Evidence

Front 1

Parole Evidence

Back 1

Parole evidence Rule : Contracts - with a written contract with evidence - additional oral agreements other than what is in the contract itself. Can the lawyer introduce this evidence ? If the alleged oral agreements were so important, then it should have been in the contract. The judge will not take evidence which changes the terms of the contract. The Statute of Frauds is like a cousin of this rule.
- If the terms of the contract expressly refer to oral agreements - then the parole evidence rule is not violated.
- What are some exceptions to this rule - are there some exceptions to when the court will hear the evidence - when there are some ambiguities. The court will take time to receive that evidence. Showing industry standards .
- Where is there a situatio where the rule does not apply. The written agreement is the agreement, but on Jan 9th- the agreement needs to be modified, and they agreed. The parole evidence rule does not block the modification. Unless the law requires the modification be in writing, then the rule does not apply. You can modify even if the contract says that "there is no modification to a contract" the rules of evidence do not block it.
- The rules we will be studying deal with admissibility.
- Claims or defenses dealing with fraudulent inducement -

Front 2

Judicial Notice of Fact

Back 2

• Three requirements for Judicial notice:
1. that the matter be one of common and general knowledge
2. that it be well established and authoritatively settled, be practically indisputable,
3. and that this common, general and certain knowledge exist in the particular jurisdiction,
• all are requirements dictated by the reason and purpose of the rule, which is to obviate the formal necessity for proof when the matter does not require proof.

Front 3

Judicial Notice of Law

Back 3

assumed legal knowledge based on the jurisdiction (i.e. speed limit at a particular intersection- Varcoe v. Lee)

now, judicial notice of law applies for law of every jurisdiction. CJ 10-501

CJ 10-203

Front 4

Problems with Judicial Notice

Back 4

when parties request the court to apply law from a different state. statute requires that the party who wants to do that, has to put the other side on notice with sufficient time for them to verify what the law of the other state is. CJ 10-505. if sufficient notice isn't given to apply foreign law, the current jurisdiction's law will be applied.

law of a foreign country:
if you are in custody fight, involving the applicability of the law of a foreign country, it may be that the law of the foreign country will not be the subject of judicial notice, but rather proven.

Front 5

Judicial Notice of Adjudicative Facts

Back 5

Test to apply:
is this fact so well known that everyone in the jurisdiction that everyone should know?

Front 6

Judicial Notice of a verifiably certain fact

Back 6

not everyone knows it, but we can determine it by reference to a source and the accuracy of which cannot reasonably be questioned.

Front 7

Judicial Notice of Legislative Facts

Back 7

if they are trying to interpret a statute or regulation, the court is entitled to take into consideration the same things the legislature did in enacting the particular law

Front 8

Judicial Notice of Political Issues

Back 8

if there is a political question of some sort, the court will find the information from a state/federal department. (i.e- status of a individual or organization)

Front 9

Competency to Testify- Judge

Back 9

Judge cannot testify in a trial over which he/she is presiding (rare)

Front 10

Competency to Testify- Juror

Back 10

cannot testify at a trial during which the juror is serving on the jury.

can a juror who witnesses something at a trial testify at a subsequent trial about what occurred in the first trial? yes.

Front 11

Impeaching the Jury Verdict
(Competency, Juror)

Back 11

under what circumstances can a former juror impeach the verdict of a jury?
-only when outside information becomes involved in the decision of the jury that wasnt given permission by the judge (Wernsing v. General Motors). i.e.- dictionary

what situations can a juror testify to about the happenings in the jury room?
FRE 606
(a) A member of the jury may not testify as a witness before that jury in the trial of the case in which the jury is sitting… If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.
*(b) Upon an inquiry into the validity of a verdict or indictment, a jury may not testify as to
• any matter or statement occurring during the course of the jury’s deliberations or
• to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment
• concerning the jury’s mental processes in connection therewith
But a juror may testify about
• Whether extraneous prejudicial information was improperly brought to the jury’s attention,
• Whether any outside influence was improperly brought to bear upon any juror, or
o Tanner
• Whether there was a mistake in entering the verdict onto the verdict form.
A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

Front 12

Md. Rule 5-408
Relevancy and its counterweights
Involves the case
Burwell v. Eastern Mem. Hospital

Back 12

Compromise and offers to compromise.



(a) The following evidence is not admissible to prove the validity, invalidity, or amount of a civil claim in dispute:

(1) Furnishing or offering or promising to furnish a valuable consideration for the purpose of compromising or attempting to compromise the claim or any other claim;

(2) Accepting or offering to accept such consideration for that purpose; and

(3) Conduct or statements made in compromise negotiations or mediation.

(b) This Rule does not require the exclusion of any evidence otherwise obtained merely because it is also presented in the course of compromise negotiations or mediation.

(c) Except as otherwise provided by law, evidence of a type specified in section (a) of this Rule is not excluded under this Rule when offered for another purpose, such as proving bias or prejudice of a witness, controverting a defense of laches or limitations, establishing the existence of a "Mary Carter" agreement, or proving an effort to obstruct a criminal investigation or prosecution, but exclusion is required where the sole purpose for offering the evidence is to impeach a party by showing a prior inconsistent statement.

(d) When an act giving rise to criminal liability would also result in civil liability, evidence that would be inadmissible in a civil action is also inadmissible in a criminal action based on that act.

Front 13

Md. Rule 5-409
Payment of Medical and Similar expenses
(Relevancy and its counterweights/ to Pay Bills)

Back 13

Payment of medical and similar expenses.



Evidence of furnishing, offering, or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove civil or criminal liability for the injury

Front 14

Burwell v. Easton Mem. Hospital
83 md. App. 684
(Relevancy and its counterweights/to pay bills)

Back 14

vistor slipped on some salad and was injured. A letter was sent to her stating that they would look at her injuries. The court ruled• Evidence of offers made by a party to litigation of compromise is inadmissible as a matter of public policy which encourages settlements of disputed claims." We believe the hospital official's letter constituted such an offer of compromise and that it therefore would have been inadmissible at trial. The trial judge's ruling on the letter was correct

Front 15

General Motors v. Lahocki
286 Md 714
(Relevancy and its counterweights/to pay bills)

EXCEPTION

Back 15

The passenger entered into a Mary Carter( agreement between plaintiff and defendant placing limitations on financial issues) agreement with the contractor.
The agreement was not revealed to the manufacturer or to the jury, and the manufacturer asserted that it was entitled to a new trial on that basis.
Upon appeal, the court stated that
(1) the agreement was a settlement agreement that should have been disclosed pursuant to the pretrial order;
(2) non-disclosure to the jury was prejudicial to the manufacturer;
(3) the trial court should not have directed a verdict because there was a conflict of evidence as to whether the contractor had acted in accordance with that specified by the state agency and thus a jury question was generated; and
4) the doctrine of superseding cause was not available to the contractor.

Issue: should the Mary Carter Agreement been disclosed to the jury?

Rule:
Mary Carter agreement :
(1) The agreeing defendant is to remain a party and is to defend himself in court. However, his liability is limited by the agreement. In some instances this will call for increased liability on the part of other co-defendants.
(2) The agreement is secret.
(3) The agreeing defendant guarantees to the plaintiff that he will receive a certain amount, notwithstanding the fact that he may not recover a judgment against the agreeing defendant or that the verdict may be less than that specified in the agreement.

Holding/Application: The Mary carter agreements are not illegal but mistrials will ensue if the information is not revealed to the jury.

Front 16

Md Rule 5-411
Liability Insurance
(Relevancy and its counterweights, Liability Insurance)

Back 16

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This Rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

Front 17

MD Rule 5-406
(Relevancy and its counterweights/ Habit
and Routine Practices)

Back 17

Evidence of the habit of a person or of the routine practice of an organization is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

evidence intended to show habit and routine practice is in fact admissible

-can show evidence of habit/routine, but not of character evidence, that is relevant to the case

Example:on the issue of whether a particular letter was mailed from a business office, testimony about the routine business practice is admissible as circumstantial evidence that the letter was actually mailed in accordance with the custom followed by that office

Front 18

DeBlasi v. MD
(Relevancy and its counterweights/ Habit and Routine Practices)

Back 18

• The Court of Special Appeals held that proffered testimony relating to allegations that defendant's ex-husband, whose house defendant allegedly burned, threw matches down on carpet, threatened to burn house down, snubbed cigarettes out on walls and furniture, threatened defendant and kicked foyer down tended to prove a material fact in controversy of guilt or innocence of defendant and should have been admitted.

The court rejected all evidence concerning Mr. DeBlasi's past destructiveness and violence on the ground that it was collateral. In summary, the court thought it was highly prejudicial to let anything more in because it's irrelevant.
• The court stated “So just as we can't let in evidence to show that the victim is a good guy, so we can't let in evidence to show that the victim was a bad guy, that he's destructive, violent, late with child support payments, because they're irrelevant in this kind of a case and the Jury might get sidetracked on the victim's alleged inequities.”
• Allow flicking of matches in the house habit into evidence, but not evidence of his violence, threats, etc

Apply the generally accepted test of collateralness:

Could the fact, as to which the error is predicated, have been shown in evidence for any purpose independently of the contradiction? In applying the test of collateralness, there are two different groups of evidentiary facts which would be admissible independent of the contradiction:
(1) facts relevant to some material issue in the case; and
(2) facts relevant to the discrediting of a witness.
• includes facts which would be independently provable by extrinsic evidence to impeach the witness. Among these are facts showing bias, interest, conviction of crime, want of capacity, or opportunity for knowledge.

Front 19

Maryland Rule 5-407
(Relevancy and its counterweights/
Subsequent Remedial Measures)

Back 19

(a) In General.-When, after an event, measures are taken which, if in effect at the time of the event, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event.
(b) Admissibility for Other Purposes.-This Rule does not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

THE DOOR MUST NOT BE OPENED BY THE DEFENDANT “THERE WAS NOTHING ELSE WE COULD HAVE DONE” OR THE EVIDENCE CAN COME IN

Front 20

Blaw-Knox Construction Equipment v. Morris
(Relevancy and its counterweights/ Subsequent and Remedial Measures)

Back 20

evidence of subsequent remedial measures, taken by a defendant, is not admissible to prove culpable conduct, but need not be excluded if offered “for another purpose, such as proving ownership, control or feasibility of precautionary measures, if controverted, or impeachment

Court feels that the subsequent remediable measure evidence may be prejudicial, but not “unfairly” so

Front 21

Tuer v. McDonald
(Relevancy and its counterweights/
Subsequent and Remedial Measures)

Back 21

The most recent statement of Maryland law on the subject of subsequent remedial measures is, wherein the Court of Appeals held that evidence of subsequent remedial measures is ‘not admissible as an admission of negligence or culpable conduct’ but is admissible as ‘circumstantial proof that the applicable standard of care had not been met at the time of the accident or other occurrence in question

• Rule 5-407(b) exempts subsequent remedial measure evidence from the exclusionary provision of § (a) when it is offered to prove feasibility, if feasibility has been controverted

• Consistent with the approach taken on the issue of feasibility, however, subsequent remedial measure evidence had been held inadmissible to impeach testimony that, at the time of the event, the measure was not believed to be as practical as the one employed, or that the defendant was using due care at the time of the accident

Front 22

Southern Management v. Mariner
(Relevancy and its counterweights
Res Inter Alias Acta, a thing done between others)

Back 22

only relevant evidence may be admissible

if its concluded that the evidence is irrelevant, then the probative value of the evidence must be substantially outweighed by the other considerations enumerated in MD Rule 5-403 in order to be admissible

• In order to present “... evidence as to past accidents, tendencies or defects,” there must be a “... similarity of time, place and circumstance” and, in the discretion of the trial court, the evidence must not “... cause an unfair surprise or confusion by raising collateral issues.”

question of prior fires in the apartment building and whether it would be allowed into evidence. the prior fires are relevant and material, therefore admissible, to show that the landlord was negligent

Front 23

Competency of a Juror

Back 23

The principle issue is whether the juror is competant to testify about the verdict or impeach the verdict. This is not because they are too stupid to testify or they have a mental defect. We declare jurors to be incompetent to impeach the verdict, either say you want to impeach it at the time it is annouced or put up with the verdict. We cannot run around and chase the jurors.

Front 24

Wensing v. General Motos Corp,
298 Md. 406, (1984)
(Competency to Testify/Juror)

Back 24

You can take the testimony of an outsider of the jury, but not a jury member (the jurors themselves were not competant to testify that they used a dictionary in deciding the case, but the guard was.

Front 25

Federal Rule Competency of Juror as Witness
(Competency to Testify/Juror)

Back 25

1. Extreme predjucies information was brought to the attention of the court (the D shot a bunch of witnesses in the case ) 2. Outside influence which was beared on any juror, 3. Whether there was a mistake in filling out the jury form.

Front 26

Public Policy issue dealing with Juror Competency
(Competency to Testify/Juror)

Back 26

when the case is finished it is finished (if there is a new trial, it won't be because the jury talked outside of the jury room

Front 27

what is the theory behind the dead man's statute?
(Competency to Testify/a Party to whom the Dead-Man's Statute applies C.J. § 9-116)

Back 27

The theory is that the defendant is dead and the plaintiff is testifying . The D is not here to present the defense side. In faireness we will "seal the lips of the survivor" the survivor is incompetant to testify about the deceased or transaction with the deceased.

o Exception- Its limited to those cases in which the result of the litigation will make a change in the way or amount of the deceased estate is distributed

Front 28

Farah v. Stout
112 md. App. 106 (1996)
(Competency to Testify/a Party to whom the Dead-Man's Statute applies C.J. § 9-116)

Back 28

A couple who was promised 100,000 by another couple who promised them the money in their will. The specific bequest was not in the will and the dead man statue applies for the estate will get smaller if they win the case, therefore their lips are sealed to the testimony.

Front 29

Quantum Merit
Heil v. Zahn,
187 Md. 603 (1947)
(Competency to Testify/a Party to whom the Dead-Man's Statute applies C.J. § 9-116)

Back 29

she is entitled to the vlaue of the benefit cnfered - she testifies under direct examination about the value of the services provided and the amount she did recieive, and her claim was about the difference between her value and the amount she recived

The attorney wanted to strike the testimony, but he answered the question - the protection of the dead man statute was waived when the questions were asked in conjunction with her conversation with the deceased. The evidence was introduced, was not objected and therefore he waived.

• Quantum meruit- owed the value of the services she provided, about the compensation she did receive, and the claim was for the difference between the amount received and the amount she is entitled to of the services rendered- under contract law
• The protection of the dead mans § was waived when the door was opened about the statements the deceased was made by the opposing counsel allowing evidence to come in that wouldn’t have come in but for the opening of the door by the opposing party

Front 30

MD Rules 5-404
Character Witness
(Relevancy and its Counterweights/ Character)

Back 30

(a)  Character evidence generally.-  
(1) In general.- Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: 
(A) Character of accused.- Evidence of a pertinent trait of character of an accused offered by the accused, or by the prosecution to rebut the same; 
(B) Character of victim.- Evidence of a pertinent trait of character of the victim of the crime offered by an accused or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; 
(C) Character of witness.- Evidence of the character of a witness with regard to credibility, as provided in Rules 5-607, 5-608, and 5-609. 
(2) Definitions.- For purposes of subsections (a) (1) (A) and (B) of this Rule, "accused" means a defendant in a criminal case and a child alleged to be delinquent in an action in juvenile court, and for purposes of subsection (a) (1) (B), "crime" includes a delinquent act as defined by Code, Courts Article, § 3-801. 

Front 31

5-405. Methods of proving character
((Relevancy and its Counterweights/ Character)

Back 31

(a)  Reputation or opinion.- In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. 

(b)  Specific instances of conduct.- In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of relevant specific instances of that person's conduct. 

Front 32

Rule 5-412. Sex offense cases; relevance of victim's past behavior.
(Relevancy and its Counterweights/ Character)

Back 32

In prosecutions for any sex offense under Code, Criminal Law Article, Title 3, Subtitle 3 or a lesser included crime; the sexual abuse of a minor under Code, Criminal Law Article, § 3-602 or a lesser included crime; or the sexual abuse of a vulnerable adult under Code, Criminal Law Article, § 3-604 or a lesser included crime, admissibility of evidence relating to the victim's sexual history is governed by Code, Criminal Law Article, § 3-319.  

any evidence of sexual crimes is allowed- goes to the propensity of committing a sexual crime again

Front 33

Case/ MRP subject to MRP 5-407
relevancy and its Counterweights/Subsequent Routine Practices)

Back 33

subject to MRP 5-407

a person gets injured by something and the owner/company tries to put a remedial measure in place to prevent another injury. this subsequent evidence is not to be introduced against the D. unless, the D does something stupid to open the door to the evidence

the D can't say, there was simply nothing else that we could have been done, otherwise the door is opened.

Front 34

Direct v. Indirect/Circumstantial Evidence

Back 34

Direct- testimony by a person about a fact, the fact finder listens to the evidence then asks, do they believe it? If so, then the fact has been established to the satisfaction of the fact finder
Indirect- proof of a fact from which another fact may be inferred. Draw a conclusion from the evidence that the fact finder believes

Front 35

Relevant v. Irrelevant

Back 35

Relevant- having some reasonable connection with, and in regard to evidence in trial, having some value or tendency to prove a matter of fact significant to the case. this is a question of law. the judge does not have discretion to admit irrelevant evidence. the judge does have discretion on whether evidence is or is not relevant (& won't be overturned unless its clearly erroneous)

Irrelevant- lacks probative value

Front 36

Material v. Immaterial

Back 36

Material- Material issues are the ones that the jury had to resolve in order to arrive at a verdict
Immaterial- issue that the jury didn’t have to pay attention to in order to arrive at the verdict

Front 37

Takoma Park Bank v. Abbott
(Relevancy and Its counterweights
Liability Insurance)

Back 37

if the D caused an accident and says "what's the big deal, i have plenty of insurance"- this statement is admissible. this is evidence of what the D said, and therefore evidence. the fact that the D said he had insurance, is admissible.

