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241 Cards in this Set

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Admissible – Rebuttal E?
Yes – to rebut Δ of impossibility. Opens the door
Second coke w/ mouse in the bottle
Admissible – causation?
Yes – to prove cause and effect
People getting sick at same time at restaurant
In civil cases, is Character E admissible when offered as circumstantial E to infer conduct at the time of the litigated event?
No – NOT admissible
Ex: reputation for reckless driving not admissible in auto accident trial
Admissible – Intent or State of Mind in Issue?
Yes – to infer intent from prior conduct
E that other well-qualified women were denied employment
Admissible – Industrial or Trade Custom?
Yes, it’s admissible as non-conclusive E of standard of care.
All other bus companies have motion sensor that would have prevented Madge’s foot from getting stuck
Exceptions to general rule that Prior Accidents or Claims are not admissible
[1] to show common plan or scheme or fraud; [2] if prior accidents are relevant to issue of damage to Π
[1] Rossi schemed and brought fraudulent claims; [2] if Rossi had hurt his back prior to an accident where he claims to have hurt his back and is the subject of a claim.
Federal Privilege law in federal question or in federal criminal cases “shall be governed by …
The principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.”
?
Three Major Areas of Evidence
[1] Relevance; [2] Witnesses: Testimonial Evidence; [3] Hearsay
Types of Relevance
[1] Logical Relevance; [2] Discretionary, Pragmatic or Policy-based Relevance
What is logical relevance?
Evidence that has any tendency to make a material proposition or fact more probable or less probable than it would be without the evidence.
Warning signals for Logical Relevance. Evidence may not be logically relevant (i.e., __________) if E involves some other:
May be too remote. [1] Time; [2] Event; [3] Person than one involved directly in litigation
Discretionary or Policy-Based Relevance – Even relevant E may be excluded if its probative value is substantially outweighed by the danger of:
[1] Unfair Prejudice; [2] Confusion of Issues; [3] Misleading Jury; [4] Undue Delay; [5] Waste of Time; [6] Cumulative Evidence. No Mention Of UNFAIR SURPRISE
Which is a stricter standard – Logical Relevance or Discretionary/Policy-Based Relevance?
Discretionary or Policy-Based Relevance
What is not mentioned when looking at what relevant E may be excluded if its probative value is outweighed by the danger of certain factors.
Unfair Surprise
What are the 8 types of similar occurrences where E is admissible even though it does involve some other time, some other event or some other person not directly involved in litigation?
[1] Causation; [2] Prior Accidents or Claims (limited); [3] Intent or State of Mind in Issue; [4] Rebuttal E; [5] Comparable Sales to Establish Value; [6] Habit E; [7] Business Routine; [8] Industrial or Trade Custom
Under Logical Relevance, what is Similar Occurrences?
Where E is admissible even though it does involve some other time, some other event or some other person not directly involved in litigation
Admissible – Prior Accidents or Claims
No – Plaintiffs prior accidents or claims are not admissible. There are exceptions.
General rule for whether or not Prior Accidents or Claims are admissible
Π’s prior accidents or claims are not admissible
What is the general rule of when Prior Accidents or Claims are admissible?
Other accidents involving the same instrumentality which occurred under the same or similar circumstances are admissible to show [1] Notice to the party and [2] to infer that the instrumentality is defective & dangerous.
Admissible – Comparable Sales to Establish value?
Yes – sale price of other chattels or parcels of real property are admissible if [1] same kind, [2] same time period, [3] same place (geographic area)
Admissible – Habit Evidence?
Yes – habit of person to act in certain way is relevant to show that the person acted in the same way on the occasion in question. Conformity with habit
Is disposition evidence admissible?
No (He’s careful)
Is prior act E admissible?
No
What to look for with Habit E
[1] Specificity (detailed conduct); [2] Recurrence – must have occurred often enough to be habitual
How many instances would be necessary to talk about Habit E on an exam?
3+
What specific words should you look for with habit?
Always, instinctively, invariably, automatically
Admissible – Business Routine?
Yes – it’s admissible just like a habit. It’s the routine practice of an organization
Three areas of Discretionary Policy-Based Relevance
[1] liability insurance; [2] subsequent remedial measures; and [3] settlements
What’s the general rule of admissibility for liability insurance?
Not admissible to show person acted negligently or wrongfully or to show ability to pay or to show fault.
Liability insurance admissibility exceptions
It’s admissible when it’s relevant to [1] show ownership or control (when it’s disputed). [2] Impeach the credibility of witness by showing interest or bias
Are subsequent remedial measures admissible?
Not admissible to who negligence, culpable conduct, a defect in a product, a defect in a product’s design or a need for a warning or instruction.
Subsequent Remedial Measures exceptions
Admissible to show [1] Ownership & control when it’s disputed; and to [2] Rebut or impeach in order to show the feasibility of precautionary measures (usually for Δ who has contested the feasibility of precautionary measures)
Are settlements admissible?
Not admissible to prove fault, liability, or amount of damage.
The non-admissibility of settlements is a broad rule of exclusion that covers:
[1] Actual compromises; [2] Offers to compromise or settle; [3]Offers to plead guilty in a criminal case; [4] Withdrawn pleas of guilty; [5] Pleas of nolo contendere
Are admissions of fact, liability, or damage made in course of an offer to compromise a claim disputed as to liability or as to amount admissible?
No.
Three limitations on the rule of exclusion for settlements:
[1] There must be a claim; [2] The claim must be disputed as to either liability or amount; and [3] An offer to pay medical expenses is not admissible even though it is not a settlement offer. But if an admission of fact accompanies a naked offer to pay hospital or medical expenses, the admission may be admitted.
Key factors affecting character E rules and their application – 4 Preliminary Questions
[1] Purpose of offer of character E (relevance); [2] Method of proving character; [3] type of case – civil or criminal; and [4] what traits of character is involved.
