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Evidence

Evidence

by namaraweera, Jan. 2015

Subjects: FRE

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	Relevance	Evidence is relevant if it has any tendency to make the existence of any fact of consequence more or less probable than it would be w/o the evidence.
	Relevance (cont.)	Irrelevant evidence is inadmissible. Relevant evidence might be admissible.
	Relevance Determining Relevance	Two steps: Must be offered to prove a fact of consequence; & Must make a fact of consequence more or less probable.
	Relevance Probative Value	Even if evidence is relevant, court has the discretion to exclude if probative value is substantially outweighed by unfair prejudice, confusion, or waste of time (probative value >> unfair prejudice).
	Relevance Unfair Prejudice	Evidence that is emotionally disturbing; or One piece of evidence can prove two different facts and one of those facts is inadmissible to prove the other fact – jury might use it to infer the inadmissible fact (apply balancing test).
	Relevance Exclusions for Public Policy Reasons	Liability insurance; Subsequent remedial measures/repairs (after an accident); Settlements, offers to settle, and pleas; & Payment or offers to pay medical expenses.
	Relevance Exclusions for Public Policy Reasons Liability Insurance	Inadmissible to prove culpable conduct or D’s ability to pay a judgment. Admissible to prove anything else (i.e., bias).
	Relevance Exclusions for Public Policy Reasons Subsequent Remedial Measures/Repairs	Inadmissible to prove culpable conduct and, in a product liability action, to prove defective product design. Admissible to prove anything else (i.e., D had responsibility, control over the floor area where P slipped, not negligence). Admissible to rebut defense of no feasible precaution – where D goes out of his way to state there is nothing he could have done, P can show that subsequent remedial measures/ repairs to disprove D’s claim.
	Relevance Exclusions for Public Policy Reasons Settlements, Offers to Settle and Pleas	In a civil case, evidence of settlements, offers to settle, and related statements about the case are inadmissible to prove liability or fault. In a criminal case, pleas later withdrawn, offers to plea and related statements about the case are inadmissible to prove guilt. Applies to guilty pleas and nolo. Exception: evidence of settlement may be admissible where there is no dispute as to liability or damages.
	Relevance Exclusions for Public Policy Reasons Payment or Offers to Pay Medical Expenses	Inadmissible when offered to prove liability for the injuries in questions. But related statements about the case are admissible. Look out for fact pattern where D offers to pay medical expenses, where statements about the case are not protected. Then D later states that he will pay medical expenses in exchange for a release. This statement turns the conversation into a settlement, and now protects incriminating statements about the case.
	Relevance Similar Occurences	Evidence unrelated to the specific people/events of the case is generally irrelevant, subject to the following exceptions.
	Relevance Similar Occurences Causation	P shows 3P also got food poisoning from restaurant when both ate roughly at the same time (causation).
	Relevance Similar Occurences Prior Accidents or Claims	In a negligence action against LL where T fell down the stairs, LL tries to admit evidence that T has fallen down the stairs twice before. This doesn’t tend to prove anything, no real similarities. Exception for pattern of fraudulent claims: LL shows that in each prior instance, T sued his LL and lost. Relevant to show T filed fraudulent claims. Exception for preexisting condition: injury occurred previously in a prior accident, which proves P had a preexisting condition. Evidence affects causation, damages (relevant).
	Relevance Similar Occurences Motive or Intent	If P (woman) can show that D (employer) failed to hire a woman in 100 other instances where women applicants applied for a job, the evidence of previous similar acts are relevant to prove intent to discriminate.
	Relevance Similar Occurences Rebutting Impossibility	P may introduce any other instance where it happened to rebut impossibility.
	Relevance Similar Occurences Comparable Sales	Where value of property is an issue, evidence of sales price of similar property in same area and sold at same time is relevant.
	Relevance Similar Occurences Habit	Habit of the person to act in a certain way is relevant and admissible to show the person acted in accordance with the habit on the occasion in question. Character evidence = general statement, conveys a moral judgment. Habit evidence = specific conduct, no moral judgment. Habit = frequently repeated conduct; few/handful of times is insufficient.
	Relevance Similar Occurences Routine Practice	Routine business practice is relevant to show that conduct of the entity was in conformity with that practice on the occasion in question.
