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140 Cards in this Set
- Front
- Back
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RULE 104 PRELIMINARY QUESTIONS |
The judge not the jury decides preliminary questions of fact that determine the admissibility of evidence
-When the court has the responsibility to determine the existence of a preliminary fact, the preponderance standard applies |
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RULE 611 MODE AND ORDER OF EXAMINING WITNESSES AND PRESENTING EVIDENCE |
Three Goals
1. making the interrogation and presentation effective for the ascertainment of truth 2. Avoiding unnecessary consumption of time 3. Protecting witnesses from harassment or undue embarrassment |
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RULE 611 Cross Examination |
Cross-x is limited to subject matters of DE & matters affecting witness credibility |
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RULE 611 LEADING QUESTIONS |
A question phrased in a way to hint at the answer the witness would give Sanctioned on DE when 1. When a witness is unable to respond to non-leading question (child, memory, language) 2. When questioned relates to undisputed or preliminary 3. When the witnesses is an adverse party, identifies with an adverse party or is a hostile to the calling party |
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RULE 103 RULINGS ON EVIDENCE |
To preserve error for appeal, the proponent must make a timely and specific objection or motion to strike Timely: as soon as the ground of it is known, or reasonably should be known, to the objector |
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RULE 103 Specificity: Grounds |
An objection only preserves the specific grounds named General objections (Irrelevant, incompetent, immatieral) preserves no grounds for appeal |
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RULE 103 Specificity: Parts |
If part of an offer is admissible and part is inadmissible, a objection to the whole may be properly overrule. |
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RULE 401 TEST FOR RELEVANT EVIDENCE |
Evidence must possess logical probative value toward some fact that is legally of consequence to the case Determined in the context of the fact and arguments |
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RULE 401 Flight, escape & other "admissions by conduct" |
Evidence of D's guilt may be admitted as indicative of a guilt mind, so long as there's an adequate factual predicate for the inference that the defendant's movement was indicative of a guilt conscience and not normal traveled |
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RULE 411 LIABILITY INSURANCE |
Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully May be admitted for witness's bias, prejudice, proving ownership or control |
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RULE 404 CHARACTER EVIDENCE |
Not admissible to prove that a person acted in conformity with his or her character on a particular occasion Can be used to prove something other than conformity Does not apply if character is an element of claim or defense |
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RULE 404 Character Definition |
A generalized description of a person's disposition, or of the disposition in respect to a general trait such as honesty, temperance or peacefulness
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RULE 404 Exceptions -- Putting character in issue |
- must relate to trait pertinent to the charge |
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RULE 404 Character directly in issue v. putting character in issue |
Character directly in issue: Character is itself an issue in the case Putting character in issue: When an accused offers evidence of his good character to prove he acted in conformity with that good character |
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RULE 404(a)(2)(B) Exceptions -- Accused proving vic's character |
In Criminal cases Accused may offer evidence of his alleged vic's bad character and his character (Typically invoked when claiming self-defense Prosecutor can... ...bring evidence of vic's peacefulness in homicide cases to rebut D's claim ...bring evidence to of accused violent character if D brings evidence of vic's violent character ...in homicide cases evidence of vic's peaceable character is permissible in response to any kind of evidence that vic was the aggressor P |
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RULE 404(a)(3) Exceptions for a witness |
Evidence of a witnesses's truthful for untruthfulness is permitted Used for impeachment and rehabilitation purposes |
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RULE 404(b) CRIMES, WRONGS OR OTHER ACTS |
Act does not have to be criminal, much less have resulted in an arrest or conviction Any other crimes evidence offered must be probative of the non-character purpose for which it is offered |
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RULE 404(b) Burden of Proof |
Judge need only find a jury could reasonably conclude by a preponderance of the evidence that D committed or is responsible for the crime, wrong or other act |
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RULE 404(b) INTENT |
Also applies to proof of other states of mind such as knowledge, and used to rebut claims of mistake or accident |
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RULE 404(b) MOTIVE |
Evidence of motive is often probative of the accused's guilt Proof of the other crimes may help establish why this particular person is likely to have committed the crime |
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RULE 404(b) IDENTITY |
Requires a showing that the crime or its perpetrator and the other crime share distinctive characteristics that evidence a "signature quality" only works if the two crimes share a distinctive characteristic Degree of similarity must be substantial, but cannot be reduced to any formula |
