove that someone other than the defendant is the source of semen, injury, or other physical evidence.

Also, specific instances of sexual behavior BETWEEN the victim and the accused are admissible by the prosecution for any reason, and by the defense to prove CONSENT.

Front 32

Relevance

Character Evidence

(Victim in a Criminal Case - Rape Shield Law - Exceptions in Civil Cases)

Back 32

In a civil case, evidence of the alleged victim's sexual behavior is admissible if it is not excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to ANY party.

Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the victim.

Front 33

Relevance

Character Evidence

(Specific Acts of Misconduct - General Rule)

Back 33

Evidence of a person's other crimes or misconduct is NOT admissible if offered solely to establish a criminal disposition or bad character (propensity).

However, evidence of other crimes or misconduct IS admissible if these acts are relevant to some issue other than the defendant's propensity to commit the crime or act charged, including (but not limited to):

- motive,

- intent,

- absence of mistake or accident,

- identity, or

- common scheme/plan.

In a criminal case, the prosecution must, upon request, provide reasonable notice prior to trial of the general nature of any of this type of evidence it intends to introduce.

Front 34

Relevance

Character Evidence

(Specific Acts of Misconduct - MIMIC)

Back 34

Motive

Intent

Mistake (absence of)

Identity

Common scheme or plan

Front 35

Relevance

Character Evidence

(Specific Acts of Misconduct - Requirements for Admissibility)

Back 35

To be admissible:

(i) there must be sufficient evidence to support a jury finding that the defendant committed the prior act (i.e., conditional relevance--low bar); and

(ii) its probative value must not be substantially outweighed by the danger of unfair prejudice (or the judge, in her discretion, may exclude it).

Front 36

Relevance

Character Evidence

(Specific Acts of Misconduct - Prior Acts of Sexual Assault or Child Molestation)

Back 36

Evidence of a defendant's prior acts of sexual ssault or child molestation IS admissible in a case where the def. is accused of committing an act of sexual assault or child molestation (i.e., admissible as straight propensity evidence).

The party intending to offer this evidence must disclose it to the defendant 15 days before trial (or later w/ good cause).

Rationale: Higher recidivism rates for these types of crimes(?)

Front 37

Judicial Notice

Definition

Back 37

Judicial notice is the recognition of a fact as true without formal presentation of evidence.

Front 38

Judicial Notice

Judicial Notice of FACT

(Facts Appropriate for Judicial Notice)

Back 38

Courts take judicial notice of INDISPUTABLE facts that are either:

- Matters of COMMON KNOWLEDGE in the community; or

- Matters CAPABLE OF VERIFICATION by resort to easily-accessible sources of unquestionable accuracy.

Courts have increasingly taken judicial notice of scientific principles as a type of manifest fact.

Judicial notice of such facts may be taken at any time, whether or not requested (i.e., sua sponte is ok).

Front 39

Judicial Notice

Judicial Notice of FACT

(Procedural Aspects of Judicial Notice)

Back 39

If a court does not take judicial notice of a fact on its own accord, a party must formally request that notice be taken of the particular fact.

Judicial notice may be taken for the first time on appeal.

The FRE provide that a judicially-noticed fact is CONCLUSIVE in a CIVIL case, but NOT in a CRIMINAL case.

In a CRIMINAL case, the jury is instructed that it MAY, but is not required to, accept as conclusive any judicially-noticed fact.

Front 40

Judicial Notice

Judicial Notice of FACT

("Adjudicative" vs. "Legislative" Facts)

Back 40

The FRE, and thus their requirements, only govern judicial notice of "adjudicative" facts (i.e., those that relate to the particular case).

"Legislative" facts (i.e., those relating to legal reasoning and lawmaking), such as the rationale behind the spousal privilege, need not be of common knowledge nor capable of indisputible verification to be judicially noticed.

Front 41

Judicial Notice

Judicial Notice of LAW (Mandatory or Permissive)

Back 41

Courts MUST take judicial notice of federal and state law and hte official regulations of the forum state and the federal gov't.

Courts MAY take judicial notice of municipal ordinances and private acts or resolutions of Congress or of the local state legislature. Laws of foreign countries may also be judicially noticed.

Front 42

Real Evidence

Definition

Back 42

Real or demonstrative evidence is actual physical evidence addressed directly to the trier of fact.

Real evidence may be direct, circumstantial, original, or prepared (demonstrative).

Front 43

Real Evidence

General Conditions of Admissibility

(Overview)

Back 43

Real evidence must be relevant and must meet the following legal requirements:

1) Authentication

2) Condition of object

3) Balancing test (legal relevance)

Front 44

Real Evidence

General Conditions of Admissibility

(Authentication)

Back 44

The object must be identified as what the proponent claims it to be, either by:

1) Testimony of a witness that she RECOGNIZES the object as what the proponent claims it is (e.g., witness testifies that a gun is the one found at the crime scene); or

2) Evidence that the object has been held in a SUBSTANTIALLY UNBROKEN CHAIN OF POSSESSION (e.g., blood taken for a blood-alcohol test; drugs tested).

Front 45

Real Evidence

General Conditions of Admissibility

(Condition of the Object)

Back 45

If the condition of the object is significant, it must be shown to be in substantially the same condition at trial.

Front 46

Real Evidence

General Conditions of Admissibility

(Balancing Test - Legal Relevance)

Back 46

Some auxiliary policy or principle may outweigh the need to admit the real evidence. Such policies include physical inconvenience of bringing the object into the courtroom; indecency or impropriety; or undue prejudice.

Front 47

Real Evidence

General Conditions of Admissibility

(Particular Types of Real Proof - Overview)

Back 47

1) Reproductions and Explanatory Real Evidence

2) Maps, Charts, Models, etc.

3) Exhibition of Child in Paternity Suits

4) Exhibition of Injuries

5) Jury View of the Scene

6) Demonstration

Front 48

Real Evidence

General Conditions of Admissibility

(Particular Types of Real Proof - Reproductions)

Back 48

Relevant photographs, diagrams, maps, or other reproductions are admissible if their value is not outweighed by the danger of unfair prejudice.

However, items used entirely for explanatory purposes are permitted at trial, but are usually not admitted into the evidence (i.e., they are not given to the jury during its deliberations).

Front 49

Real Evidence

General Conditions of Admissibility

(Particular Types of Real Proof - Maps, Charts, etc.)

Back 49

Maps, charts, models, etc., are usually admissible for the purpose of illustrating testimony, but must be authenticated (by testimonial evidence that they are faithful reproductions of the object or thing depicted).

Front 50

Real Evidence

General Conditions of Admissibility

(Particular Types of Real Proof - Exhibition of Child in Paternity Suits)

Back 50

In paternity suits, almost all courts permit exhibition of the child to show whether she is the race of the putative father.

The courts are divided with respect to the propriety of exhibition for the purpose of proving physical resemblance to the putative father.

Front 51

Real Evidence

General Conditions of Admissibility

(Particular Types of Real Proof - Exhibition of Injuries)

Back 51

Exhibition of injuries in a personal injury or criminal case is generally permitted. But the court has discretion to exclude this evidence if unfair prejudice would result.

Front 52

Real Evidence

General Conditions of Admissibility

(Particular Types of Real Proof - Jury View of the Scene)

Back 52

The trial court has discretion to permit the jury to view places at issue in a civil or ciminal case.

The need for the view and changes in the condition of the premises are relevant considerations.

Front 53

Real Evidence

General Conditions of Admissibility

(Particular Types of Real Proof - Demonstrations)

Back 53

The court, in its discretion, may permit experiments or demonstrations to be performed in the courtroom.

Demonstrations of bodily injury may not be allowed where the demonstrations would unduly dramatize the injury.

Front 54

Documentary Evidence

Authentication

(General Rule)

Back 54

Documentary evidence must be relevant in order to be admissible. In the case of writings, the authenticity of the document is one aspect of its relevancy.

As a general rule, a writing or any secondary evidence of its content will not be received in evidence unless the writing is authenticated by proof that shows that the writing is what the proponent claims it is. The proof must be sufficient to support a jury finding of genuineness.

Note: The genuineness of a document may be admitting by the pleadings or by stipulation.

Front 55

Documentary Evidence

Authentication

(Evidence of Authenticity - Overview)

Back 55

The following are categories/examples of proper authentication:

1) Admissions

2) Eyewitness testimony

3) Handwriting verification

4) Ancient documents

5) Reply letter doctrine

6) Photographs

7) X-Ray Pictures, Electrocardiograms, etc.

Front 56

Documentary Evidence

Authentication

(Evidence of Authenticity - Admissions)

Back 56

A writing may be authenticated by evidence that the party against whom it is offered has either admitted its authenticity or ACTED UPON it as authentic.

Front 57

Documentary Evidence

Authentication

(Evidence of Authenticity - Eyewitness Testimony)

Back 57

A writing can be authenticated by testimony of one who sees it executed or hears it acknowledged. The testimony need not be given by a subscribing witness.