	Relevance Similar Occurences Industrial Custom	Industrial custom evidence relevant to prove standard of care in negligence case
	Character Evidence Approach	What is the purpose for which the CE is offered? Character is an issue in the case. Circumstantial evidence of a person’s conduct. Impeach or support the credibility of a witness. What method or technique is used to prove character? Specific acts of conduct; opinion; reputation. Is it a civil or criminal case? Does the evidence prove a pertinent character trait?
	Character Evidence Civil Cases	CE is in admissible to prove conduct except where civil claim is based on sexual assault or child molestation (D’s prior acts of both admissible). CE admissible where character in issue; suit for defamation of character: truth is a defense to a defamation claim. P’s actual character is in issue, not inferring conduct from it. Also applies to negligent entrustment, child custody disputes, and loss of consortium cases. All methods of proving character are available (specific acts, opinion, and reputation). Exception to CE in civil case.
	Character Evidence Criminal Cases	Two doors of admissibility. Both are closed when the prosecution begins. Admissibility of defendant’s character to prove conduct; & Admissibility of evidence of victim’s character.
	Character Evidence Criminal Cases Admissibility of D's Character to Prove Conduct	Prosecution cannot be first to offer such evidence. The door is closed when the prosecution begins it’s case in chief. Exceptions to limitation on prosecution introducing D’s character evidence at the beginning of trial: 1) Cases of sexual assault or child molestation; 2) Court admits into evidence victim’s character offered by D, prosecution can now be first to offer evidence the D has the same character trait. D’s claim of self-defense does not “open the door.” Defense can open the door. I) Prosecution can then offer pertinent character evidence to rebut b/c D opened the door. II) Evidence must always concern a pertinent character trait (if assault, CE for peacefulness or violence are pertinent). If the “door is open,” reputation and opinion evidence are admissible on direct by any party, but not specific acts. On cross, all methods of proving CE are admissible.
	Character Evidence Criminal Cases Admissibility of Evidence of Victim’s Character	Prosecution cannot introduce victim’s CE, “door is closed” at the start of trial. Two ways D defending can open the door: 1) If D offers evidence of victims character, prosecution may rebut; 2) In a homicide case, if D offers evidence victim attacked first, prosecution may offer evidence of victim’s character for peacefulness. On direct, the reputation and opinion evidence is permitted, but no specific acts. On cross, all methods are permitted. Again, D’s claim of self-defense does not “open the door.” I) This applies even if D elicits testimony from prosecution’s witness that victim was the first to attack. II) Defendant may “open the door” to victim’s CE by introducing evidence of her bad character, allowing for the prosecution to introduce evidence of victim’s character for peacefulness (violence - peacefulness; honesty - dishonesty). Remember, on direct it must by reputation and opinion CE, not specific acts. If D introduces evidence of victim’s character, prosecution can introduce evidence of D’s character of the same trait (violence  violence; dishonesty  dishonesty) Possible exception: On direct, D wants to introduce evidence that prior to him attacking victim, victim pulled out a stick from her purse. Prior to the incident, D once witnessed her take out a stick from her purse and attack someone. Inadmissible as CE (no specific acts on direct), but may be admissible to show D’s state of mind. Court will employ balancing test.
	Character Evidence Rape Shield Statute Criminal Case	Reputation and opinion evidence inadmissible. Specific acts of alleged victims conduct admissible only to prove: 3P is source of semen or injury; Prior acts of consensual intercourse between D and alleged victim.
	Character Evidence Rape Shield Statute Civil Case	All methods of proving CE are admissible it probative value is substantially outweighs unfair prejudice and, in the case of reputation evidence, P put her reputation in issue.
	Character Evidence Specific Instances of Bad Conduct	Specific instances of D’s bad conduct may be admitted to prove anything other than character is relevant.
	Character Evidence Specific Instances of Bad Conduct MIMIC	MIMIC = Motive, Intent, Mistake (absence of mistake, Identity, Common plan/scheme. Here, evidence isn’t being offered to prove character. All MIMIC cases have the dual-purpose problem – they all deal w/ prior bad acts. Prejudice is inherent in this form of evidence. ALWAYS apply the balancing test. Identity: must be unique, not similar. Bank robber wore pink tutu during bank robbery. Witness wants to testify that she saw a bank robber wearing a pink tutu in a previous bank robbery. The uniqueness of the evidence goes to show identity. But if witness is testifying in a murder trial that the assailant stabbed the victim in the heart and wants to introduce evidence of D’s previous conviction that he stabbed another person in the heart is inadmissible. This is a mere similarity with no sufficient showing of uniqueness.
