Evidence - Barbri 2011 Conviser - Mbe

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GENERAL CONSIDERATIONS - SOURCES OF EVIDENCE LAW

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There are three sources of evidence law: (i) state common law and miscellaneous state statutes,(ii) comprehensive state evidence codes, and (iii) the Federal Rules of Evidence.

Exam Tip · The Federal Rules govern on the Multistate Bar Examination ("MBE"). Beware of answer choices stating the correct common law rule, rather than the Federal Rule.

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GENERAL CONSIDERATIONS - THRESHOLD ADMISSIBILITY ISSUES

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Generally, relevant evidence is admissible if it is competent. Under the Federal Rules, "relevant evidence" tends to prove (probativeness) any fact of consequence to the action (materiality). Evidence is competent if it does not violate any exclusionary rule (e.g., the hearsay rule).

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GENERAL CONSIDERATIONS - DIRECT AND CIRCUMSTANTIAL EVIDENCE

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Direct evidence involves no inferences. Itis testimony or real evidence that speaks directly to a material issue in the case. Circumstantial evidence is indirect and relies on inference. It isevidence of a subsidiary or collateral fact from which, alone or in conjunction with other facts, the existence of the material issue can be inferred.

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GENERAL CONSIDERATIONS - LIMITED ADMISSIBILITY

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Evidence may be admissible for one purpose but not another, or admissible against one party but not another. In these situations, the court must, upon request, restrict the evidence to its proper scope and instruct the jury accordingly.

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RELEVANCE

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Relevance questions should be approached in two steps. Step 1: Determine whether the evidence is relevant ( i.e., tends to prove or disprove a material fact). Step 2: If relevant, deter should nonetheless be excluded based on: (i) judicial discretion (i.e.,mine whether the evidence probative value outweighed by prejudice, etc.), or (ii) public policy (e.g., insurance, subsequent repairs).

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RELEVANCE - DETERMINING RELEVANCE

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

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RELEVANCE - DETERMINING RELEVANCE - General Rule-Must Relate to Time, Event, or Person in Controversy

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Generally, the evidence must relate to the time, event, or person involved in the presentlitigation; otherwise, it is not relevant.When considering the relevance of evidence relating to a time, event, or person other than the one at issue, an important factor is its proximity in time to the current events.

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RELEVANCE - DETERMINING RELEVANCE - Exceptions- Certain Similar Occurrences Are Relevant

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Previous similar occurrences may be relevant if they are probative of a material issue and that probativeness outweighs the risk of confusion or unfair prejudice. The following are examples of relevant similar occurrences:

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RELEVANCE - DETERMINING RELEVANCE - Exceptions- Certain Similar Occurrences Are Relevant - Causation

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

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RELEVANCE - DETERMINING RELEVANCE - Exceptions- Certain Similar Occurrences Are Relevant - Prior False Claims or Same Bodily Injury

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Evidence that a person has previously filed similar tort claims or has been involved in prior accidents is generally inadmissible to show the invalidity of the present claim. But evidence that the party has made previous similar false claims or claims involving the same bodily injury is usually relevant to prove that: (i) the present claim is likely to be false, or (ii) the plaintiff 's condition is attributable in whole or in part to the prior injury.

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RELEVANCE - DETERMINING RELEVANCE - Exceptions- Certain Similar Occurrences Are Relevant - Similar Accidents or Injuries Caused by Same Event or Condition

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Evidence of prior accidents or injuries caused by the same event or condition is admis sible to prove: (i) the existence of a dangerous condition, (ii) that the defendant had knowledge of the dangerous condition, and (iii) that the dangerous condition was the cause of the present injury.

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RELEVANCE - DETERMINING RELEVANCE - Exceptions- Certain Similar Occurrences Are Relevant - Similar Accidents or Injuries Caused by Same Event or Condition - Absence of Similar Accidents

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

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RELEVANCE - DETERMINING RELEVANCE - Exceptions- Certain Similar Occurrences Are Relevant - Previous Similar Acts Admissible to Prove Intent

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

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RELEVANCE - DETERMINING RELEVANCE - Exceptions- Certain Similar Occurrences Are Relevant - Rebutting Claim of Impossibility

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

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RELEVANCE - DETERMINING RELEVANCE - Exceptions- Certain Similar Occurrences Are Relevant - Sales of Similar Property

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Evidence of sales of similar personal or real property that are not too remote in time is admissible to prove value. Prices quoted in mere offers to purchase are not admis sible. However, evidence of unaccepted offers by a party to the action to buy or sell the property may be used against him as an admission.

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RELEVANCE - DETERMINING RELEVANCE - Exceptions- Certain Similar Occurrences Are Relevant - Habit

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Habit describes a person's regular response to a specific set of circumstances. Incontrast, character describes one's disposition in respect to general traits. Under Federal Rule 406, evidence of the habit of a person is relevant to prove that the conduct of the person on a particular occasion was in conformity with the habit.

Exam Tip: Watch for words such as "instinctively" and "automatically" in a question's fact pattern. These words indicate habit.

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RELEVANCE - DETERMINING RELEVANCE - Exceptions- Certain Similar Occurrences Are Relevant - Industrial or Business Routine

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

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RELEVANCE - DETERMINING RELEVANCE - Exceptions- Certain Similar Occurrences Are Relevant - Industry Custom as Evidence of Standard of Care

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

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RELEVANCE - DISCRETIONARY EXCLUSION OF RELEVANT EVIDENCE

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

Exam Tip - Under the Federal Rules, unfair surprise is not a valid ground upon which to exclude relevant evidence.

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RELEVANCE - EXCLUSION OF RELEVANT EVIDENCE FOR PUBLIC POLICY REASONS

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Certain evidence of questionable relevance is excluded by the Federal Rules because public policy favors the behavior involved. Subsequent repairs, for example, are not admissible to show negligence because society wishes to encourage the immediate repair of dangerous conditions. Evidence excluded for public policy reasons includes the following:

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RELEVANCE - EXCLUSION OF RELEVANT EVIDENCE FOR PUBLIC POLICY REASONS - Liability Insurance

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Evidence of insurance against liability is not admissible to show negligence or ability to pay a substantial judgment. However, it may be admissible: (i) to prove ownership or control,to impeach, or (iii) as part of an admission.

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RELEVANCE - EXCLUSION OF RELEVANT EVIDENCE FOR PUBLIC POLICY REASONS - Subsequent Remedial Measures

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Evidence of repairs or other precautionary measures made following an injury is not admis sible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. However, it may be admissible to: (i) prove ownership or control, (ii) rebut a claim that the precaution was not feasible, or (iii) prove that the opposing party has destroyed evidence.

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RELEVANCE - EXCLUSION OF RELEVANT EVIDENCE FOR PUBLIC POLICY REASONS - Settlement Offers and Withdrawn Guilty Pleas

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Evidence of compromises or offers to compromise is not admissible to prove liability for, or invalidity of, a claim that is disputed as to validity or amount. Not even direct admissions of liability during compromise negotiations are admissible. Likewise,wTtn guilty pleas and offers to plead guilty are inadmissible.

Exam Tip: For the exclusionary rule to apply to settlement negotiations, there must be some indication that a party is going to make a claim (although the party need not have actually filed suit). Furthermore, the claim must be in dispute as to liability or amount.

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RELEVANCE - EXCLUSION OF RELEVANT EVIDENCE FOR PUBLIC POLICY REASONS - Offers to Pay Medical Expenses

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Payment of or offers to pay the injured party's medical expenses are inadmissible. However, unlike the situation with compromise negotiations, admissions of fact accompanying offers to pay medical expenses are admissible.

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RELEVANCE - CHARACTER EVIDENCE -A SPECIAL RELEVANCE PROBLEM

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Character evidence may be offered as substantive, rather than impeachment, evidence to: (i) prove character when it is the ultimate issue in the case, or (ii) serve as circumstantial evidence of how a person probably acted. The latter is more heavily tested and is the focus of the following discussion.

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RELEVANCE - CHARACTER EVIDENCE -A SPECIAL RELEVANCE PROBLEM - Means of Proving Character

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

Evidence of specific acts;

Opinion testimony of a witness who knows the person; and Testimony as to the person's general reputation in the community.

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RELEVANCE - CHARACTER EVIDENCE -A SPECIAL RELEVANCE PROBLEM - Generally Not Admissible in Civil Cases

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Unless character is directly in issue ( e.g., defamation), evidence of character offered byeither party to prove the conduct of a perse litigated event is generally not admissible in a civil case. For example, a plaintiff in a suit involving a car accident may not introduce evidence that the defendant is usually a reckless driver to prove that she was negligent at the time in question, nor may the defendant introduce evidence that she is generally a cautious driver.

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RELEVANCE - CHARACTER EVIDENCE -A SPECIAL RELEVANCE PROBLEM - Accused in Criminal Case-Generally Only Accused Can Initiate

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The prosecution cannot initiate evidence or bad character of the defendant merely to show that she is more likely to have committed the crime. (Although the prosecution may introduce evidence of prior misconduct for reasons other than propensity to commit the crime. See 5., below.) The accused, however, may introduce evidence of her good character to show her innocence of the alleged crime.