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RULE 405 METHODS OF PROVING CHARACTER |
-Must be viewed in relation to 404 -Reputation, Opinion, Specific instance of conduct -Character can be relevant in two ways (1) Character in Issue (2) Character used circumstantially -When character is not an essential element, 404(a) restrict proof to reputation or opinion evidence |
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RULE 405 METHODS OF PROVING CHARACTER |
-Must be (1) good faith factual basis for inquiry into incident (2) Relevant to character trait at issue -Witness must be qualified to attest to the person's character -Cross examination permitted |
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RULE 406 HABIT; ROUTINE PRACTICE |
Can be used to prove conformity Proponent must prove frequency of the behavior and the regularity of it |
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RULE 406 HABIT DEFINITION |
One's regular response to a repeated specific situation, a regular practice of meeting a particular kind of situation with a specific type type of conduct, or uniformity or semi-automatic behavior |
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RULE 412 SEX-OFFENSE CASES: The Victim's Sexual Behavior or predisposition |
Evidence of a witness's sexual behavior is not a legitimate means of proving the witness's untruthful character under 404(a)(2)(B) |
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RULE 412 SEXUAL DISPOSITONS |
Includes evidence relating to the alleged vic's mode of dress, speech and life-style if offered for it sexual connotation |
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RULE 412 Other sexual behavior |
Includes: - Activities involving actual or imply physical contact such as sexual intercourse to contact -Statements indicating desire to engage in such activity -Fantasies or dreams -Reputation or opinion evidence -Prior false claims are not considered sexual behavior but their admissibility must be tested under 404, 405 & 608 |
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RULE 412(b)(1)(A) |
The other sexual behavior must have occurred at such a time that it actually tends to rebut or explain the prosecution's physical evidence |
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RULE 412(b)(2) Civil Case |
Sanctions the use of sexual behavior or predisposition evidence when it is offered for a purpose other than character |
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RULE 413 SIMILAR CRIMES IN SEXUAL-ASSAULT CASES & RULE 414 SIMILAR CRIMES IN CHILD-MOLESTATION CASES |
Supersedes Rule 404 The proponent of the evidence will be required to offer only enough evidence so that a reasonable juror could find that the defendant committed the other sexual assault Admissibly is favored but courts have ruled that the rule does not require admission and that trial courts may exclude such evidence if its probative value is substantially out weighed by the danger of unfair prejudice |
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RULE 407 SUBSEQUENT REMEDIAL MEASURES |
-Measure must have ben taken after the occurrence of the alleged injury or harm -Does not bar admission of 3rd party remedial actions -Compelled actions may be admissible |
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RULE 407 OTHER PURPOSES |
Feasibility: Must be in dispute before evidence is admitted; Physically, technologically or economically feasible Impeachment: Permitted only where the witness either makes factual assertions that are contradicted by subsequent remedial measure or claims that the product was as good as it could be |
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RULE 408 Compromise offers & negotiations |
-Not admissible for disputes of validity or amount -May apply even when the claim presently being litigated is not identical to the claim that was the subject of the compromise negotiations -Dispute is determined on a case-by-case basis -Business negotiations are ordinary not protected |
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RULE 408 Admissible for Other Purposes |
- To show bias, prejudice or inters of a witness - To rebut a claim of undue delay - To prove motive or intent - In a suit to enforce the terms of the settlement agreement - To prove knowledge - To prove effort to obstruct justice |
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RULE 409 OFFERS TO PAY MEDICAL & SIMILAR EXPENSES |
-Covers the fact of payment and offers to pay medical and hospital expenses occasioned by injury -Statements of liability made in conjunction with such offeer is not rendered inadmissible by Rule 409 |
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RULE 410 Protected Pleas |
The accused must believe he is engaged in plea negations and this belief must be reasonable |
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RULE 410(a)(1) GUILTY PLEA LATER WITHDRAWN |
A guilty plea set aside by an appellate court should be treated as a withdrawn plea |
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RULE 201 Adjudicative Fact v. Legislative Fact |
Adjudicative fact: Facts of the particular case Legislative fact: General facts, not peculiar to the case at bar, to which a court may refer in framing or interpreting a rule of law |
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RULE 201 Background facts |
-Doesn't apply to the vast array of background facts commonly considered by judges and juries in deciding cases |
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RULE 201 Generally Known |
-Not generally known just because an individual judge knows it -Not generally know just because indiviuals within a trade or special class of persons knows it |