Front 38

MRP 5-404
(Relevancy and Its counterweights
Witness)

Back 38

(a) Character Evidence Generally.
(1) In General. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(A) Character of Accused. Evidence of a pertinent trait of character of an accused offered by the accused, or by the prosecution to rebut the same;
(B) Character of Victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
(C) Character of Witness. Evidence of the character of a witness with regard to credibility, as provided in Rules 5-607, 5-608, and 5-609.
(2) Definitions. For purposes of subsections (a)(1)(A) and (B) of this Rule, “accused” means a defendant in a criminal case and a child alleged to be delinquent in an action in juvenile court, and for purposes of subsection (a)(1)(B), “crime” includes a delinquent act as defined by Code, Courts Article, § 3-801.
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident.

when character is directly at issue, then the court will receive evidence of a person's character (ex.- slander case). can have witnesses testify to things that establish one's good character.

will only allow evidence about a person's character that is relevant to the event/issue at hand

Front 39

General Rule against introducing evidence of bad character of D & Exceptions
(Relevancy and Its counterweights/Character)

Back 39

creates the danger that the jury is going to say "hey this is a bad person"

state could not in its case in chief introduce against the D evidence that showed that the D was a bad person

Exceptions (MIMIC):
Motive-
Intent
Absence of Mistake- (the character evidence that a party is trying to introduce is attempting to show that there was in fact no mistake)
Identity
Common Scheme

Absence of Mistake
• D asserts that there was a mistake
• P can show that there was no mistake or absence of mistake with extrinsic evidence/relevant crimes
• Note- sexual offenses still have asserted

Front 40

General Rule about relevancy when there is a danger that the jury can be prejudiced

Back 40

trial judge does have discretion to exclude relevant evidence if trial judge that the probative value of the evidence is outweighed by the danger of unfair prejudice or needless consumption of time or that the jury will be confused by the evidence

Front 41

Prejudicial

Back 41

evidence doesn't get excluded b/c its prejudicial. evidence is excluded if it is unfairly prejudicial

Front 42

MRP 5-404(b)
((Relevancy and Its counterweights/Character)

Back 42

evidence offered under this gets excluded unless the judge finds that the probative value outweighs the amount of prejudice

Front 43

Carlton v. State,
111 Md. App. 436
(The Rules Against Hearsay/Out-of-Court Statements to which the rule does not apply:Verbal Acts and/or Verbal Parts of Acts Questions and/or Contracts)

Back 43

D and accomplice robbed a Garden Store and killed the owner. The accomplice claims that the did not know that a robbery was going to be committed. There is testimony that was admitted to evidence and was an exception to the hearsay rule- 5-801. The accomplice asked an employee of the shop what would get the owner to leave nad whether there was an alarm. The court admitted this as evidence to convict because it gave the accomplice notice and the state of Mind

Front 44

Safeway Stores v. Combs
273 F.2d 295
(The Rules Against Hearsay/Out-of-Court Statements to which the rule does not apply: Operative Facts)

Back 44

Ms. Combs slipped and fell on ketchup and sued Safeway stores for not giving any warning. Evidence that warning was given by a store manager was allowed into evidence. It was not hearsay because it was an operative fact.

the fact is offered into evidence to prove the truth of the matter, but to show notice and that she assumed the risk

Front 45

Washington v. State
293 md 465
(The Rules Against Hearsay/Out-of-Court Statements to which the rule does not apply:Effect of Statement on Recipient)

Back 45

D convicted of murder with a deadly weapon. A witness failed to accurately identify the D in a pre-trial procecdure, but accurately identified him in court showing an inconsistency and impeaching the witness, however evidence maybe heard as to why her testimony was inconsistent for she received threatening phone calls• Evidence of fear caused by anonymous threats obviously has very high probative value in explaining a prior inconsistent statement. Permitting one side to impeach a witness by showing a prior inconsistency, and not permitting the other side to explain the inconsistency by such probative evidence, does not comport with even-handed administration of justice.

there was no evidence connecting the threatening phone call to the D. if there was, then it would have been admitted as evidence of his consciousness of guilt. evidence will be admitted for the ltd purpose of witness credibility determination. may not be used against D, but only in evaluation of how much weight the testimony will be given. the statement itself and the effect it had on her is admissible, but nothing else

Front 46

Green v. State
81 Md. App. 747
(The Rules Against Hearsay/Out-of-Court Statements to which the rule does not apply: Effects of Statement on Recipient)

Back 46

D was convicted of armed robbery. The witness wrote down the license plate number of the car leaving, and the police took this as probably cause to stop the vehicle. The court concluded it was not probable cause because evidence is still hearsay even if it is in writing.

out of court statement is important for some purposes but inadmissible for other purposes. the witness who wrote down the tag number must come in to testify in order for the paper to be admitted. cannot be admitted through the police officer he gave the paper to. the judge must make the finding, not the jury, on legal matters (ie- probable cause), therefore it is not relevant to the jury. the letter was admitted in Washington b/c the information in the letter was relevant to the jury for the effect of the statement on recipient.

Front 47

Bugg v. Brown
Rule 5-404
(The Rules Against Hearsay/Out-of-Court Statements to which the rule does not apply: Effects of Statement on Recipient)

Back 47

involved Mr. Bugg's reputation. He filed a lawsuit as a result of a fight he got into. Involved in a law suit, Bugg is in the process of presenting evidence and he calls his neighbor to show what Bugg look like before the event, and now what he looks like . The neighbor says, " he looks the same, and says he is the worst name he is ever met" The neighbor says that he is always in fights. This is the evidence which goes to the court of appeals. Is that evidence admissible? Yes, circumstantial evidence of what might have occurred that evidence"This evidence was properly received to show that he was the antagonist.

Front 48

5-404 (b)
(Relevancy and its Counterweights/Character)

Back 48

this is the codification of the old case law dealing with situations in which the prosecution can introduce against the defendant that the defenant committed some other criminal act.

Front 49

Jenson v. State
Relevancy and its Counterweights/ Character of a Witness)

Back 49

• D was convicted of 1st degree murder, conspiracy to murder, and assault with intent to murder
• D argued that the trial court abused its discretion to impeach a character witness
• The character witness is allowed to be used as long as they do not give specific instances. How does the jury handle this kind of witness if the witness cannot get into any specific instances. harmless error occurred becuase the trial judge did not allow any more specific instances. * When character evidence is offered the person who is offering the evidence is prevented from offering specific instances. This is not an absolute rule, the trial judge must allow enough background evidence to allow the jury to fairly weigh the testimony of the witnesses.

Front 50

Name Three Types of Evidence
and in Applying the Faulker test
(Relevancy and its counterweights/ Character)

Back 50

1. whether the evidence fits into an exception stated in 5-404 (b) we no longer limit ourselves to motive, common scheme ect.. 2. If the evidence fits, the judge asks himself "Am I persuaded, that this conduct has been proved by clear and convincing evidence" , if this yes 3 then the third question is this evidence more probative than unfairly prejudicial, ( The judge must be persuaded that the evidence is more probative than prejudicial. The standard that the judge applies to that is the preponderance of evidence
Three Types of evidence
1. In a criminal case the state must prove that the D is guilty beyond a reasonable doubt (highest standard)
2. There is a intermediate standard, clear and convincing evidence, - this is more than preponderance of evidence, it is higher standard than civil standard of proof, (to be persuaded you must be find that it is much more likely so, than not so)
a. What kind of things must be proved by clear and convincing evidence (more serious matters, like - when a civil case involves accusations of conduct which accuse the party of a crime, if a store owner's store burns down, and he insurance company won't pay because they believe that the owner burned it down himself. In that case, the P has to prove that by the Preponderance of the evidence, that all the things you are claiming burned in the fire, but the insurance company accused the P of a crime, and the court can defendant, but the insurance must prove the defense by clear and convincing evidence.
3. In civil cases preponderance of the evidence (more likely so, than not so)

Front 51

What is the Faulker Test, and what is the theory behind it?
(Relevancy and its counterweights/ Character)

Back 51

You cannot prejudice the Defendant, without proving clear and convincing evidence
However - the Boyd case stated that the evidence wasn't sure about whether the evidence was prejudicial.
Boyd said he was unfairly prejudiced about what led to the protective order, and the statements made by the judge about the protective order. The Boyd court applied the Faulkner test.

The three step process when the state wants to order other crimes evidence against the defendant.
The judge has too look at
1. whether the evidence fits into an exception stated in 5-404 (b) we no longer limit ourselves to motive, common scheme ect.. 2. If the evidence fits, the judge asks himself "Am I persuaded, that this conduct has been proved by clear and convincing evidence" , if this yes 3 then the third question is this evidence more probative than unfairly prejudicial, ( The judge must be persuaded that the evidence is more probative than prejudicial. The standard that the judge applies to that is the preponderance of evidence

Three Types of evidence

Front 52

Sessoms v. Sate
357 Md. 274
(Relevancy and its counterweights/ Character)

Back 52

Issue; Does the Faulkner rule apply to defendant's state who wants to introduce the evidence, or at any time. The court said no, the three step process is only applied when the evidence is offered against the criminal defendant. When the evidence is being offered for some other purpose we don’t' apply the test, we look 5-401 is it relevant, if it is then we ask\ 5-403 is the probative value of the evidence substantially outweighed by unfair prejudice? This faulkner test only applies when the state wants to offer evidence against the defendant

Front 53

The state's ability to introduce other crimes evidence;
(Relevancy and its counterweights/ Character)

Back 53

It can never be introduced merely to show that the defendant is a rotten person. In two instances it can be shown, to show the defendant has a propensity to commit the crime, one of those deals with evidence of sexual acts performed on he same victim. (molestation of a child or a rape). Evidence that the defendant did the same things previously to the same victim to show sexual propensity.
2. The state can also introduce evidence against the defendant to show the propensity the defendant committed the crime to show the defense of entrapment "yes , I did it, but I did it because they lured me into it. , The state is entitled to meet that defense with "yeah we didn't discuss it with him, but he was ready to do it. For those situation the Faulkner test is applicable to any evidence offered by the state against the criminal defendant in support of the state's claim that the defendant committed a crime.

Front 54

US v. DeCarlo
(Rules Against Hearsay/Out of Court Statements to which the Rule Applies/Declarant's State of Mind")

Back 54

the elements of the offense allow for the introduction of evidence of the D being somewhat dangerous people. the risk is unfair prejudice. gave a limiting instruction to the jury: use the letter only on the issue about whether Saperstein was afraid of the D, not of evidence that the crimes were committed. judge was concerned about this so he made the jurors sign a pledge that they would use the evidence for the limited purpose stated

Front 55

Circumstantial Evidence of Declarant's State of Mind
(Rules Against Hearsay/Out of Court Statements to which the Rule Applies/Declarant's State of Mind")

Back 55

if it is circumstantial evidence of a declarant's state of mind and is relevant, the rule against hearsay doesn't exclude this out of court statement

Front 56

Connor v. State
(Exceptions to the Rule against Hearsay/
Dying Declaration Exception & Circumstantial Evidence of Declarant's State of Mind)

Back 56

dying declaration exception. belief that a person isn't going to lie right before death. it is asserted that there is a truthfulness assumed in the statement. the person making the statement must be aware that they are likely to die and in grave condition, most likely to die and can prove this by circumstantial evidence (ask for a priest, etc). use the statement for foundational proof that she was aware that she way dying

Front 57

Implied Assertions
(The Rule Against Hearsay /Out of Court Statements To which the Rule does not apply)

Back 57

are not excluded under the Fed. Rules of Evidence. circumstantial evidence of the declarant's state of mind, where relevant, will be admitted. look at the evidence and then draw an inference. but you cannot have an inference based on an inference if the link is too tenuous

• this is not hearsay. It is a statement in which an inference can be drawn, in which the inference is the assertion

Front 58

Parker v. State
(The Rule Against Hearsay /Out of Court Statements To which the Rule does not apply/Effect of Statement on Recipient)

Back 58

will be able to testify on information received, but only briefly, and only with statements that are relevant. • The court held that the testimony was inadmissible hearsay because it contained too much specific information about defendant and his criminal activity to be justified by the proffered non-hearsay purpose of establishing why the detective was at the intersection.

Front 59

Conyers v. State
(The Rule Against Hearsay/Limitation on Rule of Completeness)

Back 59

the state puts a witness on and asks about a particular conversation. everything spoken during that time that is relevant can be asked about on cross exam. but the rule of completeness doesn't allow cross examination to go into a conversation that occurred at a different time at a different place. rule of common sense.

Front 60

Present Recollection Refreshed

Back 60

if witness has trouble recalling an event they can be presented with a stimulus with the hope that the witness will recall while on the stand

Front 61

Rule of Completeness
(The Rule Against Hearsay)

Back 61

the witness be allowed to complete the thought/statement in order to give the jury/judge the full impact of the statement. one party isn't allowed to selectively pick out testimony to indicate something other than what actually occurred

Front 62

Refreshing the Recollection
Farwell v. State - offer Tyler's statement in to evidence

Back 62

The lawyer that uses the stimulus to refresh the witnesses recollection does not have the right to introduce that stimulus into evidence.
Farwell Case example: the attorney wants to show the confession from the D to the witness. The attorney says he wants to use it, but the judge says he can't introduce it into evidence, because the witness doesn't need it. The witness disagrees with the confession. The stimulus cannot be introduced into evidence by the side who is using it.

Front 63

Present Recollection Refreshed The Rights of an adverse party about a stimulus. (there are three)

Back 63

The lawyer who is using the stimulus cannot use it, the adverse party has three rights to the respect of the stimulus, this rises with a statement (most of the time the witnesses statement) the adverse party (to the party who is using the stimulus) (D) 1. the right to examine whatever it is (Tyler's statement) 2. The party can take the stimulus away from the witness to see if the witness actually was refreshed 3. Show that it couldn't possibly have refreshed the witness's recollection in the way it claimed it did. The hearsay rule is not implicated here just by refreshing recollection.

Front 64

The difference between Fed. Rule 801 defines hearsay and Md.

Back 64

The maryland Rules of evidence and Federla rules of evicdence differ in form with respect to the hearsay excpetion s that are applicable when the out of court declarant is the witness on the witness stand, Fed. Rule 801 defines hearsay, but 801 (d) says statements which are not hearsay: 1. a prior statement by the witness, 2. admission of a party opponent. Rather than define Md. Rule 5-803 (a), 5-802.1 deal with the exceptions differently but having a different "exception rule" just not in the same symatics - Fed = it is non-hearsay, Md. = it is an exception to hearsay

Front 65

What should the rule be when the D is convicted of a robbery, 6 months before trial. The victim comes in and is told to point out who the D is. and he says he doesn't know. The victim says it was traumatic, I tried to get over it. Three says after the robbery I was able to identify the person who robbed me. The officer who was there when the victim picked him out. What is the policy? The out of court identification is hearsay, or Is it necessary for the state to show this, and is it reliable (what makes it reliable the victim came to court to testify and was subjected to cross examination)

Back 65

Result: they allow for this statement to admissible and is an exception to hearsay, As long as the victim comes in to testify in court this will be deemed an exception

Front 66

Exceptions to Md. Rule in Hearsay (3) 5-802.1 or Fed Rule (none hearsay).

Back 66

The exceptions - the out of court delcarant must show up and testify, there are excpetions that require foundational prove that the out of court declarant is unavailable to testify, 3. it doesn't matter if the person is available or not, there is still an exception. Example of exception - Connor case - the declarant was dead, the dying declaration was received into evidence.

Front 67

Excpetio to Hearsay - What if the victim comes in and states that D is not the person who robbed him? Although i picked him out a couple of days after the robbery, I was mistaken. Then what happens? Can the state introduce into evidence the fact of the out of court identification (from the police officer)

Back 67

Yes, it will support guilty. Out of court identification, priovided that the person who made the out of court identification testifies at trial, it doesn't matter if the person recants the prior identification because the person is on the stand and under oath and the trier of fact can evaluate that person's testimony as to whether the person is telling the truth.

Front 68

Bullock v. State
(Exceptions to the Rule Against Hearsay/ Statements of Identification)

Back 68

The victim was beaten and made the identification of the D at the time, but later couldn't make the identification (Owens case S.C.case) - Even though the victim couldn't remember anything, it (the victim was in course) was a sufficient foundation to allow the identification of the D out side of court

Front 69

What changed with the Md. rule and Fed. Rules regarding past recollection recorded?
(Exceptions to the Rule Against Hearsay)

Back 69

if something qualitifes as past recollection recording, it may be read to the jury, but it is not recieved as an exhibit that goes back to the jury room. They cannot take it back anymore

Front 70

Past Recollection Recorded
Md. Rule 5-802.1 (e)
(Exceptions to the Rule against Hearsay)

Back 70

(e) A statement that is in the form of a memorandum or record concerning a matter about which the witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, if the statement was made or adopted by the witness when the matter was fresh in the witness's memory and reflects that knowledge correctly. If admitted, the statement may be read into evidence but the memorandum or record may not itself be received as an exhibit unless offered by an adverse party. When the witness did remember, they made a note about it. (for instance - the witness called his secretary and dictated what he witnessed) the witness said he doesn't remember the memorandum, you must bring the secretary who says exactly what the witness told him is down on the paper. you might need more than one reporter to get the memo in to evidence. This is submitted into evidence as past recollection What are the

Front 71

What are the elements of Past Recollection Recorded
(Exceptions to the Rule Against Hearsay/Past Recollection Recorded)

Back 71

1. some failure of memory
2. testimony of which the recollection was recorded so the court can make a finding that the testimony is reliable.

Front 72

Prior Inconsistent Statements
(Exceptions to the Rule Against Hearsay)

Back 72

(a) A statement that is inconsistent with the declarant's testimony, if the statement was (1) given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (2) reduced to writing and was signed by the declarant; or (3) recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement;

They are now received into evidence as an exception to the rule against hearsay, 5-802.1 of Md. The jury could not use the element in the statement to find the facts, some things were used for purposes of impeachment. 13. md app. 1377 (vandergrift v. State )

• Foundational requirements
o 1. The out-of-court declarant is testifying at the trial or hearing and is subject to cross-examination regarding the out-of-court statement.
o 2. The prior statement is inconsistent with the declarant’s trial testimony.
o 3. The statement was “made under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.”

Corbett v. State, 130 Md. App. 408, 746 A.2d 954 (2000)
• The parties agree, as they must, that LaDonna's written statement to the police was hearsay. 2 Appellant contends that the trial court erred in admitting the statement into evidence because: 1) it was not admissible under the prior inconsistent statement exception to the rule against hearsay, because it was not inconsistent with LaDonna's trial testimony; and 2) even if it was permissible for LaDonna to read her statement to the jury under the past recollection recorded hearsay exception, the statement itself was not admissible under that exception.

o Bradley v. State- MDE 5-802.1
 Prosecutor knew before the cousin was put on the stand that the cousin wouldn’t say that Bradley told him in the convo that he was calling from the phone in the car he stole. So, Bradley was unfairly prejudiced when the P cross examined the cousin knowing that he wasn’t going to testify to that, put the officer on the stand, to use it as a backdoor to get the out of court statement into evidence. Criminal case, state cant unfairly prejudice D by producing extrinsic evidence of a prior inconsistent statement when the state knew that the witness wasn’t going to testify consistently with the prior statement
 Prior inconsistent oral – solely admissible only for impeachment
 Prior inconsistent written- admissible substantively
 The factual portion of an inconsistent out-of-court statement is sufficiently trustworthy to be offered as substantive evidence of guilt when the statement is based on the declarant's own knowledge of the facts, is reduced to writing and signed or otherwise adopted by him, and he is subject to cross-examination at the trial where the prior statement is introduced.

Front 73

Disbelief of a witness

Back 73

Disbelief of a witness does not mean a finding of an affirmative of what the witness said is true. Inconsistencies in testimony can not be found to the truth. They are only found to be admissible to use to impeach a witness.

Front 74

Gray v. Maryland
(Exceptions to the Rule Against Hearsay/ Exceptions Applicable only when Declarant is Unavailable/
Statements against interest)

Back 74

Co-defendants beat up and killed a girl. One co-defendant confessed and gave a statement. The court must re-dact the name of the co-defendant properly so not to incriminate the other co-defendant. Otherwise this vioaltes the co-defendant's 6th amendment rights (to confront the accussor) Certain powerfully incriminating extra-judicial statements of a co-defendant -- those naming another defendant -- considered as a class, are so prejudicial that limiting instructions cannot work. Unless the prosecutor wishes to hold separate trials or to use separate juries or to abandon use of the confession, he must redact the confession to reduce significantly or to eliminate the special prejudice. Redactions that simply replace a name with an obvious blank space or a word such as "deleted" or a symbol or other similarly obvious indication of alteration, however, leave statements that, considered as a class, so closely resemble unredacted statements that the law must require the same result

Front 75

State v. Matusky
(Exceptions to the Rule Against Hearsay/ Exceptions Applicable only when Declarant is Unavailable/
Statements against interest)

Back 75

defendants killed two women. One defendant confessed to his financee he knew who killed the women. The financee told the police, and the defendant also confessed in a cross examination to get police sympathy from the state. In determining whether a declaration against penal interest was sufficiently corroborated, the United States Court of Appeals for the Fifth Circuit suggested a number of factors for trial court to consider:
(1) whether there is any apparent motive for the out-of-court declarant to misrepresent the matter, (2) the general character of the speaker, (3) whether other people heard the out-of-court statement, (4) whether the statement was made spontaneously, (5) the timing of the declaration and [(6)] the relationship between the speaker and the . . . [declarant].