What are the three types of purposes for offering Character E?
[1] Character directly in issue (Person’s character is a material element in case); [2] Character as circumstantial E of person’s conduct at time of litigated event (Ch E to prove conduct in conformity w/ character on occasion in issue.); [3] Character to impeach the credibility of a witness (i.e., bad character for truthfulness to impeach the credibility of a W who testifies at trial).
What civil cases would have character directly in issue as a need for character E?
[1] Negligent entrustment; [2] Defamation; [3] Wrongful Death Case. VERY RARE. No Fraud
What methods or techniques are used to prove character?
Specific acts of conduct; Opinion; Reputation
With character E, what you should look for when asking What Trait of Character?
It must be the specific trait which is substantively in issue in the case. Example: Assault – violent/peaceful; Perjury – honest/deceitful. You can’t prove general character.
In civil cases, is Ch E admissible when the character of a person (party) is itself a material issue in the case?
Yes. But it’s rare. Defamation will be tested on MBE.
What’s the method of proof for proving Character in civil cases?
If character is directly in issue and therefore admissible, it may be proved by any one of the specific techniques (specific acts, opinion, reputation)
What is the first basic rule for proving character in criminal cases?
Basic Rule 1 - Bad character, whether in the form of specific acts of prior misconduct, prior crimes or convictions, bad opinion or bad reputation, is not admissible at the initiative of the Ø if the sole purpose is to show criminal disposition in order to infer guilt from disposition.
Basic Rule 1 of Ch in Crim Cases - Bad character, whether in the form of specific acts of prior misconduct, prior crimes or convictions, bad opinion or bad reputation, is not admissible at the initiative of the Ø if the sole purpose is to show criminal disposition in order to infer guilt from disposition UNLESS AND UNTIL:
Basic Rule 2 - The accused is permitted to offer E of good character for the pertinent trait in the form of reputation and opinion to show disposition in order to infer innocence. Only then may the Ø respond by showing the bad character of the accused.
How could a criminal Δ show his good character – what methods?
Can use opinion or reputation, but NOT specific acts of good conduct.
Basic Rule 3 of Character in Criminal Cases
After the accused offers E of good character, the prosecution may respond by inquiry on cross-X of the accused’s good character witness about any specific acts which would tarnish the accused’s reputation or which would affect the opinion of the witness.
Basic Rule 4 of Character in Criminal Cases
After the accused offers E of good character the Ø may also respond by calling prosecution witnesses to testify to bad opinions or bad reputation in regard to the character of the accused.
What can the accused do to question the character of the victim in self-defense situations?
The accused may also take the initiative in homicide or assault cases, as part of self-defense plea, to show the character of the victim as circumstantial E to infer that on the occasion in question, the alleged victim was the first aggressor.
What methods would the accused use to challenge the character of the victim in self-defense situations? How would Ø respond?
Reputation or opinion. Ø could respond by showing good reputation or opinion concerning the victim or by showing the bad reputation or a bad opinion regarding the accused himself.
When an accused claims self-defense and attacks the character of the victim, how may the victim respond?
Show his good character or attack the character of the accused. But NO specific acts!
In civil cases alleging sexual misconduct, E of the sexual disposition or behavior of the alleged victim is admissible only if …
Probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party. Also, the Δ must give notice and an in camera hearing must be held.
Can you admit prior crimes to show criminal disposition?
No. Other crimes or prior acts of misconduct by the Δ are not admissible during the Ø’s case in chief if the only purpose is to prove criminal disposition.
In a criminal case, is there ever a time to admit prior crimes?
Yes. When the misconduct is relevant to prove a material fact other than character or disposition (i.e., to prove some relevant issue separate and part from bad character)
What are examples of issues on which prior misconduct of the accused may be relevant independent of character or disposition?
MIMIC [1] Motive; [2] Intent; [3] Identity; [4] Modus Operandi (another way to prove identity); [5] Common Plan or Scheme (this list is not exhaustive)
What’s MIMIC?
Motive; Intent; Mistake, absence of; Identity; Common Plan or Scheme  Examples of issues on which prior misconduct of the accused may be relevant independent of character or disposition.
What is MIMIC subject to?
403 – E relevant to show motive, intent, identity, and common scheme may be excluded if the trial judge believes that PV is substantially outweighed by the danger of unfair prejudice.
What kind of cases does MIMIC apply to?
Civil and criminal
What are the crimes where you can show prior similar acts to show propensity?
Sexual assault & child molestation. In civil or criminal cases charging Δ w/ sexual assault or child molestation, the Δ’s prior acts of sexual assault or child molestation may be shown by prosecution or Π.
What kinds of rules are involved with showing character for sexual assault or child molestation?
[1] Δ doesn’t need to open doors; [2] This is disposition E; [3] Prior Acts (don’t have to have a charge or conviction. So someone could come forward with a sexual assault that Δ committed even though she never told anyone about it.)
How does a writing become admissible?
It is not admissible until it has been authenticated. A foundation must be laid showing that the writing is what it purports to be (that it’s genuine). Writings are not self-authenticating. A testimonial foundation is required.
Are writings self-authenticating?
No
Ways to authenticate
[1] Admission (Bob, is this your sig?); [2] Eyewitness Testimony (I saw Bob sign this doc in my office); [3] Handwriting Proof
Types of people who can authenticate handwriting
[1] Lay witness (anyone familiar w/ handwriting); [2] Expert witness (compare disputed w/ genuine specimen (which also needs to be in evidence); [3] Jury Comparison. Note: a lay witness cannot become familiar strictly for purpose of testifying.
How can you authenticate writings by circumstantial evidence?
[1] Ancient Document Rule; [2] Solicited Reply Doctrine
What is the Ancient Document Rule?