Front 58

Documentary Evidence

Authentication

(Evidence of Authenticity - Handwriting Verifications)

Back 58

A writing may be authenticated by evidence of the genuineness of the handwriting of the maker. This evidence may be:

- the opinion of a NONEXPERT WITH PERSONAL KNOWELDGE of the alleged writer's handwriting; or

- the opinion of an EXPERT who has compared the writing to samples of the maker's handwriting.

Genuineness may also be determined by the trier of fact through comparison of samples.

Front 59

Documentary Evidence

Authentication

(Evidence of Authenticity - Ancient Documents)

Back 59

A document may be authenticated by evidence that it:

1) Is at least 20 years old;

2) Is in such condition as to be free from suspicion as to authenticity; and

3) Was found in a place where such a writing would likely be kept.

Ex.: Family Bible(?)

Front 60

Documentary Evidence

Authentication

(Evidence of Authenticity - Reply Letter Doctrine)

Back 60

A writing may be authenticated by evidence that it was written in response to a communication sent to the claimed author.

Front 61

Documentary Evidence

Authentication

(Evidence of Authenticity - Photographs)

Back 61

Generally, photographs are admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a correct representation of those facts. Ordinarily, it is not necessary to call the photographer to authenticate the photograph; a witness familiar with the scene is sufficient.

Front 62

Documentary Evidence

Authentication

(Evidence of Authenticity - Unattended Camera)

Back 62

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

(Ex.: Speed cams)

Front 63

Documentary Evidence

Authentication

(Evidence of Authenticity - X-Ray Pictures, etc.)

Back 63

Unlike photographs, an X-Ray cannot be authenticated by testimony of a witness that it is a correct representation of the facts.

It must be shown that the process used is accurate, teh machine was in working order, and the operator was qualified to operate it.

Finally, a custodial chain must be established to assure that the X-ray has not been tampered with.

Front 64

Documentary Evidence

Authentication

(Authentication of Oral Statements)

Back 64

When a statement is admissible only if said by a particular person (e.g., admission by a party), authentication as to the identity of the speaker is required.

- A void may be identified by the opinion of anyone who has heard the voice at ANY time, including after litigation has begun and for the sole purpose of testifying.

- Statements made during a telephone conversation may be authenticated by one of the parties to the call, who testifies that: (i) he recognized the other party's voice; (ii) the speaker had knowledge of certain facts that only a particular person would have; (iii) he called a particular person's number and a voice answered as that person or that person's residence; OR (iv) he called a business and talked with the person answering the phone about matters relevant to the business.

Front 65

Documentary Evidence

Authentication

(Self-Authenticating Documents)

Back 65

Certain writings are said to "prove themselves." Extrinsic evidence is not required for the following:

1) Domestic public documents bearing a seal;

2) Similar official foreign public documents;

3) Certified copies of public records (like convictions);

4) Official publications;

5) Newspapers and periodicals;

6) Trade inscriptions;

7) Acknowledged documents;

8) Commercial paper and related documents; and

9) Certified business records.

Front 66

Documentary Evidence

Best Evidence Rule

(General Rule)

Back 66

This rule is more accurately called the "original document rule."

To PROVE THE TERMS of a writing (including a recording, photograph or x-ray), the original writing must be produced if the terms of the writing are material.

Secondary evidence of the writing (e.g., oral testimony) is admissible only if the original is unavailable.

Front 67

Documentary Evidence

Best Evidence Rule

(Applicability of the Rule)

Back 67

The rule applies to two classes of situations, namely:

1) Where the writing is a LEGALLY OPERATIVE or dispositive instrument; or

2) The KNOWLEDGE of a witness concerning a fact RESULTS (solely) from having read it in the document.

Front 68

Documentary Evidence

Best Evidence Rule

(NON-Applicability of the Rule)

Back 68

The Best Evidence Rule does NOT apply in the following circumstances:

1) Where the fact to be proved as an existence INDEPENDENT of any writing. (e.g., many writing record details of essentially nonwritten transactions; oral testimony of those facts may be given without the original writings recording the event).

2) Where the writing is of minor importance (i.e., COLLATERAL) to the matter in controversy.

3) Where VOLUMINOUS records are SUMMARIZED (it's ok to summarize voluminous records and present them in a chart, etc.).

4) The rule does not apply to copies of PUBLIC records that are CERTIFIED as correct or testifed to as correct.

Front 69

Documentary Evidence

Best Evidence Rule

(Defintions - "Writings," "Original," and "Duplicate")

Back 69

The FRE govern writings, recordings and photographs, and they are broadly defined.

An ORIGINAL is the writing itself or any copy that is intended by the person executing it to have the same effect as an original.

A DUPLICATE is an exact copy of an original, such as a photocopy, made by mechanical means. Duplicates are admissible in federal courts unless the authenticity of the original is challenged or unfairness would result.

- Note: HANDWRITTEN copies are not duplicates; they are considered secondary evidence, and are admissible only if the original or a duplicate is unavailable.

Front 70

Documentary Evidence

Best Evidence Rule

(Admissibility of Secondary Evidence of Contents - General Rule)

Back 70

If the proponent cannot produce the original writing in court, he may offer secondary evidence of its contents (handwritten copies, notes, oral testimony) if a satisfactory explanation is given for the nonproduction of the original.

Front 71

Documentary Evidence

Best Evidence Rule

(Admissibility of Secondary Evidence of Contents - Satisfactory Explanation)

Back 71

Valid excuses justifying the admissibility of secondary evidence include:

1) Loss or destruction of the original;

2) The original is in possession of a third party outside the jurisdiction and is unobtainable (i.e., no subpoena power);

3) The original is in the possession of an adversary who, after due notice, fails ot produce the original.

Front 72

Documentary Evidence

Best Evidence Rule

(Admissibility of Secondary Evidence of Contents - Testimony or Written Admission of Party)

Back 72

A proponent may prove the contents of a writing, recording, or photograph through the testimony, deposition, or written admission of the party against whom it is offered, and need not account for the nonproduction of the original.

Front 73

Documentary Evidence

Best Evidence Rule

(Admissibility of Secondary Evidence of Contents - Functions of the Court vs. Jury)

Back 73

Ordinarily, it is for the COURT to make determinations of fact regarding ADMISSIBILITY of duplicates, other copies, and oral testimony as to the contents of an original.

However, the FRE reserve the following questions of preliminary fact for the jury:

- Whether the original ever existed;

- Whether a writing, recording, or photograph produced at trial is an original; and

- Whether the evidence offered correctly reflects the contents of an original.

Front 74

Documentary Evidence

Parol Evidence Rule

Back 74

See Contracts cards on this.

Front 75

Testimonial Evidence

Competency of Witnesses

(General Rule)

Back 75

Witnesses must pass tests of basic reliability to establish their competency to give testimony, but they are generally presumed to be competent until the contrary is established.

Witnesses must possess to some degree four basic testimonial attributes: the capacity to observe; to recollect; to communicate; and the appreciate the obligation to speak truthfully.

Front 76

Testimonial Evidence

Competency of Witnesses

(Federal Rules of Competency)

Back 76

The Rules do not specify any mental or moral qualifications for witness testimony beyond these two limitations:

1) The witness MUST have PERSONAL KNOWLEDGE of the matter about which he is to testify; and

2) The witness must declare he will testify TRUTHFULLY.

If a witness requires an interpreter, the interpreter must be qualified and take an oath to make a true translation.

Front 77

Testimonial Evidence

Competency of Witnesses

(Modern Modifications of Common Law Disqualifications)

Back 77

Most jurisdictions and the FRE have removed the common law witness disqualifications for lack of religious belief, conviction of a crime, and interest in the lawsuit. However, the following typically remain:

1) INFANCY: The competency of an infant depends on the capacity and intelligence of the particular child, as determined by the trial judge.

2) INSANITY: An insane person may testify, provided he understands the obligation to speak truthfully and has the capcity to testify accurately.

3) Judges and Jurors: The presiding judge may not testify as a witness. Likewise, jurors are incompetent to testify before the jury in which they are sitting.

Front 78

Testimonial Evidence

Competency of Witnesses

(Dead Man Acts)

Back 78

Most states have Dead Man Acts, which provide that a party or person interested in the event is incompotent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased.

A person is "interested" if he stands to gain or lose by the judgment or the judgment may be used for or against him in a subsequent action.

A predecessor in interest of the interested party is also disqualified.

Note: There is NO Dead Man Act in the federal rules, but a State Act will apply in federal (diversity) cases through the Erie doctrine.

Front 79

Testimonial Evidence

Form of Examination of Witnesses

(Leading Questions)

Back 79

Leading questions (i.e., questions that suggest the answer desired) are generally improper on DIRECT examination. However, they are permitted:

- On CROSS examination;

- To elicit PRELIMINARY or introductory matter;

- When the witness NEEDS AID to respond because of loss of memory, immaturity, or physical/mental weakness; or

- When the witness is HOSTILE.