Front 76

Sheppard v. United State
(Exceptions to the Rule Against Hearsay/ Exceptions Applicable only when Declarant is Unavailable/
Dying Declarations)

Back 76

Wife on hher death bed declared that her husband poisoned her to her nurse. can this statement be used in the case? - Declarations by deceased in circumstances not making them dying declarations, expressing her suspicion that she had been poisoned by her husband, defendant, would not have been properly admissible as evidence of her state of mind and as tending to indicate that she was not bent on suicide as suggested by defense even though the purpose thus to limit them had been brought to light upon the trial

Front 77

Giles v. California
128 S.Ct. 2678
(Exceptions to the Rule Against Hearsay/ Exceptions Applicable only when Declarant is Unavailable/
Forfeiture by Wrongdoing)

Back 77

 The accused gives up the right to the confrontation clause protection if
 The accused has committed acts that intentionally prevented the victim from being a witness at trial
 The accused had the specific intent of making a witness unavailable for trail.


Giles shot and killed his girlfriend. Testimony from her police reports from three weeks prior are in question as to whether they can be admitted into evidence. For Giles cannot confront her accussor because she is dead. Did he forfeit his rights because he killed the witness? The court said no, because he did not intend to kill her due to her abiltiy to testify. Her statements however may be admitted into hearsay exception, but may not pass the confrontation clause.

Front 78

5-803
Hearsay exceptions: Unavailability of declarant not required.

Back 78

The following are not excluded by the hearsay rule, even though the declarant is available as a witness: 
(a) Statement by party-opponent.- A statement that is offered against a party and is: 
(1) The party's own statement, in either an individual or representative capacity; 
(2) A statement of which the party has manifested an adoption or belief in its truth; 
(3) A statement by a person authorized by the party to make a statement concerning the subject; 
(4) A statement by the party's agent or employee made during the agency or employment relationship concerning a matter within the scope of the agency or employment; or 
(5) A statement by a coconspirator of the party during the course and in furtherance of the conspiracy

ADD REST OF RULE

Front 79

Jones v. State
311 Md. 23
(Exceptions to the Rule Against Hearsay
Exceptions Applicable Regardless of the Declarant's Availability)
Present Sense Impression

Back 79

A State trooper sexully assaulted a victim and contends that he did not. The question is whether evidence of a chase between the pinto after the State trooper occured to prove that the state trooper raced off after the incident To be admissible, the statements had to be relevant to the case at hand, but that is not to say that certainty of a nexus was required. The standard of proof for admissibility of evidence is ordinarily one of preponderance, and that is true even though the standard of proof as to the ultimate issue in the case is higher.

The testimony is a present sense impression and is therefore admissible as a hearsay exception

Front 80

Harrell v. State
348 Md 69
(Exceptions to the Rule Against Hearsay
Exceptions Applicable Regardless of the Declarant's Availability/Excited Utterances)

Back 80

Harrell beat up his girldfriend. The police came to break up the fight. The girlfriend tolf the police Harrell came over to retrieve a car he had a stolen and to beat her up. The court concluded The court held that, in order to be admissible, the excited utterance needed to pertain to, be associated with, or concern the startling event that prompted the statement. Thus the court concluded that the portion of the victim's statement that the defendant "stole that car there" was not an excited utterance within the exception to the hearsay rule because it did not relate to the victim's battery, which prompted the statement. Because the hearsay statement led to the defendant's conviction on the theft over $ 300 charge, the court concluded that the trial court's error was not harmless beyond a reasonable doubt.

The court affirmed the appellate court's judgment reversing the trial court's conviction of the defendant and remanding the case to the trial court for a new trial.

Front 81

Learned Treaties
Exceptions to the Rule Against Hearsay/ Prior consistent statements/Md. Rules 5-805 (b) 18)

Back 81

Learned Treaties were admissible solely for impeaching an expert witness. If the witness testified and asserted scientific principle and there were scholarly works challenging his opinion, the expert witness could be cross-examined about the fact that scholars disagreed with his opinion. You have to be an expert, and you cant' simply bring a learned treaties and start reading straight from them.

Front 82

Hearsay excpetion Test to use the testimony of a witness from a prior case in a re-trial. What is the test used to admit the testimony of a witness who is no longer available

Back 82

If the party who is objecting states that they want to cross examine the witness (or had the same motive, which is to impeach the witness through cross examination) than the testimony is admitted. Because the objecting party in the first trial had the same motive to impeach the witness. The motive is identical to the case be tried before us.

Front 83

Dying Declaration
(Exceptions to Rule Against Hearsay/ Exceptions Applicable only when Declarant is Unavailable)

Back 83

it is now no longer necessary for the person to die in order for this exception to apply, so long as the person thought they were going to die and was in grave danger of dying

this exception is limited to homicide prosecutions. to be admissible, it must relate to the immediate cause of death and must be made at a time when the declarant was conscious that death was near and certain

Front 84

Declarations against interest by a non-party
(Exceptions to the Rule Against Hearsay)

Back 84

requires a showing that that person is unavailable (maybe b/c the out of court declarant is present but refuses to testify)

differentiation between declarations against pecuniary interests & proprietary interests is no longer relevant.

A declaration against interest is an exception to the hearsay rule, which prohibits introduction of out-of-court staments of unavailable witnesses. It is a statement that is against the maker's financial interests or risk of legal liability to such an extent that no reasonable person would make such a statement unless he/she believed it was true. For this reason, courts allow it in evidence as an exception to the hearsay rule because of the special trustworthiness of the truthfulness of such statements. It is distinguished from an admission because, unlike a declaration against interest, an admission need not be against the declarant’s interest at the time it is made; thus even a statement that seems neutral or self-serving at the time it is made may be introduced against the party who made it.

At common law, there are three main requirements for the exception:
The declaration must have been against the declarant’s pecuniary or proprietary interest (not his penal interest) when made;
The declarant must now be unavailable; and
The declarant must have had first-hand knowledge of the facts asserted in the declaration.

Front 85

Declarations against penal interests

Back 85

a statement that puts the person making the statement at risk of prosecution. It is the criminal equivalent of a statement against interest, a statement a person would not normally make, which would put them in a disadvantaged position to that they would have had if they had not made the statement in the first place.

test is- would a reasonable person understand that by stating the declaration it would be an admission of guilt

Only those portions of the statements that are truly disserving to the declarant. Anything that is shifting or sharing the blame doesn’t come in. anything that diminishes declarant’s culpability doesn’t come into evidence (gets excised or redacted)- only the actual disserving statement comes into evidence (From State v. Matusky)- i think this is applicable to declarations against interest in its entirety

Front 86

Bruton Rule-
(Exceptions to the rule Against Hearsay
Declarations against interests)

Back 86

in a joint trial as a general rule the P cant introduce 1 Ds confession in which the Ds confession implicates the other 2 Ds.

the court used to deliver a limiting instruction "the state has introduced a statement that Def A allegedly gave to the officer. may only use that statement in regards to A and anything implicating B & C cannot be considered. judges are to assume that jurors will pay attention to limiting instructions. there are exceptions to this though if the lines are crossed.

the test is- will the D be unfairly prejudiced? the Ds can be tried separately to avoid some of these issues

Front 87

Exceptions Applicable Regardless of Declarant's Availability
(Exception to Rule Against Hearsay)

Back 87

foundational showing of unavailability is not required and not relevant. will recognize a certain set of hearsay exceptions.

Front 88

Present Sense Impressions
(Exception to Rule Against Hearsay/Exceptions Applicable Regardless of the Declarant's Availability)

Back 88

the declarant is describing something that he/she is observing at that moment.

Front 89

Jones v. State-
(Exception to Rule Against Hearsay/Exceptions Applicable Regardless of the Declarant's Availability/Present Sense Impressions)

Back 89

trooper allegedly sexually harassed a girl after pulling her over. she tried to follow him to get a tag number but couldn't. trucker was monitoring CV chatter. • That night State Trooper was listening to radio conversation which stated "look at smokey bear" and that little car following him. - this is the statement in question
• Trooper Byrd explained that among truckers and other citizens band radio aficionados "Smokey Bear" means a state trooper.

this was an important statement to corroborate the victim's testimony that could lead to a guilty verdict.

motion in limine was filed to exclude the smokey bear statement.

the statements were of a present sense impression so the availability of the witness is irrelevant.

if there is a variance between the testimony that the judge said would be okay and satisfy the exception and the testimony that was actually presented. if there is a variance, the opposing party must object to preserve the issue for appeal

Front 90

Motion in Limine

Back 90

motion presented prior to trial in an attempt to exclude evidence from being presented in front of the jury. get a decision on the admissibility of the evidence prior to the start of trial to prevent the jury from getting any idea of the evidentiary matter

Front 91

Houston-Oxygen Exception

Back 91

no need to have an exception for present sense impression if the witness his or herself is on the stand.

Front 92

Contemporaneous Objection Rule

Back 92

look back in notes...

Front 93

Preserve the Issue for Appellate review

Back 93

do you have to do something more than just object? under federal rules, yes, you must state the ground of your objection.

in MD, the old rule was to just to object. however, if you give a basis, then you cant later change the basis and give a "real reason." one is deemed to have waved any other argument. if the judge asks for the basis, then you must answer the judge and deemed to have waived every argument that is not presented at that point. must ask the judge to limit the evidence for its purpose that its intended

if when the trooper testified before the jury, if jones lawyer had objected at that time, but overruled, jones would have gotten a new trial

Front 94

Excited Utterance

Back 94

there are certain things that happen when someone witnesses an exciting event, traumatic event. one is that the emotional force is such that it freezes for a period of time any motivation to falsify so there is no danger that the spontaneous statement produced by the traumatic event will be the product of one's intentional deception.

limitations are put in place on this exception.

if the foundational facts sufficient to indicate that it was a sufficiently exciting event, a statement made by the victim or by a witness at t time when the person what under the influence of the excitement, describing the event itself will be admissible. limited to a description of the exciting event.

• Foundational elements
o 1. There was a sufficiently startling event.
o 2. The OCS declarant was sufficiently startled by this event – reflection and reasoning are blocked.
o 3. The OCS was made while the declarant remained under the stress of the excitement caused by the event,
o 4. The OCS must relate to the startling event.
• Rationale: These statements are likely to be sincere because there is no time for reflection or fabrication. The statements are likely to be accurate because a person’s senses are elevated in times of stress. Are these assumptions true?

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
• The excitement must be great enough that the declarant would have difficulty formulating a lie while speaking
• Must be genuine
o Looking at emotional state
o Subjective
• Must speak while in the excited state
• Proof
o Introduce
 The declarant’s in-court testimony, affirming that he was excited when making the statement
 Testimony from witnesses who perceived the declarant when he made the statement. Could testify to:
 The declarant’s mannerisms and tone of voice when he made the statement (crying, speaking fast, looked upset)
 The time that elapsed between the provoking incident and the statement
 The declarant’s relationship to the provocation (bystander or personally involved)
 Evidence about the declarant’s age, prior experiences, and other characteristics that might affect how excited the declarant would become in certain situations
 Evidence about how traumatic or exciting the even that provoked the declarant’s statement was

Front 95

Statement's of one's present physical condition ("cousin of Hillmon")

Back 95

these are allowed in, but the exception is limited to statements of his physical condition at the moment he stared. do not allow in statements of historical facts

if a statement of present physical condition refers to a past event, the technical application of the rule- we cannot allowed the portions of the declaration that refer to a past event. practical application- you cant really understand what he is saying without a complete statement

Front 96

Hillmon Doctrine-
Statement of persons's then existing intent to do something in the future

Back 96

wife tried to get benefits from 3 life insurance companies who wouldn't pay after her husband passed away. Def states that Hillmon isnt dead and that the couple are attempting to commit insurance fraud. Def. contends that they will take the money and go off somewhere

can these issues be joined for all 3 insurance companies? yes, there was 1 trial. SCt thought this was okay. there was a procedural violation that required a new trial: judge said that there is going to be 1 trial and your going to have to share preemptory challenges, rather than getting your own. SCt found that each Def should have gotten their own # of preemptory challenges, rather than sharing. new trial is granted. before the new trial began, the court wanted to deal with the evidentiary issue.

there was evidence that someone died at crooked creek. mrs. hillmon argued that the body was her husband's.

letters included statements of the person's then existing intent is admissible and an exception to hearsay. permits the fact finder to draw an inference that the person who made the statement did what they said or going to do.

under Hillmon doctrine- fact finder determines whether the person did or did not carry out their intentions

easy to apply this doctrine when we are dealing with the subsequent conduct whose statement of present intent is received into evidence.

Front 97

US v. Pheaster

Hillmon Doctrine (when statement of present intent is made by a person who also mentions someone else in that statement)

Back 97

we have the statement of the victim, which is admissible under Hillmon. but what about the danger to the person who is mentioned in the statement?

statement made by the victim only supports an inference of where she said she was going to go/going to do, regardless of who else is mentioned.

this court found that such statements are in fact admissible

easy to apply, but causes a great danger to apply in cases like this

Front 98

Johnson v. State

Hillmon Doctrine- when it is invoked to get into evidence a person's statement of then existing intent to do something in the future

Back 98

evidence of the co-Def statements of intent to do something with Johnson was not admissible evidence that Johnson did what the other person said that they intended to do.

Front 99

Hillmon Doctrine- codified into federal rules, similar to Md Rules

Back 99

statement of one's intent to do something in the future is admissible but there can be no explanation that directly relates to the past can accompany that statement of present intent except where it relates to the circumstances where somewhere wrote a will.

exception itself comes in without statements of historical fact explaining why the person is doing something.

when the statement references someone else, the court has to figure out whether a limiting instruction is appropriate or a portion of the statement should be excised/redacted.

hillmon deals with hearsay exception while declarant's state of mind isn't dealing with hearsay exception- deals with relevancy

Front 100

Statement's to Physicians/ Healthcare provider

Back 100

healthcare practitioners is allowed to testify to what the patient told him/her. statements of historical fact that aren't admissible under present physical condition exception are admissible under certain circumstances under this exception

the motive of the P to provide his treating physician with accurate information does not exist with respect to statements made to an evaluating physician. P is putting the dr. on the stand in support of his damages argument- P has a motive to exaggerate the motive/extent of the injuries that he wouldn't have with a treating physician.

NOTE: FIGURE OUT WHAT THE LIMITING INSTRUCTION TO THE JURY MUST BE

Front 101

How can the party bring in an expert testimony?

Back 101

the court delivered instruction to the jury. The doctor will tell you what he told his patient in his office. That evidence is admissible to the limit that in contiplation of diagnose and treatment with the motivation of being accurate. They could only present expert tesitmony if they present evidence showing the expert testimony to be true. if it is in the interest of the defendant to exaggerate testimony, you have to prove that what the defendant states is true.

Front 102

Maryland Instruction for expert Hearsay

Back 102

They will allow what the expert evaluation of the plaintiff, but you must also evaluate the plaintiff.

Front 103

the party that inflicted the injury and the fault is raised in statements of treatment and more frequently in business records (hospital records are included in business records) business record Exception

Back 103

this is founded on the notion that if a record is reliable enough for purposes of running a business, then it is reliable enough to be received into evidence as a hearsay exception.

Front 104

What are the exceptions to the business record exception?

Back 104

(A) Except as otherwise provided in this paragraph, a memorandum, report, record, statement, or data compilation made by a public agency setting forth 
(i) the activities of the agency; 
(ii) matters observed pursuant to a duty imposed by law, as to which matters there was a duty to report; or 

(iii) in civil actions and when offered against the State in criminal actions, factual findings resulting from an investigation made pursuant to authority granted by law. 

Front 105

What is business duty in the realm of public record- (exception to hearsay)

Back 105

A Law suit is filed, the plaintiff in the north bound car filed a law suit, all three have retired and are all out of state. A subpeana is issued and someone shows up with a copy of the police report with a copy of this accident. How much of the police report comes in?
- Can the witnesses record come in through the record or do they have to show up? They witnesses have to show up. The witnesses testimony can't come in the through the police report. Why?
- Well the report is prepared for a business purpose, therefore the person who is writing down the report had a business duty to write it down correctly. As long as there is a business duty with repect to the reporter, then it is ok.
- Clearly the partolman had a business duty to provide acurrate information.

However the witness doesn’t have the intent to provide truthful information, so they do not have a business duty

Front 106

Shpigel v. White
business records/exceptions applicable regardless of the declarant's availibility

Back 106

the issue was whether the hospital record itself was suffient to show the plaintiff's injuries and the amount of damages due from the injuries. The court said NO the hospital records are not enough and you need testimony from an expert witness explaining the relationship between the injuries and the accident that caused it.

Front 107

Reynolds v. State
What do we do about opinions contained in hospital records?
Business Records/Exceptions applicable regardless declarant's availability

Back 107

the problem arises out of the introduction of a hospital record which contains opinions by the doctors. the court gave the defendant a new trial because the state introduced into evidence the hospital records in which the doctors had entered opinions that the child's mental condition was a result of sexual child abuse.

there was no factual support for the statement of the opinion, therefore cannot be admissible

Front 108

how do we know which to admit and which we don't

Back 108

if it is relevant to diagnosis it comes in, if it is not relevant to diagnosis and treatment, it comes out. ( the color of the light is not relevant to diagnosis of treatment) if you want to include some portion of the hospital statement, you must prove to the judge there is a relevancy to diagnosis and treatment, but what about opinions that are contained in hospital records ; If a witness is on the stand and a party that put the witness on the stand wants the judge to allow the witness to express an opinion, there are evidently foundations which must be satisfied: that the witness must qualify as an expert witness, 2. that the witness had an actual fact specific basis for expressing the opinion, 3. that the witness applied the correct methodology that the witness could come up with the opinion, 4. that the witness holds the opinion with some sort of conviction. If all 4 are satisfied, then the judge allows the witness to express the opinion. The judge could simple say that they won't accept the opinion, but if the witness comes in and satisfies all of the facts, then the witness's opinion may be admissible into evidence.

Front 109

Public records v. Hospital Records

Back 109

The public record is required by law to be maintained.

Front 110

What happens to the public records when it contains a version of the even ? What about opinions in the public records and facutal findings in the public record? Ellsworth v. Sherne Lingerie, Inc.,This takes a little bit more linant approach then the federal rules.

Back 110

the court deal with the admissibiltiy of a public record which included facts and opinions. The court said that a public record is admissible, the showing that it is a public record means that the record comes in. If the party objects on a portion of the record means that the objecting party must show why that portion should be excluded. In this case, the objecting party wanted to exclude evidence of tests showing the material igniting. There was an opinion in the public record saying this material should not be used to make clothing. Is that an opinion that crosses the line or is that a factual finding. here the court reasoned that it was an opinion which crosses the line. A foundational showing that it is a public record (so all comes into to evidence ) unless the opponent persuades the judge the exclude the evidence.

Front 111

The admission Exception

Back 111

in a civil case, the plaintiff can introduce into evidence anything the Defendant said, wrote, did, subject to the rules of relevancy and privilege. The defendant can also introduce all that is mentioned above in terms of the plaintiff. But the right to introduce the admissions of the opposing party. the plaintiff can introduce what the defendant said or did but not the defendants alleged admissions.  Unavailability of declarant not required.
 The following are not excluded by the hearsay rule, even though the declarant is available as a witness: 
(a) Statement by party-opponent.- A statement that is offered against a party and is: 
(1) The party's own statement, in either an individual or representative capacity; 
(2) A statement of which the party has manifested an adoption or belief in its truth; 
(3) A statement by a person authorized by the party to make a statement concerning the subject; 
(4) A statement by the party's agent or employee made during the agency or employment relationship concerning a matter within the scope of the agency or employment; or 
(5) A statement by a coconspirator of the party during the course and in furtherance of the conspiracy. 