[1] 20 or more years, [2] regular on its face, [3] found in a place of natural custody. It’s a way to authenticate writings
What is the Solicited Reply Doctrine?
Proof that disputed document came in response to prior communication. (e.g., it’s highly unlikely that someone would intercept an offer and send a fake acceptance.) It’s a way to authenticate writings.
How much proof do you need to authenticate a writing?
Sufficient E to justify a jury finding of genuineness. Must be that a reasonable jury could find that the document is genuine.
What does it mean for a document to be self-authenticating?
The writing may be admitted without a foundation or testimonial sponsorship.
What are examples of self-authenticating documents?
[1] Certified Copies of Public or Business Records; [2] Official Publications; [3] Newspapers and Periodicals; [4] Trade Inscriptions or Labels; [5] Acknowledged Documents; [6] Signatures on Certain Commercial Documents as provided by UCC
Self-Authenticating Documents – Certified Copies of Public or Business Records example
Certified copy of mortgage
Self-Authenticating Documents – Official Publications example
DMV pamphlet with its name on it
Self-Authenticating Documents – Newspapers and Periodicals example
Copy of National Inquirer offered by Π in defamation suit
Self-Authenticating Documents – Trade Inscriptions or Labels example
Π offers label on can of peas to show that it was owned by Green Giant
Self-Authenticating Documents – Acknowledged Documents example
Notary public
How do you authenticate a photo?
Proper foundation – any witness can look at the photo and state that it’s a fair and accurate representation. No need to call one who took photo.
How do you authenticate a photo of a scene that had no witnesses
It must speak for itself. Show that the camera was operating properly; the time at which it was functioning; how camera/film was handled up until presentation in court.
What is the Best Evidence Rule?
It requires that a party seeking to prove the content of a writing (includes films, photos, X-Rays and recordings) must either: [1] produce the original document or [2] account for the absence of the original
What is another name for BER?
Original Document Rule
Is BER broad or narrow?
Narrow and only applies to writing (liberally defined). It expresses a preference for the original.
Under BER, what happens if you account for the original’s absence satisfactorily?
A foundation has been laid for secondary evidence. Then, either a copy or oral testimony may be admitted to prove the content of the original.
What does the BER apply to?
[1] Legally operative documents; [2] Witness’ sole knowledge comes from a document (W wants to recite orally what he read)
What kind of legally operative documents does the BER apply to?
Documents that by their existence create or destroy a legal relationship that is in dispute. E.g., deed, divorce decree, will, written contract
What three objections should spring to mind when there is a writing?
[1] Improper authentication; [2] Hearsay; [3] BER
What exceptions can you use to get a writing in?
[1] Admission of a party; [2] Recorded Recollection; [3] Biz Record
BER does not apply to …
[1] Facts independent of the writing; [2] Collateral Documents
Under BER, what does Facts Independent of the Writing mean?
W has personal knowledge of a fact that just happens to be described in a writing. No need to produce the writing or explain its absence.
What are some examples of Facts Independent of Writing?
You can prove birth w/o the birth certificate. You can prove payment w/o a receipt.
How does the BER apply to collateral documents?
BER does not apply to writings of minor importance. Ex: Dr. testifying doesn’t have to produce his medical license.
What are three modifications to BER where you can sub something out for the original?
[1] Public Records; [2] Voluminous Documents; [3] Duplicates
How are Public Records a modification to BER?
Certified copies are admissible in place of originals
How are Voluminous Documents a modification to BER?
If originals are too voluminous to be produced in court, summaries, charts or calculations are admissible in place of originals as long as [1] originals would be admissible if offered and [2] originals are made accessible to opposing party.
What are the two qualifications for voluminous documents?
Admissible as long as [1] originals would be admissible if offered and [2] originals are made accessible to opposing party
How are duplicates a modification to BER?
Duplicates can be used in place of the originals. They can’t be handwritten. A “duplicate” is a copy produced by any technique which avoids casual errors and “accurately reproduces the original.” Carbons, photographic copies, Xeroxes, faxes are all duplicates. A duplicate is admissible to the same extent as the original (i.e., no need to explain absence of the original) unless: [1] a genuine question is raised about authenticity of the original or [2] It would be unfair to admit the duplicate in lieu of the original.
What are some examples of admissible duplicates under BER?
Carbons, photo copies, Xeroxes, faxes.
A duplicate is admissible to the same extent as the original (i.e., no need to explain absence of original) unless:
[1] A genuine question is raised about authenticity of the original or [2] it would be unfair to admit the duplicate in lieu of the original.
What are the four testimonial attributes?
Personal Knowledge and Oath  [1] Perception; [2] Memory; [3] Communication; [4] Sincerity (Oath or Affirmation)
What CL disqualifications for testimonial E have been abandoned?
[1] Lack of Religious Belief; [2] Infancy; [3] Mental Incompetency; [4] Prior Convictions; [5] Interest
What is the typical Dead Man Statute?
An interested survivor cannot testify for his interest against the decedent or decedent’s representatives about communications or transactions w/ the decedent in a civil case unless there is a waiver. Essentially, the survivor becomes incompetent to testify against decedent.
What kind of MBE question/answer will involve Dead Man Act?
A wrong answer. It will usually say “Inadmissible b/c of DMA”
What are the elements of a Dead Man Statute?
[1] W on stand must be interested; [2] W must testify for his interest; [3] W must testify against decedent or his interests; [4] subject matter of testimony is important. W can testify, but just not about something like communication and transaction (anything else is ok); [5] strictly civil – NO criminal; [6] Even if you have all 5, you can have a waiver (ex: if decedent’s deposition makes it before the jury)
A state Dead Man Statute can apply in Federal Court if:
The state whose substantive law applies has such a statute.
When examining a W, what are examples of objectionable questions?