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RELEVANCE - CHARACTER EVIDENCE -A SPECIAL RELEVANCE PROBLEM - Accused in Criminal Case-Generally Only Accused Can Initiate - How Defendant Proves Character

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Under the Federal Rules, a witness for the defendant may testify as to the defendant's good reputation for the trait in question-arid may give his personal opinion concerning that trait of the defendant.

Exam Tip: Remember that a defendant does not put his character in issue merely by testifying. Taking the stand places the defendant's credibility (as opposed to character) in issue; i.e., the prosecution is limited to impeachment evidence rather than substantive character evidence.

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RELEVANCE - CHARACTER EVIDENCE -A SPECIAL RELEVANCE PROBLEM - Accused in Criminal Case-Generally Only Accused Can Initiate - How Prosecution Rebuts Defendant's Character Evidence

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Cross-examining the character witness regarding the basis for his testimony, including whether he knows or has heard of specific instances of the defendant's misconduct.

Exam Tip: Any misconduct, including prior arrests, may be inquired about while cross-examining a defendant's character witness. Remember, however, that the prosecutor is limited to inquiry of the witness; she may not introduce any extrinsic_evidence of the misconduct. Be careful to distinguish asking a character witness whether he is aware of the defendant's prior arrests, which is proper, and impeaching a witness with the witness's arrests, which is improper.

Calling qualified witnesses to testify to the defendant's bad reputation or give their opinions of the defendant's character.

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RELEVANCE - CHARACTER EVIDENCE -A SPECIAL RELEVANCE PROBLEM - Victim in Criminal Case

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Except in rape cases, the defendant may introduce reputation or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show the defendant'sinnocence. Once the defendant has introduced evidence of a bad character trait of the victim, the prosecution may counter with reputation or opinion evidence of (i) the victim's'good character, or (ii) the defendant's bad character for the same trait.

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RELEVANCE - CHARACTER EVIDENCE -A SPECIAL RELEVANCE PROBLEM - Victim in Criminal Case - Rape Victim's Past Behavior Generally Inadmissible

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

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RELEVANCE - CHARACTER EVIDENCE -A SPECIAL RELEVANCE PROBLEM - Victim in Criminal Case - Rape Victim's Past Behavior Generally Inadmissible - Exceptions in Criminal Cases

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In a criminal case, a victim's sexual behavior is admissible to prove that someone other than the defendant is the source of semen, injury, or other physical evidence. Also, specific instances of sexual behavior between the victim and the accused are admissible by the prosecution for any reason and by the defense to prove consent

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RELEVANCE - CHARACTER EVIDENCE -A SPECIAL RELEVANCE PROBLEM - Victim in Criminal Case - Rape Victim's Past Behavior Generally Inadmissible - Exceptions in Civil Cases

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Ina civil case, evidence of the alleged victim's sexual behavior is admissible if it is not excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible if it has been placed in controversy by the victim.

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RELEVANCE - CHARACTER EVIDENCE -A SPECIAL RELEVANCE PROBLEM - Specific Acts of Misconduct

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Evidence of a person's other crimes or misconduct is inadmissible if offered solely to estab lish a criminal disposition or bad character.

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RELEVANCE - CHARACTER EVIDENCE -A SPECIAL RELEVANCE PROBLEM - Specific Acts of Misconduct - Admissible If Independently Relevant

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Evidence of other crimes or misconduct is admissible if these acts are relevant to some issue other than the defendant's character or disposition to commit the crime or act charged. Such issues include motive (e.g., burn building to hide embezzlement), intent (i.e., guilty knowledge, lack of good faith), absence of mistake or accident, identity ( e.g., stolen gun used or "signature" crimes), or common plan or scheme. In a criminal case, the prosecution must, upon request, provide reasonable notice prior to trial of the general nature of any of this type of evidence it intends to introduce.

Exam Tip: A convenient way to remember the issues for which evidence of prior acts of misconduct is admissible is through the mnemonic device "MIMIC":

Motive

Intent

Mistake (absence of)

Identity

Common plan or scheme

Requirements for Admissibility:

To be admissible: (i) there must be sufficient evidence to support a jury finding that the defendant committed the prior ac;:t, and (ii) its probative value must not be substantially outweighed by the danger of unfair prejudice (or the judge, in her discretion, may exclude it).

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RELEVANCE - CHARACTER EVIDENCE -A SPECIAL RELEVANCE PROBLEM - Specific Acts of Misconduct - Prior Acts of Sexual Assault or Child Molestation

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Evidence of a defendant's prior acts of sexual assault or child molestation is admi_ssible in a case where the defendant is accused of committing an act of sexual assault or child molestation. The party intending to offer this evidence must disclose it to the defendant 15 days before trial. (or later with good cause).

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JUDICIAL NOTICE - JUDICIAL NOTICE OF FACT

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

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JUDICIAL NOTICE - JUDICIAL NOTICE OF FACT - Facts Appropriate for Judicial Notice

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Courts take judicial notice of indisputable facts that are either matters of common knowledge in the community (notorious facts) or capable of verification by resort to easily accessible sources of unquestionable accuracy (manifest facts). Courts have increasingly taken judicial notice of scientific principles as a type of manifest fact. Judicial notice of such facts may be taken at any time, whether or not requested.

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JUDICIAL NOTICE - JUDICIAL NOTICE OF FACT - Procedural Aspects of Judicial Notice

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If a court does not take judicial notice of a fact on its own accord, a party must formally request that notice be taken of the particular fact. Judicial notice may be taken for the first time on appeal. The Federal Rules provide that a judicially noticed fact is conclusive in a civil case but not in a criminal case. In a criminal case, the jury is instructed that it may, but is not required to, accept as conclusive any judicially noticed fact.

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JUDICIAL NOTICE - JUDICIAL NOTICE OF FACT - "Adjudicative" and "Legislative" Facts

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The Federal Rules, and thus their requirements, govern only judicial notice of "adjudicative" facts (i.e., those that relate to the particular case). "Legislative" facts (i.e., those relating to legal reasoning and lawmaking), such as the rationale behind the spousal privilege, need not be of common knowledge nor capable of indisputable verification to be judicially noticed.

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JUDICIAL NOTICE - JUDICIAL NOTICE OF LAW-MANDATORY OR PERMISSIVE

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Courts must take judicial notice of federal and state law and the official regulations of the forum state and the federal government. Courts may take judicial notice of municipal ordinances and private acts or resolutions of Congress or of the local state legislature. Laws of foreign countries may also be judicially noticed.

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REAL EVIDENCE - IN GENERAL

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Real or demonstrative evidence is actual physical evidence addressed directly to the trier of fact. Real evidence may be direct, circumstantial, original, or prepared (demonstrative).

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REAL EVIDENCE - GENERAL CONDITIONS OF ADMISSIBILITY

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

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REAL EVIDENCE - GENERAL CONDITIONS OF ADMISSIBILITY - Authentication

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

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

Evidence that the object has been held in a substantially unbroken chain of possession(e.g., blood taken for blood-alcohol test).

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REAL EVIDENCE - GENERAL CONDITIONS OF ADMISSIBILITY - Condition of Object

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

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REAL EVIDENCE - GENERAL CONDITIONS OF ADMISSIBILITY - Balancing Test-Legal Relevance

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

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REAL EVIDENCE - PARTICULAR TYPES OF REAL PROOF - Reproductions and Explanatory Real Evidence

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Relevant photographs, diagrams, maps, or other reproductions are admissible if their value is not outweighed by the danger of unfair prejudice. However, items used entirely for explana tory purposes are permitted at a trial, but are usually not admitted into evidence (i.e., they are not given to the jury during its deliberations).

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REAL EVIDENCE - PARTICULAR TYPES OF REAL PROOF - Maps, Charts, Models, Etc.

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

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REAL EVIDENCE - PARTICULAR TYPES OF REAL PROOF - Exhibition of Child in Paternity Suits

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In paternity suits, almost all courts permit exhibition of the child to show whether she is the race of the putative father. The courts are divided with respect to the propriety of exhibition for the purpose of proving physical resemblance to the putative father.

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REAL EVIDENCE - PARTICULAR TYPES OF REAL PROOF - Exhibition of Injuries

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

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REAL EVIDENCE - PARTICULAR TYPES OF REAL PROOF - Exhibition of Injuries

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

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REAL EVIDENCE - PARTICULAR TYPES OF REAL PROOF - Jury View of the Scene

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The trial court has discretion to permit the jury to view places at issue in a civil or criminal case. The need for the view and changes in the condition of the premises are relevant consid erations here.

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REAL EVIDENCE - PARTICULAR TYPES OF REAL PROOF - Demonstrations

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The court, in its discretion, may permit experiments or demonstrations to be performed in the courtroom. Demonstrations of bodily injury may not be allowed where the demonstra tions would unduly dramatize the injury.