Front 112

State v. Walker

Back 112

Wife does not have to testify against her husband. Catchall Execpetion also known as the residual exception.
The issue with what the state was confronted with has happened in the past. The spouse says that the general assembly has given me the right to not testify, and the court has to honor that. Whether it is legistlation, the court has to honor that.
Residenal

Front 113

Example of Admission exception

Back 113

MD App 648
Uour enters a row house and goes up to the second floor to the bedroom and lays down on he bed next to the victim who screams and calls the police. Uour is arrested and charged with burglary and attempted rape.
Uour give a statement to the police and says it was a mistake. He was on the wrong block. A lady friend invited me to stop by and said I could spend the night.

Uour was convicted. At trial, he wants to introduce that statement he gave to the police. (he admitted to committing a trespass). These admissions to the police should have not be excluded.
The court said that if he wants to testify those statements, he can, but this gives the prosecutor the right to cross examine. (he has a record). The prosecutor could easily put the statement in, but they choose not to. The defendant can't put his version in.

Front 114

Custodial Interrogation

Back 114

If the defendant gives a voluntary confession and the police forgot to advise the defendant of their miranda righys. The courts says that if it is voluntary under the traditional analysis, and the only problem is the failure to advise the person of his/her rights, the prosecutor cannot use the statement as the sole evidence of the case, but if the defendant testifies and the D gives contrary to the statement, then it can be used to impeach the statement.
Evidence is admissible in the statement even if the miranda requirement was not satisfied, evidence such as the gun is in the swamp. And it was then it is admissible.

Involuntary statements - no evidence can be admissible.

Front 115

admissions exception by adverse party

Back 115

D cant put his own admissions. P cant put his own admissions in. right of adverse party to put the other party's prior statements in under the admissions exception.

Front 116

special rules dealing with confessions

Back 116

-when it comes to a confession that results from custodial interrogation, the Ds freedom of movement has been restricted, the D has constitutional rights granted by the S Ct in the Miranda decision. if there is compliance with miranda requirements and the statement is voluntary in the traditional sense (no threats, inducements, etc), the state can use the statement by the D in its case in chief. any evidence gotten from the statement can be used, even in rebuttal.
-diffrent result when voluntariness is complied wiht, but not Miranda. statement cant be used in case in chief, but evidence derived from statement can be admissible.
-unlike the traditional hearsay rule with respect to prior inconsistent statement, jury can use the statement to find that the contains of it are true, and are not limited to credibility evaluation/purpose of impeachment
-when dealing with confession of D, even if it has been reduced/recorded to writing, if admissible for purposes of impeachment for failure to comply with miranda
-evidence derived from involuntary statement is excluded.
-standard of persuasion that is required- trial judge must be persuaded by preponderance of the evidence in order for it to be considered. (or beyond a reasonable doubt?)
-admissibility of evidence- for trial judge
-weight of evidence is for the jury
-cant use the D confession in anyway unless you are persuaded beyond a reasonable doubt that it was voluntary
-in court trial, the judge is held to this same standard
-In Gill, wasnt sure that confession was voluntary, so the case was tried again

Front 117

Crane v. Dunn
kind of admission that satisfies the exception for confessions

Back 117

is the fact that the D paid a traffic ticket for something. the explanation for the ticket.

payment of a traffic ticket isnt admissible. not considered an admission b/c it may be that the D just decided to pay it rather than fight it for reasons other than whether the D did or didnt commit the traffic violation

what does this do to a plea of guilty in traffic court?

a negotiated guilty plea is different than paying a traffic ticket, where one was fully advised of their rights. this is an admission within the admissions rule

Front 118

Meyer v. McDonnell- Spoliation

Back 118

in this case a medical malpractice action was about to be tried. D dr. found out who the experts were on the opposing side, made threatening phone calls (if they show up to testify against me, they will never get privileges in the state of MD). one of the experts reported the threat. trial judge said that this is impeachment evidence. when the dr testifies, he can be asked about it.

when a party to the case takes action to keep the adverse parties witnesses off the stand by threatening, bribing, shooting them, that is more than merely impeachment evidence, that is circumstantial evidence of the party's belief that he or she will not prevail in this case if there is a fair trial. in order for that party to prevail, they have to tamper with the opposing side's evidence

spoliation- taking action to prevent a fair trial. if evidence of this, the fact finder can see this as evidence of guilt.

Front 119

Washington v. State

Back 119

where the evidence connects it to the D, that is the spoliation evidence that constitutes

Ms. Williams was permitted to testify about the threatening phone call if she made an Id in the trial.

evidence admitted for the limited purpose of evaluating her credibility. couldnt be connected to Washington.

if they had been able to connect Washington to it, then the jury could infer from his efforts that he would be convicted if he didnt do something to screw up the results.

Front 120

Kosh v. State
Admission by Silence

Back 120

(admission by conduct-spoliation)

if someone says something in the presence of the party to the case, under circumstances where if that were untrue it would be reasonable to expect the party to deny it and the party doesnt deny it, the jury can find that that is an admission by silence

failure to deny a statement under circumstances that any normal person constitutes an admission by silence. key to this is that the person alleged to have made the admission by silence must be shown to have heard whatever was said and understood whatever was said and at that point didnt have a constitutional right to remain silent

must be persuaded by a preponderance of the evidence. if the D did hear what was said, understood, and didnt response by preponderance, then they are things that may be considered and may be given the weight it deserves under the circumstances. this is up to the jury.

if a D is arrested, D has a const. right to remain silent. when this right is there, the Ds silence in face of an accusation cannot be introduced against him by the state

when a D does elect to remain silent, the state doesnt have a right to present evidence that he did so.

if the D was advised of his rights, then invoked the silence privilege, the state cannot introduce evidence of the fact that the D has used his right to silence

Front 121

Weitzel v. State
Admission by Silence

Back 121

until the D is arrested, the Ds silence in the face of a kind of accusation, which if it were untrue would be denied, this silence constitutes an admission

his silence in the presence of a uniform officer there to conduct a criminal investigation, doesnt constitute an admission of silence. there is no longer a pre/post arrest differentiation.

silence in the presence of officers cannot be used as an admission. if among friends and silent, then it is.

Front 122

Bellamy v. State
Vicarious Admissions

Back 122

the state is stuck with an admission that occured when a co-D guilty plea was being taken and the State presented evidence/statement of facts which was inconsistent with the stand the state took when it prosecution Bellamy

vicarious admissions- that the principal is bound by the actions of the agent. what a person can do for himself can also do in concert with others. what one person does/says can be binding on another.

the vicarious admission rule applies in criminal cases, not only to Ds, but also to P. here, Bellamy's trials counsel should have been entitled to present the statement of facts when the co-D entered a guilty plea to show that the state had changed its theory. this is admissible under vicarious admission.

Front 123

B&K Rentals v. Universal Leaf
Vicarious Admissions

Back 123

what the employee said about the work site was very important evidence with respect to how it burnt down would be binding on the employer b/c they were talking about something within their scope of employment.

relationship with the company has to be established with evidence other than the out of court statement. once it has been established that evidence that doesnt violate rule against hearsay that he was an employee of the company and what his duties are, then his statement is admissible. no requirement that he be brought to the trial to testify.

scope of employment test

there is a presumption that the driver of the auto is an agent or employee of the owner of the auto. there is a presumption that the driver was on the business of the owner at the time of the accident. this presumption is rebuttable, but the burden is on the employer to prove that the employee wasnt acting within scope of employment at the time of the accident.

Front 124

Vicarious Admissions in the context of criminal cases

Co-Conspirator Hearsay Exception

Back 124

when trying to introduce evidence against a particular D, statements made by others. theory is called conspiracy exception to the rule against hearsay, but applies even when conspiracy hasnt been charged, so long as the agmt. was in place when the statement was made

a decision by criminals to act in concert with one another, then partnership law applies. what one partner does is binding against other partners and is admissible against all partners.

note: in the context of employer/employee situations, the statement must be made while there is a relationship between the two. if the employee is fired and a statement is made after, it cannot get in under this vicarious admission, but rather declaration against interest. if the former employee is unavailable, declaration against interest would be acceptable.

When engaged in criminal conduct each co-conspirator acts as the agent for those participating in the crime. If any of the criminals make a statement during or in the course of the conspiracy in furtherance of the conspiracy, it is admissible against the other co-conspirators
• In Maryland before any such out of court statement can be considered against a particular D, the following must be establsiehd
o The fact that there was a conspiracy
o The declarant’s membership in it
o The particular Ds membership in it
• If these are established by evidence independent of the declarations themselves, an out of court declaration of any conspirator is admissible
• In MD, if there is an agreement, it is considered a conspiracy. There is no requirement for an over act to be taken
-note: the concealment phase of the conspiracy is still part of the conspiracy (Dutton)

Front 125

Conspiracy Exception
Evidence that doesn't violate hearsay

"evidence aliunde (evidence independent of the declarations themselves"

Back 125

evidence that doesnt violate the rule against hearsay that establishes that the D was part of the conspiracy/agreement

what standard does the judge use to determine this? by a preponderance of the evidence

if the judge is satisfied that the D was part of the conspiracy, then statements made about him/her by others in the conspiracy will be admissible

Bourjaily v. US- agmt isnt enough, must be an overt act in furtherance of the agmt.- this is for federal cases. judge must be convinced by a preponderance of the evidence that the statement was made under the agmt. (Md doesn't take the federal approach- doesn't require an over act, merely an agmt.)

Front 126

Dutton v. Evans
Conspiracy exception

Back 126

statement was made at a time when the concealment phase of the conspiracy was under way, therefore admissible

Front 127

State v. Rivenbark
Conspiracy Exception

Back 127

can the out of court statements made by Rivenbark's accomplice to the state's witness be received into evidence against Rivenbark?

yes, state's witness's testimony against Rivenbark is clearly admissible as an admission exception against hearsay b/c she is testifying about what she heard herself.

state argues that the statement was made by a co-conspirator, but question was, was the statement made in furtherance of the agmt or during the course of the conspiracy?

in Md SOL for conspiracy is 1 yr, none for felony, none for a penitentiary misdemeanor, misdemeanors that dont expressly provide for confinement the SOL is 1 yr.

question becomes, 1 yr from what? if there is a concealment phase to a conspiracy and the phase goes on and on, it means that the SOL can never possibly run, then the statement is made in the furtherance/during the conspiracy. however, this can't work.

court of app. said the conspiracy is over for purposes of this hearsay exception a statement made by a co-conspirator (out of court) about a burglary that occurred a few months earlier wasn't made at a time when the conspiracy was still underway. look at the goal of the conspiracy. when the goal has been achieved, the conspiracy is over.

if the conspiracy goal was achieved, and a statement was made after the achievement, generally it is not admissible b/c it wasnt made during the course of the conspiracy.

if state could prove that the agmt contemplated a concealment phase, then a statement after the goal being achieved would be admissible. however, without that foundational evidence of a contemplated concealment phase, then is it not admissible

Front 128

Evidence ali unde rule

Back 128

federal court- a false out of court statement may be admitted if sufficient foundational evidence is admitted

involvement of the agmt. has to be proven by evidence independent of the statement about you in order to try to prevent the false statement from coming in

Front 129

Negotiated Admissions in the criminal context

Elmer v. State

Back 129

statements made during course of the plea bargain cant be used to cross examine the witness attempting to bargain. we encourage legitimate proper plea bargain so statements made pursuant to this bargain won't be admitted if there was no bargain reached.

Elmer v. State- The plain language of Md. R. Evid. 5-410 provides that statements made in the course of plea negotiations with an attorney for the state are inadmissible against the defendant who participated in those negotiations

Front 130

State v. Pitt

Negotiated Admissions

Back 130

State v. Montaso- officers made a deal with the D- you give us a statement if the plea isnt consummated we won't use the statement against you in our case in chief, but if you testify and it is inconsistent with the statement that is given, then they will have the right to cross examine you about that statement for purposes of impeachment. the D agreed to this. plea isnt achieved, but the agmt. is in place. testimony is inconsistent with statement. is cross examined about the statement. D appeals, 9th circuit reverses. govt. shouldnt have been allowed to introduced the stmt b/c it was during negotiations. US SCT reversed- in order to see if it was admissible, must look at the agmt. SCt found that the agmt. was valid and that it should be upheld

Pitt agreed to give a statement and a couple of other things. agmt was- if Pitt breaches agmt then they will prosecute you and use the statement against him. Pitt gives a statement, breached the agmt. so the state introduces the statement against Pitt in court. court of appeals reversed and didnt allow the statement in.

if the state repudiates the agmt (doesnt matter who breached it), even if the repudiation is because of the Ds breach, then the state cannot use that statement against the Def.

NOTE: difference between Pitt & Montaso- Montaso’s statement was admissible for the limited purpose of impeachment with a prior inconsistent statement and not because of negotiated admissions, while Pitt the statement was inadmissible b/c it made solely during negotiations and there was no other purpose for the statement to be admitted (it didn’t matter who breached the K)

Front 131

Hearsay & Criminal Defendant

Criminal's Const. Rt to Confrontation/Super Hearsay Rule

Back 131

when the P is attempting to introduce into evidence agianst the D an out of court statement under some exception to the rule against hearsay the criminal D has in addition to the protections to the rule against hearsay, applicable to all, they have the constitutional right to confrontation his/her accuser and to cross examine.

right of confrontation acts as a "super" rule against hearsay and keeps out OFC statement on the ground that the D didnt have a chance to cross examine the OFC declarant. theory is, that the only way it gets in is if the OFC declarant testifies. if the D is objecting to hearsay evidence being presented by P, they have the right of confrontation which renders inadmissible certain statements which would otherwise come in under another exception to hearsay.

when the D wants to offer into evidence a hearsay statement and now the issue is can the D do so. does the state of the prosecution have the rt to exclude that stmt on the ground that there is a hearsay excpetion but is inapplicable. under what circumstances does the Ds const. rt to present evience trump an otherwise applicable rule against hearsay that would operate to exclude the evidence

When the state is trying to introduce evidence against the criminal against the rule against hearsay, the criminal defendant has the right to confront the accuser and to cross examine.
This keeps out , out of court statements on the theory that the D could not cross examine the out of court declarant (the only way to get out of this is for the declarant to show up and testify) ]
under what circumstances does the D's constitutional right to present evidence trump the right of the state to present evidence?



When the state is offering evidenc against the D and state is relying upon hearsay exprion, D has a rt to interpose an evidentary objection but D also has a right to introduce evidence of rt of confrontation only avail to crim cases -to crim D to use operation as a super rule against hearsay
When we are dealing with an out of court statement offered into evidence against the D in the prososecution operation to exlcuse ecertain statement that satidsfy otherwise applicable exceptions to the R against hearsay.
In Crawford v. Washington - Mr. Crawford was charged with Felonious assualt on a man who may or may have not been hitting on Mrs. Carwford. His excuse for shooting him was that he thought the person was going to shoot him. Mrs. Crawford said she saw nothing in her husband's hand. Mr. Crawford objected to his wife's testimony.
Testimonial Privilege - held by the spouse of a Crime D - walker could have testifies against her husband if she felt like it - the privilege is hers

(Davis v. Washington: • The 911 is both testimonial and testimonial
• This needs to be decided in limine hearings)

Front 132

When the state is offering evidenc against the D and state is relying upon hearsay exprion, D has a rt to ?

Back 132

to interpose an evidentary objection but D also has a right to introduce evidence of rt of confrontation only avail to crim cases -to crim D to use operation as a super rule against hearsay

Front 133

Testimonial Privilege

Back 133

held by the spouse of a Crime D - walker could have testifies against her husband if she felt like it - the privilege is hers.

Front 134

An out of court statement can't be introduced by the state against the D over the D's confrontational Clause objection unless???

Back 134

the D has the opportunity to cross-examine the declaratn at the time delcarant made that statement.

Front 135

Why was Mrs. Crawford's statement to the police officers testimonal?

Back 135

The out of court declarant must show up and testify to most likely be cross examined.

Front 136

statements made at a preliminary hearing?

Back 136

They can be admitted because the D and D's attorney was present at a preliminary hearing, and could have cross examined the witness. Therefore the statements can be admitted, ifthe witness does not show up at the trial.

Front 137

What is testimonial evidence?

Back 137

Hypo : an undercover officer is talking to a criminal. The questions that he may ask would be careful as to not reveal law enforcement under cover status. Questions asked in the hope that the officer would testify in asking those questions. Does this make it testimonial (no). The crim, answering the questions does not know that the person is an under cover cop and therefore we look through the eyes of the person answering the question

Front 138

Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266 (2006) Hammond v. Indiana.

Back 138

• How much of it is a cry for help and non-testimonal and how much of it is a request for an establishment of what happenend and therefore is testimonal. IF the police ask question getting htem to the scene and responding correctly - this is not testimonal. However, if the police begin to investigate a past event, that becomes testimonal. Here some of the 911 tape is and some of it isn't. Here to decide this you must use an Inlimena hearing s . If the primary purpose of the questioing is to respond to an emergency is none testimonial, but if we shift to investigating past activity, now statements made in response to those questions are testimonal and get excluded. It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence,Her statement was testimonal and the emergency was over. The officers were gathering information and conducting an investigation of past events. This is an out of court statement which did not violate the rules against hearsay.

Front 139

3. Myer v. State, 403 Md. 463, 943 A.2d 615 (2008)<br>Hearsay/Criminal D/Confrontation Clause

Back 139

we must decide if Whether the trial court abused its discretion when it did not allow the defendant to recall the child-witness for additional cross-examination after the court admitted into evidence a videotaped interview between a social worker and the child-witness after the child-witness had testified. The child was placed on the stand, and the D had the opportunity to cross examine. the child left the stand, and then the tape was played and the D wanted to cross examine, but the trial court denied the D the opportunity to re-cross examine.
provides for the admissibility of ex-parte out-of-court statements made by alleged child victims. Assuming proper notice is given to the defense, the statute allows the trial court in a criminal case to admit into evidence, to prove the truth of the matter asserted, an out-of-court statement of a child under the age of 12 who is the alleged victim of child abuse or certain sexual offenses, regardless of whether the child testifies at trial or not. The statement must have been made to statutorily identified persons acting lawfully in the course of their profession when the statement was made, and the court must find that the statement possesses particularized guarantees of trustworthiness. If the child victim does not testify, the child's out-of-court statement must be corroborated. In addition, the statement cannot be admissible under any other hearsay exception.

Front 140

Rollins v. State, 392 Md. 455, 897 A.2d 821
Hearsay & Criminal Defendant/Confrontation Clause

Back 140

An autopsy report, as redacted, contains non-testimonial hearsay statements in nature that are admissible under either the business or public records exceptions to the hearsay rule. The availability of a witness is immaterial to the question of admissibility of hearsay evidence under either the business or public records exception. Opinions, speculation, and other conclusions drawn from the objective findings in autopsy reports are testimonial and should be redacted before the report is admitted into evidence

Front 141

State v. Garlick,
Hearsay &amp; Criminal D/Confrontation Clause

Back 141

confrontation and hospital records (in Davis v. Washington) A business record is different from an affdavit. there ws something wrong with the blood test. The record shows that three days went by between the drawing his blood and the testing of his blood, to tell whether he would recive certain treatment, but he was given the treatment before the test was done. These foundations should not be allowed in.

if it is a business/public record, then there is no requirement that the D needs to confront their accuser

. pathologically germane test- everything that is reasonably relevant to the patient’s diagnosis and treatment is admissible. Everything not pathologically germane is admissible

Front 142

Overriding Principle of Expert Testimony

Back 142

when a party has to present expert testimony in order to generate a jury question.

for example- in medical malpractice cases, rare are the situations in which the P can get the issue of negligence to the jury without presenting expert testimony

exceptions- where the screw up is so bad that you dont need an expert to explain it (injection of a patient with non sterile needle)

must identify the issues that will get to the jury and then line up experts for the issues that require expert testimony

when the D is asserting insanity that cause his criminal actions, expert testimony on his mental condition is necessary and whether as a result of that the D is unable to conform his conduct to the requirements of law or able to appreciate the criminality of his conduct

Front 143

Expert Testimony as distinguished from non expert testimony

situations in which we allow someone who isn't an expert to express an opinion

Back 143

example- when P is asked to Id the person who is the D if he/she is in the court room is asking for an opinion

example- if the will was signed by the deceased. if there is a testimonial conflict about who signed it, a person who is familiar with the deceased individual is permitted to express an opinion about the signature

limitation on this by- you cant turn someone into an expert just for purposes of testifying at trial (cant become familiar with someone's handwriting just for purposes of trial, but over a period of time for correspondence, etc)

for audio recordings, we don't require that a person becomes familiar with it in a way unrelated to the litigation (can be familiar with it just for purposes of trial)

Front 144

Questions asked for sound and disposing mind- non expert testimony

Back 144

Wright v. Tatem- dont need an expert to determine whether a person had a sound/disposing mind at the time of the will

don't ask the witness- did he have a sound and disposing mind? this is a legal standard

did he understand the value of his estate?
did he know who the persons were that would be the natural objects of his bounty?