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RULE 901 Authenticating or Identifying Evidence |
-Foundation evidence -A bona fide dispute as to authenticity or identity is not to be decided by the judge, but rather by the jury |
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RULE 90(b)(1) Chain of Custody |
-Where the object is not distinctive in appearance, a chain of custody may be required to establish that the item presented at trial is the same one that had a role in the events in issue |
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RULE 901 Photos, Motion Pictures, videotapes & Sound Recordings |
Generally authenticated by testimony that it is a fair and accurate representation of the actual scene or event |
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RULE 901(b)(2) Nonexpert Opinion About Handwriting |
-A lay witness is not competent to give an opinion on handwriting if his familiarity with the alleged author was acquired for the purpose of litigation |
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RULE 901(b)(3) Comparison by trier or expert witness |
The law does not require a questioned document examiner to vouch for the similarity of handwriting, but instead, allows the jury to determine for itself whether the same person's handwriting appears on two documents |
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RULE 901(b)(5) Voice Identifications |
- Permits voice identification based upon familiarity acquired at any time, including in anticipation of litigation - Mere familiarity is sufficient |
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RULE 106 |
- The writing does not itself have to be introduced into evidence
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RULE 106 Relevant to the issues and necessary to... |
(1) Explain the admitted portion (2) Place the admitted portion in context (3) avoid misleading the triers of fact or (4) insure a fair and impartial understanding |
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RULE 1002 Writings |
-Artwork, drawings, designs and the like are included within this definition |
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RULE 1002 Best Evidence Rule |
Applies when (1) a writing is itself the thing to be proved, or (2) a party seeks to prove a matter by using a writing as evidence of it |
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Rule 1002 Does not apply to... |
- testimony that written records have been examined and found not to contain a certain matter -Evidence that a writing exist or to evidence of some other fact about it such as a date, as distinguished form evidence of its terms |
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RULE 1004 Admissibility of Other Evidence of Content |
If any of the conditions listed in the rule are established, the proponent is then free to prove the contents of a writing, recording, or photograph by any secondary evidence he chooses - no degrees of secondary evidence |
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RULE 1004 Orignal Lost or Destroyed |
Proof consist of testimony describing a fruitless diligent search |
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RULE 1004
Bad faith destruction by proponent |
Intentional destruction by the proponent by no means forecloses use of exception (1) -Negligent destruction is not bad faith |
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RULE 1004(d) Collateral Matters |
Three factors (1) the centrality of the writing to the principal issues (2) the complexity of the relevant features of the writing and (3) the existence of a genuine dispute as to the contents of the writing |
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RULE 1005 Copies of Public Records to Prove Content |
-If it is a certified or compared copy, it is admissible under this rule whether or not it is a duplicate |
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RULE 1006 |
Only apples to summaries that are created for the use at trial -Used if the in-court examination would be an inconvenience |
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RULE 1006 Made available requirement |
To satisfy this requirement, a party seeking to use a summary under this rule must identify its exhibit as such, provide a list or description of the documents supporting the exhibit, and state when and where they may be reviewed |
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RULE 1007 Testimony Statement or a Part to Prove Content |
Prohibits proof of the content of a writing by the opposing parties oral out-of-court admission -Written terms of a K cannot be shown by testimony of another witness to the part's oral statement describing the terms -Oral admission when the non production of the original is excused under rule 1004 |
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RULE 1008 Functions of the Court & Jury |
-most fact issues arising under this rule are for the trial judge to resolve -Only those mentioned in the rule are for the jury |
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RULE 601 Competency to Testify in General |
-Deficiencies go to credibility
-The court has discretion to rule that a witness is incapable of testifying -Rule 403 can come into play to prevent testimony (relevancy) |
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RULE 601 Children, Drug usage and adjudication of insanity or incompetence to stand trial |
-presumed competent to testify if they can distinguish between truth and falsehood
-Use of drug or alcohol does not automatically establish incompetency -Adjudication of such does not, by its self, render one incompetent |
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RULE 601 CIVIL TRIALS |
State law governs competency in civil trials
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RULE 602 NEED FOR PERSONAL KNOWLEDGE |