	Testimonial Evidence Competency Four Requirements	Competency = who can testify. Four requirements: People with personal knowledge can testify. I) To distinguish between personal knowledge and hearsay objections, ask: is the fact testified to = the fact perceived. II) Hearsay: out of court statement being testified to by a witness who did not make the statement. III) Did the witness quote someone or explicitly refer to someone’s out of court statement that witness heard? Both are hearsay. IV) Proper objection to a blind man who wants to testify that another witness told him D show the victim while he was present during the homicide is lack of personal knowledge. V) Burden of proof of witness’s personal knowledge is low. Below preponderance standard. Standard: sufficient to support a finding. Witness must have present recollection. Witness must be able to communicate her recollection. Witness must take oath to tell the truth.
	Testimonial Evidence Objections	Objections must be timely and sufficiently specific or else they’re waived. Examples of objections: Calls for narrative – open ended question, witness may reveal irrelevant evidence that could unfairly prejudice a party; Unresponsive – witness won’t answer question asked, counsel can object and say witness is unresponsive and make a motion to strike. No leading on direct – leading question suggests the answer (“Isn’t it true you were in the restaurant at 10 pm?”). Leading OK on cross Leading OK on direct if the witness is adverse (opposing party), hostile (to the questioner), or needs help. Assumes facts not in evidence Argumentative – a question that doesn’t seek an answer (“Do you expect the jury to believe that?”) Compound – “Isn’t is true you cheated on your wife and beat her?”
	Testimonial Evidence Witness Use of Documents During Trial	Counsel cannot have witness read something aloud is witness can’t remember. Counsel is required to refresh recollection. If witness’s memory is exhausted, ask if seeing a writing/record/exhibit might refresh her memory. If the witness obliges, counsel should hand her the record to read silently. If the witness remembers, this is sufficient to refresh recollection. The opponent may inspect the item used to refresh and offer into evidence if he so wishes.
	Testimonial Evidence Witness Use of Documents During Trial Refreshing Recollection	If witness cannot recollect, apply the hearsay exception to refreshing recollection: Establish witness once had personal knowledge; Establish document was made by witness, under the witness’s direction, or was adopted by the witness; I) Adoption = another person made the record and witness did/said something to indicate she agreed with its contents. The document was written or adopted at a time when the facts were fresh in the witness’s memory; The document was accurate when made; Witness now has insufficient recollection to testify as to the matter contained in the document. If all elements are satisfied, the document can be read to the jury. Hearsay objection is overruled since the exception applies.
	Opinion Testimony Lay Opinion	Admissible if rationally based on the witness’s perceptions and helpful to the trier of fact. Cannot be based on scientific or other specialized knowledge. Helpful: lay opinion gives jury more information than would testimony limited to describing witness’ perceptions.
	Opinion Testimony Expert Opinion	5 requirements for admissibility: Helpful to jury; I) Helpful: expert uses specialized knowledge to reach conclusion the average juror could not figure out for herself. Witness must be qualified; Witness must believe in opinion to reasonable degree of certainty; Opinion must be supported by a proper factual basis; & Opinion must be based on reliable principles that were reliably applied.
	Opinion Testimony Expert Opinion (cont.)	Expert doesn’t need to have academic credentials in the field, sufficient experience is enough. But expert is limited to testifying about his specific field. Expert can admit to some doubt, but he has to have a reasonable degree of certainty. Opinion must be based on the following: (1) admitted evidence; (2) personal knowledge; or (3) inadmissible evidence reasonably relied upon. Expert can give expert opinion testimony based on previous witness testimony. Pay attention to the facts provided by the previous witness testimony.
	Opinion Testimony Expert Opinion Daubert/Kumho Standard	Opinion must be based on reliable principles that were reliably applied. General acceptance isn’t required. Reliability: Peer-reviewed and published; Tested; Low error rate; & Reasonable level of acceptance. If there’s a common sense reliability problem, the testimony will not be admissible (logical inconsistencies, didn’t consider pertinent evidence, alternative explanations).