Front 80

Testimonial Evidence

Form of Examination of Witnesses

(Improper Questions)

Back 80

Potential objections to questions as improper:

- Misleading (i.e., cannot be answered without making an unintended admission);

- Compound (requiring a single answer to more than one question);

- Argumentative;

- Conclusionary;

- Cumulative;

- Unduly harrassing or embarrassing;

- Call for a narrative answer;

- Call for speculation;

- Assume facts not in evidence.

Front 81

Testimonial Evidence

Form of Examination of Witnesses

(Improper Answers)

Back 81

Answers are improper if they:

- lack foundation (the witness has insufficient personal knowledge); or

- are nonresponsive (do not answer the specific question asked).

Improper answers may, upon request, be stricken from the record.

Front 82

Testimonial Evidence

Form of Examination of Witnesses

(Use of Memoranda by Witness - General Rule)

Back 82

A witness CANNOT read her testimony from a prepared memorandum. However, a memorandum may be used in certain circumstances (e.g., refreshing recollection or recorded recollection).

Front 83

Testimonial Evidence

Form of Examination of Witnesses

(Use of Memoranda by Witness - Present Recollection Refreshed)

Back 83

A witness may use any writing or object for the purpose of refreshing her present recollection.

She usually may NOT read from the writing while she actually testifies, b/c the writing is not authenticated and not in evidence.

The party using the writing/object to refresh recollection is not entitled to introduce the writing/object into evidence.

However, an ADVERSE PARTY is entitled: to have the writing produced at trial, to cross-examine the witness thereon, and to introduce portions relating to the witness's testimony into evidence.

Front 84

Testimonial Evidence

Form of Examination of Witnesses

(Use of Memoranda by Witness - Past Recollection Recorded)

Back 84

Where a witness states that she has insufficient recollection of an event to enable her to testify fully and accurately, even after she has consulted a writing given to her on the stand, the writing itself may be read into evidence if a proper foundation is laid. Requirements:

1) The witness at one time had personal knowledge of the facts in the writing;

2) The writing was made by the witness or under her direction, or it was adopted by the witness;

3) The writing was timely made when the matter was fresh in the witness' mind;

4) The writing is accurate; and

5) The witness has insufficient recollection to testify fully and accurately.

Front 85

Testimonial Evidence

Opinion Testimony

(By Lay Witnesses - General Rule)

Back 85

Opinions by lay witnesses are generally inadmissible.

However, there are many cases where no better evidence can be obtained. In most juris., and under the FRE, opinion testimony by a lay witness is admissible when it is:

1) Rationally based on the witness' perception;

2) Helpful to a clear understanding of his testimony or to the determination of a fact in issue; and

3) Not based on scientific, technical, or other specialized knowledge.

Front 86

Testimonial Evidence

Opinion Testimony

(By Lay Witnesses - Examples Where Admissible or Inadmissible)

Back 86

An opinion of a lay witness is generally admissible w/ respect to:

- The general appearance or condition of a person;

- The state of emotion of a person;

- Matters involving sense recognition;

- Voice or handwriting identification;

- The speed of a moving object;

- The value of his own services;

- The rational or irrational nature of another's conduct; and

- Intoxication of another.

Conversely, opinions of lay witnesses are NOT admissible w/ regard to whether one acted as an agent or whether an agreement was made.

Front 87

Testimonial Evidence

Opinion Testimony

(By Expert Witnesses - General Rule)

Back 87

An expert may state an opinion or conclusion, provided:

- The subject matter is one where scientific, technical or other specialized knowledge would assist the trier of fact;

- The witness is QUALIFIED as an expert (i.e., possesses special knowledge, skill, experience, training or education);

- The expert possesses reasonable probability regarding his opinion; and

- The opinion is supported by a proper factual basis.

Front 88

Testimonial Evidence

Opinion Testimony

(By Expert Witnesses - Sources Upon Which Experts May Base Their Opinions)

Back 88

An expert's opinion may be based on one or more of three possible sources of information:

- Personal observation;

- Facts made known to the expert at trial; or

- Facts not known personally but supplied to him outside the courtroom and are of a type reasonably relied upon by experts in the field.

Front 89

Testimonial Evidence

Opinion Testimony

(By Expert Witnesses - Opinion on Ultimate Issues)

Back 89

Under the FRE, an expert MAY render an opinion as to the ultimate issue in the case.

However, in a criminal case in which the defendant's mental state constitutes an element of the crime or defense, an expert may not, under the FRE, state an opinion as to whether the accused did or did not have the mental state in issue.

Front 90

Testimonial Evidence

Opinion Testimony

(By Expert Witnesses - Authoritative Texts and Treatises)

Back 90

An expert may be cross-examined concerning statements contained in any publication established as reliable authority either by the testimony of this expert or another expert, or by judicial notice.

Under the FRE, these texts and treatises can be used not only to impeach experts, but also as substantive evidence, subject to the following limitations:

- An exper must be on the stand when an excerpt is read from a treatise; and

- The relevant portion is read into evidence, but is not received as an exhibit.

Front 91

Testimonial Evidence

Cross-Examination (Restrictions on Scope)

Back 91

Cross-examination is generally limited to:

(i) the scope of direct examination, including all reasonable inferences that may be drawn from it; and

(ii) testing the credibility of the witness.

Front 92

Testimonial Evidence

Cross-Examination (Collateral Matters)

Back 92

The cross-examiner is generally bound by the answers of the witness to questions concerning collateral matters. Thus, the response may not be refuted by extrinsic evidence.

However, certain recognized matters of impeachment, such as bias, interest, or a conviction, may be developed by extrinsic evidence b/c they are sufficiently important. The trial court has considerable discretion in this area.

Front 93

Testimonial Evidence

Impeachment

(Accrediting or Bolstering)

Back 93

Generally, a party may not bolster or accredit the testimony of his witness (e.g., by introducing a prior consistent statement) until the witness has been impeached.

However, in certain cases, a party may prove the witness made a timely complaint or a prior statement of identification. The prior identification may also serve as substantive evidence that the identification was correct.

Front 94

Testimonial Evidence

Impeachment

(Who May Impeach)

Back 94

Under the FRE, a witness may be impeached by any party, including the party that called him.

Front 95

Testimonial Evidence

Impeachment

(Methods - Generally)

Back 95

A witness may be impeached either by cross-examination or by extrinsic evidence.

Certain grounds for impeacment require that a foundation be laid during cross-examination before extrinsic evidence can be introduced. Other grounds allow impeachment to be accomplished only be cross-examination and not by extrinsic evidence.

Front 96

Testimonial Evidence

Impeachment

(Methods - Prior Inconsistent Statment - Generally)

Back 96

A party may show, by cross-examination or extrinsic evidence, that the witness has, on another occasion, made statements inconsistent with his present testimony.

To prove the statement by extrinsic evidence, a proper foundation must be laid and the statement must be relevant to some issue in the case.

Front 97

Testimonial Evidence

Impeachment

(Methods - Prior Inconsistent Statment - Foundation for Extrinsic Evidence)

Back 97

Extrinsic evidence can be introduced to prove a prior inconsistent statment only if the witness is, AT SOME POINT, given an opportunity to explain or deny the statement. (Can be either before or after the extrinsic evidence.)

The exception to the rule is that inconsistent statements by hearsay declarants may be used to impeach despite the lack of a foundation.

Under the FRE, foundation requirements may be dispensed with where justice requires (e.g., witness unavailable when inconsistent statement is discovered).

Front 98

Testimonial Evidence

Impeachment

(Methods - Prior Inconsistent Statment - Evidentiary Effect)

Back 98

Usually, prior inconsistent statements are hearsay, admissible only for impeachment.

If, however, the statement was made under oath at a prior proceeding (including depos., etc.), it is admissible nonhearsay and may be admitted as substantive evidence of the facts asserted.

Front 99

Testimonial Evidence

Impeachment

(Methods - Bias or Interest)

Back 99

Evidence that a witness is biased or has an interest in the outcome of the case tends to show that the witness has a motive to lie.

Before a witness can be impeached by extrinsic evidence of bias or interest, he must first be asked about the facts that show bias or interest on cross-examination.

Front 100

Testimonial Evidence

Impeachment

(Methods - Conviction of Crime - Generally)

Back 100

A witness may be impeached by proof of a CONVICTION (an arrest or indictment is not sufficient) for certain crimes. A pending review or appeal does not affect the use of a conviction for impeachment.

A prior conviction may be shown by either direct or cross-examination of the witness, or by introducing a record of the judgment. No foundation is necessary.

Front 101

Testimonial Evidence

Impeachment

(Methods - Conviction of Crime - Type of Crime)

Back 101

A witness may be impeached by ANY crime (felony or misdemeanor) requiring an act of dishonesty or false statement. The court has NO discretion to bar impeachment by these crimes.

A witness may also be impeached by a FELONY that does not involve dishonesty, but the court has discretion to exclude it if:

- The witness being impeached is a criminal defendant, and the prosecution has not shown that the conviction's probative value outweighs is prejudicial effect; or

- In the case of all other witnesses, the court determines that the conviction's probative value is substantially outweighed by its prejudicial effect.