[1] Narrative “Tell us everything…”; [2] Leading (Isn’t it true that the sound you heard was like a pistol shot or was it otherwise?); [3] Leading is permitted in certain situations (Cross-X, preliminary matters; aid W w/ memory, hostile W); [4] Misleading or Compound or Argumentative
When are leading questions permitted?
[1] Cross-X (not for friendly cross-X); [2] Preliminary/non-crucial questions; [3] Difficulty eliciting testimony (young, old, dumb); [4] adverse or hostile witness
Leading questions are generally improper on __________ examination
Direct
What is the basic rule for W use of writings in aid of testimony?
W usually cannot read testimony from previously prepared document but ma use a writing in aid of oral testimony in two situations when the W can’t remember. Two situations are: [1] refreshing recollection; [2] Recorded Recollection
When can you use writings in aid of testimony?
[1] Refreshing Recollection; [2] Recorded Recollection
What is refreshing recollection?
When W memory fails, anything can be used to jog the memory of the W.
What is the foundation for refreshing recollection?
The Δ just has to say something like “I can’t remember.”
Can a refreshing article ever be admitted?
Not by prosecution, but it can be by defense counsel. It can also be used in Cross-X.
What is a recorded recollection?
If W is unable to remember all or part of the details of a transaction about which she once had personal knowledge, her own writing shown to be reliable may be admitted in place of her testimony.
What is the foundation for a recorded recollection?
It requires a showing that: [1] at one time W had personal knowledge; [2] show that writing was made or supervised by W (or adopted by W if someone else wrote it); [3] Show that writing was timely made by W
Exam Tip for Refreshing Recollection
[1] Any writing may be used to refresh a W’s memory (can be other stuff like photo); [2] The W cannot read from the writing while testifying; [3] there is no hearsay problem, b/c the writing is not offered into evidence.
Exam tip for Recollection Recorded
[1] Only a writing that meets several foundational requirements (e.g., timely made by W; W cannot remember the events after reading the writing) may be used; [2] the writing itself is read into evidence; [3] this is hearsay, but it falls w/in a specific exception to the hearsay rule.
Lay opinion is admissible if:
[1] Rationally based on perception of the W (I saw auto going about 25 mph); [2] Helpful to trier of fact (in my opinion, driver was grossly negligent  not admissible b/c legal conclusion); [3] not based on scientific, technical, or other specialized knowledge
What are the four basic requirements for expert testimony?
[1] Subject matter must be appropriate for expert testimony; [2] must be qualified as expert; [3] should possess reasonable certainty or probability regarding the opinion; [4] the opinion must be supported by proper factual basis
Eight situations where Lay W opinion is admissible:
[1] general appearance or condition of a person; [2] state of emotion of a person; [3] matters involving sense recognition; [4] voice or handwriting ID; [5] speed of moving object; [6] value of his own services; [7] rational or irrational nature of another’s conduct; and [8] intoxication of another.
What is the appropriate subject matter for expert testimony?
The opinion must assist the trier of fact. It subdivides into requirement that the methodology must be reliable and the opinion must be relevant (“fit” the facts of the case). Reliability and Relevance (fit) are conditions to admissibility. That means that the proponent must convince the trial judge by a preponderance of the E that these conditions have been met.
What are the qualifications of an expert?
Doesn’t have to be formal or academic (heroin user testifying about substance that was heroin)
What must an expert possess regarding testimony?
Reasonable certainty or probability regarding the opinion. Need to show judge that it’s more than guesswork or speculation.
What are possible sources for an expert’s proper factual basis?
[1] personal observation; [2] facts made known to the expert at trial (hypos); [3] facts not known personally but supplied to him outside the courtroom and of a type reasonably relied upon by experts in the particular field (ex: Dr. relies on x-ray tech’s opinion of x-ray)
Can an expert state an opinion as to whether the accused did or did not have mental state necessary to constitute an element of a crime?
No
Can a treatise be used to impeach contrary opinion by a defense expert?
Yes
How can a treatise be established as authoritative?
[1] If opposing expert relied on it; [2] elicit an admission on Cross-X (Dr., are you familiar w/ Gray’s anatomy? Is it authoritative?); [3] call you own expert W and have him testify that it’s reliable; [4] Judicial notice
Under FRE, can a treatise be used to support your own expert’s opinion?
Yes. You don’t have to wait for an opposing expert
Can a treatise be offered for its truth under FRE?
Yes. It is admissible for its truth as an exception to the rule against hearsay.
What’s the basic rule for a treatise?
A learned text, treatise, or article concerning a relevant discipline is admissible as an exception to the rule against hearsay if established as reliable by [1] reliance by your expert on direct X, [2] admission on Cross-X of your opposing expert, [3] testimony of any expert, or [4] judicial notice
What are the limitations of a treatise?
[1] Expert must testify (at trial or deposition) unless judge takes judicial notice; [2] Treatise is admitted by being read to the jury. Text itself is not received as E.
Exam Tip – When a question involves a party impeaching his own W, be sure to avoid the following wrong answer choices reflecting the traditional rule, which prohibits impeaching your own W unless the W:
[1] is an adverse party or identified w/ an adverse party; [2] is hostile and affirmatively uncooperative; [3] is one whom the party is required by law to call; or [4] gives surprise testimony that is affirmatively harmful to the party calling him. (These are wrong answer choices). The FRE rule is that a W can be impeached by any party, including the party calling him.
Under FRE, a W may be impeached by ….
Any party, including the party calling him.
What happens if a W refuses to answer any Cross-X questions after testifying on direct?
Direct must be stricken.
Cross-X of a W should not exceed …
Scope of Direct. i.e., one may Cross-X on any issues that were raised impliedly or expressly on direct X.
What is the collateral matters doctrine?