	Evidence of Witness Credibility	Look out for hidden hearsay issues when a prior statement of a witness is offered to attack or support credibility. Evidence to support credibility: inadmissible unless credibility is attacked first. I) Prior consistent statement is not hearsay and admissible for all purposes if made before bribe or inconsistent statement. Otherwise, it is in admissible for any purpose. A) Prosecution asks defense’s alibi witness, “Didn’t D give you $1,200 two weeks ago for your testimony today.” Defense tries to offer evidence of a consistent statement (supporting alibi) made yesterday. The consistent statement is inadmissible b/c it was made after the alleged bribe. Consistent statements made before the bribe are admissible; not hearsay even if offered for truth.
	Impeachment	Three step approach to admissibility of impeachment evidence: Is source of impeachment extrinsic evidence or testimony at this proceeding of witness being impeached? If extrinsic, is it admissible given impeachment technique? Any other foundation requirements?
	Impeachment Extrinsic Evidence	Evidence other than testimony given at the proceeding by the witness being impeached. Testimony of other witnesses, writings, prior statements of the witness who is now testifying. I) If you can’t bring in extrinsic evidence, try and get the answers you seek on cross-examination.
	Impeachment Extrinsic Evidence Impeachment by Contradiction	Extrinsic evidence inadmissible to contradict on collateral matter Collateral matter: a fact not material to the issues in the case that says nothing about witness credibility other then to come to that the witness. Not a collateral matter if it attacks something other than credibility.
	Impeachment Extrinsic Evidence Impeachment by Prior Inconsistent Statements (PIS)	Example: Defense witness testifies that the light was green. Prosecution shows police officer statement where witness told the officer the light was red. Relevant to impeach the witness (by showing witness changed her story and contradicted herself) and relevant to show that D had a red light. Inadmissible to prove that D had a red light (hearsay). If offered to prove just impeachment, there’s a dual-purpose problem, apply balancing test. If PIS was given under oath, at trail, or in a deposition, it is not hearsay for all purposes. Admissible to impeach and for truth. Extrinsic evidence of PIS inadmissible to impeach on collateral matter. Foundation requirement: extrinsic evidence admissible only if witness given opportunity to explain or deny.
	Impeachment Extrinsic Evidence Impeachment with Evidence of Bias, Interest, or Motive	Evidence that witness received plea bargain to testify against D is admissible to prove motive. Foundation requirement: extrinsic evidence admissible if witness given opportunity to explain or deny.
	Impeachment Extrinsic Evidence Impeachment w/ Conviction for Crime Involving False Statement	All convictions, whether felonies or misdemeanors, for crimes of false statement (perjury, forgery, fraud) are admissible. Balancing test is only applied for convictions more than 10 years old. Cannot be used by prosecution against D when the door is closed. But it may be used to impeach the credibility of D as a witness. This is pertinent to his character to tell the truth on the stand in this instance. If evidence of a crime involving a false statement is being offered to impeach the credibility of D, court does not have the power to balance. The conviction must be admitted. Though the exception for convictions 10 years or older gives the court the power to balance.
	Impeachment Extrinsic Evidence Impeachment w/ Conviction for a Crime Not Involving False Statement	Felonies that do not involve false statement may be admissible to impeach but court may exclude for unfair prejudice. Misdemeanors that do not involve false statement are inadmissible to impeach.
	Impeachment Extrinsic Evidence Impeachment w/ Non-conviction Misconduct Evidence Bearing on Truthfulness	Acts of misconduct that did not result in a conviction are admissible to impeach in both civil and criminal cases if the acts involved lying. Extrinsic evidence to prove the acts is inadmissible. Impeacher may only cross-examine witness about the misconduct. Theft ≠act of lying.
	Impeachment Extrinsic Evidence Others	If the conviction is admissible under these rules, it may be proved with extrinsic evidence. Even if the conviction is admissible, the court may nevertheless find it inadmissible if it has been more than 10 years since the date of conviction or release from prison (whichever is later). Earlier balancing test: objecting party must show evidence’s unfair prejudice substantially outweighed the probative value. This balancing test: evidence is in admissible unless the party offering the evidence shows probative value outweighs unfair prejudice. Impeachment with reputation and opinion regarding truthfulness: extrinsic evidence is admissible.