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DOCUMENTARY EVIDENCE - IN GENERAL

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

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DOCUMENTARY EVIDENCE - AUTHENTICATION

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

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DOCUMENTARY EVIDENCE - AUTHENTICATION - Authentication by Pleadings or Stipulation

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The genuineness of a document may be admitted by the pleadings or by stipulation.

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DOCUMENTARY EVIDENCE - AUTHENTICATION - Evidence of Authenticity

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The following are examples of proper authentication:

Admissions

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

Eyewitness Testimony

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

Handwriting Verifications

A writing may be authenticated by evidence of the genuineness of the handwriting of the maker. This evidence may be the opinion of a nonexpert with personal knowledge of the alleged writer's handwriting or the opinion of an expert who has compared the writing to samples of the maker's handwriting . Genuineness may also be determined by the trier of fact through comparison of samples.

Exam Tip: Remember that a nonexpert without personal knowledge of the hand writing cannot become familiar with it for purposes of testifying.

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DOCUMENTARY EVIDENCE - AUTHENTICATION - Ancient Documents

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A document may be authenticated by evidence that it:

Is at least 20 years old;

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

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

Exam Tip: In contrast to the rule in many jurisdictions, the ancient document provision of the Federal Rules applies to all writings, not just dispositive instruments.

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DOCUMENTARY EVIDENCE - AUTHENTICATION - Evidence of Authenticity - Reply Letter Doctrine

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

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DOCUMENTARY EVIDENCE - AUTHENTICATION - Evidence of Authenticity - Photographs

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

Unattended Camera-Proper Operation of Camera:

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

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DOCUMENTARY EVIDENCE - AUTHENTICATION - Evidence of Authenticity - X-Ray Pictures, Electrocardiograms, Etc.

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Unlike photographs, an X-ray cannot be authenticated by testimony of a witness that it is a correct representation of the facts. Itmust be shown that the process used is accurate, the machine was in working order, and the operator was qualified to operate it. Finally, a custodial chain must be established to assure that the X-ray has not been tampered with.

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DOCUMENTARY EVIDENCE - AUTHENTICATION - Compare-Authentication of Oral Statements

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

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DOCUMENTARY EVIDENCE - AUTHENTICATION - Compare-Authentication of Oral Statements - Voice Identification

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

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DOCUMENTARY EVIDENCE - AUTHENTICATION - Compare-Authentication of Oral Statements - Telephone Conversations

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

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DOCUMENTARY EVIDENCE - AUTHENTICATION - Self-Authenticating Documents

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Certain writings are said to "prove themselves." Extrinsic evidence of authenticity is not required for the following: (i) certified copies of public records, (ii) official publications,newspapers and periodicals, (iv) trade inscriptions, (v) acknowledged documents, (vi) commercial paper and related documents, and (vii) certified business records.

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DOCUMENTARY EVIDENCE - BEST EVIDENCE RULE

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This rule is more accurately called the "original document rule." To prove the terms of a writing (including a recording, photograph, or X-ray), the original writing must be produced if the terms of the writing are material. Secondary evidence of the writing (e.g., oral testimony) is admissible only if the original is unavailable.

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DOCUMENTARY EVIDENCE - BEST EVIDENCE RULE - Applicability of the Rule

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The rule applies to two classes of situations, namely where: (i) the writing is a legally operative or dispositive instrument; or (ii) the knowledge of a witness concerning a fact results from having read it in the document.

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DOCUMENTARY EVIDENCE - BEST EVIDENCE RULE - Nonapplicability of the Rule

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The best evidence rule does not apply in the following circumstances:

Fact to Be Proved Exists Independently of Writing:

The rule does not apply where the fact to be proved has an existence independent of any writing. Many writings record details of essentially nonwritten transactions. Oral testimony of these facts may be given without the original writings recording the event:

Writing Is Collateral to Litigated Issue:

The rule does not apply where the writing is of minor importance (i.e., collateral) to the matter in controversy.

Summaries of Voluminous Records:

The rule does not apply to summaries of voluminous records. It would be inconvenient to examine a voluminous collection of writings in court, and so the proponent may present their contents in the form of a chart or summary.

Public Records:

The rule does not apply to copies of public records that are certified as correct or testified to as correct.

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DOCUMENTARY EVIDENCE - BEST EVIDENCE RULE - Definitions of "Writings,""Original,"and "Duplicate"

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The Federal Rules govern writings, recordings, and photographs, and they are broadly defined. An original is the writing itself or any duplicate that is intended by the person executing it to have the same effect as an original. A duplicate is an exact copy of an original, such as a carbon copy. Duplicates are admissible in federal courts unless the authenticity of the original is challenged or unfairness would result.

Exam Tip: It is important to distinguish photocopies and copies made by hand. Photocopies are duplicates and, thus, are treated the same as originals. In contrast, handwritten copies are considered secondary evidence and are admissible only if the original or a duplicate is unavailable .

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DOCUMENTARY EVIDENCE - BEST EVIDENCE RULE - Admissibility of Secondary Evidence of Contents

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

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DOCUMENTARY EVIDENCE - BEST EVIDENCE RULE - Admissibility of Secondary Evidence of Contents - Satisfactory Foundation

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Valid excuses justifying the admissibility of secondary evidence include:

Loss or destruction of the original.

The original is in possession of a third party outside the jurisdiction and is unobtainable.

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

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DOCUMENTARY EVIDENCE - BEST EVIDENCE RULE - Admissibility of Secondary Evidence of Contents - No Degrees of Secondary Evidence

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Upon satisfactory foundation, the Federal Rules permit a party to prove the contents of a writing by any kind of secondary evidence, thus abolishing degrees of secondary evidence.

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DOCUMENTARY EVIDENCE - BEST EVIDENCE RULE - Admissibility of Secondary Evidence of Contents - Testimony or Written Admission of Party

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

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DOCUMENTARY EVIDENCE - BEST EVIDENCE RULE - Functions of Court and Jury

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Ordinarily, it is for the court to make determinations of fact regarding admissibility of dupli cates, other copies, and oral testimony as to the contents of an original. However, the Federal Rules reserve the following questions of preliminary fact for the jury:

Whether the original ever existed;

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

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

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DOCUMENTARY EVIDENCE - PAROL EVIDENCE RULE

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If an agreement is reduced to writing, that writing is the agreement and hence constitutes the only evidence of it. Prior or contemporaneous negotiations or agreements are merged into the written agreement, and they are inadmissible to vary the terms of the writing.

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DOCUMENTARY EVIDENCE - PAROL EVIDENCE RULE - When the Rule Does Not Apply

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The parol evidence rule does not apply to exclude evidence of prior or contemporaneous agreements in the following circumstances:

Incomplete or Ambiguous Contract:

Parol evidence is admissible to complete an incomplete contract or explain an ambiguous term.

Reformation of Contract:

The parol evidence rule does not apply where a party alleges facts (e.g., mistake) entitling him to reformation.

Challenge to Validity of Contract:

Parol evidence is admissible to show that the contract is void or voidable, or was made subject to a valid condition precedent that has not been satisfied.

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DOCUMENTARY EVIDENCE - PAROL EVIDENCE RULE - Subsequent Modifications

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The rule applies only to negotiations prior to, or at the time of, the execution of the contract. Parol evidence is admissible to show subsequent modification or discharge of the written contract.

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TESTIMONIAL EVIDENCE - COMPETENCY OF WITNESSES

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Witnesses must pass tests of basic reliability to establish their competency to give testimony, but they are generally presumed to be competent until the contrary is established. Witnesses must possess to some degree four basic testimonial attributes: the capacity to observe, to recollect, to communicate, and to appreciate the obligation to speak truthfully.

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TESTIMONIAL EVIDENCE - COMPETENCY OF WITNESSES - Federal Rules of Competency

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

The witness must have personal knowledge of the matter about which he is to testify; and

The witness must declare he will testify truthfully.

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

Front 81

TESTIMONIAL EVIDENCE - COMPETENCY OF WITNESSES - Modern Modifications of the Common Law Disqualifications

Back 81

Most jurisdictions and the Federal Rules have removed the common law witness disqualifications for lack of religious belief, conviction of a crime, and interest in the lawsuit.

Infancy

The competency of an infant depends on the capacity and intelligence of the particular child as determined by the trial judge.

Insanity

An insane person may testify, provided he understands the obligation to speak truthfully and has the capacity to testify accurately.

Judge and Jurors

The presiding judge may not testify as a witness. Likewise, jurors are incompetent to testify before the jury in which they are sitting.

Front 82

TESTIMONIAL EVIDENCE - COMPETENCY OF WITNESSES - Dead Man Acts

Back 82

Most states have Dead Man Acts, which provide that a party or person interested in the event is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased.A person is "interested" if he stands to gain or lose by the judgment or the judgment may be used for or against him in a subsequent action. A predecessor in interest of the interested party is also disqualified.

Exam Tip: There is no Dead Man Act in the Federal Rules, but a state Act will apply in federal cases where state law, under the Erie doctrine, provides the rule of decision (e.g., diversity cases).