Impeachment by contradiction of the W is limited. Cross examiner is bound by the answers given by the W as to collateral matters. No Extrinsic E is allowed to contradict a W as to a collateral matter.
What are the key points about Cross-X?
[1] Party has absolute right to cross-X a W who testifies live; [2] Cross-X should not exceed the scope of direct; [3] Collateral Matters Doctrine (bound by answers given)
What is a collateral matter?
A matter that is relevant only to show contradiction, not for substantive issues of the case.
In credibility and impeachment rules, what is the focus on?
The credibility of the W. It’s almost like a trial w/in a trial – the credibility of this one W.
What are the rules of accrediting your own W?
[1] No bolstering own W unless there has first been an appropriate impeachment (bad must come before good)(this includes prior consistent statements); [2] Prior consistent statement would be admissible if the St was one of ID
When can you admit a prior consistent statement to bolster?
Admissible if the statement is one of identification. A prior out-of-court statement of ID that was made by a W who testifies at trial is excluded form the definition of hearsay and may be admitted.
What are the five techniques for impeaching an adversary W?
[1] Attacks on Testimony – (a) Prior inconsistent St; (b) Showing intent/bias/motive to of W to misrepresent or exaggerate; [2] Character Attacks – (c) Prior conviction of crime; (d) Specific acts of deceit or lying which may be inquired into in Cross-X; (e) Bad reputation or opinion for truth & veracity
Using a Prior Inconsistent statement to impeach – how does it work?
The credibility of a W may be impeached by showing that on some prior occasion the W made a St different from and inconsistent w/ a material portion of the W’s present in-court testimony.
What are the key points of a prior inconsistent statement?
[1] Generally admissible only to impeach – not for its truth – not affirmative or substantive E (destroy, not bolster); [2] But if the prior inconsistent ST was given under oath AND at a trial, hearing or other proceeding or in a deposition, such a St is admissible for its truth.
Is extrinsic E admissible to prove a prior inconsistent statement?
Yes
What is the foundation for extrinsic E used to show prior inconsistent statement?
Witness should be afforded an opportunity to explain or deny the making of the inconsistent statement. Doesn’t have to be before it’s admitted. Foundation requirements can be dispensed when the W is unavailable.
Exam hint on out-of-court statements
Anytime you see an o-o-c statement, see who said it. MBE will sneak parties (rather than W’s) in (admissions) so the statement will come in. Exception – statements made in settlements.
How can you impeach through bias/interest/motive?
May be shown by extrinsic E after a foundation is laid by inquiry on Cross-X of the target W. This is a good vehicle for getting in E that normally wouldn’t come in.
Can you use prior convictions to impeach?
Prior convictions are usable to impeach if the conviction is for the proper kind of crime.
What kinds of crimes are usable to impeach?
[1] Any crime (felony or misdemeanor) if it involves dishonesty (meaning “deceit”) or false statement. Ex: fraud, larceny by trick, embezzlement, perjury but NOT robbery or ordinary larceny b/c there is no deceit or false statement involved. OR [2] a felony (i.e., a crime punishable by more than one year) not involving dishonesty (i.e., deceit) or false statement is admissible to impeach in the discretion of the Court. Ex: Robbery, ordinary larceny, felony assault. Misdemeanors are NOT admissible to impeach if they do not involve deceit or false statement.
Can the court bar crimes involving dishonesty?
NO
Are non-deceit misdemeanors admissible to impeach?
No
What’s the guideline for admissibility of past convictions for impeachment?
General guideline is 10 years. If more than 10 years have elapsed from later of date of conviction or date of release from confinement, the conviction is generally inadmissible – even if it is a crime of dishonesty (deceit) or false statement.
Is the extrinsic evidence of conviction admissible?
Yes. The certificate of conviction or through Cross-X. No foundation is necessary
Can you use specific instances of misconduct or bad acts to impeach?
Yes, on Cross-X if the act is probative of truthfulness (i.e., is an act of deceit or lying). NO extrinsic E
What is the technique for using specific bad acts impeachment?
Ask on Cross-X – “Did you do it?”
What are the guidelines for specific bad acts impeachment?
[1] Good faith is required and reasonable basis for believing it; [2] the act inquired about must involve deceit or lying; [3] No extrinsic E is permitted. It’s limited to Cross-X.
Is an arrest a bad act?
No. You can ask a W if he embezzled $ from employer, but not if he was arrested for embezzlement.
Can you impeach for bad reputation for truth and veracity?
Yes. You must call community mouth to stand
What are the guidelines for rehabilitating after impeachment?
[1] Good reputation (opinion) for truth may be shown if impeachment involved a character attack (prior conviction; act of deceit or lying; bad reputation/opinion for truth); [2] Prior Consistent Statement to rebut an express or implied charge of recent fabrication or improper influence or motive – (a)Not usually to rebut charge of prior inconsistent St; (b) to rebut charge of recent fabrication or improper influence or motive; (c) must be pre-motive statement; (d) admissible for its truth (this is explicitly excluded from definition of hearsay)
What are the Means of Proof and necessary foundation for the Impeachment Method of Prior Inconsistent Statements?
[1] Means of Proof – (a) Cross-X, (b) Extrinsic E (if not a collateral matter); [2] Foundation – W must be given opportunity to explain or deny the inconsistent St (exception for hearsay declarants)
What are the Means of Proof and necessary foundation for the Impeachment Method of Bias or Interest?
[1] Means of Proof – (a) Cross-X, (b) Extrinsic E; [2] Foundation – W must be asked on Cross-X about facts showing bias or interest before extrinsic E is allowed. If these facts are admitted on Cross-X, admissibility of extrinsic E is w/in court’s discretion.
What are the Means of Proof and necessary foundation for the Impeachment Method of Conviction of Crime (must be felony or crime involving dishonesty)?