	Hearsay Terms	Hearsay: out-of-court statement offered to prove the truth of the matter asserted in that statement. Statement: verbal or written expression of the person or conduct by a person intended to communicate (assertive conduct).
	Hearsay Statement	Examples: This includes a witness pointing out an alleged assailant in a lineup. Statement must be made by person. Does not include evidence of a dog tracking and sent to a crime scene and pointing at D. Radar gun showing D’s speed is not a statement, but it also isn’t hearsay. It’s just a machine that generates data. Could be a relevance problem if the machine is not working properly. But if the machine is generating data inputted by a person, that data can be hearsay since it came from the person in the first instance. Statement will be deemed out-of-court unless the statement was made in the current court adjudicating the matter.
	Hearsay Three-Step Approach	Three-step approach to determining whether out-of-court statement offered to prove the truth of the matter asserted: Find the statement; Ask what it is offered to prove; & Given what is it’s offered to prove, would the jury be misled if the out-of-court speaker was lying or mistaken?
	Hearsay Not Hearsay Independent Legal Significance	Statement is not hearsay if it has independent legal significance. Witness testified that she heard D say to P, “I accept your offer.” The uttering of the words have independent legal significance since the uttering of those words constitute a formation of a contract under contract law. The words have legal significance independent of the matter currently before the court. Examples: “P cheats on his wife” – defamation. “That is my land” – adverse possession. “You can have my car” – dispute over ownership.
	Hearsay Not Hearsay Effect on Listener	Statement is not hearsay if offered to show the effect on the listener. Example: Doctor read wrong file and told P, “I have wonderful news, you’re pregnant!” – IIED. Example: P drives off D’s bridge. D claims contributory negligence b/c sign before entering bridge said “Bridge Out.” Hearsay to prove that bridge was out. Not hearsay to show D was on notice of bridge being out. Offered to show the effect on listener.
	Hearsay Not Hearsay Speaker's Knowledge of Facts Stated	Statement is not hearsay if offered to show speaker’s (or writer’s) knowledge of facts stated. Example: D is charged w/ bank I robbery. Prosecution wants to prove that D was part of gang that robbed bank by showing gang leader had piece of paper with D’s name and address on it. Evidence isn’t being offered to prove D’s name and address. Evidence is being offered to show gang leader had knowledge of these facts. This knowledge can be used to show that he was part of the gang.
	Hearsay Not Hearsay Out-of-Court Declarant Now In-Court Witness	Statement is still considered here say if the out-of-court declarant is now that in court witness. The declarant couldn’t be cross-examined at the time of the statement, Therefore it is considered hearsay.
	Hearsay Exemptions Opposing Party Statement	Statement by party, or by someone whose statement is attributable to a party, offered by party opponent. Distinguish from statements against interest exception. Example: D is on trial for tax evasion. Prosecution seeks to admit evidence of a loan application D filled out stating he makes $1,000,000 salary. This is not a statement against interest b/c it wasn’t against interest when the statement was made. This is just a statement made by party offered by opposition.
	Hearsay Exemptions Opposing Party Statement Not Subject to Personal Knowledge Requirement or Opinion Rule	Example: secretary of D, owner of airline, told D that plane had crashed. Secretary then testifies that D said “Damn, we were negligent again.” D doesn’t have personal knowledge of the negligence (wasn’t in cockpit) – the claim being litigated. Admissible b/c personal knowledge is not required when offering an opposing party statement.
	Hearsay Exemptions Vicarious Opposing Party Statement	Authorized spokesperson of party; or Employee of party concerning matter within scope of employment and made during employment relationship. Authorization can be expressed or implied. Example: P testifies that when UPS driver drove through her bedroom, he stated, “I fell asleep at the wheel.” Statement is about driving (within scope of employment) therefore this is not hearsay.
	Hearsay Exemptions Other Vicarious Opposing Party Statement	Authorized spokesperson of party; or Employee of party concerning matter within scope of employment and made during employment relationship. Authorization can be expressed or implied. Example: P testifies that when UPS driver drove through her bedroom, he stated, “I fell asleep at the wheel.” Statement is about driving (within scope of employment) therefore this is not hearsay. Other vicarious opposing party statements: (1) adoptive opposing party statement (nonparty makes the statement and party indicates believe in its truth); & (2) co-conspirator statement (made during course and in furtherance of conspiracy).