Front 102

Testimonial Evidence

Impeachment

(Methods - Conviction of Crime - Remoteness in Time)

Back 102

Generally, if more than 10 years have elapsed since the date of conviction or the date of release from confinement (whichever is later), the conviction is inadmissible.

Juvenile convictions are similarly inadmissible.

A conviction obtained in violation of the defendant's constitutional rights is invalid for all purposes, including impeachment.

Front 103

Testimonial Evidence

Impeachment

(Methods - Conviction of Crime - Effect of Pardon)

Back 103

A conviction may not be used to impeach a witness if the witness has been pardoned and: (i) the pardon is based on innocence, or (ii) the person pardoned has not been convicted of a subseuent felony.

Front 104

Testimonial Evidence

Impeachment

(Methods - Specific Instances of Misconduct)

Back 104

Under the FRE, subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to an act of misconduct ONLY if the act is probative of truthfulness (i.e., is an act of deceit or lying). However, the cross-examiner must inquire in good faith.

Extrinsic evidence of "bad acts" to prove misconduct is not permitted. A specific act of misconduct, offered to attack the witness' character for truthfulness, can be elicited only on cross-examination of the witness. The cross-examiner may not reference any consequences the witness may have suffered as a result of his bad act.

But note: Inadmissible to inquire about ARRESTS.

Front 105

Testimonial Evidence

Impeachment

(Methods - Opinion or Reputation Evidence for Truthfulness)

Back 105

A witness may be impeached by showing that he has a poor repuation for truthfulness. This may include evidence of reputation in business circles as well as in the community in which the witness resides.

Under the FRE, an impeaching witness may state his own opinion as to the character of a witness for truthfulness.

Front 106

Testimonial Evidence

Impeachment

(Methods - Sensory Deficiencies)

Back 106

A witness may be impeached by showing, either on cross-examination or by extrinsic evidence, that his faculties of perception and recollection were so impaired as to make it doubtful that he could ahve perceived those facts.

A witness may also be impeached by showing that he had no knowledge of the facts to which he testifified.

Front 107

Testimonial Evidence

Impeachment

(Methods - Contradictory Facts)

Back 107

Extrinsic evidence of facts that contradict a witness' testimony may sometimes be admitted to suggest that a witness' mistake or lie on one point indicates erroneous or false testimony as to the whole.

Extrinsic evidence of contradictory facts to impeach iis permitted where:

- The witness' testimony on a particular fact is a material issue in the case;

- The testimony on a particular fact is significant on the issue of credibility; or

- The witness volunteers testimony about a subject as to which the opposing party would otherwise be precluded from offering evidence.

BUT extrinsic evidence is not permitted to prove contradictory facts that are collateral.

Front 108

Testimonial Evidence

Impeachment

(On a Collateral Matter)

Back 108

Where a witness makes a statement not directly relevant to the issue in the case, the rule against impeachment on a collateral matter applies to bar his opponent from proving the statement untrue either by extrinsic evidence or by a prior inconsistent statement.

Front 109

Testimonial Evidence

Impeachment

(Of a Hearsay Declarant)

Back 109

Under the FRE, the credibility of someone who does not testify but whose out-of-court statement is introduced at trial may be attacked (and, if attacked, may be supported) by evidence that would be admissible if the declarant had testified as a witness.

The declarant need not be given the opportunity to explain or deny a prior inconsistent statement.

In addition, the party against whom the out-of-court statement was offered may call the declarant as a witness and cross-examine him about the statement.

Front 110

Testimonial Evidence

Impeachment

(Rehabilitation - Overview)

Back 110

A witness who has been impeached may be rehabilitated by the following methods:

1) Explanation on redirect;

2) Good reputation for truthfulness; or

3) Prior consistent statement.

Front 111

Testimonial Evidence

Impeachment

(Rehabilitation - Explanation on Redirect)

Back 111

The witness on redirect may explain or clarify facts brought out on cross-examination.

Front 112

Testimonial Evidence

Impeachment

(Rehabilitation - Good Reputation for Truthfulness)

Back 112

When the witness' character for truth and veracity has been attacked, other witnesses may be called to testify to the good reputation for truthfulness of the impeached witness or to give their opinions as to the truthfulness of the impeached witness.

Front 113

Testimonial Evidence

Impeachment

(Rehabilitation - Prior Consistent Statement)

Back 113

A party may not ordinarily rehabilitate a witness by showing a prior consistent statement. This is true even when the witness has been impeached by showing a prior inconsistent statement.

But if the testimony of the witness has been attacked by an express or impllied charge that the witness is lying or exaggerating because of some motive, a previous consistent statement is admissible to rebut this evidence. (Thus, the statement must have been made before the evidence to lie arose.)

This previous statement is also SUBSTANTIVE evidence of the truth of its contents, whether or not made under oath.

Front 114

Testimonial Evidence

Objections, Exceptions, and Offers of Proof

(Objections - Generally)

Back 114

Objections at trial should be made after the question, but before the answer, if the question calls for inadmissible matter. Otherwise, a motion to strike must be made as soon as an answer emerges as inadmissible.

At a deposition, objections to the form of a question, or to a testimonial privilege, should be made when the question is asked or it may be waived. Objections based on the substance of a question or answer may be postponed until the deposition is offered in evidence.

Front 115

Testimonial Evidence

Objections, Exceptions, and Offers of Proof

(Objections - Specific vs. General)

Back 115

A sustained GENERAL objection (one that does not state the grounds of the objection) will be upheld on appeal only if there was any ground for the objection. An overruled general objection will be upheld on appeal unless the evidence was not admissible under any circumstances for any purpose.

A sustained SPECIFIC objection, which states the reason for the objection, will be upheld on appeal only if the ground stated was correct or if the evidence excluded was not competent and could not be made so.

Front 116

Testimonial Evidence

Objections, Exceptions, and Offers of Proof

(Objections - "Opening the Door")

Back 116

One who introduces evidence on a particular subject thereby asserts its relevance and cannot complain if his adversary thereafter offers evidence on the same subject.

Front 117

Testimonial Evidence

Objections, Exceptions, and Offers of Proof

(Objections - Introducing Part of a Transaction)

Back 117

Where part of a conversation, act, or writing is introduced into evidence, the adverse party may require the proponent of the evidence to introduce any other party that ought in fairness to be considered.

Front 118

Testimonial Evidence

Objections, Exceptions, and Offers of Proof

(Objections - Motions to Strike Unresponsive Answers)

Back 118

Examining counsel may move to strike an unresponsive answer, but opposing counsel may not.

Front 119

Testimonial Evidence

Objections, Exceptions, and Offers of Proof

(Exceptions)

Back 119

It is not necessary ofr a party to "except" from a trial ruling in order to preserve the issue for appeal in most states.

Front 120

Testimonial Evidence

Objections, Exceptions, and Offers of Proof

(Offers of Proof)

Back 120

An offer of proof may be made, disclosing the nature, purpose and admissibility of rejected evidence, to persuade the trial court to hear the evidence and to preserve the evidence for review of appeal.

It may be witness testimony, a lawyer's narration, or tangible evidence marked and offered.

Front 121

Testimonial Evidence

Testimonial Privileges

(Fed. Recognized Privileges)

Back 121

The FRE have no specific privilege provisions; privilege in federal court is governed by common law as interpreted by the courts.

The federal courts currently recognize:

- Attorney-client privilege;

- Privilege for spousal communications; and

- Psychotherapist/social-worker - client privilege.

In DIVERSITY cases, the state law of privilege applies.

Front 122

Testimonial Evidence

Testimonial Privileges

(General Considerations)

Back 122

A privilege is personal to the holder, i.e., it generally may be asserted only by the holder. Sometimes the person with whom the confidence was shared may assert the privilege on the holder's behalf.

To be privileged, a communication must be shown or presumed to have been made in confidence.

Neither counsel for the parties nor the judge may comment on a claim of privilege.

Front 123

Testimonial Evidence

Testimonial Privileges

(Eavesdroppers)

Back 123

A privilege based on confidential communications is not abrograted b/c it was overheard by someone whose presence is unknown to the parties.

Under the modern view, in the absence of negligence by the one claiming privilege, even the eavesdropper would be prohibited from testifying.

Front 124

Testimonial Evidence

Testimonial Privileges

(Attorney-Client Privilege - Overview)

Back 124

Communications between an attorney and client, made during professional consultation, are privileged from disclosure. Elements:

1) The client must be seeking the professional services of the attorney at the time of the communication.

2) The communication must be confidential.

Front 125

Testimonial Evidence

Testimonial Privileges

(Attorney-Client Privilege - Atty-Client Relationship)

Back 125

The client must be seeking the professional services of the atty. at the time of the communication. Disclosures made before the atty. accepts or declines the case are covered by the privilege.

Front 126

Testimonial Evidence

Testimonial Privileges

(Attorney-Client Privilege - Corporate Clients)

Back 126

Corporations are "clients" within the meaning of the privilege, and statements made by corporate officials or employees to an attorney are protected IF the employees were AUTHORIZED by the corporation to make such statements.