-Can be established through testimony or inferred from circumstances -No absolute certainty necessary “I think” or “I believes” are allowed -Does not apply to expert testimonies |
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RULE 602 Standard of Proof |
More likely than not that the witness’s testimony is based on firsthand knowledge |
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RULE 603 Oath or Affirmation to Testify Truthfully |
- Oath invokes Deity & affirmation is simply a solemn pledge -- Either is acceptable - Can be waived if there is no timely objection |
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RULE 604 INTERPRETER -- Use & Qualification |
- Used to translate testimony of a witness and party who is unable to understand or communicate in spoken english -Must be qualified by means of their knowledge, skill, experience, training or education to interpret accurately (R. 702) |
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RULE 604 INTERPRETER -- Transcript recordings |
When the language is foreign, it must be translated for the jury |
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RULE 605 JUDGE'S COMPETENCY AS A WITNESS |
- Judges are barred form testifying in trials over which they preside - Judges, however, can testify as a witness in proceedings in which another judge presides |
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RULE 606 JUROR'S COMPETNECY AS A WITNESS |
- Doesn't prevent a juror from being question on void dire or by the court during trial concerning tampering or other matters |
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RULE 612 Writing Used to Refresh a Witnesses Memory |
- Any writing may be used to refresh the recollection of a witness before or during testimony - Counsel should show the writing to the witness and allow them to read it silently - Testimony may be refused if the court believes the witness’s memory has not truly been refused - Adverse party is permitted to introduce in evidence any portion that relates to the witness's testimony |
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RULE 803(5) Recorded Recollection |
-(b) is far les stricter than 806's requirement of "at or near the time" -The rule extends to memos or record adopted by a witness where the witness orally recounted a matter to another who reduced the account to writing which the witness verified |
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RULE 701 OPINION TESTIMONY BY LAY WITNESS Rationally Based on Witness Perception |
Two Requirements (1) it echoes the personal knowledge requirement of 602 and (2) it mandates that the opinion must be one that a reasonable person could draw from the underlying facts |
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RULE 702 TESTIMONY BY EXPERT WITNESS |
Requirements: (1) the witness qualifies as an expert; (2) the subject matter of the testimony is appropriate one for expert testimony (3) the expert testimony will assist the fact finder in decided the case and (4) the expert’s opinion is sufficiently reliable |
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RULE 702 QUALIFCATION |
Qualification is based on the totality of the circumstance (skill, knowledge, experience, trading or education) |
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Rule 702 3 Components of Reliability |
(1) expert must base the opinion upon sufficient factors or data (2) expert must ground opinion in reliable principles and methods & (3) expert must apply those principles and methods to the facts of the case in a reliable manner |
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RULE 702 FRYE TEST |
Required that the proponent of such evidence demonstrate that the scientific theory or technique (T/T) was generally accepted in the relevant community |
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RULE 702 DAUBERT TEST |
-Judges have the responsibility to act as gatekeepers and to admit a scientific opinion only if it is shown to be reliable -Factors: Whether the T/T has or can be tested, has been subject to peer review and publication, known or potential rate of terror, means of controlling operation, extent that T/T is accepted |
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RULE 702 Grounds for finding lack of reliability or helpfulness |
- Lack of relevance - Expert testimony not needed - Based on unreliable, speculative or incomplete data - Based on questionable theories - Too conjectural - Conclusory - Too great a gap between data and opinion |
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RULE 703 Bases of an Expert's Opinion Testimony Reasonable reliance requirements |
If an expert seeks to base an opinion on facts neither personally observed nor introduced into evidence, the judge must determine both the facts or data relied upon by the expert are the kinds of facts or data that experts in the field rely on and that such reliance is reasonable
-Constitutionally inadmissible material is still barred |
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RULE 704 Opinion on an Ultimate Issue Reasons to objection |
- Lay witness not qualified to testify - Inadequately explored legal criteria - Choosing up sides (Conclusory statements that tell the jury what the result should be) - Testimony in form of opinion not necessary - Opinion beyond witness's expertise |
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RULE 705 Disclosing the Facts or Data underlying an Expert's Opinion |
The rule implicitly states that an the facts or data underlying the opinion are ordinary permissible |
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RULE 607 Methods of Impeachment |
(1) Untruthful character (2) Bias (3) Prior Inconsistent Statements (4) Defects of Capacity (5) Contradiction |
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RULE 607 BIAS |
The relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party - Also embraces interest, corruption form bribery - Extrinsic evidence may be used to show bias |
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RULE 607 Defects of Capacity |
Witness may be attacked by showing they suffered from disease that affects his ability to perceive the event in question, now suffers from a disease, or suffered a disease that affected his memory |
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RULE 607 Contradiction |
Contradiction offered through the testimony of another witness is customarily excluded unless it is independently relevant or admissible
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RULE 610 Religious Beliefs or Opinion |
- Such evidence is also inadmissible to bolster or rehabilitate a witness credibility - This rule does not prohibit all inquires into religious beliefs or affiliations for impeachment purposes -Bias or interest does not implicate the rule |
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RULE 803(18) Statements in Learned Treatises, Periodicals or Pamphlets |
Foundation for a learned treatise normally consist of testimony by a qualified expert that the item is recognized in the relevant discipline as a reliable authority - Such publication can not be received as an exhibit to be taken into the jury room - Only permitted in conjunction with expert testimony |
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RULE 608 A Witness's Characters for Truthfulness or Untruthfulness |
-An accused who testifies is subject to impeachment in the same manner as a witness |
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RULE 608(a) Reputation or Opinion Evidence |
Sanctions use of reputation and opinion testimony to establish the truthful or untruthful character of a witness |
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RULE 608(b) Specific Instances of Conduct |
A witness may be cross-examined about specific instances of his conduct that did not result in a conviction but that bear on his truthful or untruth nature. - Proscribes extrinsic proof of such facts |
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RULE 608 REPUTATION WITNESS |
Testimony must concern truthfulness and may not advert to other characteristics of the fact witness -Reputation in the community or among associates -Witness cannot give examples or explain why the reputation exists |
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RULE 608 OPINION WITNESS |
Calling another witness to her opinion of the fact witness’s untruthfulness - Witness must be personally acquainted with the fact witness - Must be limited to the pertinent character trait - No specific instances are admissible |
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RULE 608 SPECIFIC INSTANCES |
-Showing that the witness has committed specific acts of conduct that are probative of untruthfulness -Governs only the use of acts that did not result in a conviction |
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RULE 609 Impeachment by Evidence of a Criminal Conviction |
Primarily concerned with attacking a witness's character for truthfulness - Details of the crime need not be explored; only nature, time, and place of, and the punishment is necessary - Juvenile convictions are ordinarily not permitted |
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RULE 609 Crimes involving dishonesty or false statement |
Perjury, fraud, embezzlement or false pretenses
-Typically the elements of the crime will reveal whether it is one of dishonesty or false statement |
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RULE 609 Crimes not involving dishonesty or false statement Balancing Test |
Criminal D as a witness: May be impeached if the court finds the probative value of conviction as credibility evidence outweighs it prejudicial effect to the accused All other witnesses: May be impeached unless the probative value of conviction as credibility evidence is substantial outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury |
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RULE 609 Balancing factors for probative value v. danger of unfair prejudice |
- Impeachment Value of the prior crime - Point in time of conviction & witness subsequent history - Similarity between past crime & charged crime - Importance of D's testimony - Centrality of credibility issue |
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RULE 613 Witness's Prior Statement |
- When offered for impeachment, it is to show that the witness told a different story at a different time, thus it is not hearsay - Inconsistency not direct contradiction is required - If statement relates to a collateral matter, extrinsic evince may not be offered to prove that the prior statement was made -Witness can rehabilitate themselves |
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RULE 613 Inconsistency |
Inconsistent if taken as a whole affords some indication that the fact was different from the testimony of the witness who it sought to contradict it - Direct Inconsistency - Prior silence or less detailed prior statement - Prior claim of lack of memory - Current claim of lack of memory (not inconsistent) |
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Rule 613 Foundation |
Impeaching party may offer the extrinsic proof without first questioning the witness about the prior statement -At some point the witness (a) must be afforded the opportunity to explain or deny the statement and (b) opposing counsel must be afford the opportunity to question the witness about it |
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RULE 801(d)(1) Statements that are not Hearsay Prior Inconsistent Statements |
Not hearsay if it qualifies under this section - Limiting instructions must be given upon request - The term other proceedings include grand jury - Does not include, station house interrogation by LEOs |