	Hearsay Exemptions Out-of-Court Statement From a Declarant Who Now Testifies at Trial	PIS given under oath at trial or deposition; PIS offered to rebut charge of recent fabrication or improper influence or motive; & Statement of identification of a person made after perceiving the person (“That’s the guy who robbed me”).
	Hearsay Exceptions (Hearsay but admissible)	Testimony given by a person in earlier proceeding or deposition is admissible if: The party against whom the testimony is now offered had, during the earlier proceeding, an opportunity to examine and the motive was similar to the motive the party has now: or In a civil case, the party against whom the testimony is now offered was not present in the earlier proceeding but has a close privity type relationship w/ someone who was a party to that earlier proceeding and who had an opportunity and a similar motive to examine the witness in that earlier proceeding. Declarant must be unavailable. Deposition testimony of expert offered in the same case for which the deposition taken is admissible.
	Hearsay Exceptions Declarant Unavailable	Declarant is unavailable if: Court exempts declarant from testifying due to privilege; Declarant is dead or sick; Proponent of statement cannot procure declarant’s attendance by process or other reasonable means; Declarant refuses to testify despite for order: or Declarant’s memory fails.
	Hearsay Exceptions Opportunity to Examine	Example: Y sues Airline for crash. Y brings expert to testify. Expert dies. X now sues Airline. X may offer expert testimony b/c Airline was a party in the earlier proceeding and had opportunity and motive to effectively cross-examine.
	Hearsay Exceptions Similar Motive	Example: if X’s case was about private nuisance, and Y’s case is about wrongful death. Then expert testimony will be excluded. Opportunity existed, but motive was different.
	Hearsay Exceptions Predecessor in Interest	Example: if Airline attempted to offer expert testimony used in X’s case against Y, the court will rule this evidence as inadmissible. Estate of Y was not present in earlier proceeding. No opportunity to cross-examine.
	Hearsay Exceptions Declaration Against Interest	Hearsay statement admissible if, at the time it was made, it was against the financial interest of declarant or would have subjected declarant to criminal liability. If offered to exculpate accused (by showing someone else confessed to the crime), there must be corroborating evidence. Declarant must be available. Not limited to an opposing party. Declaration against interest can be made by anyone. Example: D is on trial for tax evasion. Prosecution seeks to admit evidence of a loan application D filled out stating he makes $1,000,000 salary. This is not a statement against interest b/c it wasn’t against interest when the statement was made. This is just a statement made by party offered by opposition.
	Hearsay Exceptions Dying Declaration	Hearsay statement by someone believing he is about to die that describes cause or circumstances of impending death admissible in a civil action or homicide prosecution. Declarant need not die, but must be unavailable. Example: Prosecution for murder where D shot but did not kill a Victim #2. Prosecution offers evidence of surviving Victim #2, now in a coma, saying “I’m not going to make it, D did this to me.” This is admissible even though it is the statement of someone who was not killed b/c the prosecution is for homicide of victim #1 and it was made during impending death.
	Hearsay Exceptions Excited Utterance	Hearsay statement relating to startling event or condition is admissible when made while declarant was still under stress of excitement caused by event or condition. No need to show declarant unavailable. Example: P was in auto accident and immediately goes into a coma. Two years later, P awoke from the coma and shouted, “That truck is driving the wrong way!” Though two-years have passed, this is still an excited utterance b/c P was under the stress of excitement caused by the event/condition. Don’t look at the time, look at P’s reaction (screamed).
	Hearsay Exceptions Present Sense Impression	Hearsay statement is admissible if describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter. No need to show declarant unavailable. Example: witness testifying she was on the phone with the victim as she was describing D coming into the room w/ a knife. Admissible b/c speaker is describing facts simultaneously with perceiving them (present tense).
	Hearsay Exceptions Declaration of Then Existing Physical or Mental Condition and State of Mind	Hearsay statement of declarant then existing physical/mental condition or state of mind is admissible to show the condition or state of mind. But a statement describing a memory or belief is not admissible to prove the fact remembered or believe. No need to show to declarant unavailable.