Front 127

Testimonial Evidence

Testimonial Privileges

(Attorney-Client Privilege - Dr.'s Examination at Atty.'s Request)

Back 127

A favorite exam topic involves communications between a client and a doctor during an examination made at the attorney's request.

The physician-patient privilege does NOT apply b/c no treatment is contemplated.

However, the atty.-client privilege will apply, as long as the doctor is not called as an expert witness.

Front 128

Testimonial Evidence

Testimonial Privileges

(Attorney-Client Privilege - Client Holds)

Back 128

The client holds the privilege, and she alone may waive it.

The attorney's authority to claim the privilege on behalf of the client is presumed in the absence of contrary evidence.

Front 129

Testimonial Evidence

Testimonial Privileges

(Attorney-Client Privilege - Applies Indefinitely)

Back 129

The atty.-client privilege applies indefinitely, even after the client's death.

Front 130

Testimonial Evidence

Testimonial Privileges

(Attorney-Client Privilege - Exceptions)

Back 130

There are three significant exceptions to the atty.-client privilege. There is no privilege:

1) If the atty's services were sought to aid in the planning or commission of someting the client should have known was a crime or fraud;

2) Regarding a communication relevant to an issue between parties claiming through the same deceased client; and

3) For communication relevant to an issue of berach of duty in a dispute between the atty. and the client (e.g., ineffective assistance claim).

Front 131

Testimonial Evidence

Testimonial Privileges

(Work Product)

Back 131

Although documents prepared by an attorney for his own use in a case are not protected by the A/C privilege, they are not subject to discovery except in cases of necessity.

Work product privilege applies to materials prepared (either by the atty., the client, or a represenative of either) in advance of litigation.

The privilege can be overcome by an adverse party showing:

1) Substantial need for the information; and

2) Undue hardship in getting the information another way.

But an atty's mental impressions, case theories, or legal conclusions are virtually sacrosanct.

Front 132

Testimonial Evidence

Testimonial Privileges

(Attorney-Client Privilege - Limitations on Waiver)

Back 132

A voluntary disclosure of privileged material operates as a waiver of the A/C privilege or work product protection ONLY with respect to the disclosed material, i.e., to the extent of the disclosure.

Undisclosed privileged material is subject to the waiver only if:

1) the waiver is intentional;

2) the disclosed and undisclosed material concern the same subject matter; and

3) The material should be considered together to avoid unfairness.

There is no waiver if the disclosure was inadvertent and the holder took reasonable steps to prevent disclosure and rectify the error.

Front 133

Testimonial Evidence

Testimonial Privileges

(Waiver)

Back 133

Any privilege is waived by:

- Failure to claim the privilege;

- Voluntary disclosure of the privileged matter by the privilege holder; or

- A contractual provision waiving in advance the right to claim a privilege.

A privilege is NOT waived when someone wrongfully discloses information without the privilege holder's consent.

Similarly, a waiver by one joint holder does NOT affect the right of the other holder to assert the privilege.

Front 134

Testimonial Evidence

Testimonial Privileges

(Attorney-Client Privilege - Confidential Communications)

Back 134

To be protected, the communication must be confidential (i.e., not intended to be disclosed to third parties).

Representatives of the atty. or client may be present without destroying the privilege; otherwise, communications made in the known presence and hearing of a stranger are not privileged.

Communications made to third persons (e.g., secretaries, messengers, accountants) are confidential and covered by the privilege if necessary to transmit information between the atty. and client.

Front 135

Testimonial Evidence

Testimonial Privileges

(Physician-Patient Privilege - Elements)

Back 135

The physician-patient privilege belongs to the patient, and he may decide to claim or waive it. Confidential communications made between a patient and his phyisician are privileged, provided that:

1) A professional relationship exists;

2) The information is acquired while attending the patient in the course of treatment; and

3) The information is necessary for treatment. (Nonmedical information is not privileged.)

Front 136

Testimonial Evidence

Testimonial Privileges

(Physician-Patient Privilege - Where It Does NOT Apply)

Back 136

The physician-patient privilege does NOT apply (or is impliedly waived) if:

1) The patient puts his physical condition in issue (e.g., a personal injury suit);

2) The physician's assistances was sought to aid wrongdoing (e.g., commission of a crime or tort);

3) The communication is relevant to an issue of breach of duty in a dispute between the physician and the patient (e.g., malpractice);

4) The patient agreed by contract (e.g., insurance policy) to waive the privilege; or

5) It is a FEDERAL case applying the FEDERAL law of privilege (b/c not recognized in fed. courts).

Front 137

Testimonial Evidence

Testimonial Privileges

(Physician-Patient Privilege - Criminal Proceedings)

Back 137

In some states, the privilege applies in both civil and criminal cases.

In a number of others, it cannot be invoked in criminal cases generally.

In still other states, the privilege is denied in felony cases, and in a few states, it is denied only in homicide cases.

Front 138

Testimonial Evidence

Testimonial Privileges

(Psychotherapist/Social Worker-Client Privilege)

Back 138

SCOTUS recognizes a federal privilege for communications betwen a psychotherapist (psychiatrist or psychologist) or licensed social worker and his client. Thus, the fed. courts and virtually all of the states recognize a privilege for this type of confidential communication.

In most particulars, this privilege operates in the same manner as the attorney-client privilege.

Front 139

Testimonial Evidence

Testimonial Privileges

(Related to Marriage - Spousal Immunity)

Back 139

When the privilege of spousal immunity is invoked, a CURRENTLY married person whose spouse is a defendant in a CRIMINAL case cannot be called as a witness by the prosecution.

Moreover, a married person may not be compelled to testify against his spouse in any criminal proceeding, regardless of whether the spouse is the defendant.

There must be a valid marriage for the privilege to apply, and the privilege lasts only during the marriage.

In fed. court, the privilege belongs to the testifying spouse--thus, they cannot be compelled, but may choose to testify. (In some states, the privilege belongs to the party-spouse.)

Front 140

Testimonial Evidence

Testimonial Privileges

(Related to Marriage - Confidential Marital Communications)

Back 140

In any civil or criminal case, confidential communications between spouses during a valid marriage are privileged.

EITHER spouse can refuse to disclose the communication or prevent the other person from doing so.

The marital relationship must exist when the communication is made.

Divorce will not terminate the privilege, but communications made after divorce are not privileged.

In addition, the communication must be made in reliance upon the intimacy of the marital relationship (i.e., must be confidential).

Front 141

Testimonial Evidence

Testimonial Privileges

(Related to Marriage - Where Neither Applies)

Back 141

Neither marital privilege applies in actions between the spouses or in cases involving crimes against the testifying spouse or either spouse's children (e.g., DV cases).

Front 142

Testimonial Evidence

Testimonial Privileges

(Privilege Against Self-Incrimination)

Back 142

Under the 5th Amendment, a witness cannot be compelled to testify against himself.

Any witness compelled to appear in a civil or criminal proceeding may refused to give an answer that ties the witness to the commission of a crime.

In a civil proceeding or in a criminal proceeding where the witness is not the defendant, the witness must be on the stand to invoke it.

In a criminal case, the accused may invoke the privilege by refusing to take the stand altogether.

Front 143

Testimonial Evidence

Testimonial Privileges

(Clery or Accountant Privilege)

Back 143

A privilege exists for statements made to a member of the clery or an accountant.

The elements are very similar to the A/C privilege.

(Recognized in fed. courts?)

Front 144

Testimonial Evidence

Testimonial Privileges

(Professional Journalist Privilege)

Back 144

There is NO constitutional right for a professional journalist to protect his source of information, so any privilege in this area is limited to individual state statutes on the subject.

Front 145

Testimonial Evidence

Testimonial Privileges

(Governmental Privileges)

Back 145

Official information not otherwise open to the public, or the identity of an informer, MAY be protected by a privilege for the government.

No privilege exists if the identity of the informer is voluntarily disclosed by a holder of the privilege.

Front 146

Testimonial Evidence

Exclusion and Sequestration of Witnesses

Back 146

Upon a party's request, the trial judge will order witnesses excluded from the courtroom. The judge may also do this on his own motion.

The judge, however, may NOT exclude:

- a party or a designated officer or employee of a party;

- a person whose presence is essential to the presentation of a party's claim or defense; or

- a person statutorily authorized to be present.

Front 147

Testimonial Evidence

Witnesses Called or Examined by the Court

Back 147

The court may examine a party's witness or call its own witness.

Each party is entitled to cross-examine a witness called by the court.

A party may object to the court's examining or calling a witness either at that time or at the next available opportunity when the jury is not present.

Front 148

Hearsay

Statement of the Rule/Definition

Back 148

The FRE define hearsay as "a statement, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted."

If a statement is hearsay, and no exception to the rule applies, the evidence must be excluded upon appropriate objection. The reason for excluding hearsay is that the adverse party was denied the opportunity to cross-examine the declarant.