[1] Means of Proof – (a) Cross-X, (b) Record of Judgment; [2] Foundation – None required
What are the Means of Proof and necessary foundation for the Impeachment Method of Specific Instances of Misconduct (Bad Acts)?
[1] Means of Proof – Cross-X only; [2] Foundation – Not applicable
What are the Means of Proof and necessary foundation for the Impeachment Method of Opinion or Reputation for Truthfulness?
[1] Means of Proof – Calling other Witnesses [2] Foundation – None required
What are the Means of Proof and necessary foundation for the Impeachment Method of Sensory Deficiencies?
[1] Means of Proof – (a) Cross-X; (b) Extrinsic E; [2] Foundation – None Required
What’s the definition of Attorney-Client privilege?
Confidential communications between attorney and client made during professional legal consultation are privileged from disclosure unless waived by the client or the representative of the deceased client. (privilege survives death of client)
How long does the att’y-client privilege last?
It survives death of client.
What are the three elements of attorney-client privilege?
[1] The right parties (att’y, client); [2] Confidential Communication (not physical E or pre-existing documents); [3] Professional Legal relationship – (a) Intent by client to establish a professional legal relationship (retainer negotiations are covered), (b) predominantly legal advice must be sought
Under the A/C privilege, what is not covered as confidential communication?
Physical E or pre-existing documents
Under the A/C privilege, what does Professional Legal Relationship mean?
[1] Intent by client to establish a professional legal relationship. Retainer negotiations are covered. It doesn’t matter whether the establishment of the relationship is successful. [2] Predominantly legal advice must be sought.
What are exceptions to the A/C privilege (situations where the privilege does not apply)?
[1] Future crime or fraud; [2] At issue exception (when client or patient affirmatively puts communication in issue); [3] Disputes between the parties to the professional relationship (Actions for fee or malpractice) [4] Joint Client Exception (where 2 or more parties communicate w/ att’y about a matter of common interest. No privilege between them - but there would be privilege as to 3rd parties). The first three apply to all professional relationships
Under professional privileges, what is the At issue exception?
It’s when the client or patient affirmatively puts communication in issue in litigation. Ex: if client is being prosecuted fro fraud and he says “I was acting under the advice of my att’y.”
Which three exceptions apply only to A/C privileges?
[1] Future crime or fraud; [2] At issue exception; [3] Disputes between the parties to the professional relationship
What is the professional privilege exception that only applies to A/C?
Joint client exception – where two or more parties communicate w/ att’y about a matter of common interest. No privilege between them. But there would be a privilege as to 3rd parties.
What is the definition of the Physician/Psychiatrist patient privilege?
The patient has a privilege against disclosure of confidential information acquired by the physician/psychiatrist in a professional relationship entered into for the purpose of obtaining treatment.
What are the key elements of the Physician/Psychotherapist privilege?
[1] Patient must be seeking treatment; [2] information acquired must be confidential and necessary to facilitate professional treatment. (So a patient bleeding from the head will not be privileged. Also, if the patient babbles off topic, then no privilege)
How can the physician patient privilege be waived?
Waiver of the physician patient privilege is common especially b/c of the Patient Litigant Exception exception. Privilege is waived if patient sues or defends by putting physical or mental condition in issue.
Do federal courts recognize physician or psychotherapist exceptions?
Psychotherapist.
What are the husband-wife spousal privileges?
[1] Spousal Immunity Privilege – protects one spouse form being forced to testify against the other about anything in a criminal case; [2] Confidential Marital Communications Privilege – Narrower b/c it only protects against confidential communications made during marriage. This applies to civil & criminal.
Which husband-wife privilege applies to intra-family injury case? What is intra-family injury case?
Neither privilege applies. Intra-family injury case examples – assault of spouse or child, incest, child abuse
What is the definition of spousal immunity privilege?
One spouse can’t be forced to give adversary testimony against the other in a criminal case. There is nothing here about a communication or confidence.
What are the requirements of a spousal immunity privilege?
[1] Valid marriage at the time of trial (makes no difference if testimony sought concerns pre-marriage activities); [2] Protects against any and all testimony; [3] holder of privilege is W spouse and not party spouse; [4] Applies only in a criminal case.
What is the definition of Confidential Marital Communications privilege?
A husband or a wife shall not be required or, without the consent of the other, shall not be allowed to disclose a confidential communication made by one to the other during the marriage.
What are the requirements of Confidential Marital Communications Privilege (and differences from spousal immunity)?
[1] Married not necessarily at time of trial but at time of protected communication (this privilege outlasts the marriage); [2] Protects only confidences not all testimony; [3] Holder of privilege is either spouse not just W spouse; [4] Privilege applies to all cases, civil as well as criminal.
Three situations in which state evidence law will apply in federal court if state substantive law applies (as in the typical diversity jdxn case)
“In civil actions or proceedings wrt an element of a claim or defense as to which state law applies the rule of the decision (i.e., state substantive law applies). State law will apply regarding: [1] Presumptions and burdens of proof; [2] Competency of W (ex: State Dead Man Statute); [3] Privileges
What law applies if the action in federal court is a suit under the federal social security act?
Federal law applies. If a privilege is involved, Federal common law (decisional law) would be correct.
Federal law of privilege is governed by …
Federal common law or federal decisional. NOT statutory.
What is the definition of hearsay?
Hearsay is an out-of-court statement offered for the purpose of establishing the truth of the content of the statement (or “truth of the matter asserted in the statement”)
What three questions should you ask in a hearsay question?
[1] Is it an out-of-court statement? [2] What precisely is the out-of-court statement? (put quotes around the statement and then ask the next question) [3] Is it being offered for the purpose of establishing its truth?
What are the two scenarios for a hearsay situation?
[1] (a) Declarant makes the o-o-c St and (b) W reports the St in court. [2] Declarant writes the o-o-c St and the Writing is produced in court.