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RULE 801(d)(1) Statements that are not Hearsay Prior Consistent Statements |
- Permitted when it is offered to rebut an express or implied charge against him of recent fabricated or improper influence or motive - Prior statement must have been made before the alleged improper influence or motive to fabricate - Consistent statements will always be permitted to rehabilitate |
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RULE 801(d)(1) Statements that are not Hearsay Prior Identification of a Person |
- Prior identification of a person may have been at a lineup, a show up, from a picture or a socket, at a previous hearing or under any other circumstance - Doesn't need to be consistent |
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RULE 803(5) Recorded Recollection |
- Memo is not allowed back into the jury room as an exhibit - Rule extends to a memo or record “adopted” by a witness (where the witness orally recounted a matter to another who wrote their account down and which the witness verified) |
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RULE 801(a)-(c) Not Hearsay |
Out-of-court statements that have relevancy apart from the truth of the matter that it assert or implies |
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RULE 801(a)-(c) Nonhearsay Statement -- Verbal Act |
Statements, the making of which has substantive legal significance -Offer, acceptance ect -Words that operate as a conveyance -Ballots to show votes cast -Tape recorded convos of illegal gambling |
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RULE 801(a)-(c) Nonhearsay Statement -- Verbal parts of acts |
Utterance establishes the legal character of an act that it accompanies -Words that accompany a delivery of money or property may establish a gift, loan, a bribe, a bet, or payment of debt |
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RULE 801(a)-(c) Nonhearsay Statement -- State of mind of listener or reader |
Offered to show the effect of one who heard or read the statement -Words that establish notice or knowledge, where notice or knowledge of a person is relevant -Statements that tend to establish that a party acted in good/bad faith |
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RULE 801(a)-(c) Nonhearsay Statement -- Machine generated data |
Raw data generated by machines are not normally "statements" subject to the hearsay rule or the Confrontation Clause |
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RULE 801(d)(2) An Opposing Party's Statement |
- First hand knowledge not required - Statement qualifies as an admission even if it was not against interest when it was made - In a criminal case, statements made prior to arrest are admissible against him as admissions - Declarant need not be named, so long as there is evidence to show necessary relationship |
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RULE 801(d)(2) Adoptive Admissions |
- When an accusatory statement is made in D’s presence & hearing and he understands and has opportunity to deny it, the statement and his failure to deny are admissible against him - Admission by conduct also may occur in the form of spoliation |
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RULE 801(d)(2)(D) |
So long as the statements is made during the existence of the relationship and concerns a matter within the scope of that relationship it does not matter that the employee had no authority to speak for its principle |
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RULE 801(d)(2)(E) Co-conspirators Admission |
- Co-conspirators dismissal of charge does not make statement inadmissible - Statement must be made during and in furtherance of the conspiracy |
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RULE 803(1) Present Sense Impression |
- If the declaration is not simultaneous with the event it must've been made immediately there after (slight lapse of time) -Stricter than rule 803(2) because it covers only statements describing or explain an event or condition -Declarant must have personal knowledge -Most likely inadmissible if their speaking in past tense (I saw them v. I see or I just saw them) |
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RULE 803(2) Excited Utterance |
-Declarant must be so excited or distraught at time of utterance that he did not reflect (or have opportunity) on what he was saying -The declarants appearance, behavior and condition may be relied on to establish the occurrence of an exciting event |
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RULE 803(2) Excited Utterance -- Lapse of time |
If event is sufficiently startling, period of stress my persist for some time; the following factors should be considered: (1) lapse of time between the event and the declaration (2) age of the declarant (3) Physical and mental state of the declarant (4) the characteristic of the event (5) the subject matter of those statements |
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RULE 803(3) Present Bodily Condition |
-Admissible rather made to a physician or to a lay person -Does not extend to past conditions or external facts |
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RULE 803(3) Statement of present state of mind or emotion that is in issue |
-Admissible if substantive law treats the state or condition of mind or emotion of a person as an element of crime, cause of action or defense -Does not authorize receipt of a statement describing by one person as proof of another’s state of mind |
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RULE 803(3) Hillmon Doctrine |
- Allows state-of-mind statement to show subsequent conduct of the declarant - Declarant’s statement of future intent is admissible to prove (1) that D went to the place indicated by his or her statement of intention and (2) that the declarant went there with the other named party -Generally used for threats |