Front 83

TESTIMONIAL EVIDENCE - FORM OF EXAMINATION OF WITNESS

Back 83

The judge may exercise reasonable control over the examination of witnesses in order to aid the ascertainment of truth, to avoid wasting time, and to protect witnesses from harassment.

Front 84

TESTIMONIAL EVIDENCE - FORM OF EXAMINATION OF WITNESS - Leading Questions

Back 84

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

On cross-examination;

To elicit preliminary or introductory matter;

When the witness needs aid to respond

because of loss of memory, immaturity, or physical or mental weakness; or

When the witness is hostile.

Front 85

TESTIMONIAL EVIDENCE - FORM OF EXAMINATION OF WITNESS - Improper Questions and Answers

Back 85

Questions that are misleading (cannot be answered without making an unintended admis sion), compound (requiring a single answer to more than one question), argumentative, conclusionary, cumulative, unduly harassing or embarrassing, call for a narrative answer or speculation, or assume facts not in evidence are improper and are not permitted. Answers that lack foundation (the witness has insufficient personal knowledge) and answers that are nonresponsive (do not answer the specific question asked) may be stricken.

Front 86

TESTIMONIAL EVIDENCE - FORM OF EXAMINATION OF WITNESS - Use of Memoranda by Witness

Back 86

A witness cannot read her testimony from a prepared memorandum . However, a memorandum may be used in certain circumstances.

Exam Tip: Any time you encounter an exam question in which a witness consults a writing, keep in mind the differences between refreshing and recorded recollection. The fact patterns are very similar and could be confusing if you have not thoroughly memorized the distinguishing features.

Front 87

TESTIMONIAL EVIDENCE - FORM OF EXAMINATION OF WITNESS - Use of Memoranda by Witness - Present Recollection Revived-Refreshing Recollection

Back 87

A witness may use any writing or thing for the purpose of refreshing her present recollection. She usually may not read from the writing while she actually testifies because the writing is not authenticated and not in evidence.

Front 88

TESTIMONIAL EVIDENCE - FORM OF EXAMINATION OF WITNESS - Use of Memoranda by Witness - Past Recollection Recorded-Recorded Recollection

Back 88

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

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

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

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

The writing is accurate; and

The witness has insufficient recollection to testify fully and accurately.

Front 89

TESTIMONIAL EVIDENCE - FORM OF EXAMINATION OF WITNESS - Use of Memoranda by Witness -Inspection and Use on Cross-Examination

Back 89

Whenever a witness has used a writing to refresh her memory on the stand, an adverse party is entitled to have the writing produced at trial, to cross-examine the witness thereon, and to introduce portions relating to the witness's testimony into evidence.

Front 90

TESTIMONIAL EVIDENCE - OPINION TESTIMONY

Back 90

The general policy of the law is to prohibit admissibility of opinion evidence except in cases where the courts are sure that it will be necessary or at least helpful.

Front 91

TESTIMONIAL EVIDENCE - OPINION TESTIMONY - Opinion Testimony by Lay Witnesses - General Rule of Inadmissibility

Back 91

Opinions by lay witnesses are generally inadmissible. However, there are many cases where no better evidence can be obtained. Inmost jurisdictions and under the Federal Rules, opinion testimony by a lay witness is admissible when it is: (i) rationally based on the witness's perception, (ii) helpful to a clear understanding of his testimony or helpful to the determination of a fact in issue, and (iii) not based on scientific, technical, or other specialized knowledge.

Front 92

TESTIMONIAL EVIDENCE - OPINION TESTIMONY - Opinion Testimony by Lay Witnesses - Situations Where Opinions of Lay Witnesses Are Admissible

Back 92

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

The general appearance or condition of a person;

The state of emotion of a person;

Matters involving sense recognition;

Voice or handwriting identification;

The speed of a moving object;

The value of his own services;

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

Intoxication of another.

Front 93

TESTIMONIAL EVIDENCE - OPINION TESTIMONY - Opinion Testimony by Lay Witnesses - Situations Where Opinions of Lay Witnesses Are Not Admissible

Back 93

Opinions of lay witnesses are not admissible with regard to whether one acted as an agent or whether an agreement was made.

Front 94

TESTIMONIAL EVIDENCE - OPINION TESTIMONY - Opinion Testimony by Expert Witnesses

Back 94

An expert may state an opinion or conclusion, provided:

The subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact (an opinion will assist the trier of fact if it is relevant and reliable);

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

The expert possesses reasonable probability regarding his opinion; and

The opinion is supported by a proper factual basis. The expert's opinion may be based on one or more of three possible sources of information: (i) personal observation, (ii) facts made known to the expert at trial, or (iii) facts not known personally but supplied to him outside the courtroom and of a type reasonably relied upon by experts in the particular field.

Front 95

TESTIMONIAL EVIDENCE - OPINION TESTIMONY - Opinion Testimony by Expert Witnesses - Opinion on Ultimate Issues

Back 95

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

Front 96

TESTIMONIAL EVIDENCE - OPINION TESTIMONY - Opinion Testimony by Expert Witnesses - Authoritative Texts and Treatises

Back 96

An expert may be cross-examined concerning statements contained in any publication established as reliable authority either by the testimony of this expert or another expert, or by judicial notice. Under the Federal Rules, these texts and treatises can be used not only to impeach experts, but also as substantive evidence, subject to the following limitations:

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

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

Front 97

TESTIMONIAL EVIDENCE - OPINION TESTIMONY - CROSS-EXAMINATION

Back 97

Cross-examination of adverse witnesses is a matter of right in every trial of a disputed issue of fact, but the scope of cross-examination is frequently a matter of judicial discretion.

Front 98

TESTIMONIAL EVIDENCE - OPINION TESTIMONY - CROSS-EXAMINATION - Restrictions on Scope

Back 98

Cross-examination is generally limited to: (i) the scope of direct examination, including all reasonable inferences that may be drawn from it, and (ii) testing the credibility of the witness.

Front 99

TESTIMONIAL EVIDENCE - OPINION TESTIMONY - CROSS-EXAMINATION - Collateral Matters

Back 99

The cross-examiner is generally bound by the answers of the witness to questions concerning collateral matters. Thus, the response may not be refuted by extrinsic evidence. However, certain recognized matters of impeachment, such as bias, interest, or a conviction, may be developed by extrinsic evidence because they are sufficiently important. The trial court has considerable discretion in this area.

Front 100

TESTIMONIAL EVIDENCE - CREDIBILITY-IMPEACHMENT

Back 100

Impeachment means the casting of an adverse reflection on the veracity of the witness.

Front 101

TESTIMONIAL EVIDENCE - CREDIBILITY-IMPEACHMENT - Accrediting or Bolstering

Back 101

Generally, a party may not bolster or accredit the testimony of his witness (e.g., by introducing aprior consistent statement) until the witness has been impeached. However, in certain cases, a party may prove the witness made a timely complaint or a prior statement of identification. The prior identification may also serve as substantive evidence that the identification was correct.

Front 102

TESTIMONIAL EVIDENCE - CREDIBILITY-IMPEACHMENT - Any Party May Impeach

Back 102

Under the Federal Rules, a witness may be impeached by any party, including the party calling him.

Exam Tip: When a question involves a party impeaching his own witness, be sure to avoid the following wrong answer choices reflecting the traditional rule, which prohibits impeaching your own witness unless the witness:

Is an adverse party or identified with an adverse party;

Is hostile and affirmatively uncooperative;

Is one whom the party is required by law to call; or

Gives surprise testimony that is affirmatively harmful to the party calling him.

Front 103

TESTIMONIAL EVIDENCE - CREDIBILITY-IMPEACHMENT - Impeachment Methods-Cross-Examination and Extrinsic Evidence

Back 103

A witness may be impeached either by cross-examination (by eliciting facts from the witness that discredit his own testimony) or by extrinsic evidence (by putting other witnesses on the stand who will introduce facts discrediting his testimony). Certain grounds for impeachment require that a foundation be laid during cross-examination before extrinsic evidence can be introduced. Other grounds allow impeachment to be accomplished only by cross examination and not by extrinsic evidence. (Note: The term "cross-examination" is used for convenience because it is usually an adverse witness who is impeached. But remember that a party may impeach his own witness, which would be on direct or redirect examination.) The traditional impeachment devices follow.

Front 104

TESTIMONIAL EVIDENCE - CREDIBILITY-IMPEACHMENT - Impeachment Methods-Cross-Examination and Extrinsic Evidence - Prior Inconsistent Statements

Back 104

A party may show, by cross- examination or extrinsic evidence, that the witness has, on another occasion, made statements inconsistent with his present testimony. To prove the statement by extrinsic evidence, a proper foundation must be laid and the statement must be relevant to some issue in the case.

Front 105

TESTIMONIAL EVIDENCE - CREDIBILITY-IMPEACHMENT - Impeachment Methods-Cross-Examination and Extrinsic Evidence - Prior Inconsistent Statements - Foundation for Extrinsic Evidence

Back 105

Extrinsic evidence can be introduced to prove a prior inconsistent statement only if the witness is, at some point, given an opportunity to explain or deny the statement. The exception to the rule is that inconsistent statements or hearsay declarants may be used to impeach despite the lack of a foundation. Under the Federal Rules, foundation requirements may be dispensed with where the interests of justice require (e.g., witness unavailable when inconsistent statement is discovered).