Front 145

Non expert testimony

Back 145

the rule is for expert testimony- no rule for non expert testimony

where do we draw the line? what opinions are allowed when the person isn't qualified as an expert?

was the person drunk? if the witness says the D was drunk, then out of the concession of life, he doesnt need to be an expert to give his opinion. witness is subject to cross examination and the opinion is open to the weight given to it by the trier of fact/jury

Front 146

Cross Examination of Expert Witnesses

Back 146

must be careful of the questions that are asked.

Front 147

short hand descriptions

Back 147

the observations we make about people in life come in by short hand descriptions. (i.e.- "drunk")

Front 148

Expert Witnesses

Back 148

who is an expert?

trial judge must decide in his/her opinion the witness has sufficient qualifications (education, experience, or both)

trial judge's finding won't be reversed on appeal unless it was clearly erroneous. it is not within their discretion to allow into evidence expert testimony/opinion by someone who isn't an expert

the judge doesn't have discretion. they judge has to make a determination about the witness to see if they are actually an expert based on background and experience.

Front 149

Competancy of Expert Witnesses

Back 149

are they competant to give an opinion in this case?

depends upon what the opinion is. there are minimum standards. established by judicial decisions or legislation

Front 150

State v. Bricker

Exception that proves the rule- Expert Testimony

Back 150

wanted to call a witness who had a background in psych. as a result of Bricker's mental retardation, he was unable to appreciate his criminality of his conduct. the state objected to the testimony on the grounds that for years only a medical doctor could express an opinion on that issue until a statutory exception enacted by the MD legislature also provided that certain psychologists could express their opinion- an ultimate issue opinion. as a general rule, where the legislature has specifically identified for people to have qualifications to be able to give an expert opinion, the judge has to abide by the statute.

Front 151

Hall v. State

Expert Testimony- Qualification issues

Back 151

Hall was convicted of sexual assault against his son. question was whether the social worker could give an opinion on the behavior of the child- that his behavior was consist with children who are victims of child abuse. is the evidence admissible? are they qualified? yes. they are not being asked about the sanity of a criminal def. the witness isn't being asked the ultimate issue (hall guilty?)- such testimony of the social worker is proper and acceptable

must look at the opinion sought and the qualifications necessary to have the opinion.

Front 152

Process of introducing expert qualifications

Back 152

-ask qualifications
-offer witness as an expert
-opposing counsel voir dire's
-maybe "re-direct" of qualifications?!
-then the judge determines if the witness is an expert

Front 153

What is the factual basis for the expert opinion? what facts can the expert rely on?

MD Rule 5-703

Back 153

-can rely on his own first-hand knowledge.
-express an opinion based assumptions of fact, if those facts can be found in the evidence presented to the jury. this is referred to as the "hypothetical question"- "please assume doctor that the following facts are true." these facts must be matters that could be found true by the jury.
-hearsay evidence that the trial judge is satisfied with. MD Rule 5-703

Front 154

what kind of hearsay evidence will we allow with regards to expert testimony?

Back 154

doctor is on the stand and about the express that his patient will need surgery in the next 2 years. what is the basis of this opinion? he has examined the patient. to make sure my patient has the strength to survive it, i have referred him to a cardiologist, performed blood test, and psychiatrist. the cardiologist told me...opposing party may object and say that we need the lab, cardio, and psych on the stand before the doctor can testify to these other people's opinions. doctor has to use the other people's information to treat this patient and all other patients. the information is reliable. the doctor can testify about their opinions.

when it is so obvious that the hearsay information is reliable, the judge can say that formal proof of its reliability isn't necessary

Front 155

Waltermeyer v. State

Factual basis expert testimony

Back 155

at the time of the event, he was unable to appreciate his conduct and unable to conform to the legal requirements. how does the doctor know this? the D told the doctor while he was in jail waiting for trial. the D has a motive to exaggerate. the information the doctor received from the patient will not be admitted. the patient can testify to it, then the doctor can be asked about it by assuming the facts were true. the expert witness cannot testify where the fact specific data presented to the expert before on the stand is not reasonably reliable then the judge goes to plan b by putting the original person on the stand

Front 156

Madden v. Mercantile

factual basis expert testimony

Back 156

it for the trial judge, not the expert, to determine whether or not the expert has a sufficient factual basis to express the opinion.

challenge to the factual data upon which the expert was basing their opinion on. it was found that the expert had never scene the track and was trying to give an opinion on the value of the track. the judge found that the expert didnt have sufficient factual basis to make that opinion/value of the track. the judge found him as an expert, but didnt have sufficient factual basis to express that particular opinion.

Front 157

The expert may consider certain kinds of hearsay evidence

Back 157

the kind of evidence that the trial judge is satisfied. It is sufficiently reliable that it can be presented to the jury, like a cardiologist report. But you cannot allow a statement by the defendant stating how much drugs he took. THe expert can assume the truthfulness of the testimony and express the opinion, but that is not the kind of data the expert is entitled to rely upon.

Front 158

703 and 5-703 Statement upon request, the court should instruct the jury for the data to review the validity of the expert's opinion. So what kind of an instruction is appropriate under these circumstances

Back 158

when evidence is sufficiently reliable to allow an expert to request it. The evidence wasn;t formally presented so that the jury could put weight on the opinion without the inrotudction of the extra data. However many of the attorneys back off. If the evidence could be introduced, we excuse it out of the shortness of life. When we are talking about fact specfic information before the expert gets on the stand, we never say that the expert can rely on it because we are putting it into evidnece, but rather we are saying the expert can rely on it because it would be a waste of time to formally display the evidence. The judge has to make sure that the information is sufficiently reliable.

Front 159

Do you hold the expert's opinion more likely so than not so (scientific opinion)

Back 159

we then ask what is your opinion? the fact basis is divided into two things, the factual specific basis and the methodology - what the expert used to solve the mystery.

Front 160

Fry Test

Back 160

Frye vs. the united States. This involved the admissilbity of a poly graph test. The federal court held the test was inadmissible, and they used a Frye test. When a novel scientific technique is at issue in a court room, and the question is will the test results form the scientific technique be admissible, the rule is the results will not be admissible unless the scientific community is in agreement that someone who is competent to do the procedure, the results will be accurate, and unless the test if done right will produce an accurate result and those test results can be introduced into evidence. Maryland has incorporate
Reed v. the State 283 MD 274
In Maryland it is the Reed Fry test - if there is an effort to introduce the results of a scientific test than that scientific test has to satisfy the fry standard. If the expert witness is on the stand and testifies and the essential component of the expert's opinion is the results of the scientific test, then the test must satisfy the Fry test, and if the expert's opinion relies on the results of the test, than it can be relied on unless it satisfied.

Front 161

Can the expert express the opinion without relying on the scientific results

Back 161

Based on the Hall case. Everyone agreed the test that was used to detect asbestos could test for the Asb. only in brick not in human tissue, and hte expert's opinion relied on this test and it therefore could not be relied on.

Front 162

Can unpopular opinions given by doctors be excluded from trial?

Back 162

NO, No, unpopular opinions No.can not be excluded.
We only exclude opinions that are based upon unreliable scientific test.

Front 163

HOw do we apply the Reed Fry test in Black well?

Back 163

The court explained that they couldn't get from point A to B and there is no debate to the data, but the methodology was incorrect ot obtain the data.

Front 164

Read Blackwell case ofr exam -

Back 164

the issue was trying to relate vaccination to autism. The plaintiff's doctors and the appellants docotrs were prepared to express the opinion that the child's autism was caused by the vaccination by a particular vaccine. In Blackwell and Dalbear the evidence was excluded. In Blackwell, it discuss the application of Fry Reed, In Dalbear the S.C. said the Fry test was abolished 20 years ago when they enacted the federal rules of evidence. Okay than what do we have? The S.C. said if it satisifes the fry test and the relevant scientific community agrees, but the fry test is not the only test which is applicable.

• Not only does the methodology have to pass the Frye Reed test, the witness testifying about the methodology must be found to be an expert in that particular field 4

Front 165

Wilson Case about SIDS

Back 165

the initial investigation was closed because of SIDS. The state convicts him for murder. The pathologists state that based on the first child, I couldn't conclude it was homicide, but I put it together that his earlier child died of SIDS, then I conclude the child died of homicide. To do this the court applied a rule that is know as the product rule.

Front 166

The Product Rule Used in Wilson

Back 166

This rule is used to express an opinion about the likelihood of the D's DNA matching that of the Defendant.

Front 167

Montgomery Mutual v. Chesson,

Back 167

• Chesson is suing on sick building disease, which is caused by mold.
• A bunch of employees working in an office nuilding discovered a foul oder in the walls.

Each employee filed a worker's compnesation report and were rewarded partial compensation.
Applied another metholody that doesn't compute and doesn't support the conclusion he reached in this case. THe methodology is not something the scientific community agrees on and therefore the evidence gets excluded.

Front 168

kammer v. Young Case

Back 168

There was a serious challenge to paternity testing. If the test is done right, the results come in. There are situations inwhich the legislature has spoken, radar, breatherlizer and this stuff has to come in. This cannot be exlcuded. The second way is the appellate decision: which the court says that the scientific test satisfies Fry Reed 3. you have to prove it can come in by presenting evidence. if the test is performing correctly, than the results will be accurate. The court has to figure out what the relevant scientific community is.

Front 169

The Reed Fry Test comes in Competency- Burral v. State

Back 169

Hyponotically induced recollection is accurate? THat is the question. THe court has said if the witness has been hypnotized, and any new stuff the witness remembers will be excluded. The scientific community does not believe that hypnosis is accurate.

Front 170

MD 5-702
Expert Testimony

Back 170

the opinion is a proper subject of expert testimony that will assist the jury. there is an adequate fact specific, factual basis for the opinion. the witness has applied a reliable methodology in coming to the opinion and the witness must hold the opinion to a reasonable degree of probability.

qualification issue is for the trial judge to decide (unless the legislature has decided on a particular matter)

Front 171

Beatty v. Trailmaster

Methodology Issues- Expert Testimony

Back 171

the witness basically testified on the basis of "this is so b/c i said so"

the witness gave an opinion that was unsupported. this will not be allowed in

Front 172

Kumho Tire v. Carmichael

Methodology Issues- Expert Testimony

Back 172

the witness says that the tire was defective based on his expertise, and the defect caused the blow. judge didn't allow it to come in b/c he can't come to this conclusion by just looking at the tire.

we don't allow dipsy fix it opinions- "this is so b/c i say its so"

Front 173

Wood v. Toyota

Methodology Issues- Expert Testimony

Back 173

whether wood could introduce expert testimony about the airbag that went off during her accident and struck her in the face.

the witness said that the airbag was defectively designed, but could give no basis as to how he came to the conclusion.

Front 174

Methodology Issues- Expert Testimony

Back 174

expert must hold his opinion to a degree of confidence. almost certain it is possible, more likely than not.

it depends on what the opinion is..

in PI where the P is seeking $ damages for future medical damages for future medical treatment, the jury can't award it unless it is more likely than not that there will be future treatment by a preponderance of the evidence (greater than 50/50, more likely so than not so)

Front 175

Hughes v. Carter

Methodology Issues- Expert Testimony

Back 175

witness held the opinion to be possible to a medical certainty.

issue is whether the doctor held it to a reasonable degree of probability. he did hold it to this degree, just wasn't sure of the probability

jury got confused. the witness testified about the connection/possibilities. dont confuse the degree of confidence of which the opinion has to be held with the opinion itself. sometimes this type of opinion is the best that can be done. it is still admissible

Front 176

Globe Security v. Sterling

Hall v. State

Expert Testimony

Back 176

she was arrested for shoplifting. filed lawsuit against Globe for emotional distress.she said had never been arrested before, but had in fact been arrested. how do we deal with this?
expert testimony? - "she wasn't lying when she answered the ROGS and at the deposition. she was suppressing the evidence. when some people go through traumatic evidence, they suppress the memories. she couldn't remember b/c she suppressed the evidence.

no expert, no matter how qualified, can read someone's mind. an expert can't determine whether it was or was not an intentional falsity on the behalf of the P. the expert could have testified to the same thing as in Hall v. State

Hall v. State-
expert said that he can't tell whether he is lying or not. the behavior that the child exhibited is just as consistent with child abuse victims. this is evidence for consideration- not that it did happen.

if the expert in Globe that said "the Ps falsity was consistent with the phenomenon" then it would have been find. this expert went too far.

most of the time we can only get out of our experts- "this is consistent with X theory" or "this is scientifically possible"

if the expert says "im certain that it is possible"- this doesn't get excluded

Front 177

Giddens v. State

Methodology Issues- Expert Testimony

Back 177

defendant sought new trial b/c state's experts interpretation of autopsy findings were incorrect.

drew distinction between unpopular opinions and unreliable methodology- applying Reed Frye, all the experts on the planet agree that if the autopsy is performed correctly that the findings are correct. the significance of the findings/what they mean is the subject of expert testimony- most experts will come to various interpretations of the finding. there was nothing wrong with the methodology that was applied, but rather there was a variance in the interpretation of the findings

Front 178

Ultimate Issue Doctrine
MRP 5-704b & FRP 704(b)

(Civil v. Criminal)

Back 178

(b) Opinion on mental state or condition.- An expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may not state an opinion or inference as to whether the defendant had a mental state or condition constituting an element of the crime charged. That issue is for the trier of fact alone. This exception does not apply to an ultimate issue of criminal responsibility.

criminal cases:
have to have expert testimony if the D wants to get to the jury on whether the D is not criminally responsible. have to ask the expert in terms of the elements of the crime

essentially this: an expert cannot say "in my opinion, it was the negligence of X that caused the accident"

exception- if the testator had a sound and disposing mind. ask witnesses who were familiar with the testator questions in accordance of the law that indicates a sound and disposing mind. these questions are components of the ultimate issue

Front 179

Cook v. State

Ultimate Issue Doctrine

Back 179

expert could of testified to the workings of the drug organization and that the behavior he witnesses was consistent with the roles of the drug organization. when the expert goes beyond that, is not allowed- it is for the jury to decide

the expert cannot purport to be a mind reader. must testify to how the behavior is consistent with a particular behavior

must look at the question and the answer. if the question shouldn't have been asked, but the answer is ok and doesn't introduce anything that shouldn't have been, then the answer saves the question

Front 180

Bentley v. Carroll<br><br>Limitations on Expert Testimony

Back 180

•• Plaintiff challenged a jury verdict finding that defendant physicians, as mandatory reporters under the Maryland Child Abuse Act, Md. Ann. Code art. 27, § 35A (1957) (1978 Cum. Supp.), had met the standard of reasonable medical care and had not negligently failed to report over a period of 10 years that plaintiff was a victim of suspected child abuse. <br>• Plaintiff sought review to exonerate defendant physicians of liability for medical malpractice based upon negligence in failing to prevent or report suspicions of continual long-term child abuse. <br>-Defendants' expert was erroneously permitted to give his opinion as to plaintiff's credibility; to wit, whether she had exaggerated her claim of sexual abuse.<br>• Courts in Maryland are improper fora for the introduction and interpretation of lie detectors, polygraphs, or any like measurement of a witness's veracity. <br>• It is the settled law of Maryland that a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth. Testimony from a witness relating to the credibility of another witness is to be rejected as a matter of law.
No matter how highly qualified the expert may be in his field, his opinion has no probative force unless a sufficient factual basis to support a rational conclusion is shown. The opinion of an expert, therefore, must be based on facts, proved or assumed, sufficient to form a basis for an opinion, and cannot be invoked to supply the substantial facts necessary to support such conclusion. The facts upon which an expert bases his opinion must permit reasonably accurate conclusions as distinguished from mere conjecture or guess.

Front 181

Gauvin v. State

Ultimate Issue Doctrine

Back 181

We conclude that the prosecutor had a right to present evidence from this expert concerning the known side effects of specific drugs given in the doses and at the time shown by the record to a person of the height, age, weight, and known medical condition of [the witness]. The prosecutor's last question strayed from the track established by the court. The doctor's answer did not. The objection to the answer was properly overruled.

Front 182

The difference between spousal and lawyer client confidential privilege

Back 182

THe lawyer client privledge is like an umbrella, everyone standing under the umbrella is embraced in the privledge. What the client tells the lawyer, is protected. Anyone who brings in the case to help the lawyer provide legal service to the client is protected, but there is a crime fraud exception to this privilege.

Front 183

What is the crime fraud privilege exception?

Back 183

coleman case - that conversation is a protected. But if a client says to a lawyer - Help me get away with this! = that is not protected.
The lawyer is not obligated by a code of professional responsibility to turn in a client who asks let me get away with this.

Front 184

State v. Pratt- attorney client privilege

Back 184

wife shot her husband in his sleep. The attorney wanted to explore the insanity defense, so he arranged for a psychiatrist. The Dr. didn't give him the answer he was looking for. The lawyer looks for other Dr.'s who will testify that she is unstable. In rebuttal, the state calls the first Dr. Pratt went to. He testifies to his opinion, and the jury convicts. The patient privlidge seems to be applicable in this case? But why was this not used ? that privilege goes out of the case, when a party puts his mental condition in to issue. This conversation was not protected because the mental state became an issue. The court held that the conversation was under the attorney/client prividge because the attorney engaged the Dr.s service and became the lawyer's agent (just like the lawyers secretary and paralegal). Therefore it was protected, even though she put her mental state into issue, it only effected the patient/Dr. protection, not the attorney/client protection. The attorney brought the Dr into the one of protection in order to protect the client.

Front 185

Rubin v. State- attorney client privilege

Back 185

Rubin shot her husband outside a vet. They were is the middle of a divorce and she felt threatened by him. After she shot him, she called her friend/employee and a lawyer. The lawyer took the gun from the scene and the women's purse and bullets. A search warrant was used - Even though they were seized with a search warrant, why wouldn't they be subject to exlcusion on of evidence? Can a lawyer retain an exhibit, until the lawyer had time to investigate the use of it? and is there a privilege at this point? in some situations, YEs. But the lawyer cannot put himself into the chain of custody of a tangible item, that law officers have the right to have. The lawyer has the duty ot turn the item over. Because they were helping her in the commission of a crime.

The attorney-client privilege extends to protect observations made as a consequence of protected communications. Whenever defense counsel removes or alters evidence, the attorney-client privilege does not bar revelation of the original location or condition of the evidence in question. The court views the defense decision to remove evidence as a tactical choice. If defense counsel leaves the evidence where he discovers it, his observations derived from privileged communications are insulated from revelation. If, however, counsel chooses to remove evidence to examine or test it, the original location and condition of that evidence loses the protection of the privilege.