	Hearsay Exceptions Declaration of Then Existing Physical or Mental Condition and State of Mind State of Mind Exception	Declarant states: “I intend to give this car to you.” Admissible to show state of mind. “Intend” = state of mind. From this intent, jury can logically infer subsequent conduct based on this intent (speaker acted in accordance with his intention). If speaker said “I remember I gave the car to Joe for his birthday.” This is not admissible under this exception because it relates solely to memory.
	Hearsay Exceptions Past or Present Mental or Physical Condition Made for Medical Diagnosis or Treatment	Hearsay statement by one person concerning the past or present mental or physical condition, or it’s cause, of that person or any other person is admissible is made for and pertinent to medical diagnosis or treatment. No need to show declarant unavailable.
	Hearsay Exceptions Past or Present Mental or Physical Condition Made for Medical Diagnosis or Treatment Examples	Example: (1) My back hurts; (2) I was hit by a car; (3) by a person with a suspended license. Admissible as statement of present physical condition for purpose of medical diagnosis/treatment. Also admissible under earlier exception. Admissible as a statement of cause for the present physical condition. Inadmissible b/c not pertinent to medical diagnosis/treatment. Example: child describes condition to mother (“My head hurts”). Mother describes condition to doctor (“His temperature is 103 and his head hurts”). Child to mom admissible under earlier exception. Mom to doctor available under this exception. Temperature reading not hearsay b/c it’s a machine.
	Hearsay Exceptions Business Records	Hearsay is admissible if: A record of events, conditions, opinions or diagnoses; Kept in course of regularly conducted business activity; Made at or near time of matters described; By person with knowledge of the facts in that record; & It was regular business practice of business to make such record. No need to show declarant unavailable Example: P offers hospital record, which includes statement by surgeon, “Surgery to repair broken leg successful. Neurologist reports surgery could not repair severed nerve.” Three hearsay statements: (1) record; (2) surgeon’s words; (3) surgeon quoting neurologist. All 3 hearsay statements meet the business records exception. If hospital record states (1) P has a broken leg and (2) P claims a driver with a suspended license hit him. (1) is admissible under the BR exception, but not (2). Records created in anticipation of litigation are not business records.
	Hearsay Exceptions Public Records	Hearsay record of a public office is admissible if within one of the following categories: Record describes activities and policies of the office; Record describes matters observed pursuant to duty imposed by law (but not police reports in criminal cases); or Record contains factual findings resulting from investigation made pursuant to authority granted by law, unless untrustworthy No need to show declarant unavailable
	Hearsay Exceptions Judgment of Previous Convictions	Hearsay statement describing felony conviction is admissible in both civil and criminal cases to prove any fact essential to the judgment, but when offered by prosecution for purposes other than impeachment, judgments against persons other than the accused are inadmissible. No need to show declarant unavailable.
	Confrontation Clause	Even if here’s a lot does not make the evidence inadmissible, CC might make inadmissible and out-of-court statement offered by the prosecution against D in a criminal case. CC excludes out-of-court statements if: Declarant does not testify at trial; Is now unavailable; The statement is testimonial; and D had no chance to cross-examine about the statement when it was made.
	Confrontation Clause Testimonial Evidence	Statements made in court and statements made to further a police investigation and at producing evidence for a prosecution. Statements made to police to deal with an ongoing emergency are non-testimonial and their admission does not violate the CC.
	Writings and Other Physical Evidence Authentication	Every item of non-testimonial evidence (writings, photo, guns) must be authenticated.
	Writings and Other Physical Evidence Signatures	In a breach of contract case, if plaintiff wants to prove that it’s D's signature on the contract, she must prove by the following methods: Admission; Eyewitness testimony; Expert witness (handwriting expert); Lay opinion; Circumstantial evidence; or Genuine exemplar (D’s signature on a pleading).
	Writings and Other Physical Evidence Ancient Documents Rule	Authenticity is established if: Document is 20 years old or more; Does not on its face present any irregularities; & Was found in a place of natural custody.