Exam Tip: Remember the MBE follows the Federal Rules. Under the Rules, the opportunity to explain or deny need not come before introduction of a prior inconsistent statement.

Front 106

TESTIMONIAL EVIDENCE - CREDIBILITY-IMPEACHMENT - Impeachment Methods-Cross-Examination and Extrinsic Evidence - Prior Inconsistent Statements - Evidentiary Effect of Prior Inconsistent Statements

Back 106

Usually, prior inconsistent statements are hearsay, admissible only for impeachment purposes. If, however, the statement was made under oath at a prior proceeding, it is admissible nonhearsay and may be admitted as substantive .

Front 107

TESTIMONIAL EVIDENCE - CREDIBILITY-IMPEACHMENT - Impeachment Methods-Cross-Examination and Extrinsic Evidence - Bias or Interest

Back 107

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

Foundation for Extrinsic Evidence:

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

Exam·Tip: Watch for facts indicating that the foundation requirement for extrinsic evidence of bias or interest has been fulfilled. Evidence that is otherwise inadmissible (e.g., arrests, liability insurance) may be introduced if relevant for these impeachment purposes, provided the proper foundation is laid.

Front 108

TESTIMONIAL EVIDENCE - CREDIBILITY-IMPEACHMENT - Impeachment Methods-Cross-Examination and Extrinsic Evidence - Conviction of Crime

Back 108

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

Front 109

TESTIMONIAL EVIDENCE - CREDIBILITY-IMPEACHMENT - Impeachment Methods-Cross-Examination and Extrinsic Evidence - Conviction of Crime - Type of Crime

Back 109

Any Crime Involving Dishonesty:

A witness may be impeached by any crime, felony or misdemeanor, requiring an act of dishonesty or false statement. The court has no discretion to bar impeachment by these crimes.

Felony Not Involving Dishonesty:

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

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

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

Front 110

TESTIMONIAL EVIDENCE - CREDIBILITY-IMPEACHMENT - Impeachment Methods-Cross-Examination and Extrinsic Evidence - Conviction of Crime - Remote, Juvenile, and Constitutionally Defective Convictions Not Admissible

Back 110

Generally, if more than 10 years have elapsed since the date of conviction or the date of release from confinement (whichever is later), the conviction is inadmissible. Juvenile convictions are similarly inadmissible. A conviction obtained in violation of the defendant's constitutional rights is invalid for all purposes, including impeachment.

Front 111

TESTIMONIAL EVIDENCE - CREDIBILITY-IMPEACHMENT - Impeachment Methods-Cross-Examination and Extrinsic Evidence - Conviction of Crime - Effect of Pardon

Back 111

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

Front 112

TESTIMONIAL EVIDENCE - CREDIBILITY-IMPEACHMENT - Impeachment Methods-Cross-Examination and Extrinsic Evidence - Conviction of Crime - No Foundation Required for Extrinsic Evidence

Back 112

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

Front 113

TESTIMONIAL EVIDENCE - CREDIBILITY-IMPEACHMENT - Impeachment Methods-Cross-Examination and Extrinsic Evidence - Specific Instances of Misconduct-Bad Acts

Back 113

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

Front 114

TESTIMONIAL EVIDENCE - CREDIBILITY-IMPEACHMENT - Impeachment Methods-Cross-Examination and Extrinsic Evidence - Specific Instances of Misconduct-Bad Acts - Extrinsic Evidence Not Permitted

Back 114

Extrinsic evidence of "bad acts" to prove misconduct is not permitted. A specific act of misconduct, offered to attack the witness's character for truthfulness, can be elicited only on cross-examination of the witness.

Exam Tip: Keep in mind that asking about specific instances of misconduct does not-include inquiring about arrests. An arrest itself is not bad act. Thus, it is permissible to ask a witness whether he embezzled money from his employer. It is not permissible to ask him whether he was arrested for embezzlement.

Front 115

TESTIMONIAL EVIDENCE - CREDIBILITY-IMPEACHMENT - Impeachment Methods-Cross-Examination and Extrinsic Evidence - Opinion or Reputation Evidence for Truthfulness

Back 115

A witness may be impeached by showing that he has a poor reputation for truthfulness. This may include evidence of reputation in business circles as well as in the community in which the witness resides. Under the Federal Rules, an impeaching witness may state his own opinion as to the character of a witness for truthfulness.

Front 116

TESTIMONIAL EVIDENCE - CREDIBILITY-IMPEACHMENT - Impeachment Methods-Cross-Examination and Extrinsic Evidence - Sensory Deficiencies

Back 116

A witness may be impeached by showing, either on cross-examination or by extrinsic evidence, that his faculties of perception and recollection were so impaired as to make it doubtful that he could have perceived those facts. A witness may also be impeached by showing that he had no knowledge of the facts to which he testified.

Front 117

TESTIMONIAL EVIDENCE - CREDIBILITY-IMPEACHMENT - Impeachment on Collateral Matter

Back 117

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

Front 118

TESTIMONIAL EVIDENCE - CREDIBILITY-IMPEACHMENT - Impeachment of Hearsay Declarant

Back 118

Under the Federal Rules, the credibility of someone who does not testify but whose out-of-court statement is introduced at trial may be attacked (and if attacked, may be supported) by evidence that would be admissible if the declarant had testified as a witness. The declarant need not be given the opportunity to explain or deny a prior_inconsistent statement. In addition, the party against whom the out-of-court statement was offered may call the declarant as a witness and cross-examine him about the statement.

Front 119

TESTIMONIAL EVIDENCE - CREDIBILITY-IMPEACHMENT - Rehabilitation

Back 119

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

Explanation on Redirect

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

Good Reputation for Truthfulness

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

Prior Consistent Statement

A party may not ordinarily rehabilitate a witness by showing a prior consistent statement. This is true even when the witness has been impeached by showing a prior inconsistent statement. But if the testimony of the witness has been attacked by an express or implied charge that the witness is lying or exaggerating because of some motive, a previous consistent statement is admissible to rebut this evidence. This previous statement also is substantive evidence of the truth of its contents, whether or not made under oath.

Front 120

TESTIMONIAL EVIDENCE - OBJECTIONS, EXCEPTIONS, AND OFFERS OF PROOF - Objections

Back 120

Objections at trial should be made after the question, but before the answer, if the question calls for inadmissible matter. Otherwise, a motion to strike must be made as soon as an answer emerges as inadmissible. At a deposition, objections to the form of a question, or to a testimonial privilege, should be made when the question is asked or it may be waived. Objections based on the substance of a question or answer may be postponed until the deposition is offered in evidence.

Exam Tip: Failure to object is deemed a waiver of any ground for objection. Thus, if no-objection is made, otherwise inadmissible evidence will be admitted.

Front 121

TESTIMONIAL EVIDENCE - OBJECTIONS, EXCEPTIONS, AND OFFERS OF PROOF - Objections - Specificity of Objections - General Objections

Back 121

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

Front 122

TESTIMONIAL EVIDENCE - OBJECTIONS, EXCEPTIONS, AND OFFERS OF PROOF - Objections - Specificity of Objections - Specific Objections

Back 122

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

Front 123

TESTIMONIAL EVIDENCE - OBJECTIONS, EXCEPTIONS, AND OFFERS OF PROOF - Objections - Opening the Door

Back 123

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

Front 124

TESTIMONIAL EVIDENCE - OBJECTIONS, EXCEPTIONS, AND OFFERS OF PROOF - Objections - Introducing Part of Transaction

Back 124

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

Front 125

TESTIMONIAL EVIDENCE - OBJECTIONS, EXCEPTIONS, AND OFFERS OF PROOF - Objections - Motion to Strike-Unresponsive Answers

Back 125

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

Front 126

TESTIMONIAL EVIDENCE - OBJECTIONS, EXCEPTIONS, AND OFFERS OF PROOF - Objections - Motion to Strike-Unresponsive Answers - Exceptions

Back 126

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

Front 127

TESTIMONIAL EVIDENCE - OBJECTIONS, EXCEPTIONS, AND OFFERS OF PROOF - Objections - Motion to Strike-Unresponsive Answers - Offers of Proof

Back 127

An offer of proof may be made, disclosing the nature, purpose, and admissibility of rejected evidence, to persuade the trial court to hear the evidence and to preserve the evidence for review on appeal. It may be made by witness testimony, a lawyer's narration, or tangible evidence marked and offered.

Front 128

TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES

Back 128

Testimonial privileges permit one to refuse to disclose, and prohibit others from disclosing, certain confidential information in judicial proceedings .

Front 129

TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - Federal Rules-No Specific Privilege Provisions

Back 129

The Federal Rules have no specific privilege provisions; privilege in federal courts is governed by common law principles as interpreted by the courts. The federal courts currently recognize the attorney-client privilege, the privilege for spousal communica tions, and the psychotherapist/social worker-client privilege. In diversity cases, the state law of privilege applies.