Front 186

Newman v. State- attorney client privilege.

Back 186

A wife states in her lawyers office with her friend that she is going to kill her husband. The friend goes to her husbands house and breaks in and shoots him, but doesn't kill him. the lawyer goes to the police stating that what he heard. He can do this because the code of PR states that a lawyer may report this information to the police if it will harm or kill someone. (however the jury stated - that she was entitled to a new trial because the client was entitle to privilege communication). The state said - there is no privilege communication when there is a third party present. the defendant's girlfriend heard the communication and therefore it is not confidential. THe court responded with - that is not always the case - (the only way the lawyer could talk to her, was if the girlfriend was there) the lawyer invited her. The presence of the girlfriend did not make this a non-confidential girlfriend. There is also another excpetion - the attoreny fruad exc petion is in play. These were statements of intent to commit the crime in the future - the court responded - this does not apply unless the client requests that the lawyer participates. The clients stated intent doesn't take it out of the privilege.

• The attorney-client privilege does not apply to a communication occurring when a client: (a) consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a crime or fraud or aiding a third person to do so, or (b) Regardless of a client's purpose at the time of consultation, uses the lawyer's advice or other services to engage in or assist a crime or fraud
• The presence of a third party will destroy the attorney-client privilege. The mere presence of a third party, however, does not constitute a waiver of the privilege per se. Because the attorney-client privilege is held and waived by the client, a court's essential inquiry is whether the client reasonably understood the conference to be confidential, notwithstanding the presence of third parties. A mere showing that the communication was from client to attorney does not suffice, but the circumstances indicating the intention of secrecy must appear. The attorney-client privilege is limited to communications between the attorney and the client which are expressly intended to be confidential

Front 187

Newman v. State- third argument to why it is covered under attorney/client privilege.

Back 187

She didn't waive the privilege - there is a difference bw duty to protect and testifying in court merely bc a lawyer had a duty to report --either way we are dealing w a testimonial privilege just bc. he reported doesn't mean he can testify it.

Front 188

Elkton Care v. Quality,- attorney/client privilege. How do you determine waiver?

Back 188

during the discovery phase of the lawsuit. The owners gave them the documents, they accidentally included a document that says privileges communication in it the lawyer advices them that the other company hasn't breached. The lawyer from the opposing side gets the document. At trial - the lawyer asks the company - did you tell the company that they didn't breach? He pulled out the document. The judge asks to see it\? The attoreny says they waived the privilege. The judge agreed. The argument is that the owners are entitled to a new trial- because of privileged communication. How do you determine waiver? Some argue that only the client can determine waiver. An inadvertent disclosure of communication does not determine a waiver. What standard did they apply? The intermediate test\.

Front 189

What is the intermediate test in Elkton v. Quality?
Attorney/client privilege.

Back 189

The courts that use this approach examine the following factors: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (4) any delay and measures taken to rectify the disclosure; and (5) whether the overriding interests of justice would or would not be served by relieving a party of its error. In this case - you would think that the lawyers would look at the documents before they let the opposing counsel look at them, and when they copied they would also look at them. You would also think in preparing for trial - you would review the documents you discovered to the other side - the cousel struck out. At no point there was no effort made to rectify the situation. The defense could have found out about this and then asked for some relief.

Front 190

Electronic Discovery
Privilege

Back 190

when the lawyer representing the client that is responding to the discovery request who is reviewing the docs for assertion of privilege, the lawyer may have to take action with respect to privileged information. if the client lies about something that is shown to be a lie by privileged material in the hands of the lawyer

when a client lies about something, a lawyer is required to disclose the fraudulent information. this doesn't apply to criminal attorneys.

rules of procedure in MD and federal courts provide for situations in which the privilege review occurs after the discovery material has been furnished to the requesting party under "clawback" provisions (essentially the judge says, we have to get this case tried, don't tell me you can't produce the docs for 6 months b/c you have to conduct a privilege review. then assert privilege claims. if he agrees, then the docs will be given back and not disclosed). if there is a judicial order, then all must comply.

if one agrees to allow something in to one P, then it must be allowed in, in all other similarly situated parties

Front 191

Holden v. ___
Court of Special Appeals case

Privilege

Back 191

some of the kids of the deceased challenged the will in which he left all his property to one child. the one child had been missing for most of the deceased life. during the trial, the appellee took the witness stand and testified that he had served in the military and received several medals. the appeal- the brothers and sisters asked for a new trial b/c they didn't believe that the testimony of the appellee was true. the day that the case was to be argued, the lawyer for the appellants submitted on brief. judge said that he is going to accept that the testimony was true, b/c the lawyer has a duty to correct the record if it was false. a week later, an affidavit from the appellee was sent in saying that he had not received the medals (he was just considered for it). it was then sent back to the circuit court to determine if a new trial was required.

not every false statement requires a new trial. trial judge found that a new trial wasn't necessary. appeal was affirmed.

Front 192

Hamilton v. Verdow
Govt Privilege

Back 192

executive privilege for state of Md. guy escaped from mental health. person was sent to investigate what happened, and what can be done to prevent it from the future. opposing counsel wants the report. executive privilege was asserted. the P said that there is no such thing in the context of this situation and that he is entitled to see the report (but not admit it into evidence). the court found that there is such thing as executive privilege, the governor asserted it. there are situations in which the assertion of the privilege may have to give way. the court can make an in camera review of the report and then see whether some of it should be shared with the lawyers.

this is similar to a lawyer's work product privilege. absent a showing of hardship and absolute need, the privilege will be recognized.

the second issue dealt with the patients records. there is a medical records statute that allows a patient to say that they don't want their medical records circulated. there is a psychiatrist/psychologist patient privilege. when the patient's mental condition is at issue, the argument from getting another party's records is that he is not a party to the case. the court of app said that the P is entitled to the other party's records b/c he had released his records in another pending case. this operated the way b/c the Ps are similarly situated (only difference is one case is filed in circuit court while the other is in federal court)

Front 193

Shaw v. Glickman
Privilege- Physician Patient Privilege

Back 193

glickman realized that his patient was likely to try to kill shaw. glickman owed a duty to shaw to take steps to protect him from the patient who was intent on killing shaw. glickman can disclose patient information if there is human life(s) at risk

Tarasaw (Cali) case- court looked at this opinion. the court recognized the duty on the part of the psychiatrist to take steps to protect the identifiable target of the patient's actions.

when there is a threat to an identifiable person, the psych is not liable for any harm that comes to that person at the hands of the patient as long as they in good faith takes steps to prevent the problem from happening or to get the patient into treatment where the harm is unlikely to occur

• A husband, wife, and lover were patients of a psychiatrist.
• Husband broke into the lover’s apt. and shot him. Lover sued the psychiatrist for failure to warn him about the husband and how dangerous he was
• Md. Code Ann. Cts. & Jud. Proc. § 9-109 (b) (1974) provides: Unless otherwise provided, in all judicial, legislative, or administrative proceedings, a patient or his authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing, communications relating to diagnosis or treatment of the patient's mental or emotional disorder
• There is no evidence that the husband disclosed to the psychiatrist that he intended to ahrm the lover
• The court concluded that it would have violated the privilege if the psychiatrist went to the lover about the husband. Psychiatrist can only go to the police

Front 194

Journalist source privilege

Back 194

article is published saying that chief of police took a bribe. the reporter says that he wasn't present when it happened, but was told by his source who claims he was an actual witness to the bribery. during deposition, he is asked who the source is. reporter asserts this privilege. judge says that the journalist doesn't have to give the source, but he can grant a summary judgment on that issue on the basis of falsity

when the journalist isn't a party to the case. when there is an assertion of privilege by a party to the case, there can be something worked out that protects the privilege. when the person isn't a party to the case, there is a different result

Front 195

Govt Privileges in criminal cases

Back 195

state has a privilege in certain situations to conceal the identity of informant who helped the state make the case against the criminal defendant, but there are situations in which this is unfair to the D to force the D to go to trial without knowing the identity of the informant.

if the state doesn't want to identify the informant that was with the officer, then the judge can refuse to allow the case to be tried since the informant is crucial to the case. the state can exercise its privilege. the state has to determine whether exercising privilege or protecting their informant's identity.

Front 196

PG County v. Hartley
Journal Privilege
(assertion made by someone who is not a party to the case)

Back 196

Hartley was an officer in PG Co. he attended a trial that was going on in federal court in Greenbelt. trial involved a lawsuit filed against PG Co. officers for violating the civil rights of the Ps. during a break, he made a comment that the Ps were lucky that they didn't run into him b/c he would have ___ (done worse than was done). 3 reporters over hear this and publish it. police department brings administrative charges against Hartley. subpoenas go out to the 3 reporters. they filed motions to quash. county argues that there is no journalist source b/c Hartley was the source and they want to testify about what they heard. judge quashed after D said that questions would be about the privilege.appealed the case, app. court reversed with guidelines
- what happens when the witness on the stand has a right to assert the privilege and assert it. this depends on upon the rest of the testimony the witness gives on the topic of the assertion of privilege at that point (if it is privilege, then the testimony can be stricken. but it is all of it, just some of it?)- this is up to the judge
• If the source doesn’t realize that he is supplying the information to a journalist or doesn’t supply such information on condition that his identity be kept secret, his identity doesn’t apply. If the journalist is foolish enough to privilege the sources identity, the privilege is waived.

Front 197

Forensic Advisors v. Matrixx
Journal Privilege

Back 197

this involved the assertion of a privilege at a discover deposition. the assertion was by Mulligan, who was the owner of the appellant company. he publishes stuff only for investors. he is considered a journalist under this, but you can still take his deposition. this is how it works:
-there are in MD discovery guidelines in appendix to MRP
-the assertions of privileges must be made in conformity with the discovery guidelines for depositions
-there is a deposition rule that says- when a witness refuses to answer a question at deposition, the party taking the deposition can't go to the judge right there. the deposition is to continue and get as much done as possible before coming to court before a ruling on the issue on whether the particular question should be answered.
-rule

Front 198

Priest-Penitent (now known as reconciliation) Privilege

Back 198

used to be necessary, b/c the prosecutor used to be able to bring in all the priests on monday for them to tell who confessed to what over the weekend.

this privilege extends to all religions and to all statements made to a member of the clergy seeking spiritual help

Front 199

2 Govt. Privileges

Back 199

1- informer privilege. if they are a crucial part of the trial, the P has to disclose the information (Id of the informant) or dismiss the case b/c they can't go forward. if the informant merely supplies information that leads to the execution of the search warrant and isn't present when the warrant is executed, then there is no requirement that the identity of the information be revealed

Front 200

Edwards v. State
Informant privilege

Back 200

there may be a situtation in which the D is entitled to the Id of the informant even if only probable cause for the search and not present when the search was conducted. despite the fact, the court has never ordered the disclosure of the ID of the informant who has merely given some information.

Front 201

Ehrlich v. Grove
Govt Privileges

Back 201

during discovery, P's lawyer said that he needs to look at the personnel records of employees who left state service for a reasonable time before and after P was terminated. governor said that you can't b/c by statute, they are confidential records

CSA dealt with this in Blades v. Woods. officer was punished much more severely for a departmental action than his colleagues. the only conclusion that he could reach was that it was retaliatory. wanted to see other records to compare punishment. the other names in the records should have the opportunity to be heard on the issue and potentially deny the ability to use the records before it is open to public record

should give the other employees a chance to deny the use of the records or to redact certain information from the records. give the employees a chance to protect disclosure of information before it is in public record

Front 202

Privilege Against Self-Incrimination from Attorney Client Privilege
?????

Back 202

first time practicing attorney, a person comes to you with the following: the person made a good living robbing banks for several years for the purpose of money and to keep a journal of his adventures of robbery in order to write a book about it and to publish it when the SOL expires. the person explains how he accomplished the robberies. his wife wants a divorce. his wife told the FBI about the diaries and what he has done. husband wife confidentiality privilege applies to testimony, but not investigations. the person asks the attorney to hold the docs to avoid them being found. but the attorney says that the FBI can get a warrant to search his office as well. he can't advice the person to destroy evidence. the person has been subpoenaed for grand jury for duces tecum (for his diaries).
5th amendment privilege doesnt apply to someone who writes stuff in a diary- only with compelled self incrimination
does he have a diff. kind of 5th amendment privilege? no he doesnt, not for what is already written in the record. no 5th amendment privilege if they were on his person if he were under arrest.
-non verbal conduct that constituted hearsay (pointing to a person or line up)
-5th amend. privilege applies to the act of production b/c it asserts 1) this is what you are looking for 2) this is authentic and 3) this is in my possession. he doesn't have to do an act that in effect says these 3 things
-in order to comply with a subpoena that has a testimonial component that does operate to incriminate the person responding to the subpoena, the person has a 5th amendment privilege that he can assert

advice to the client: better burn them before they give you immunity from the act of producing them

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US v. Doe
Privilege against Self Incrimination
???

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this is how you get around it (around what?): immunize him with the respect to the act of production. if the fact that he produced him can't be used against him, then he is immunized. he has to turn them over. can't assert a 5th amendment privilege that grants him immunity from the act of production.

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Whitaker v. PG County
Privilege against Self Incrimination

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privilege against self incrimination can be asserted by a civil litigant, just as a criminal defendant

in civil litigation, an adverse influence can be drawn from the fact that the privilege is asserted.

D ran a photo store, but the police noticed that the clients were male and no one came out with cameras. employees had prostitution records. the county investigates. on the stand, the D takes the 5th. the court finds that he doesn't have to testify. but the court can infer that the court that he took the 5th indicates that he would incriminate himself if he testified

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Privilege against Self Incrimination hypo

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until the criminal charges are completed, the D will not answer interrogatories by 5th amend privilege. at a deposition, the D will assert 5th amend. rights whenever the question goes near certain issues. once the criminal charges were done and the D agrees to testify, the P cannot say that by asserting the right, the D closed the issue and causing the inference that D would have self incriminated himself

Front 206

Hartless v. State
Privilege against Self Incrimination

Back 206

state won't see the results of the evaluation until after the bifurcation trial for the sentencing part so that the jury wouldn't have to sit around waiting for an evaluation to be done

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US v. Hearst
Privilege against Self Incrimination

Back 207

heiress to newspaper company. she was kidnapped and formed a relationship with her kidnapper. she participated in robberies with her kidnapper.

he filed a motion in limine in advance of her testimony that the prosecutors couldn't ask her about other criminal activity in which she had been implicated by witnesses to one of the robberies. according to mr. bailey the trial judge said "if she doesn't do anything in her direct that opens the door to that, then he will not allow the prosecutors to cross her about her conduct in the other case." she testifies and she is crossed about the other case. she took the 5th amendment on several questions. trial judge allowed her to assert her 5th privilege. as for her direct exam, she didn't necessarily directly open the door to the other case, it was legitimate and proper cross examination, therefore no error occurred when the prosecutor asked her the questions to which she asserted 5A privilege.

if the D gives an overly broad answer to a question, it may give the state the chance to question about other incidents ("never touched drugs in my life"- the state can then ask about situations in the past in which they did, if they have records of it)

this works the same way with witnesses as it does the D

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Scott v. State
Privilege against Self Incrimination

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Scott takes the stand stating that he didn't steal the watch b/c he gave it to him. the prosecutor's question was: where did you get the watch? the witness can't take the 5th, b/c he has opened the door to the question. the witness didn't testify so the judge put him in jail for contempt, which was correct, b/c he couldn't take the 5th for this issue- he opened the door. the question has to be relevant to the answer that was given on direct.

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Types of Cross Examination Questions

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1-paul harvey cross examination- fleshing out the rest of the story to put the direct examination in the correct context
2-irving younger cross- cross exam in support of the argument that the witness shouldn't be believed

this is one technique of impeachment

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MD Rule 5-616
Intrinsic v. Extrinsic

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Intrinsic Impeachment- where the lawyer/cross examiner is crossing the witness attempting to get the impeaching info from the witness's own mouth

extrinsic- witness is being impeached by documents or other evidence or by other witnesses who take the stand. -some methods of impeachment can only be done by extrinsic, while others only intrinsic, while others can be done by either, while some require that you start with intrinsic and then depending on what happens permitted to shift to extrinsic evidence of impeachment

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Drawing the Teeth: Witness Credibility

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trial strategy requires that you help your client by making neither you or the client look like a sneak when you know the other side has something and is going to get the jury's attention. you have the first chance to speak to the jury, so the first chance to alert the jury of the existence of that information. sometimes you can put it in yourself

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Brown v. State
Drawing the Teeth: Witness Credibility

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strategic decision on how to avoid a look from your client of dissatisfaction- dealing with the waiver of the right to appeal

if a D on direct testifies about a prior conviction, just b/c the D wants to be the 1st one to put it out there, the D can do it. if the D does it, the D is still entitled to an instruction to the effect that that conviction is admissible solely for purposes of credibility evaluation

Brown wanted to testify about the prior conviction and then argue on appeal that it was erroneously in the case. court said that if you put the evidence in, you can't argue later that it should of been excluded

impeachment by conviction evidence.

if you move in limine for a ruling excluding certain convictions for purposes of impeachment and the judge, you have a choice 1) put it in yourself (and get credibility jury instruction) and 2) if you do put it in you can't claim that it should have been excluded on appeal

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Johnson v. State
Drawing the Teeth: Witness Credibility

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deals with strawman rebuttal/anticipatory rehabilitation

police was chasing D, D ran into a house. in the house there were drugs, but didnt find it on the person. dog sniffed out the drugs. officer was on the stand and he was asked: P asked "is it true that most money is contaminated by drugs." the D objects b/c of anticipatory reasons. this isn't allowed. the P stepped too far into the D case

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Werner case
Anticipatory Rehabilitation

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was on trial for child abuse. explanation for time between trial and abuse was b/c the victim decided not to report it and only came forward when she heard he did it to her little sister. on direct the P brings this fact out- now the jury knows he is accused of doing it someone else. he got a new trial. the direct examiner can't do this, unless it is brought out on cross, and then they can bring it up on re-direct

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Blanks v. State
Prohibited Impeachment

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cross examinating the D about his conversations with his lawyer, is absurd.

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Eiler v. State
Prohibited Impeachment

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improper impeachment of the D and erroneous exclusion of proper impeachment. this is the reversal of the conviction that was obtained in the 2nd case. (1st case was a hung jury). improper impeachment involved testimony given in the 1st trial by the D. the testimony from 1st trial was unfairly prejudicial and shouldnt have been allowed.