Front 149

Hearsay

Hearsay within Hearsay

Back 149

An out-of-court statement that incorporates other hearsay within it ("hearsay within hearsay" or "double hearsay") is admissible only if BOTH the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule.

Front 150

Hearsay

Definition of "Statement"

Back 150

For purposes of the hearsay rule, a "statement" is a person's:

- Oral or written assertion; or

- Nonverbal conduct intended as an assertion (e.g., nod of the head).

Front 151

Hearsay

"Offered to Prove the Truth of the Matter Asserted" vs. Other Purposes

Back 151

If the out-of-court statement is introduced for ANY purpose other than to prove the truth of the matter asserted, the statement is not hearsay. Examples:

- VERBAL ACTS or legally operative facts (e.g., words of contract; defamatory words);

- Statements offered to show their EFFECT ON THE LISTENER or reader (e.g., to prove notice in a negligence case);

- Statements offered as circumstantial evidence of declarant's state of mind (e.g., evidence of insanity or knowledge).

Front 152

Hearsay

Nonhuman declarations

Back 152

There is no such thing as animal or machine hearsay. There must be an out-of-court statement of a person.

Thus, testimony about what a radar gun "said" or what a drug-sniffing dog did is not hearsay (but it must still be relevant and authenticated to be admitted).

Front 153

Hearsay

Admissible NON-hearsay

(Overview)

Back 153

Despite meeting the common law definition of hearsay, the following statements are deemed non-hearsay under the FRE and are, therefore, admissible as SUBSTANTIVE evidence:

1) Prior statements by witness (under certain conditions); and

2) Statements by Opposing Party ("party admissions")

Front 154

Testimonial Evidence

Testimonial Privileges

(Attorney-Client Privilege - No Privilege Where Atty. Acts for Both Parties)

Back 154

Where an attorney acts for both parties to a transaction (e.g., co-plaintiffs or co-defendants), no privilege can be invoked in a lawsuit between the two parties.

But the privilege can be claimed in a suit between either or both of the two parties and third persons.

Front 155

Hearsay

Admissible NON-hearsay

(Prior Statements by Witness)

Back 155

Under the FRE, a prior statement by a witness is NOT hearsay (and thus may be admitted as substantive evidence) IF:

1) The prior statement is INCONSISTENT w/ the declarant's in-court testimony and was given under penalty of perjury at a prior proceeding;

2) The prior statement is CONSISTENT with the declarant's in-court testimony and is offered to rebut a charge that the witness is lying or exaggerating because of some motive (and the statement was made before any motive to lie or exaggerate arose); or

3) The prior statement is one of IDENTIFICATION of a person as someone the witness perceived earlier.

Front 156

Hearsay

Admissible NON-hearsay

(Party Admissions - General Rule)

Back 156

An opposing party's statement (i.e., any statement made by a party and offered against that party) is admissible non-hearsay under the FRE.

To be an admission, the statement need not have been against the declarant's interest when made, and may even be in the form of an opinion.

Personal knowledge is not required; the admission may be predicated on hearsay.

Front 157

Hearsay

Admissible NON-hearsay

(Party Admissions - Judicial and Extrajudicial Admissions)

Back 157

Formal judicial admissions (e.g., in pleadings, stipulations, etc.) are conclusive.

Informal judicial admissions made during testimony and extrajudicial (evidentiary) admissions are not conclusive and can be explained.

Front 158

Hearsay

Admissible NON-hearsay

(Party Admissions - Adoptive Admissions and Admissions by Silence)

Back 158

A party may make an admission by expressly or impliedly adopting or acquiescing in the statement of another.

Regarding a party's silence, if a reasonable person would have responded and the party remains silent in the face of an accusatory statement, his silence may be considered an implied admission. However, silence is treated as an admission ONLY if:

1) The party heard and understood the statement;

2) The party was physically and mentally capable of denying the statement; and

3) A reasonable person would have denied the accusation.

Note that silence in the face of accusations by police in a criminal case is almost never considered an admission of a crime.

Front 159

Hearsay

Admissible NON-hearsay

(Party Admissions - Vicarious Admissions - Co-Parties)

Back 159

Statements of a party are not receivable against her co-parties merely because they happen to be joined as parties (i.e., they must satisfy another exception to the hearsay rule).

Front 160

Hearsay

Admissible NON-hearsay

(Party Admissions - Vicarious Admissions - Authorized Spokesperson, Principal-Agent, and Partners)

Back 160

The statement of a person authorized by a party to speak on its behalf (e.g., statement by a company's press agent) can be admitted against the party as an admission.

Statements by an agent or employee concerning any matter within the scope of her agency or employment, made while the agency or employment exists, are not hearsay and are admissible against the principal.

After a partnership is shown to exist, an admission of one partner relating to matters within the scope of the partnership business is binding upon her co-partners.

Front 161

Hearsay

Admissible NON-hearsay

(Party Admissions - Vicarious Admissions - Co-Conspirators)

Back 161

Admissions of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or civil wrong at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators.

Under the FRE, the court must use the co-conspirator's statement itself, together with other evidence, to determine whether the statement is admissible (i.e., the proponent is not limited only to independent evidence to show that the conspiracy existed and that the declarant and party were participants--the statement itself can help to show this).

Front 162

Hearsay

Admissible NON-hearsay

(Party Admissions - Vicarious Admissions - Privies in Title and Joint Tenants)

Back 162

In most STATE courts (but not fed. courts), admissions of each joint owner are admissible against the other, and admissions of a former owner of real property made at the time she held title are admissible against those claiming under her (grantees, heirs, etc.).

These statements are not considered admissions under the FRE, btu may be admissible under one of the hearsay exceptions (e.g., statement against interest).

Front 163

Hearsay

Admissible NON-hearsay

(Party Admissions - Vicarious Admissions - Preliminary Determinations)

Back 163

Before admitting a hearsay statement as a vicarious admission, the court must make a preliminary determination of teh declarant's relationship with the party against whom the statement is offered.

In making such a determination, the court must consider the contents of the statement, but the statement alone is NOT sufficient to establish the required relationship.

Front 164

Hearsay

Hearsay Exceptions - Declarant Unavailable

(Former Testimony)

Back 164

The testimony of a now-unavailable witness, given at a trial or hearing or in a deposition, is admissible IF:

1) The party against whom the testimony is offered or (in a civil case) the party's predecessor in interest was a party in the former action ("predecessor in interest" includes grantor-grantee and other privity relationships);

2) The former action involved the same subject matter (but causes of action need not be identical);

3) The testimony was given under oath; and

4) The party against whom the testimony is offered had an opportunity at the prior proceeding to develop the declarant's testimony (i.e., by direct, cross, or redirect examination).

Front 165

Hearsay

Hearsay Exceptions - Declarant Unavailable

(Former Testimony - Grand Jury)

Back 165

Because grand jury proceedings do not provide an opportunity for cross-examination, the grand jury testimony of an unavailable declarant is NOT admissible against a defendent under the former testimony exception to the hearsay rule.

Be careful not to confuse this with a prior inconsistent statement given under oath by a witness currently testifying. Grand jury testimony IS admiddible in that case, both as impeachment and substantive evidence.

Front 166

Hearsay

Hearsay Exceptions - Declarant Unavailable

(Statements Against Interest)

Back 166

A statement of a person, now unavailable as a witness, may be admissible if it was against that person's pecuniary, proprietary, or penal interest when made, such that a reasonable person in the declarant's position would have made it only if she believed it to be true.

The declarant must have had personal knowledge of the facts, and must have been aware that the statement was against her interest when she made it.

In CRIMINAL cases, the FRE require corroborating circumstances indicating the trustworthiness of the statement.

If a person makes a declaration containing statements both against his interest and not, the exception covers only those remarks that inculpate the declarant, not the entire extended declaration.

Front 167

Hearsay

Hearsay Exceptions - Declarant Unavailable

(Dying Declarations)

Back 167

In a HOMICIDE prosecution or a civil action, a statement made by a now-unavailable declarant is admissible if:

1) The declarant believed his death was imminent (though he need not actually die); and

2) The statement concerned the cause or circumstances of what he believed to be his impending death.

Front 168

Hearsay

Hearsay Exceptions - Declarant Unavailable

(Statements of Personal or Family History)

Back 168

Statements by a now-unavailable declarant concerning births, marriages, divorces, relationship, genealogical status, etc., are admissible provided that:

1) The declarant is a member of the family in question or intimately associated with it; and

2) The statements are based on the declarant's personal knowledge of the facts or her knowledge of family reputation.

Front 169

Hearsay

Hearsay Exceptions - Declarant Unavailable

(Statements Offered Against Party Procuring Declarant's Unavailability)

Back 169

The statement of a person, now unavailable as a witness, is admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant's unavailability.

"Forfeiture by wrongdoing."