What is the rationale for the general rule excluding hearsay?
It denies the opponent the opportunity to cross-examine the person whose perception, memory, and sincerity are in issue.
What is the definition of a specific non-hearsay situation?
It’s a situation where the o-o-c St is not being offered for its truth. There are three main types.
What’s the 1st main type of a specific non-hearsay situation?
Verbal Acts or Legally Operative Facts – where the words spoken or written have relevant legal significance in the case by virtue of being spoken or written. (words of offer, acceptance, defamation, conspiracy, bribery, cancellation, misrepresentation, waiver, permission)
What are examples of Verbal Acts or Legally Operative Facts?
Words of offer, words of acceptance, defamation, conspiracy, bribery, cancellation, misrepresentation, waiver, permission.
What’s the 2nd main type of a specific non-hearsay situation?
Out-of-Court St offered not for its truth but to show its effect on the person who heard or read the St. (E.g., to show notice to, or the good faith of, or reason for action or inaction by the person who heard or read the o-o-c St)
What’s the 3rd main type of a specific non-hearsay situation?
Out-of-Court St offered not for its truth but as circumstantial E of declarant’s relevant state of mind.
Can a W’s own prior statement be hearsay?
Yes, if it’s being offered for the purpose of establishing the truth of the content of the statement.
Prior statements of a W which are not hearsay  generally
These statements are in fact being offered for their truth and would be hearsay under the CL. But FRE excludes them form the definition of hearsay by express rule provisions. Therefore they are admissible non-hearsay. These are EXCLUSIONS!
What are examples of prior statements of a W which are not hearsay?
[1] Prior inconsistent Statements given under oath at a trial, hearing, other proceeding or deposition; [2] Prior consistent Statements to rebut charge of recent fabrication or improper influence or motive; [3] prior statement of identification made by a W.
Why are there exceptions/exclusions to hearsay?
Because some statements are made under conditions of truthfulness.
What are the major exceptions/exclusions?
[1] Admission of party; [2] former testimony; [3] statement against interest; [4] dying declaration; [5] spontaneous statements – (a) present state of mind in issue; (b) statement of existing intent to prove intended act; (c) Excited Utterance; (d) present sense impression; (e) Declaration of present physical condition; (f) Declaration of past physical condition; [6] Business Records
What is the definition of an admission of a party?
Declaration of a party offered against the party
What’s the rationale of making Admission of a party admissible?
Estoppel – no one to complain since the party said it and should be stuck with it. Let him explain it. You can’t claim a lack of a chance to cross-X yourself.
No special reliability for an admission of a party is needed for it to be admissible because:
[1] Need not be against interest at time of making statement (Δ brags about making $2M – admissible in tax fraud case); [2] Need not be based on personal knowledge (when informed that neighbor was bitten by dog, Δ states “It must have been my dog that did it”); [3] Can be in form of legal conclusion (“I was negligent” which is something we would never allow a testifying W to say)
Is a party admission an exception?
No. it’s non-hearsay under FRE
What is a vicarious admission?
A statement by the party’s agent or servant concerning a matter w/in the scope of the agency or employment, made during existence of the relationship. It’s admissible against employer.
What’s the definition of former testimony?
Testimony given in earlier proceeding by person now unavailable is admissible if [1] party against whom testimony is offered had, during earlier proceeding, an opportunity to examine that person and motive to conduct exam was similar to the motive it has now, or [2] in civil case, party against whom testimony is offered was in privity (a predecessor in interest) w/ a party to earlier proceeding who had opportunity and similar motive to examine.
Testimony given in earlier proceeding by person now unavailable is admissible if:
[1] party against whom testimony is offered had, during earlier proceeding, an opportunity to examine that person and motive to conduct exam was similar to the motive it has now, or [2] in civil case, party against whom testimony is offered was in privity (a predecessor in interest) w/ a party to earlier proceeding who had opportunity and similar motive to examine.
What are the requirements for admitting former testimony?
[1] Meaningful opportunity to cross; [2] unavailability of the declarant.
How does grand jury testimony fit under Former Testimony?
The grand jury testimony of an unavailable declarant that is offered against the accused in a criminal case would not qualify b/c the accused does not have an opportunity to cross-X grand jury witnesses.
What elements are included in a meaningful opportunity for cross-X under Former Testimony?
[1] Same issue and motive; [2] Some identity of party. Party against who offered must have been a party in first proceeding, or in civil case, at least in privity w/ party in first proceeding.
How can a declarant be unavailable?
Declarant is unavailable if court exempts declarant from testifying due to privilege, declarant refuses to testify b/c of privilege or other reason, declarant’s memory fails, declarant is dead or sick, or proponent of statement cannot procure declarant’s attendance by process or other reasonable means.
What’s the definition of a Statement against interest?
Declaration of a person, now unavailable as a W, against that person’s pecuniary, proprietary, or penal interest (or St which would expose declarant to civil liability or which would tend to defeat a civil claim by declarant) at the time the St was made.
What is the limitation of a Statement against interest?
A St tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless “corroborating circumstances clearly indicate the trustworthiness of the statement.”
Four ways to distinguish Statement against Interest from Admission of Party
[1] St against interest must be made against interest at time St was made; [2] St against interest may be made by any person, not necessarily a party; [3] St against interest requires personal knowledge; [4] St against interest requires unavailability
Is it accurate to say that a party admission always also qualifies as a St against interest?
No. A party admission will not always involve an unavailable party.
What is the definition of a Dying Declaration?
In a prosecution for homicide or in a civil action or proceeding, a St made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of the impending death.
What are the requirements for a dying declaration?