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Eiler v. State
Permitted Impeachment

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what should have been allowed:

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Medical Mutual v. Evans, 330 Md. 1, 622 A.2d 103 Prohibited Impeachment

Back 218

biased impeachment While the court cannot enter a prohibition against biased, the court does have discretion with respect. The state maybe permitted to say thatD committed Robbery A and Robbery B (under 5-404 (b) if the evidence is substantially relevant, and the trial judge is persuaded thathe did it. THe probabtive value is stronger than the value of unfair prejudge. But allowing proof involving Robbery B, may be a problem. For example he used a gun to rob, and in Robbery b he used the gun and shot the gun in the back. you can't allow the gun shooting. In this case we have a situation in which the court of appeals, the details of the biased evidence went to far. A Medical malpractice action was asserted. He demanded that he must settle the case, the case went to trial. The jury returned a verdict far in excess of policy limits. When the insured defendant was hit for damages that was greater than his insurance, the client has an action against the insurance company for bad faith. He was asked to assign his bad faith claim to the P. The Dr. Assigned the bad faith claim to the P, and said to met mutual that you owe the difference. During the case, the supervisor was put on the stand and explained why the company did not consider this a policy limits case. In the text of the opinion, you see the cross examination. The cross examination accuses the claims supervior of a personal biased against him the P lawyer. No that is not the case. Let's discuss the case of a former client of mine, and you reversed to settle. Do you remeber the case name? Telling the jury to restrict that information to the narrow issue of whether there was biased in the to individual items of - the point this case teaches us is , while it is true the trial judge cannot exlcude evidence of biased, they do have a duty to protect the witness from unfairly prejudicial spill over (evidence so shocking, that is unfair) details which create this risk can be excluded, but the general idea cannot

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Davis v. Alaska - Permitted Impeachment

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The key witness was a juvniel. he was adjudicated a deliquent and was on probabtion. Davis Lawyer want t establish that fact because he didn't want his probabtion to be violated. The trial judge and the prosecution treated this as an effort to get into evidence "impeachment by conviction" Juevnile convictions is not considered a crime for purposes of conviction. Davis' lawyer said he was not attacking the witnesses character, but I want the jury to understand why this witnesses was motivated to testify against Davis. The motivation was he was afraid that his probabtion would be violated. The U,S. Supreme court said the evidence was admissible. It wasn't admissible to attack the witnesses character, but it was admissible to show the witnesses biased. Davis was entitled to a new trial. Evidence of biased cannot be excluded

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Robinson v. State
Permitted Impeachment
(use this case to show this rule doesn't apply) use for exam

Back 220

A witness can be questioned about what he or she did that would call into question his or character for voracity. This conduct would indicate that this might not be a truthful person. You can argue that they are a untruthful person. We allow this prior bad-act rule of impeachment under 5-616- (like filing a false affidavit, conduct of dishonesty) This is limited to conduct which shows their character as voracious, shows they might not be worthy as a witness. This is not a question of whether you were convicted, but rather did you do it? If the witness denies it, extrinsic evidence is not admissible to show the witness testified falsify to show that they denied, unless that testimony shows some relevance to this case (Related to Deblasi case- evidence of biased comes in, and if you have extrinsic evidence of biased can be put it in, but Delasi unusual habit of extinguishing his cigarettes, but it was more that admissible to show he was lying, but it was admissible to show how that house might have burned down) this is called intrinsic evidence. In this case the witness had done a lot of goofy things, the witness did all of these things however in an insane asylum.

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(Mulligan v. state 118 md app. 308 - permitted impeachment - related to Robinson v. State

Back 221

(Mulligan v. state 118 md app. 308 - involved a murder of a nurses aid , Mr. Mulligan was convicted of that murder. He was recieved a new trial. He was granted a new trial, the defense attorney wanted to question a key state witness about whether the witness had filed false police reports. he wants to know if he regularly falsify police reports? (you can ask this question, and there was reasonable basis that the witness did this) this is the kind of conduct that rflects on their personal voracity. you have the right to ask the question about whether they did this

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Newton v. State, 147 Md. 7

Back 222

Newton calls a co-defendant who has been tried separately. We were not involved in a bribery scheme. The lawyer asked whether he was on the stand for the same conviction as the D. He said that the jury convicted him of that
The version persented to this witness was rejected by another fact finder. This wasn't a situation to show he was inconsitent, but rather that it was the same thing for the same crime, and didn't the jury reject your testimony and convict you. That is the information that the jury trying Mr. Newton should have to received.

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Pantazes v. State,

Back 223

The court prohibited extrinsic evidence of impeachment. This case gets back to the rule of collateralness. Examply: you want to put an exhibit that you got a false answer to a particular question. "Did you say you were going set up your wife?" "NO~!" "well isn't true that you put your cigarrette out whereever you are? " "No" "Well, did you regualarly falsify police reports?" Yes the court will permit evidence to show evidence that he wanted to testify against his wife, and to show that he puts out cigarettes whereeve. Why in once case you can offer extrinsic evidence? Collateral - If the evidence is onmly relelvant to show that one answer is false, the evidencce cannot be recieve. To get around the rule, you have to do more than show you got a false answer. It has to be relevant to some other issue in the case. IF it proves both the falsity of the answer and relevancy to the case - it can come in. In this case the state's witness , was asked whether he committed a murder and blamed it on someone else, he said. The D wants to show that it had happened. The trial judge said no, he is not allowing extrinsic evidence to come in on this point. There are some questions you are allowed to take on cross exmaination, that you have to take the answer to. There are some questions you can ask that you will get a denial so that you can bring in extrinsic evidence.

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Clark v. State, 364 Md. 611
Permitted Impeachment

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The refusal to allow the defense to bring inn evidence about medical injuries the witness sustained after the murder. A key witness in the case was a worker who had been injured on the job and he was there when they killed the guy and threw him off the bridge. years after the incident before the case was solved, the witness sustained a head injury which resulted in medical treatment. The worker's compensation commission that the treatment that had been given and retaining recollection. The defense said that they had the right to put the records in. Do they support the argument that he cannot remember? the answer is YES - that is permissible impeachment (look at Eiler - involved the exlcusion of evidence that the defense wanted to present. THe key witness against Mr. Eiler lured him in. She entered a plea for second degree murder and agreed to cooperate with the state. Without getting involved with mental Dr., he was able to get a list of drugs available to her. Showed them to a psychiatrist and ask him what the effect of the drugs would have on a person. The lawyer was attacking the ability that a person could call on these events accurately.the jury is entitle to know what kind of person would recieve these drugs and if those drugs effects how a person can recall accurately, that is evidence that the jury is entitled to.

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Churchfield v. State
Permitted Impeachment

Back 225

involves biased and the motivation to falsify. This also involves the rape shield statute. This limits the kinds of evidence that can be introduced when a victim was raped. (they used to be able to say that a girl had a bad reptuation and could prove it with other wintss) 5-412 -no longer can the defendant asset consent as a defense, that the victim has a bad character as to chastity. Evidence which shows that the victim has a altreative motive to accuse a person. The accusation was made by his step-daughter. churchfield's defense was - she has a boyfriend and has been having sex with the boyfriend, and she is too young. So I told her that she had to stop or she would be disciplined. Then suddenly I am accused of this and she is doing it in retaliation. The witness's motive to testify falsely is admissible.

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United States v. Abel,
Permitted Impeachment (make sure you read this one)

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The federal rules do not show you what kind of questions you can ask and do not show impeachment by biased. The Court said you can do and it does not have to be expressly written. We do have evidence of biased. A witness says that Abel confessed to him that he did it. Another witness was on the stand and said that the other guy is lying about the confession. The defense cross examined and asked if he was a member of a secret prison society? NO . He got a knew trial, the Prosecution was allowed to cross examine the defense witness about being members of the prision society, but he was stuck with the answer. He was not allowed to put the other witness on the stand to say "yes there is a secret society" The S.C. said they were reinstate the conviction - the prosecutor was allowed to ask those questions and was allowed to offer extrinisic evidence becuase it went ot the evidence of biased and was not restricted to biased. becuase that evidence went to biased, the extrinsic evidence was admissible. Just because it was not admissible under Federal Rule 608 (B) doesn't mean it gets excluded, it still could be admissible under a different theory (the rule of collateral. The evidence wasn't merely collateral - it wasn't just to show that the witness was lying, but it was admissible as extrinsic evidence of biased. The motivation the defense witness had to testify in favor of the defendant.

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Jones v. State
Child/Mentally Impaired Person
Competency to Testify

Back 227

• To establish the child was competent, the judge asked him a series of Voir Dire questions. These questions help to determine whether the child knows the difference between a truth and a lie and the consequences. The intelligence, maturity, etc is considered. This is up to the discretion of the judge

 A trial court must determine the child's capacity to observe, understand, recall, and relate happenings while conscious of a duty to speak the truth. The essential requirements are: (1) capacity for observation; (2) capacity for recollection; (3) capacity for communication, including ability "to understand questions put and to frame and express intelligent answers; and (4) a sense of moral responsibility to tell the truth (Jones v. State)

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Tanner v. US
Impeaching the Jury Verdict

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Tanner v. U.S. (example of [b])
PP
• A juror went to the defense’s attorney and said that the jurors were drunk, high, and on cocaine at various times.
Tanner Argument
• Substance abuse constitutes an improper "outside influence" about which jurors may testify under Rule 606(b).
Question
• Was the district court required to hold an evidentiary hearing, including juror testimony, on alcohol and drug use during the trial?
Holding
• No. The language of 606(b) cannot be stretched to cover the circumstances here, however severe their effect and improper their use, drugs and alcohol voluntarily ingested by a juror seems no more an “outside influence” than a virus, poorly prepared food, or a lack of sleep.

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Impeaching the Jury Verdict
MD Rule

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FINISH THIS

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Dead Man's Statute
Competency to Testify

Back 230

• If a witness has an interest (usually financial) in the outcome/dead man’s estate, their lips are sealed
• A non party witness will be allowed to testify

1. C.J. 9-116
9-116. Dead or incompetent persons
A party to a proceeding by or against a personal representative, heir, devisee, distributee, or legatee as such, in which a judgment or decree may be rendered for or against them, or by or against an incompetent person, may not testify concerning any transaction with or statement made by the dead or incompetent person, personally or through an agent since dead, unless called to testify by the opposite party, or unless the testimony of the dead or incompetent person has been given already in evidence in the same proceeding concerning the same transaction or statement.

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Rhea v. Burt
Dead Man's Statute

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• Dead man's statute
protects a decedent's estate by prohibiting a surviving adverse party from testifying at trial (with respect to facts that could only be contradicted, or corroborated, by the deceased), but that statute does not seal the lips of a non-party witness. Nor does that statute restrict any surviving party's right to conduct appropriate pretrial discovery.
• The victims attorney wanted to get information that was protected by the work product rule b/c the actual driver was deceased and they could no longer get information/testimony from him. In order for the victim to not be substantially hurt/deal with an undue burden, they should be allowed to obtain the work product of the opposing attorney

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Witness who has been hypnotized
Competency to Testify

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o MD will only accept testimony that stemmed from hypnosis is if it is generally accepted in the medical community

• Testimony consistent with statements made by a witness prior to undergoing hypnosis is admissible, but not testimony based on recollections formed during or after the hypnosis.

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Relevancy & Counterweights
General

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although the material will be very probative, the jury will have to resolve a material issue but immaterial evidence is something the jury is so

2 important components
-materiality: looks to the relation between the propositions for which the evidence is offered and the issue in the case (whether the information has an impact on the outcome of the case)
-probative value: which is the tendency of evidence to establish the proposition that is offered to prove

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Res Inter Alios Acta
Relevancy

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1. Evidence of prior accidents or defects is admissible, not only to show notice, but as bearing on the dangerous nature or tendency of a place or appliance involved in an accident.
2. In order to present evidence as to past accidents, tendencies or defects, there must be a similarity of time, place and circumstance and, in the discretion of the trial court, the evidence must not cause an unfair surprise or confusion by raising collateral
3. If a showing of substantial similarity of a prior occurrence to an alleged current defective condition is made, a trial judge must weigh possible prejudice from the evidence of prior occurrences against any factors favoring admission. Nevertheless, a trial court is given significant deference in its determination that probative evidentiary value outweighs any danger of prejudice.

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Evidence of Limited Admissibility
Md. Rule 5-105

Back 235

When evidence is admitted that is admissible as to one party or for one purpose but not admissible as to another party or for another purpose, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

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Wynn v. State
Character Evidence

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Facts:
James Wynn was charged with multiple counts of burglary, daytime housebreaking, and theft.
When petitioner was tried on two of the counts, the trial court permitted the State to present evidence of "other crimes" and petitioner was convicted.
The trial court found evidence of other crimes was admissible because it was relevant to the issue of the absence of mistake and to petitioner's claim of innocent possession of goods.
The appellate court held that the evidence fell within the absence of mistake exception provided in Md. R. Evid. 5-404(b).
On appeal, the court reversed finding that, in order for the exception to apply, a defendant generally must make some assertion or put on a defense that he or she committed the act for which he or she is on trial, but did so by mistake.
The court found that the absence of mistake exception was not applicable for two reasons: first, petitioner never asserted that he entered the house mistakenly or that the housebreaking was a mistake or took the items at issue believing that he had a right to do so.
Rather, petitioner asserted that he did not commit the acts with which he was charged.
Consequently, the court reversed and remanded.
The State apparently presented evidence that petitioner committed a housebreaking of the Quigley home in order to counter testimony or other evidence that petitioner had been seen at a flea market

Rule: -if the defendant had opened the door to it, than the evidence could come in, but the D didn't open the door. The state however, did present it and the state was not permitted to do this

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Hearsay

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MRP 5-601
Except as otherwise provided by law, every person is competent to be a witness.

MRP 5-801
The following definitions apply under this Chapter:

(a) Statement. A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.
(b) Declarant. A “declarant” is a person who makes a statement.
(c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

MRP 5-802
Except as otherwise provided by these rules or permitted by applicable constitutional provisions or statutes, hearsay is not admissible.

Front 238

Cassidy v. State
out of court statements to which the rule applies

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(1) the State had the burden of production on the admissibility of the two-year-old female victim's assertion “Daddy did this” under an exception to the hearsay rule; (2) the phrase “res gestae” is not necessary to determine the admissibility of hearsay, as the hearsay exceptions are well developed and can be analyzed on their own terms; (3) the victim's assertion was not admissible as an excited utterance where it was not the product of excited spontaneity after the victim had been in the presence of a physician, off and on, for a period of eight hours, three days after the alleged assault; and (4) the statements were not admissible as statements made to a treating physician where the child was too young to have a survival instinct in making the statements, and where the statements were not made for the purpose of medical treatment, but rather, for the social disposition of the victim.

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Sparks v. State
Operative Facts to which the rule doesn't apply

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Generally where a defendant is charged with the sale of narcotics, it is improper for the state to offer evidence of other unrelated sales. Nevertheless, there is a recognized exception where the defendant claims entrapment. There the state may offer proof of other unrelated narcotics offenses to establish that the sale charged was the result of the defendant's predisposition rather than any inducement by the police.

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Hearsay
Rule not applying v. Exception

Back 240

when an out of court statement is offered into evidence the trial judge must first determine why it is being offered. if offered to prove the truth of the facts asserted this statement is hearsay and must be excluded (unless it is admissible under one or more of the exceptions to the rule against hearsay). on the other hand if this statement is being offered to prove a fact other than the truth of the content the rule against hearsay doesn't apply and the trial judge must now determine whether the statment should be admitted or excluded on the grounds of relevancy or materiality
(See Safeway Stores v. Combs)

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Effect of Statement on Recipient
Out of Court statement to which the rule doesn't apply

Back 241

• The rule against hearsay doesn’t apply to a statement offered for the limited purpose to show the effect it had upon the hearer, assuming that the effect is relevant to a material issue.

-when "why" becomes a material issue any out of court statement that had an effect upon the person whose conduct is at issue becomes admissible for the limited purpose of explaining its effect

Front 242

Garner v. State
Implied Verbal Assertions
Out of Court statement to which the rule does not apply

Back 242

while stopping the D, the police officer picked up the phone of the D. the caller stated "i want a 40" which the police officer stated that it was in reference to drugs so he was convicted with intent to distribute, possession. the phone call was allowed into evidence

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MRP 5-802.1
Hearsay exceptions- prior statements by witness

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The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule:

(a) A statement that is inconsistent with the declarant's testimony, if the statement was (1) given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (2) reduced to writing and was signed by the declarant; or (3) recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement;

(b) A statement that is consistent with the declarant's testimony, if the statement is offered to rebut an express or implied charge against the declarant of fabrication, or improper influence or motive;

(c) A statement that is one of identification of a person made after perceiving the person;

(d) A statement that is one of prompt complaint of sexually assaultive behavior to which the declarant was subjected if the statement is consistent with the declarant's testimony; or

(e) A statement that is in the form of a memorandum or record concerning a matter about which the witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, if the statement was made or adopted by the witness when the matter was fresh in the witness's memory and reflects that knowledge correctly. If admitted, the statement may be read into evidence but the memorandum or record may not itself be received as an exhibit unless offered by an adverse party.
Note: (c) a statement that is one of the identification of a person made after perceiving the person will not be excluded as long as the witness testifies and is subject to cross examination.

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MRP 5-801
Definitions- Exceptions to the Rule against Hearsay

Back 244

The following definitions apply under this Chapter:

(a) Statement.- A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

(b) Declarant.- A "declarant" is a person who makes a statement.

(c) Hearsay.- "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

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Statements of ID/Exceptions to the rule against hearsay

Joiner v. State
Bullock v. State

Back 245

• Out of court ID is a hearsay exception, provided that the witness who made the ID is present to testify at the trial, not matter if the witness currently agrees or disagrees with the prior ID- trier of fact can evaluate the witnesses credibility and can accept all or none or part of the testimony

o Joiner v. State¬- the witness disagreed with the prior ID, but the jury upheld that Id as the guilty defendant

Bullock v. State, 76 Md. App. 85, 543 A.2d 858 (1988)- Bullock was seriously injured, he made the ID, but didn’t remember making the ID. police officer is able to testify about the identification, even though the victim didn’t remember, so long as the victim is available for cross examination at trial. this is considered to be sufficient foundation to allow evidence of the prior ID made by the victim

Front 246

Past Recollection Recorded
Exceptions against Hearsay
(exceptions applicable to witnesses)

Back 246

o Witness forgot what happened, cant testify to it, but made a note of it by dictating to secretary of what he witness, but doesn’t recognize the transcript of the memo, then put the secretary on the stand to testify about it, then put the witness back on the stand. Secretary would be to lay foundational evidence. This is where the past recollection recorded comes in
o Allowing this as a hearsay exception is a policy decision
o Foundational element
 Some failure of memory
 Testimony about the circumstances under which the recollection was recorded
 The court can then make a finding that the testimony/recording is reliable
o Used to be that the recorded recollection was an exhibit that would go to the jury room.
 Rule change- if something qualifies under this, then it may be read to the jury but it is not received as an exhibit that goes back to the jury room for deliberations
o If a witness claims to fully recall what occurred, but the adverse party has documentation to show otherwise (prior statement etc), then the adverse party can introduce into evidence the documentation showing the mistake

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Prior Consistent Statements
Md Rule 5-802.1(b)

Holmes v. State

Back 247

b) A statement that is consistent with the declarant's testimony, if the statement is offered to rebut an express or implied charge against the declarant of fabrication, or improper influence or motive;

consistent statements and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or
• Used to show that the declarant has been consistently telling the same story over a period of time and is now telling the same story in court.
• Used to rebut claims that the witness is lying, has a motive to lie, or has been exposed to improper influences that affect his testimony AND the prior consistent statement must occur BEFORE the motive to lie or improper influence arose


Holmes v. State

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Rule 5-804. Hearsay exceptions; declarant unavailable.

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(a) Definition of unavailability.- "Unavailability as a witness" includes situations in which the declarant:
(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement;
(2) refuses to testify concerning the subject matter of the declarant's statement despite an order of the court to do so;
(3) testifies to a lack of memory of the subject matter of the declarant's statement;
(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of the statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subsection (b) (2), (3), or (4) of this Rule, the declarant's attendance or testimony) by process or other reasonable means.

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Former Testimony (Depositions)
Applicable exceptions only when declarant is unavailable

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Rule 2-419. Deposition - Use.