Front 170

Hearsay

Hearsay Exceptions - Declarant's Availability Immaterial

(Overview)

Back 170

The following exceptions to the hearsay rule do not require that the declarant be unavailable:

1) Present State of Mind

2) Excited Utterances

3) Present Sense Impressions

4) Declarations of Physical Condition

5) Statements made for medical diagnosis/treatment

6) Business Records

7) Past Recollection Recorded

8) Official Records and Other Official Writings

9) Ancient documents and documents affecting property interests

10) Learned treatises

11) Reputation

12) Family Records

13) Market reports

Front 171

Hearsay

Hearsay Exceptions - Declarant's Availability Immaterial

(Present State of Mind)

Back 171

A statement of a declarant's then-existing state of mind, emotion, sensation, or physical condition is admissible.

It is usually offered to establish a person's intent or as circumstantial evidence that the intent was carried out.

Except as to certain facts concerning the declarant's will, however, a statement of memory or belief is NOT admissible to prove the truth of the fact remembered or believed.

Front 172

Hearsay

Hearsay Exceptions - Declarant's Availability Immaterial

(Excited Utterances)

Back 172

An out-of-court statement relating to a startling event, made while under the stress of the excitement from the event (i.e., before the declarant had time to reflect upon it) is admissible.

Hint: look for exclamation points.

Front 173

Hearsay

Hearsay Exceptions - Declarant's Availability Immaterial

(Present Sense Impression)

Back 173

Comments made concurrently with the sense impression of an event that is not necessarily exciting may be admissible. There is little time for a calculated misstatement, and the contemporaneous nature of the statement makes it reliable.

Note: Probably limited to just seconds after an event--not minutes.

Front 174

Hearsay

Hearsay Exceptions - Declarant's Availability Immaterial

(Declarations of Physical Condition)

Back 174

A spontaneous declaration of a PRESENT bodily condition is admissible, even though not made to a physician.

Generally, declarations of PAST physical condition are NOT admissible.

Front 175

Hearsay

Hearsay Exceptions - Declarant's Availability Immaterial

(Statements Made for Medical Diagnosis or Treatment)

Back 175

Under the FRE, declarations of PAST physical condition are admissible if made to assist in diagnosing or treating the condition.

Even declarations about the cause or source of the condition are admissible IF pertinent to diagnosis or treatment.

Note: Under the FRE (contrary to the majority state view), declarations of past physical condition made to a doctor who is SOLELY employed for the sake of testifying are still admissible.

Front 176

Hearsay

Hearsay Exceptions - Declarant's Availability Immaterial

(Business Records - Definition of "Business")

Back 176

"Business includes every business, organization, occupation or calling, whether or not for profit.

Front 177

Hearsay

Hearsay Exceptions - Declarant's Availability Immaterial

(Business Records - Personal Knowledge)

Back 177

The business record must consist of matters within the personal knowledge of the entrant or within the knowledge of someone with a duty to transmit such matters (faithfully) to the entrant.

Watch for fact patterns involving police reports containing the statements of witnesses. While police reports may qualify as business records under some circumstances, remember that generally witnesses, or even parties, are not under a business duty to convey information to the police. Therefore, a report containing their statements cannot qualify as a business record, although it may be admissible under another exception or as an opposing party's statement.

Front 178

Hearsay

Hearsay Exceptions - Declarant's Availability Immaterial

(Business Records - Evidentiary Effect)

Back 178

Business records may be used to prove the nonoccurrence or nonexistence of a matter if it was the regular practice ot the business to record all such matters (and the matter in question was not recorded).

Front 179

Hearsay

Hearsay Exceptions - Declarant's Availability Immaterial

(Overview)

Back 179

There are five important exceptions to the hearsay rule that condition admissibility of the hearsay statement on the present unavailability of the declarant to testify:

1) Former testimony;

2) Statements against interest;

3) Dying declarations;

4) Statements of personal or family history

5) Statements offered against party procuring declarant's unavailability.

Front 180

Hearsay

Hearsay Exceptions - Declarant's Availability Immaterial

(Business Records - Entry Made in Regular Course of Business)

Back 180

To be admissible, it must appear that the record was made in the course of a regularly conducted business activity, and that it was customary to make the type of entry involved (i.e., the entrant had a duty to make the entry).

Self-serving accident reports prepared primarily for litigation usually are NOT admissible.

Front 181

Hearsay

Hearsay Exceptions - Declarant's Availability Immaterial

(Business Records - Authentication)

Back 181

The authenticity of the record must be established. This can be accomplished by the custodian: (i) testifying that the record is a business record; or (ii) certifying in writing that the record is a business record.

Front 182

Hearsay

Hearsay Exceptions - Declarant Unavailable

(Definition of "Unavailability")

Back 182

A declarant is unavailable if he:

1) Is exempt from testifying b/c of privilege;

2) Refuses to testify concerning the statement despite a court order;

3) Testifies that he does not remember the subject matter;

4) Isunable to testify due to death or physical/mental illness; or

5) Is absent (beyond the reach of the court's subpoena power) and the proponent is unable to procure his attendance by reasonable means.

Front 183

Hearsay

Hearsay Exceptions - Declarant's Availability Immaterial

(Past Recollection Recorded)

Back 183

If the witness' memory cannot be revived, a party may introduce a memorandum that the witness made at or near the time of the event. The writing itself is not admissible; it must be read to the jury.

Front 184

Hearsay

Hearsay Exceptions - Declarant's Availability Immaterial

(Business Records - Overview)

Back 184

Any writing or record made as a memorandum of any act or transaction is admissible in evidence as proof of that act or transaction. Under the FRE, the main requirements for admissibility are:

1) "Business"

2) Entry made in regular course of business

3) Personal knowledge by the maker

4) Entry made near time of event

5) Authentication

Front 185

Hearsay

Hearsay Exceptions - Declarant's Availability Immaterial

(Official Records - Public Records and Reports)

Back 185

The following are admissible:

- records setting forth the activities of the office or agency;

- recordings of matters observed pursuant to a duty imposed by law (except police observations in criminal cases); or in civil actions and AGAINST THE GOVERNMENT in criminal cases;

- records of factual findings resulting from an investigation authorized by law.

The writing must have been:

- Made by and within the scope of the duty of the public employee;

- at or near the time of the event; and

- the circumstances must be such as to indicate the writing's trustworthiness.

Front 186

Hearsay

Hearsay Exceptions - Declarant's Availability Immaterial

(Official Records - Records of Vital Statistics)

Back 186

Records of vital statistics are admissible if reported to a public office in accordance with a legal duty.

Front 187

Hearsay

Hearsay Exceptions - Declarant's Availability Immaterial

(Official Records - Statement of Absence of Publi Record)

Back 187

Evidence in the form of a certification or testimony from the custodian of public records that she has diligently searched and failed to find a record is admissible to prove that the matter was not recorded, or inferentially that the matter did not occur.

Front 188

Hearsay

Hearsay Exceptions - Declarant's Availability Immaterial

(Official Records - Judgments)

Back 188

A certified copy of a judgment is always admissible proof that such judgment has been entered.

Under the FRE, a judgment of a FELONY conviction is admissible in criminal and civil actions as an exception to the hearsay rule to prove any fact essential to the judgment. In a criminal case, the gov't may use the judgment for this purpose only against the accused; it may be used only for impeachment purposes against others.

The exclusionary rule is still applied to records of prior ACQUITTALS (i.e., no hearsay exception).

A CIVIL judgment is clearly inadmissible in a subsequent criminal proceeding and generally admissible in subsequent civil proceedings.

Front 189

Hearsay

Hearsay Exceptions - Declarant's Availability Immaterial

(Ancient Documents and Documents Affecting Property Interests)

Back 189

Under the FRE, statements in any authenticated document 20 years old or more are admissible, as are statements in any document affecting an interest in property, regardless of age.

Front 190

Hearsay

Hearsay Exceptions - Declarant's Availability Immaterial

(Learned Treatises)

Back 190

Treatises are admissible as substantive proof under the FRE if:

- Called to the attention of, or relied upon by, an expert witness; and

- Established as reliable authority by the testimony of that witness, other expert testimony, or judicial notice.

Front 191

Hearsay

Hearsay Exceptions - Declarant's Availability Immaterial

(Reputation)

Back 191

Reputation evidence is admissible, under several exceptions to the hearsay rule, as evidence of the following: character; personal or family history; land boundaries; and a community's general history.

Front 192

Hearsay

Hearsay Exceptions - Declarant's Availability Immaterial

(Family Records)

Back 192

Statements of fact concerning personal or family history contained in family Bibles, jewelry engravings, genealogies, tombstone engravings, etc., are admissible.

Front 193

Hearsay

Hearsay Exceptions - Declarant's Availability Immaterial

(Market Report)

Back 193

Market reports and other published compilations are admissible if generally used and relied upon by the public or by persons in a particular occupation.

Front 194

Hearsay

Residual Catch-All Exception of FRE

Back 194

For a hearsay statement that is not covered by a specific exception to be admitted, the FRE provide a catch-all exception, which requires:

1) That the hearsay statement possess circumstantial guarantees of trustworthiness;

2) That the statement be strictly necessary; and

3) That notice be given to the adversary as to the nature of the statement.