Front 130

TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - General Considerations - Persons Who May Assert Privilege

Back 130

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

Front 131

TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - General Considerations - Confidentiality

Back 131

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

Front 132

TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - General Considerations - Comment on Privilege Forbidden

Back 132

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

Front 133

TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - General Considerations - Waiver

Back 133

Any privilege is waived by: (i) failure to claim the privilege; (ii) voluntary disclosure ofthe privileged matter by the privilege holder; or (iii) a contractual provision waiving in advance the right to claim a privilege.

Exam Tip: A privilege is not waived when someone wrongfully discloses information without the privilege holder's consent. Similarly, a waiver by one joint holder does not affect the right of the other holder to assert the privilege.

Front 134

TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - General Considerations - Eavesdroppers

Back 134

A privilege based on confidential communications is not abrogated because it wasoverheard by someone whose presence is unknown to the parties. Under the modern view, in the absence of negligence by the one claiming privilege, even the eavesdropper would be prohibited from testifying.

Front 135

TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - Attorney-Client Privilege

Back 135

Communications between an attorney and client, made during professional consultation, are privileged from disclosure. The important elements of this privilege are:

Front 136

TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - Attorney-Client Privilege -

Back 136

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

Corporate Clients:

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

Front 137

TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - Confidential Communication

Back 137

To be protected, the communication must be confidential (i.e., not intended to be disclosed to third parties), but representatives of the attorney or client may be present without destroying the privilege; otherwise, communications made in the known presence and hearing of a stranger are not privileged.

Front 138

TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - Confidential Communication - Communications Through Agents

Back 138

Communications Through Agents: Communications made to third persons (e.g., secretaries, messengers, accountants) are confidential and covered by the privilege if necessary to transmit information between the attorney and client.Exam Tip: A favorite exam topic involves communications between a client and a doctor during an examination made at the attorney's request. Be careful-the physician-patient privilege (infra) does not apply because no treatment is contemplated. The attorney-client privilege will apply, however, as long as the doctor is not called as an expert witness.

Front 139

TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - Confidential Communication - No Privilege Where Attorney Acts for Both Parties

Back 139

Where an attorney acts for both parties to a transaction, no privilege can be invoked in a lawsuit between the two parties, but the privilege can be claimed in a suit between either or both of the two parties and third persons.

Front 140

TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - Client Holds Privilege

Back 140

The client holds the privilege, and she alone may waive it. The attorney's authority to claim the privilege on behalf of the client is presumed in the absence of contrary evidence.

Front 141

TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - Privilege Applies Indefinitely

Back 141

The attorney-client privilege applies indefinitely. The privilege even continues to apply after the client's death.

Front 142

TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - When the Privilege Does Not Apply

Back 142

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

If the attorney's services were sought to aid in the planning or commission of something the client should have known was a crime or fraud;

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

For a communication relevant to an issue of breach of duty in a dispute between the attorney and client.

Front 143

TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - Attorney's Work Product

Back 143

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

Front 144

TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - Limitations on Waiver of Attorney-Client Privilege and Work Product Rule

Back 144

A voluntary disclosure of privileged material operates as a waiver of the attorney-client privilege or work product protection only with respect to the disclosed material. Undisclosed privileged material is subject to the waiver only if the waiver is intentional, the disclosed and undisclosed material concern the same subject matter, and the material should be considered together to avoid unfairness. There is no waiver if the disclosure was inadvertent and the holder took reasonable steps to prevent disclosure and rectify the error.

Exam Tip: Look for fact patterns on an exam where a party discloses, e.g., documents during discovery that would ordinarily be privileged under the attorney-client privilege or work product rule. If the disclosure is the result of an innocent mistake, then there is no waiver. However, if the documents were voluntarily disclosed , then a waiver iseffective with respect to those documents only, unless the disclosing party intentionally waived protection of other privileged material that concerns the same subject matter and of which disclosure is necessary to prevent unfairness to the opposing party.

Front 145

TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - Physician-Patient Privilege

Back 145

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

A professional relationship exists;

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

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

Front 146

TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - Physician-Patient Privilege - When the Privilege Does Not Apply

Back 146

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

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

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

The communication is relevant to an issue of breach of duty in a dispute between The physician and patient;

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

It is a federal case applying the federal law of privilege.

Front 147

TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - Physician-Patient Privilege - Criminal Proceedings

Back 147

In some states, the privilege applies in both civil and criminal cases. In a number of others, it cannot be invoked in criminal cases generally. In still other states, the privi lege is denied in felony cases, and in a few states, it is denied only in homicide cases.

Exam Tip: Remember that when a psychiatrist is the doctor involved, the applicable privilege is the psychotherapist-client privilege (below), which is more widely accepted in all proceedings than is the physician-patient privilege.

Front 148

TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - Psychotherapist/Social Worker Client Privilege

Back 148

The United States Supreme Court recognizes a federal privilege for communicationsbetween a psychotherapist (psychiatrist or psychologist) or licensed social worker and his client. Thus, the federal courts and virtually all of the states recognize a privilege for this type of confidential communication. In most particulars, this privilege operates in the same manner as the attorney-client privilege ( supra) .

Front 149

TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - Husband-Wife Privilege

Back 149

There are two distinct spousal privileges.

Front 150

TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - Husband-Wife Privilege - Spousal Immunity

Back 150

When the privilege of spousal immunity is invoked, a married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution.Moreover, a married person may not be compelled to testify against his spouse in any criminal proceeding, regardless of whether the spouse is the defendant. There must be a valid marriage for the privilege to apply, and the privilege lasts only during the marriage.

Front 151

TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - Husband-Wife Privilege - Spousal Immunity - Who Holds the Privilege

Back 151

In federal court, the privilege belongs to the witness-spouse. Thus, the witness spouse cannot be compelled to testify, but may choose to do so. (In some state courts, the privilege belongs to the party-spouse.)

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TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - Husband-Wife Privilege - Privilege for Confidential Marital Communications

Back 152

In any civil or criminal case, confidential communications between a husband and wife during a valid marriage are privileged. For this privilege to apply, the marital relation ship must exist when the communication is made. Divorce will not terminate the privilege, but communications after divorce are not privileged. In addition, the communication must be made in reliance upon the intimacy of the marital relationship (confidential).

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TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - Husband-Wife Privilege - When Neither Marital Privilege Applies

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Neither privilege applies in actions between the spouses or in cases involving crimes against the testifying spouse or either spouse's children.

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TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - Husband-Wife Privilege - Privilege Against Self-Incrimination

Back 154

Under the Fifth Amendment to the Constitution, a witness cannot be compelled to testify against himself. Any witness compelled to appear in a civil or criminal proceeding may refuse to give an answer that ties the witness to the commission of a crime.

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TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - Husband-Wife Privilege - Clergy or Accountant Privilege

Back 155

A privilege exists for statements made to a member of the clergy or an accountant, the elements of which are very similar to the attorney-client privilege.

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TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - Husband-Wife Privilege - Professional Journalist Privilege

Back 156

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

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TESTIMONIAL EVIDENCE - TESTIMONIAL PRIVILEGES - Governmental Privileges

Back 157

Official information not otherwise open to the public or the identity of an informer may be protected by a privilege for the government. No privilege exists if the identity of the informer is voluntarily disclosed by a holder of the privilege.

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TESTIMONIAL EVIDENCE - EXCLUSION AND SEQUESTRATION OF WITNESSES

Back 158

Upon a party 's request, the trial judge will order witnesses excluded from the courtroom. The judge may also do this on his own motion. The judge, however, may not exclude: (i) a party or a designated officer or employee of a party, (ii) a person whose presence is essential to the presenta tion of a party's case, or (iii) a person statutorily authorized to be present.

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THE HEARSAY RULE - STATEMENT OF THE RULE

Back 159

The Federal Rules define hearsay as "a statement, other than one made by the declarant whiletestifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." If a statement is hearsay, and no exception to the rule applies, the evidence must be excluded upon appropriate objection. The reason for excluding hearsay is that the adverse party was denied the opportunity to cross-examine the declarant.

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

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THE HEARSAY RULE - STATEMENT OF THE RULE - "Statement"

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For purposes of the hearsay rule, a "statement" is: (i) an oral or written assertion, or (ii) nonverbal conduct intended as an assertion ( e.g., nod of the head).

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THE HEARSAY RULE - STATEMENT OF THE RULE - "Offered to Prove the Truth of the Matter"

Back 161

If the out-of-court statement is introduced for any purpose other than to prove the truth of the matter asserted, there is no need to cross-examine the declarant; so the statement is not hearsay. The following out-of-court statements are not hearsay:

Verbal acts or legally operative facts (e.g., words of contract; defamatory words);

Statements offered to show their effect on the hearer or reader (e.g., to prove notice in negligence case); and

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

Exam Tip: Do not confuse statements offered as circumstantial evidence of declarant's state of mind, which are almost always offered as evidence of insanity or knowledge, with statements that reflect directly on declarant's state of mind, which are usually offered to establish intent. The former is not hearsay, while the latter is hearsay subject to a specific exception.