(a) When may be used.-
(1) Contradiction and impeachment.- A party may use a deposition transcript and any correction sheets to contradict or impeach the testimony of the deponent as a witness.
(2) By adverse party.- The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, managing agent, or a person designated under Rule 2-412 (d) to testify on behalf of a public or private corporation, partnership, association, or governmental agency which is a party may be used by an adverse party for any purpose.
(3) Witness not available or exceptional circumstances.- The deposition of a witness, whether or not a party, may be used by any party for any purpose against any other party who was present or represented at the taking of the deposition or who had due notice thereof, if the court finds:
(A) that the witness is dead; or
(B) that the witness is out of the State, unless it appears that the absence of the witness was procured by the party offering the deposition; or
(C) that the witness is unable to attend or testify because of age, mental incapacity, sickness, infirmity, or imprisonment; or
(D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or
(E) upon motion and reasonable notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be u

Huffington v. State- • testimony taken at a former trial may as a general rule be admitted at a subsequent trial where it is satisfactorily shown that the witness is unavailable to testify.

in MD- Note- the motive has to be the same in both cases in order for the former testimony to be admitted in a subsequent trial. Same subject matter. It will be admitted only if the declarant is unavailable

Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 601 A.2d 633 (1992)
• deposition lawfully taken in another action may be used like any other deposition if the other action was brought in any court of this state, of any other state, or of the United States, involved the same subject matter, and was brought between the same parties or their representatives or predecessors in interest

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Statements against Interest
Exceptions applicable only when declaration is unavailable

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• Declarant unavailable
• At the time the OCS was made, declarant knew it was
o against their interest such that reasonable person in the declarant’s position would not have made the statement unless it was true [in other words, the statement would tend to subject the declarant to civil or criminal liability], or
• Interests
o Pecuniary
o Proprietary
o Property
o Penal
• Exculpating the accused in a criminal trial: if the defense offers into evidence an OCS that tends to exonerate the ∆ and lay guilt on the declarant, there must be corroborating circumstances clearly indicating the trustworthiness of the statement. Courts also require corroboration of inculpatory statements offered by the prosecution.
o Considerations for trustworthiness
 Whether the declarant had pled guilty before making the OCS or was still exposed to prosecution (that is, how far against the declarant’s interest the statement was at the time)
 The declarant’s motive in making the OCS and whether there was reason for them to lie
 Whether the declarant repeated the OCS consistently
 The party(ies) to whom the statement was made
 The relationship of the declarant with the ∆
 The nature and strength of the independent evidence relevant to the conduct in question

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3 Questions to ask about Hearsay Questions

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• When you have a problem of deciding whether evidence is hearsay, do three things.
o First find the out-of-court statement in question and put quotation marks around it to help you focus on it.
o Second, ask yourself, why is the jury being given this evidence? What is it going to prove?
o Third, keeping the answer to the second question in mind, ask yourself, if the declarant was lying or mistaken, would the jury be misled? Would it be receiving unreliable evidence? If so, it is hearsay. If not, it is not hearsay.

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Present Sense Impression
Exceptions applicable regardless of the declarant's availability

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• Foundational elements
o 1. The OCS must have been made while the declarant was percieving an event or condition, or immediately thereafter.
o 2. The OCS must describe or explain the thing being perceived.
• Rationale
o There has been no time for reflection (and thus insincerity) and thus, statements are reliable.

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
• Short enough so the declarant has no time to create a lie (a few seconds, never more than 8 minutes)
o Timing is KEY (@ time of event or someone would not have time to reflect)
• Proof
o Introduce
 The declarant’s in-court testimony, affirming that she made the statement as the perceived the event
 Testimony from other witnesses who can confirm that the declarant made the statement while the event unfolded

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Differences between Present Sense Impression and Excited Utterance

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• Timing: To be a present sense impression, the OCS must be made while perceiving the event or immediately thereafter. To be an excited utterance, the OCS must be made while the declarant is still under the stress of the excitement caused by the triggering event – however long that lasts. The latter is a more flexible time requirement.
• Describing/relating: The present sense impression must describe the thing being perceived; the excited utterance need only relate to the startling event.
• Some out-of-court statements satisfy both exceptions. But, you only need to get your OCS within one exception for it to be admissible.

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Present Intent and/or Medical or Physical condition
Exceptions regardless of declarant's availability

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• Foundational elements
o 1. The OCS must be a statement of the declarant’s own state of mind, emotion, sensation, or physical condition.
o 2. The OCS must reflect a state of mind, emotion, sensation, or physical condition existing at the time the statement is made.


(3) Then-existing mental, emotional, or physical condition. A statement of the declarant's then existing:
• state of mind,
• emotion,
• sensation,
• or physical condition.
(i.e. intent, plan, motive, design, mental feeling, pain, and bodily health),
• Statements of memory/belief (backward-looking statements) NOT ADMISSIBLE when offered to prove the fact remembered/believed unless it relates to the execution, revocation, identification, or terms of the declarant's will. (See Shepard, below).
• Just because someone says “I think”, “I believe”, or “I feel” does NOT mean it is a statement under this rule
• Not Admissible
o “My toe hurt yesterday” as it describes a PAST, rather than current, state of mind
o Showing memory of an event
• Admissible
o “My toe hurts today” MIGHT mean (circumstantial evidence) that your toe hurt yesterday
 May be used to describe the intent to partake in some future conduct.
o *Forward-looking statements AS LONG AS it is the declarant’s future conduct; not as evidence of future conduct of another.
 Hillmon: a persons OOCS may be admissible to help prove another person may have committed the intended act.
 If a person says that they are going to do an act (forward-looking), then that statement is relevant evidence that can be used to help prove that they actually completed the act. Isn't conclusive proof, but can help.
o Shepard: modified Hillmon Doctrine = only forward-looking statements of intent can be used inferentially to prove other matters at issue.
 Backwards-looking statements are known as Shepard Statements.
*In Md, the declarant’s statement of intent cannot be used to prove the subsequent action of another… rejects Hillmon

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Statements in Contemplation of Diagnosis or Treatment
Exceptions applicable regardless of declarant's availability

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• Foundational elements
o 1. The declarant believed that the OCS would result in medical diagnosis or treatment.
o 2. A doctor would reasonably rely upon the OCS in diagnosing or treating a patient.
• Rationale: People do not lie when seeking medical treatment and people have accurate perceptions about their conditions.
• Scope of rule
o Statements made to doctors as part of litigation are “for diagnosis,” and thus, fall within the exception (although the adverse party can attack these statements on their weight).
 Note that Maryland excludes these statements in Md. R. Ev. 803(b)(4). The statements must be made “for purposes of medical treatment or medical diagnosis in contemplation of treatment.”
o The statement need not be made to a doctor; it simply must be made for the purpose of obtaining medical treatment or diagnosis.
o The statements need not be made by the “sick” person; a parent’s statement to a doctor about her child’s condition qualifies.
o The exception does not cover the diagnosis itself; eg., “You have the flu.”

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Beahm v. Shortall
Coates v. State
Hartless v. State
Statements in Contemplation of Diagnosis or Treatment
Exceptions applicable regardless of declarant's availability

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Beahm- the truck driver got into a crash. physician who examines a patient not for the purposes of treatment, but in order to qualify as an expert witness may include his medical conclusion, but not the statements made by the patient to the physician and not as proof of truth of those statements. the statements made by the patient to the physician are admissible with a qualifying charge to the jury only as an explanation of the basis of the conclusion, and not as proof of the truth of those statements.
Coates v. State, 175 Md. App. 588, 930 A.2d 1140 (2007)
7 year old rape victim made statements to a pediatric nurse practitioner during examination were not admissible under this hearsay exception for statements made for medical diagnosis or treatment. Not admissible b/c it was for purpose for trial and not for diagnosis or treatment. This is an exception that the patient’s statements are to be sincere and reliable because the patient knows that they are being treated for an illness and relies on the accuracy upon the information

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Waltermeyer v. State
Exceptions applicable regardless of declarant's availability
statements in contemplation of diagnosis/treatment

Back 257

the jury wouldnt believe the D, so he tried to get information in through the doctor's diagnosis, but wasnt admissible b/c he sought the treatment for purposes of trial

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Business Records
exceptions applicable regardless of declarant's availability

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• Foundational elements
o 1. OCS is a record that was made in the course of a regularly conducted business activity.
 Business is broadly defined and need not be for-profit.
o 2. Record was made at or near the time of the event recorded, ie., while memory was fresh.
o 3. Record was made by someone who either had personal knowledge or based the record on information provided by someone who had personal knowledge.
o 4. The record was made in the regular course of the particular activity involved.
• Trustworthiness clause: Even if the foundational elements are satisfied, the court can keep out the record if the judge is suspicious of the evidence.
• Rationale: In many instances, there will not be anyone with a current memory of the events recorded. Also, these records tend to be reliable because businesses have an incentive to keep careful records. The hearsay will be more reliable than a later personal recollection.

803(6) Records of regularly conducted BUSINESS activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses:
• made at or near the time:
(a) by a person with knowledge of what they recorded or
(b) based the record on information provided by someone who both had personal knowledge and provided the information in the regular course of the particular activity involved,
• AND was kept in the course of a regularly conducted business activity, and was regular practice to do so (as shown by the testimony of the keeper, other qualified witness, or by certification that complies with 902(11), (12), or a statute),
• unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
• MUST NOT BE MADE IN PREPARATION FOR TRIAL!
"business" includes institution, association, profession, occupation, and calling, whether or not conducted for profit.

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Public Record/exception regardless of declarant's availability

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• Foundational elements
o 1. OCS must be a public record or report.
o 2. It must set forth one of the following three kinds of things:
 (a) The activities of the office or agency that prepared the report.
 (b) Matters the agency had a legal duty to observe and a legal duty to report upon (unless it is a criminal case and the record in question is a police report; this protects defendant’s confrontation rights.)
 (c) Factual findings resulting from an investigation made pursuant to authority granted by law. This includes factually based conclusions or opinions.
• This part of the exception applies in civil cases. It does not apply in criminal cases where the evidence is offered by the government, but it does apply where the evidence is offered by the defendant.
• Trustworthiness clause: Even if foundational elements are satisfied, the court can keep out the record if the judge is suspicious of the evidence.
• Rationale: Person who recorded the information is unlikely to remember. Evidence is more reliable than live testimony. It is assumed that public officials perform their jobs properly and that we can trust public records.
• Establishing the foundation: You do not need live testimony. A certified copy of the public record or report is usually enough.
• Multiple levels of hearsay are often an issue with public records.
• Comparison with business records exception:
o Many public records will also satisfy the business records exception.
o However, the public records exception does not require that the record be prepared at or near the time of the event recorded. Nor does a public record need to be a regular or routine record.
o But, in most courts, you cannot get in police reports that are inadmissible under the public records exception through the business records exception.
• Police reports cannot be entered into evidence under public record because the Ds confrontation rights, except in unusual circumstances

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Gossip Exception
Exceptions applicable regardless of declarant's availability

Back 260

reputation evidence is essentially gossip, but nonetheless admissible in certain situations
-to prove character (witness who testifies to a person's reputation must be able to verify that he knows whats others say about the person in an identifiable community. character evidence must be relevant.
-to prove family history
-to prove interest in and/or boundaries of land

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Catchall Exception
Md. Rule 5-803(b)(24)
Exceptions applicable regardless of declarant's availability

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(24) Other Exceptions. Under exceptional circumstances, the following are not excluded by the hearsay rule: A statement not specifically covered by any of the hearsay exceptions listed in this Rule or in Rule 5-804, but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. A statement may not be admitted under this exception unless the proponent of it makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the intention to offer the statement and the particulars of it, including the name and address of the declarant.

FRE 807 (The Residual/Catch-all Exception)
A statement not covered by FRE 803 or 804 but having equivalent circumstantial guarantees of trustworthiness*, is not excluded by the hearsay rule, if the court determines that:
(A) the statement is offered as evidence of a material fact;
(B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
o Meaning, the statement must be the most effective way to prove a fact in consequence, despite reasonable efforts to find otherwise admissible evidence
(C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.

*Factors of trustworthiness
• Whether the statement was made under oath
• Whether the declarant had first-hand knowledge of facts in the statement
• Whether the declarant ever recanted the statement
• Whether other evidence corroborates the statement
• Whether that corroborating evidence is subject to cross
• Whether other evidence undermines or contradicts the statement
• Whether the ∆ had any incentive to lie when making the statement

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State v. Walker
Catchall Exception
exceptions applicable regardless of declarant's availability

Back 262

2 requirements at issue
-whether an exceptional circumstances existed
-whether the statement had equivalent circumstantial guarantees of trustworthiness

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Gill v. State
Express Admission/Exceptions to Hearsay

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• The statement was allowed in b/c it met the foundational requirement of 5-803a1. The judge is supposed to determine the voluntariness of the confession and then the jury can consider it. The statement/confession is still admissible regardless.

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Crane v. Dunn, 382 Md. 83, 854 A.2d 1180 (2004)
Express Admission/Exceptions to Hearsay

Back 264

• Can introduce a paid traffic ticket into evidence. The witness will be given a chance to be cross examined and also to give reasons to show that the paying of the ticket had nothing to do with the guilt
• Paying a traffic ticket isn’t an admission of guilt, but can be introduced into evidence

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Express Admission/Exceptions to Hearsay

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The following admissions are admissible (the following admissions are not excluded by hearsay rule) even though the declarant is available as a witness
• (1) The party's own statement, in either an individual or representative capacity;
• (2) A statement of which the party has manifested an adoption or belief in its truth;
• (3) A statement by a person authorized by the party to make a statement concerning the subject;
• (4) A statement by the party's agent or employee made during the agency or employment relationship concerning a matter within the scope of the agency or employment; or
• (5) A statement by a coconspirator of the party during the course and in furtherance of the conspiracy.

Statement of a Party Opponent: 801(d)(2)(A)
• Party admissions are the most common basis for admission of hearsay.
• Anything the other side has said out-of-court can come in under this exemption (although it may still be subject to a relevancy or other objection).
o A party cannot introduce her own statements under this rule; no “statements by me”.
• Rationale: A party cannot object that she did not have a chance to cross-examine herself; parties are almost always available to testify; and the party has a chance to explain the statement.
• Foundational requirements
o 1. The out-of-court statement is a party’s own statement – an out-of-court statement by a party to the litigation at hand.
o 2. The statement is offered against the party who made it.
 The statement need not have been against the party’s interest when it was made. Self-serving statements are admissible.
 There is no personal knowledge requirement for these statements.
• • So there must be a limiting jury instruction given as to whether the statement or confession was voluntary or involuntary
• The judge has to be persuaded of this by a preponderance of the evidence; then the jury has to be persuaded by a beyond a reasonable doubt
• The statement is eligible to be introduced during the state’s case in chief it was voluntary and if the D was advised of his Miranda rights

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Damage on a first stage turbine blade is an indication of what ?

Back 266

FOD

Front 267

Vicarious Admissions/Exceptions to Hearsay

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Statement by an Agent: 801(d)(2)(D)
• Statements by agents concerning matters within the scope of the agency and made during the existence of the agency relationship are admissible as substantive evidence if offered against the party.
• Foundational requirements
o 1. When the out-of-court statement was made, the declarant must have been an agent or employee of the party against whom the statement is now offered into evidence.
 The statement need not have been made during work hours. The time frame is “hired to fired.” Thus, post-discharge statements are not admissible.
o 2. The out-of-court statement must concern something that was within the scope of the declarant’s agency or employment.
 It does not matter if the activity involved is illegal or fraudulent.
 The statement must relate to the declarant’s employment responsibilities.
 There need not be an actual agency relationship. The party against whom the statement is offered must have had some control over the declarant or be an equal footing with the declarant (such as partners in a partnership).
 Courts are split as to whether the exemption applies to statements by government employees when offered against the government in a criminal trial.

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Dutton v. State
Vicarious Admissions

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Facts:
• Three officers bodies were found brutally murdered in Georgia and handcuffed together
• The authorities finally found evidence which connected Evans and two other men to the murders.
• Dutton was convicted of murder.
• During trial he believed he was denied his right to confront his accuser.
• During Arraignment a man named Shaw followed Williams (accomplice) into court and asked how he got in here. Williams replied that if it wasn't for Evans, they wouldn't be here.
• Defense stated this statement was hearsay and that Evans was denied he right to confront his accuser.

Issue:
The question before us, then, is whether in the circumstances of this case the Court of Appeals was correct in holding that Evans' murder conviction had to be set aside because of the admission of Shaw's testimony.


Rule :
The hearsay rule does not prevent a witness from testifying as to what he has heard; it is rather a restriction on the proof of fact through extrajudicial statements. From the viewpoint of the Confrontation Clause, a witness under oath, subject to cross-examination, and whose demeanor can be observed by the trier of fact, is a reliable informant not only as to what he has seen but also as to what he has heard.

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Harman v. Indiana
Hearsay/Criminal D/Confrontation Clause

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Facts
• Harmon v. Indiana state
• Police arrived after reciving a domestic violence call. They found the wife outside of the house saying everything was okay. She gave the police permission to enter her home
• Her husband was inside and stated that everything was okay now.
• After speaking to the couple indiviually
• The police made Amy (the wife) write out a battery affidavit stating that her husband threw her down into broken glass punched her in the chest and destroyed her van, so she couldn't leave.
• The court charged her husvand with battery and found her statement admissible although she did not show up at court. (they said it was an excited utterance )

Rule :
The Confrontation Clause of the Sixth Amendment bars admission of testimonial statements of a witness who does not appear at trial unless he is unavailable to testify, and the defendant has had a prior opportunity for cross-examination. Only "testimonial" statements cause a declarant to be a "witness" within the meaning of the Confrontation Clause. It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence,


Holding

Decision;
The Court affirmed the judgment of the Supreme Court of Washington. The Court reversed the judgment of the Supreme Court of Indiana and remanded the case for proceedings not inconsistent with the Court's opinion.

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Dover Elevator v. Swann
Limitations on Expert Testimony

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• Application of res ipsa loquitor isn’t appropriate in a case that uses expert testimony to resolve complex issues of fact

Front 271

Keene Corp v. Hall
Frye-Reed Test

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• The court asserted that while the PLM technique was generally accepted as reliable for detecting asbestos fibers in building materials, it was not recognized as reliable for detecting asbestos fibers in human tissue, so the expert testimony failed the Frye-Reed test, and the court held that the judgment must be reversed and the case remanded for a new trial

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Wilson v. State
Frye-Reed Test

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• A father had 2 children die of SIDS but was being prosecuted for murder (he took out a life insurance policy a few months prior to their deaths).
• The court held that the statistical testimony at trial failed to satisfy the Frye Reed Test because there was no longer general scientific agreement that genetic factors failed to have a role in SID cases, as there was previously

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Gutridge v. State
Spousal Privileges

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Facts
• Defendant was in police custody, charged with assault on his wife. He asked another prisoner to call his wife to pick up something at the train station that could get him 20 years. The prisoner informed officers, who went to defendant's home.
• The wife produced a key to a locker, accompanied police to the station, removed a bag of narcotics from the locker, and handed the contents to the officers.
• She testified that while she and her husband were en route to the police station after his assault on her, he slipped some keys into her bag without explanation.
• Defendant was convicted, as a second offender, of control of narcotics.
• He appealed, contending that his wife's testimony should have been excluded as a confidential communication, and that the narcotics were obtained as the result of an illegal search.
• Court affirmed
Holding
• The court held that the message sent to defendant's wife could not be regarded as confidential, and defendant's act of dropping the keys in his wife's bag could hardly be deemed a communication.
• The court also held that there was no search, even though the officers had probable cause to search and seize the contents of the locker.
• The joint ownership of premises gives a wife the right to consent to a search by officers

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Chase v. State
Spousal Privilege

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• NOTE: if someone overhears a wife/husband talking, the evidence is still admissible if allowed under another hearsay exception
• An action between spouse to spouse is not considered a communication within 9-106 (earring given from husband to wife that he stole from victim he raped isn’t considered a marital communication)

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State v. Pratt
The Lawyer-Client Privilege

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The scope of the attorney-client privilege, at least in criminal causes, embraces those agents whose services are required by the attorney in order that he may properly prepare his client's case. Consequently, in criminal causes, communications made by a defendant to an expert in order to equip that expert with the necessary information to provide the defendant's attorney with the tools to aid him in giving his client proper legal advice are within the scope of the attorney-client privilege