Front 195

Hearsay

Confrontation Clause

(Overview)

Back 195

Under the Confrontation Clause, a hearsay statement will not be admitted (even if it falls within an exception) when:

1) The statement is offered against the accused in a criminal case;

2) The declarant is unavailable;

3) The statement was "testimonial" in nature; and

4) The accusd had no opportunity to cross-examine the declarant's testimonial statement prior to trial.

But note: forfeiture by wrondoing still applies here.

Front 196

Hearsay

Confrontation Clause

(Statements Made in the Course of Police Interrogation)

Back 196

If the PRIMARY PURPOSE of police interrogation is to enable the police to help resolve an ongoing emergency (e.g., 911 call during ongoing crime), statements made in the course of hte negotiation are nontestimonial.

When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal investigation (e.g., statements to police describing a crime after it has concluded), statements are testimonial.

Front 197

Hearsay

Confrontation Clause

(Affidavits or Written Reports of Forensic Analysis)

Back 197

Affidavits, certificates, or other written reports that summarize the findings of forensic analysis and have the effect of accusing a targeted individual of criminal conduct (e.g., fingerprint test results) are testimonial and may not be admitted unless the defendant previously had an opportunity to cross-examin the author of the report.

The testimony of the analyst's supervisor who was not involved in the testing is not sufficient to admit the results.

However, such reports may be used for a non-hearsay purpose. Specifically, no confrontation violation occurs if a forensic expert, while testifying as to her independent analysis of data, makes only a general reference to a nontestifying analyst's report to demonstrate a partial basis for her opinion.

Front 198

Hearsay

Due Process Rights and Compulsory Process

(Overview)

Back 198

Hearsay rules and other exclusionary rules cannot be applied where such application would deprive the accused of her right to a fair trial or deny her right to compulsory process. (Chambers)

Test:

1) Is it CRITICAL evidence on a CRITICAL issue for the defense?

2) Does the evidence bear particularized guarantees of trustworthiness more than normal hearsay?

Remember: This right might NOT trump privileges, depending on the strength of the privilege. (E.g., 5th Am. always wins.)

Front 199

Hearsay

Due Process Rights and Compulsory Process

(Examples)

Back 199

Categories of cases where compulsory process right has been used to strike down state law limitations on evidence/witnesses:

1) Where state law COMPETENCY rules prevent the calling of certain critical witnesses;

2) Where state RAPE SHIELD prevents defendant from introducing evidence about victim's prior sexual activity; and

3) Where state HEARSAY rules would keep out "critical" evidence fo the defense (Chambers).

Front 200

Procedural Considerations

Burdens of Proof

(Burden of Persuasion/Proof)

Back 200

After the parties have sustained their burden of production of evidence, the question is whether the party with the burden of persuasion has satisfied it.

The burden of persuasion for civil cases is usually by preponderance of the evidence, although some civil cases require clear and convincing evidence.

The burden of persuasion for criminal cases is beyond a reasonable doubt.

Front 201

Procedural Considerations

Presumptions

(Definition and Effect)

Back 201

A presumption is a rule that requires that a particular inference be drawn from an ascertained set of facts. It is a form of substitute proof in that proof of the presumed fact is rendered unnecessary once evidence has been introduced of the basic fact that gives rise to the presumption.

A presumption operates, until rebutted, to shift the burden of PRODUCTION to the party against whom the presumption operates. (Remember: it does not shift the burden of PERSUASION.)

A presumption is overcome or destroyed when the adversary produces some evidence contradicting the presumed fact. Once sufficient contrary evidence is admitted, the presumption is of no force or effect.

Front 202

Procedural Considerations

Presumptions

(Specific Examples of Presumptions)

Back 202

The following are common rebuttable presumptions:

- Legitimacy: every person is presumed to be legitimate

- Against suicide: when a cause of death is in dispute, there is a presumption in civil cases that it was not suicide

- Sanity: every person is presumed sane in civil and criminal cases unless the contrary is shown

- Death from Absence: if a person in unexplainably absent for a continuous period of 7 years and he has not been heard from, he is presumed dead

- Ownership of Car: proof of ownership of a motor vehicle creates the presumption that the owner was the driver or that the driver was the owner's agent

- Chastity: every person is presumed chaste and virtuous

- Regularity: it is presumed that person acting in an official office are properly performing their duties

- Continuance: Proof of the existence of a person or condition at a given time raises a presumption that it continued for as long as is usual with things of that nature

- Mail delivery: a letter, properly addressed, stamped, and mailed, is presumed to have been delivered

- Solvency: a person is presumed solvent, and every debt is presumed collectible

- Bailee's negligence: proof of delivery of goods in good condition to a bailee and failure of the bailee to return the goods in the same condition creates the presumption that the bailee was negligent

- Marriage: upon proof of a marriage ceremony, a marriage is presumed valid

Front 203

Procedural Considerations

Presumptions

(Choice of Law Regarding Presumptions in Civil Actions)

Back 203

Under the FRE, state law governs the effect of a presumption concerning a fact that is an element of a claim or defense to which, under the Erie doctrine, the rule of decision is supplied by state law.

Front 204

Procedural Considerations

Relationship of the Parties, Judge, and Jury

(Allocation of Responsibilities)

Back 204

In our adversarial process, the focus is on the party's responsibility to frame the issues in a litigation and to assume the burden of proving the issues he has raised.

The trial judge's primary responsibility is to superintend the trial fairly.

As a general rule, questions of law are for the trial judge to determine and questions of fact are for the jury.

Front 205

Procedural Considerations

Relationship of the Parties, Judge, and Jury

(Preliminary Determinations of Admissibility - Decided by Jury)

Back 205

Exmples of preliminary facts to be decided by the jury include: agency; authenticity of a document; credibility of a witness; and personal knowledge.

Front 206

Procedural Considerations

Relationship of the Parties, Judge, and Jury

(Preliminary Determinations of Admissibility - Decided by Judge)

Back 206

Facts affecting the competency of the evidence must be determined by the trial judge. Requirements for hearsay exceptions, privileges, and expert testimony, as well as mental competence, must also be determined by the judge.

The FRE permit the trial judge to consider any relevant evidence even though not otherwise admissible under the rules of evidence. (Most state courts, however, hold that the rules of evidence apply in preliminary fact determinations as much as in any other phase of the trial; thus, only admissible evidence may be considered.)

Whether the jury should be excused during the preliminary fact determination is generally within the discretion of the trial judge.

Front 207

Procedural Considerations

Relationship of the Parties, Judge, and Jury

(Testimony by Accused Does Not Waive Privilege Against Self-Incrimination)

Back 207

An accused may testify on any preliminary matter (e.g., circumstances surrounding an allegedly illegal search) without subjecting herself to testifying at trial.

Front 208

Procedural Considerations

Relationship of the Parties, Judge, and Jury

(Judicial Power to Comment Upon Evidence)

Back 208

A judge may comment on the weight of the evidence in federal courts, but generally not in state courts.

Front 209

Procedural Considerations

Relationship of the Parties, Judge, and Jury

(Preliminary Determinations of Admissibility - Rulings)

Back 209

A trial judge has an obligation to rule promptly on counsel's evidentiary objections and, upon request, to state the grounds for her rulings.

Front 210

Procedural Considerations

Relationship of the Parties, Judge, and Jury

(Preliminary Determinations of Admissibility - Instructions on Limited Admsisibility)

Back 210

If the evidence is admissible on a limited basis only, the judge must, upon timely request, restrict evidence to its proper scope and instruct the jury accordingly.

Front 211

Procedural Considerations

Burdens of Proof

(Burden of Producing Evidence)

Back 211

The party who has the burden of pleading usually has the burden of producing or going forward with evidence sufficient to make out a prima facie case (i.e., create a fact question of the issue for the trier of fact).

Once a party has satisfied the burden of going forward with evidence, it is incumbent upon the other side to come forward with evidence to rebut the accepted evidence.

Front 212

Procedural Considerations

Presumptions

(Presumptions vs. Inferences)

Back 212

A permissible INFERENCE may allow the party to meet his burden of production, but does not shift the burden to the adversary. Examples include the inference of negligence arising from res ipsa loquitur, the inference that destroyed evidence was unfavorable to the spoliator, and the inference of undue influence when a will's drafter is also the principal beneficiary.

Because it cannot be rebutted, a CONCLUSIVE presumption (e.g., that a child under age 7 cannot commit a crime) is really a rule of substantive law.

Front 213

Procedural Considerations

Presumptions

(Conflicting Presumptions)

Back 213

When two or more conflicting presumptions arise, the judge should apply the presumption founded on the weightier considerations of policy and logic.

Front 214

Procedural Considerations

Relationship of the Parties, Judge, and Jury

(Preliminary Determinations of Admissibility - General Rule)

Back 214

In most cases, the existence of some preliminary or foundational fact is an essential condition to the admissibility of proffered evidence. The FRE distinguish preliminary facts to be decided by the jury from those to be decided by the judge on the ground that the former questions involve the relevancy of the proffered evidence, while the latter involve the competency of evidence that is relevant.