Exam Tip: In deciding whether evidence is hearsay, ask yourself whether we are relying on the declarant's credibility; i.e., does it matter whether the declarant is telling the truth? If not, the evidence is not hearsay.

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THE HEARSAY RULE - STATEMENT OF THE RULE - Nonhuman Declarations

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There is no such thing as animal or machine hearsay; there must be an out-of-court state ment by a person. Thus, testimony about what a radar gun "said" or what a drug-sniffing dog did is not hearsay (but still must be relevant and authenticated to be admitted).

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THE HEARSAY RULE - STATEMENTS THAT ARE NONHEARSAY UNDER THE FEDERAL RULES

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Despite meeting the common law definition of hearsay, the following statements are not hearsay under the Federal Rules and are, therefore, admissible as substantive evidence:

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THE HEARSAY RULE - STATEMENTS THAT ARE NONHEARSAY UNDER THE FEDERAL RULES - Prior Statements by Witness

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Under the Federal Rules, a prior statement by a witness is not hearsay if:

The prior statement is inconsistent with the declarant's in-court testimony and was given under oath at a prior proceeding;

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

The prior statement is one of identification of a person made after perceiving him.

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THE HEARSAY RULE - STATEMENTS THAT ARE NONHEARSAY UNDER THE FEDERAL RULES - Admissions by Party-Opponent

Back 165

An admission is a statement made or act that amounts to a prior acknowledgment by one of the parties of one of the relevant facts. Admissions of a party-opponent are not hearsay under the Federal Rules. To be an admission, the statement need not have been against the declarant's interest when made, and may even be in the form of an opinion. Personal knowledge is not required; the admission may be predicated on hearsay. The following types of admissions merit special attention.

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THE HEARSAY RULE - STATEMENTS THAT ARE NONHEARSAY UNDER THE FEDERAL RULES - Admissions by Party-Opponent - Judicial and Extrajudicial Admissions

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Formal judicial admissions ( e.g., in pleadings, stipulations, etc.) are conclusive. Informal judicial admissions made during testimony and extrajudicial (evidentiary) admissions are not conclusive and can be explained.

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THE HEARSAY RULE - STATEMENTS THAT ARE NONHEARSAY UNDER THE FEDERAL RULES - Admissions by Party-Opponent - Adoptive Admissions

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

Silence

If a reasonable person would have responded, and a party remains silent in the face of accusatory statements, his silence may be considered an implied admission. Silence is treated as an admission only if:

The party heard and understood the statement;

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

A reasonable person would have denied the accusation.

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

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THE HEARSAY RULE - STATEMENTS THAT ARE NONHEARSAY UNDER THE FEDERAL RULES - Admissions by Party-Opponent - Vicarious Admissions - Co-Parties

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Admissions of a party are not receivable against her co-parties merely becausethey happen to be joined as parties.

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THE HEARSAY RULE - STATEMENTS THAT ARE NONHEARSAY UNDER THE FEDERAL RULES - Admissions by Party-Opponent - Vicarious Admissions - Authorized Spokesperson

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

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THE HEARSAY RULE - STATEMENTS THAT ARE NONHEARSAY UNDER THE FEDERAL RULES - Admissions by Party-Opponent - Vicarious Admissions - Principal-Agent

Back 170

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

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THE HEARSAY RULE - STATEMENTS THAT ARE NONHEARSAY UNDER THE FEDERAL RULES - Admissions by Party-Opponent - Vicarious Admissions - Partners

Back 171

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

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THE HEARSAY RULE - STATEMENTS THAT ARE NONHEARSAY UNDER THE FEDERAL RULES - Admissions by Party-Opponent - Vicarious Admissions - Co-Conspirators

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Admissions of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or civil wrong at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators. However, testimonial admissions of a conspirator are admissible against another conspirator only if there was an opportunity to cross-examine the hearsay declarant.

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THE HEARSAY RULE - STATEMENTS THAT ARE NONHEARSAY UNDER THE FEDERAL RULES - Admissions by Party-Opponent - Vicarious Admissions - Privies in Title and Joint Tenants-State Courts Only

Back 173

In most state courts, admissions of each joint owner are admissible against the other, and admissions of a former owner of real property made at the time she held title are admissible against those claiming under her (grantees, heirs, etc.). These statements are not considered admissions under the Federal Rules, but may be admissible under one of the hearsay exceptions (e.g., statement against interest).

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THE HEARSAY RULE - STATEMENTS THAT ARE NONHEARSAY UNDER THE FEDERAL RULES - Admissions by Party-Opponent - Vicarious Admissions - Preliminary Determinations

Back 174

Before admitting a hearsay statement as a vicarious admission, the court must make a preliminary determination of the declarant's relationship with the party against whom the statement is offered. In making such a determination, the court must consider the contents of the statement, but the statement alone is not suffi cient to establish the required relationship.

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT UNAVAILABLE

Back 175

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

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT UNAVAILABLE - "Unavailability"

Back 176

A declarant is unavailable if he:

Is exempt from testifying because of privilege;

Refuses to testify concerning the statement despite a court order;

Testifies to lack of memory of the subject matter of the statement;

Is unable to testify due to death orphysical or mental illness; or is absent (beyond the reach of the court's subpoena), and the proponent is unable to procure his attendance by reasonable means.

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT UNAVAILABLE - Former Testimony

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The testimony of a now-unavailable witness, given at another hearing or deposition, is admissible if:

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

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

The testimony was given under oath; and

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

Exam Tip: Because grand jury proceedings do not provide an opportunity for cross examination, the grand jury testimony of an unavailable declarant is not admissible against a defendant under the former testimony exception to the hearsay rule. Be careful not to confuse this with a prior inconsistent statement given under oath by a witness currently testi fying. Grand jury testimony is admissible in that case, both as impeachment and substantive evidence.

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT UNAVAILABLE - Statements Against Interest

Back 178

The statement of a person, now unavailable as a witness, against that person's pecuniary, proprietary, or penal interest when made, as well as collateral facts contained in the state ment, is admissible under the statement against interest exception to the hearsay rule. The declarant must also have had personal knowledge of the facts, and must have been aware that the statement was against her interest when she made it.

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT UNAVAILABLE - Statements Against Interest - Risk of Criminal Liability

Back 179

Note that when a criminal defendant wishes to show her innocence by introducing another's statements admitting the crime, corroborating circumstances indicating the trustworthiness of the statements are required.

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT UNAVAILABLE - Statements Against Interest - "Statement" Means Single Remark

Back 180

If a person makes a declaration containing statements that are against his interest (e.g., "I sold the drugs") and statements that are not (e.g., "X runs the drug ring"), the exception covers only those remarks that inculpate the declarant, not the entire extended declaration.

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT UNAVAILABLE - Dying Declarations- Statements Under Belief of Impending Death

Back 181

I na homicide prosecution or a civil action, a statement made by a now unavailable declarant is admissible if:

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

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

Exam Tip: The bar exam will likely require you to distinguish the Federal Rule on dying declarations from the traditional rule. Beware of answer choices reflecting the traditional rule, which required that the declarant ultimately die of the injury and restricted the statement's use to homicide prosecutions.

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT UNAVAILABLE - Statements of Personal or Family History

Back 182

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

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

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

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT UNAVAILABLE - Statements Offered Against Party Procuring Declarant's Unavailability

Back 183

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

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL

Back 184

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

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL - Present State of Mind

Back 185

A statement of a declarant's then-existing state of mind, emotion, sensation, or physical condition is admissible. It is usually offered to establish a person's intent or as circumstantial evidence that the intent was carried out. Except as to certain facts concerning the declarant's will, however, a statement of memory or belief is not admissible to prove the truth of the fact remembered or believed.

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL - Excited Utterances

Back 186

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

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL - Present Sense Impressions

Back 187

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

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL - Declarations of Physical Condition - Present Bodily Condition-Admissible

Back 188

A spontaneous declaration of present bodily condition is admissible as an exception to the hearsay rule even though not made to a physician.

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL - Declarations of Physical Condition - Past Bodily Condition-Admissible Ifto Assist Diagnosis or Treatment

Back 189

Generally, declarations of past physical condition are inadmissible hearsay. Under the Federal Rules, however, these declarations are admissible if made to medical personnel to assist in diagnosing or treating the condition. Even declarations about the cause or source of the condition are admissible if pertinent to diagnosis or treatment.

Exam tip: Remember that, contrary to the majority state view, declarations of past-physical condition made to a doctor employed to testify are admissible under the Federal Rules.

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL - Business Records

Back 190

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

Front 191

THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL - Business Records - "Business"

Back 191

"Business" includes every association, profession, occupation, or calling of any kind,whether or not conducted for profit.

Front 192

THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL - Business Records - Entry Made in Regular Course of Business

Back 192

To be admissible, it must appear that the record was made in the course of a regularlyconducted business activity, and that it was customary to make the type of entry involved (i.e., the entrant had a duty to make the entry). Self-serving accident reports prepared primarily for litigation usually are inadmissible.