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RULE 803(4) Statement Made for Medical Diagnosis or Treatment |
- Extends to statements to non-treating physician consulted solely for expert testimony - Includes statement by patient concerning the cause of condition, if it meets the test of “reasonably pertinent to medical diagnosis or treatment” - Statements to hospital attendants, ambulance drivers or even members of he family can be included - Statements made by a doctor to a patient and made between physicians not included |
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RULE 803(6) Records of Regularly Conducted Activity |
May include data stored electronically and later printed out for presentation in court, if it was prepared pursuant to a business duty in accordance with regular business practice - Data complied for use in litigation are not admissible under this rule -Witnesses need only have knowledge of procedures under which the records were created, no personal knowledge of entry necessary |
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RULE 803(6) Foundation |
4 Elements (1) Record was made & kept in the course of regular conducted business activity (2) Regular practice to make this record (routine) (3) Record was made at/near time of the event that it records (4) Record was made by/from info transmitted by a person with knowledge & they acted in regular course of business or had a business duty to report |
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RULE 803(7) Absence of a Records of a Regularly Conducted Activity |
Requires (1) foundation sufficient to qualify the record under 803(6) & (2) either the record must be introduced, or a qualified witness must testify that a diligent search failed to disclose the matter |
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RULE 803(8) Public Records |
- Need only establish that document is authentic and that it contains one of the three types of matters specified - Does not embrace every document created by public agencies - Burden is on opposing party to prove untrustworthiness of report |
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RULE 803(8)(A)(i) Matter Observed by LEO |
Applies to observations made by police officers & other LE personnel in connection with an investigation - Does not apply to routine, ministerial, observations recorded in nonadversarial circumstance |
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RULE 804(a) Criteria for Being unavailable |
- Burden of showing unavailability is on the proponent of the hearsay evidence
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RULE 804(a) Claim of Privilege |
- Actual claim of privilege is required - D cannot invoke 5th amendment privilege & then claim that he is an unavailable hearsay declarant |
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RULE 804(a) Refusal to Testify |
An actual order of the court directing the witness to testify is required |
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RULE 804(a) Lack of Memory |
Applies if the declarant is unable to remember the subject matter (no memory of the events to which his hearsay statements relate) - Does not matter that the witness does not remember making the statements themselves |
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RULE 804(a) Illness or Infirmity |
Judge must consider both duration and severity of the illness -Illness need not be permanent, but duration need only be in probability long enough so that the trial cannot be postponed |
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RULE 804(a) Absence from hearing |
Must have been a good faith effort to procure the declarant for trial |
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RULE 804(b)(1) Former Testimony |
- Similar motive to develop the testimony when the issue to which the testimony related at the former hearing is substantially identical to the issue in the present proceeding - Absolute identity is not required |
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RULE 804(b)(1) Predecessor in Interest |
- Interpreted broadly as to encompass any party with a similar interest and motive
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RULE 804(b)(3) Statements Against Interest |
- Need not have been against interests when made - For statements against penal interest, the statement must tend to subject the declarant to criminal liability to such an extent that a reasonable person would not make a statement unless it were true - Does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory |
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RULE 806 Attacking and Supporting the Declarant's Credibility |
A hearsay declarant whose statement is admitted is like a witness & therefore the declarant should be subject to impeachment & rehabilitation like a witness |
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RULE 807 Equivalent Circumstantial Guarantee of Trustworthiness |
Must be shown from the totality of the circumstances, but the relevant circumstances include only those that surround the making of the statement & that render the declarant particularly worthy of beleif |
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RULE 501 Privilege in General |
- Courts often refer to the proposed rules for guidance |
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Proposed Privileges Rule |
- Psychotherapist-Patient Privilege - Husband-Wife Privilege - Communications to Clergymen - Political Vote - Trade Secrets - Secrets of State & other Information - Identity of Informer - Waiver of Privilege by Voluntary Disclosure - Privilege Matter Disclosed upon compulsion or w/out opportunity to claim privilege - Comment Upon or Inference from Claim of privilege; Instruction |