[1] State of Mind – made under sense of impending death; [2] Declarant need not die but must be unavailable at time of trial; [3] Kind of case in which admissible – homicide or civil case. NO criminal cases! [4] Content limitation – must concern cause or circumstances of impending death (can’t talk about undue influence in a will)
Exam hint about Dying Declaration
Just saying “Spano did it” is not enough. There was nothing showing knowledge of impending death. You need state of mind requirement.
Spontaneous Statements generally
A group of six exceptions for which unavailability is not required b/c the law regards prior statement as being at least as reliable as present in-court testimony.
What are the six types of spontaneous statements?
[1] Declaration of existing state of mind in issue; [2] Declaration of (present) existing intent to do something in the future offered to infer that the intended future act was done; [3] Excited utterance; [4] present sense impression; [5] Declaration of Present pain, suffering or physical condition; [6] Declaration of Past Physical Condition
What is the definition of an excited utterance?
St relating to a startling event or condition is admissible when made while declarant was still under stress of excitement cause by event or condition
What are the requirements for an excited utterance?
[1] Startling event; [2] Made under stress of excitement; [3] Describes the facts of the startling event
Considerations/things to look for when looking for an excited utterance
[1] nature of event; [2] time lapse and what is going on during that time (has the excitement worn off?); [3] Language of excitement (exclaimed, shouted, screamed) (not “discussed” or “volunteered”). Look for “!”
What is the definition of a Present sense impression?
A statement describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter.
Distinguish PSI from EU
PSI – unnecessary to have startling event or excitement but must have almost precise contemporaneousness – no appreciable time lapse.
What is the definition of a Present Pain, suffering or physical condition?
A declaration of then existing physical or mental condition is admissible to show the condition. This is almost like a type of PSI. “It hurts.”
What is the definition of a Past Physical Condition?
Statement made for purposes of diagnosis or treatment and describing medical history or past symptoms or the general character of the cause or external source of the symptoms insofar as reasonably pertinent to diagnosis or treatment.
What are the requirements for a Declaration of a Past Physical Condition?
[1] Made to medical personnel; [2] pertinent to either diagnosis or treatment (even if diagnosis is only for the purpose of giving testimony)
What is a preliminary question of fact?
For expert opinion – “is he qualified as an expert?”
What’s the rule for preliminary questions of fact upon which admissibility depends?
Preliminary questions concerning the qualification of a person to be a W, the existence of a privilege, or the admissibility of E shall be determined by the court (judge). But in making its determination it is not bound by the rules of evidence. (ex: judge can consider hearsay)
What is the rule for impeaching the hearsay declarant?
When a hearsay statement has been admitted in E, the credibility of the declarant may be attacked by any evidence which would be admissible for that purpose if declarant had testified as a live witness.
Definition of business records
Records made at or near the time by, or from information transmitted by, a person w/ knowledge are admissible if kept in the regular course of business and if it was the regular course of that business to make the record unless the source of info or circumstances of preparation indicate a lack of trustworthiness.
What is the rationale for reliability of business records?
Employees are under a business duty to be accurate in observing, reporting, and recording business facts.
What’s the function of the Biz records exception?
Allows the record to substitute for the in-court testimony of the employees. Record can’t testify if the person couldn’t normally testify.
What are the problem areas for business records?
[1] Does the exception apply? Usually turns on whether entry is germane to the business. If it’s germane, it applies. [2] Multiple Hearsay Problem – assume the entry is germane to the business so that the biz records exception ordinarily applies. But suppose the record contains w/in it a statement made by someone outside the business. Reconsider the rationale and purpose of the exception.
What kind of exception can you classify a police report as?
Public record or business record in a civil case.
Order of questions to ask in biz record case?
[1] Is it germane? [2] If yes, and you called the person to the stand, could he testify? (think the police officer case)
What is the rule for the 6th Am Right of Confrontation?
Even though an o-o-c statement qualifies as an exception to the rule against hearsay, the accused’s 6th Am right of confrontation may render the St inadmissible when it is offered against the accused in a criminal case. The S.C. in Crawford v. Washington recently held that o-o-c statements, even if they fit a hearsay exception, will not be admitted if: [1] the o-o-c St is offered against the accused in a criminal case and [2] The declarant is unavailable at the trial and [3] the o-o-c St was “testimonial” and [4] the accused had no opportunity to cross-X the declarant’s “testimonial” St when it was made unless the Ø demonstrates that the Δ has forfeited his Confrontation Clause objection by wrongdoing that prevented the declarant from testifying at trial.
What did Crawford v. Washington hold?
o-o-c statements, even if they fit a hearsay exception, will not be admitted if: [1] the o-o-c St is offered against the accused in a criminal case and [2] The declarant is unavailable at the trial and [3] the o-o-c St was “testimonial” and [4] the accused had no opportunity to cross-X the declarant’s “testimonial” St when it was made unless the Ø demonstrates that the Δ has forfeited his Confrontation Clause objection by wrongdoing that prevented the declarant from testifying at trial.
A hearsay statement is testimonial if:
Declarant makes a St that he anticipates will be used in the prosecution or investigation of the crime.
What are some examples of statements made in the prosecution or investigation of a crime?
Witness statements made to police or other law enforcement officials in response to police questioning; any testimony given at a formal proceeding – preliminary hearing, grand jury, or motion to suppress; guilty plea allocutions of co-conspirators to prove that a conspiracy existed; forensic lab reports revealing drugs, fingerprints, firearms evidence, blood, DNA, etc.)
Considerations in determining whether statements are testimonial
[1] Likely motivation and intent of the declarant making the statement (to get help or provide E?); [2] Likely motivation and intent of interrogator (to safeguard the victim or secure the scene or to get E?); [3] The temporal element (ongoing emergency or description of past events?); [4] Identity of person eliciting the statement (law enforcement connected or acquaintance/relative of the declarant?); [5] Degree, amount, circumstances and location of police interrogation (preliminary on-scene questions or sustained structured questioning?)