	Writings and Other Physical Evidence Self-Authenticating Writings	For certain writings, authentication is unnecessary. These include certified copies of public documents (deeds), acknowledged documents (original signature attested before a notary), official publications(gov’t pamphlets), newspapers, periodicals, business records, and trade inscriptions (tab/label in course of business indicating ownership, control, or origin).
	Writings and Other Physical Evidence Photos	Watch for personal knowledge problems. Does fact testified to = fact perceived? Example: “Is this a fair and accurate description of the intersection?” Objection claiming only the photographer can authenticate the photo will be overruled. Witness is not being asked whether she took the photograph, only if it’s a fair and accurate description of it when she was there. Witness description sufficient to authenticate. But if prosecution asks, “Is this a photo of the intersection taken at the time of the accident?” The objection will be sustained b/c the witness has no personal knowledge of the taking of the photo and can authenticate.
	Writings and Other Physical Evidence Authentication of Unique Items	Proponent must lay chain of custody demonstrating that this is the specific item proponent claims it to be. Example: white bags of cocaine.
	Best Evidence Rule	Applies only where evidence offered to prove the contents of writing. Writing: not only documents but also videos, photos, x-rays, audio recordings, computer disks, or any tangible collection of data.
	Best Evidence Rule Approach	When is the evidence being offered to prove contents of a writing? I) P cites K to show delivery was supposed to be in April. K is being offered to prove contents. II) Voluminous documents exception: can be summarized if originals available for inspection. What type of evidence is admissible to prove the contents of a writing? I) Originals; II) Duplicates (intended to act as originals, carbon copy, photocopy, picture of document); A) Exception: not admissible where there is a genuine question as to authenticity of original. III) Testimony regarding contents of writing maybe admissible where original is lost or destroyed, unless bad faith by component of testimony.
	Privileges Attorney-Client	Communication between attorney and client or their representatives intended by client to be confidential is privileged in all civil and criminal proceedings unless waived by the client. Communication between corporate employee and corporate attorney: privilege applies to communications from employees/agents if the corporation authorized the employee/agent to communicate to the lawyer on behalf of the corporation. Communication must be intended by client to be confidential (objective standard).
	Privileges Attorney-Client Exceptions	Privilege does not apply where: Services sought to further a crime or fraud; Communication relates to alleged breach of duty between lawyer and client; or Two or more parties consultant attorney on the matter of common interest and the communication is offered by one of these parties against another.
	Privileges Psychotherapist-Patient & Social-Worker Client Privileges	Must be intended to be confidential and facilitate the rent addition of professional services. Privilege applies in all civil and criminal proceedings.
	Privileges Doctor-Patient Privileges	Does not exist under the FRE, but California recognizes the privilege. Privilege applies to confidential information made for physician for the purpose of obtaining diagnosis/treatment and information was pertinent to diagnosis/treatment. Privilege apples to information intended to be confidential and pertinent to medical diagnosis or treatment.
	Privileges Doctor-Patient Privileges Exceptions	Exceptions: Patient puts his physical condition in issue (personal injury action); Physician’s services sought to aid in crime/fraud or to escape capture after a crime/tort; & Medical malpractice (breach of duty).
	Privileges Spousal Privileges	Two kinds: Spousal testimonial privilege; Spousal confidential communication privilege.
	Privileges Spousal Privileges Spousal Testimonial Privilege	Permits witness to refuse to testify against his/her spouse as to anything (criminal only); Applies to matters occurring before or during marriage. Wife can choose to testify if she wishes.
	Privileges Spousal Privileges Spousal Confidential Communication Privilege	Protects confidential spousal communications during marriage (civil and criminal). Both spouses own privilege. As long as the communication occurs during the marriage, the privilege exists. Even if they later divorce.
	Judicial Notice	Process of establishing facts without presenting evidence. Two issues: Facts appropriate for judicial notice; & Judicial notice procedure.
	Judicial Notice Facts Appropriate for Judicial Notice	Applies to facts not subject to reasonable dispute because they are either: (1) generally known within the jurisdiction; or (2) accurately and readily determinable.
	Judicial Notice Proceudres for Taking Judicial Notice	Party must request judicial notice to compel judicial notice. Court has discretion to take judicial notice. Civil case: judge instructs jury that is must accept judicially noticed facts as conclusive. Criminal case: judge instructs jury that it may accept judicially noticed facts.

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