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL - Business Records - Personal Knowledge

Back 193

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

Exam Tip: Watch for fact patterns involving police reports containing the statements of witnesses. While police reports may qualify as business records under some circumstances, remember that generally witnesses, or even parties, are not under a business duty to convey information to the police. Therefore, a report containing their statements cannot qualify as a business record, although it may be admissible under another exception (see 7., infra) or as an admission.

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL - Business Records - Entry Made Near Time of Event

Back 194

The entry must be made at or near the time of the transaction.

Front 195

THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL - Business Records - Authentication

Back 195

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

Exam Tip: Business records may be used to prove the nonoccurrence or nonexistence of a matter if it was the regular practice of the business to record all such matters.

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL - Past Recollection Recorded

Back 196

If the witness's memory cannot be revived, a party may introduce a memorandum that the witness made at or near the time of the event. For admissibility requirements, see VI.B.3.b., supra. The writing itself is not admissible; it must be read to the jury.

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL - Official Records and Other Official Writings - Public Records and Reports

Back 197

The following are admissible: records setting forth the activities of the office or agency; recordings of matters observed pursuant to a duty imposed by law (except police observations in criminal cases); or in civil actions and against the government in criminal cases, records of factual findings resulting from an investigation authorized by law.The writing must have been made by and within the scope of the duty of the public employee, and it must have been made at or near the time of the event.

Exam Tip: Police reports that do not qualify as business records may be admitted under the public records and reports exception. Even the officer's opinions and factual (not legal) conclusions would be admissible under this exception. Be careful, however, to test the statements of others contained in the report to make sure they are admissible under a hearsay exception; otherwise, those statements will be excluded even if the report is admitted.

Exam Tip: Remember that public records and reports generally are not admissible defendant in a criminal case. This means that investigative reports by thepolice, FBI, and other agencies are inadmissible in this situation.

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL - Official Records and Other Official Writings - Records of Vital Statistics

Back 198

Records of vital statistics are admissible if the report was made to a public officer pursuant to requirements of law.

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL - Official Records and Other Official Writings - Statement of Absence of Public Record

Back 199

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

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL - Official Records and Other Official Writings - Judgments

Back 200

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

Front 201

THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL - Official Records and Other Official Writings - Judgments - Prior Criminal Conviction-Felony Conviction Admissible

Back 201

Under the Federal Rules, judgments of felony convictions are admissible in criminal and civil actions to prove any fact essential to the judgment. In a criminal case, however, the government may use the judgment for this purpose only against the accused; it may be used only for impeachment purposes against others.

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL - Official Records and Other Official Writings - Judgments - Prior Criminal Acquittal-Excluded

Back 202

The exclusionary rule is still applied to records of prior acquittals.

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL - Official Records and Other Official Writings - Judgments - Judgment in Former Civil Case

Back 203

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

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL - Ancient Documents and Documents Affecting Property Interests

Back 204

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

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL - Learned Treatises

Back 205

Treatises are admissible as substantive proof under the Federal Rules if:

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

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

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL - Reputation

Back 206

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

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL - Family Records

Back 207

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

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THE HEARSAY RULE - HEARSAY EXCEPTIONS- DECLARANT'S AVAILABILITY IMMATERIAL - Market Reports

Back 208

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

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THE HEARSAY RULE - RESIDUAL "CATCH-ALL" EXCEPTION OF FEDERAL RULES

Back 209

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

That the hearsay statement possess circumstantial guarantees of trustworthiness;

That the statement be strictly necessary; and

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

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THE HEARSAY RULE - CONSTITUTIONAL ISSUES

Back 210

Because the use of hearsay evidence in a criminal case may violate the Confrontation Clause, prior testimonial evidence is inadmissible against a criminal defendant unless the hearsay declarant is unavailable, and the defendant had an opportunity to cross-examine the hearsay declarant at the time the statement was made. However, the defendant forfeits his right of confrontation if he committed a wrongful act that was intended to keep the witness from testifying. In addition, hearsay rules and other exclusionary rules cannot be applied where such application would deprive the accused of her right to a fair trial or deny her right to compulsory process.

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PROCEDURAL CONSIDERATIONS - BURDENS OF PROOF

Back 211

The burden of proof encompasses the burden of producing or going forward with the evidence, and the burden of persuasion.

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PROCEDURAL CONSIDERATIONS - BURDENS OF PROOF - Burden of Producing Evidence

Back 212

The party who has the burden of pleading usually has the burden of producing or going forward with evidence sufficient to make out a prima facie case (i.e., create a fact question of the issue for the trier of fact). Once the party has satisfied the burden of going forward with evidence, it is incumbent upon the other side to come forward with evidence to rebut the accepted evidence.

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PROCEDURAL CONSIDERATIONS - BURDENS OF PROOF - Burden of Persuasion (Proof)

Back 213

After the parties have sustained their burden of production of evidence, the question is whether the party with the burden of persuasion has satisfied it. The burden of persuasion for civil cases is usually by a preponderance of the evidence (more probably true than not true), although some civil cases require proof of clear and convincing evidence (high probability). The burden of persuasion for criminal cases is beyond a reasonable doubt.

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PROCEDURAL CONSIDERATIONS - PRESUMPTIONS

Back 214

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

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PROCEDURAL CONSIDERATIONS - PRESUMPTIONS - Effect-Shift Burden of Production

Back 215

A presumption operates, until rebutted, to shift the burden of production to the party against whom the presumption operates.

Exam Tip: Remember that a presumption does not shift the burden of persuasion. The burden of persuasion remains on the same party throughout a trial.

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PROCEDURAL CONSIDERATIONS - PRESUMPTIONS - Rebutting a Presumption

Back 216

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

Front 217

PROCEDURAL CONSIDERATIONS - PRESUMPTIONS - Distinguish True Presumptions from Inferences and Substantive Law

Back 217

True presumptions are the rebuttable type discussed above. Be careful not to confuse them with inferences and rules of substantive law.

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PROCEDURAL CONSIDERATIONS - PRESUMPTIONS - Distinguish True Presumptions from Inferences and Substantive Law - Permissible Inferences

Back 218

A permissible inference may allow the party to meet his burden of production (e.g., establish a prima facie case), but does not shift the burden to the adversary. Examples include the inference of negligence arising from res ipsa loquitur, the inference that destroyed evidence was unfavorable to the spoliator, and the inference of undue influ ence when a will's drafter is also the principal beneficiary.

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PROCEDURAL CONSIDERATIONS - PRESUMPTIONS - Distinguish True Presumptions from Inferences and Substantive Law - "Presumptions" in Criminal Cases

Back 219

The presumption of innocence in criminal cases is merely a permissible inference. The burden of production never shifts to the accused.

Exam Tip: Special considerations apply when true presumptions arise in the criminal context. The judge cannot instruct the jury that it must find a presumed fact against the accused; he must instruct them that they may regard the basic facts as sufficient evidence of the presumed fact.

Exam Tip: If,in a criminal case, a presumed fact establishes guilt, is an element of the offense, or negates a defense, it must be proved beyond a reasonable doubt.

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PROCEDURAL CONSIDERATIONS - PRESUMPTIONS - Distinguish True Presumptions from Inferences and Substantive Law - Conclusive Presumptions

Back 220

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

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PROCEDURAL CONSIDERATIONS - PRESUMPTIONS - Specific Presumptions

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The following are common rebuttable presumptions:

Legitimacy

Every person is presumed to be legitimate.

Against Suicide

When cause of death is in dispute, there is a presumption in civil cases that it was not suicide.

Sanity

Every person is presumed sane in civil and criminal cases until the contrary is shown.

Death from Absence

If a person is unexplainably absent for a continuous period of seven years and he has not been heard from, he is presumed dead.

Ownership of Car-Agent Driver

Proof of ownership of a motor vehicle creates the presumption that the owner was the driver or that the driver was the owner's agent.

Chastity

Every person is presumed chaste and virtuous.

Regularity

It is presumed that persons acting in an official office are properly performing their duties.

Continuance

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

Mail Delivery

A letter, properly addressed, stamped, and mailed, is presumed to have been delivered.

Solvency

A person is presumed solvent, and every debt is presumed collectible.

Bailee's Negligence

Proof of delivery of goods in good condition to a bailee and failure of the bailee to return the goods in the same condition create the presumption that the bailee was negligent.

Marriage

Upon proof of a marriage ceremony, a marriage is presumed valid.

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PROCEDURAL CONSIDERATIONS - PRESUMPTIONS - Conflicting Presumptions

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

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PROCEDURAL CONSIDERATIONS - PRESUMPTIONS - Choice of Law Regarding Presumptions in Civil Actions

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

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PROCEDURAL CONSIDERATIONS - RELATIONSHIP OF PARTIES, JUDGE, AND JURY - Allocation of Responsibilities

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In our adversarial adjudicative process, the focus is on the party's responsibility to frame the issues in a litigation and to assume the burden of proving the issues he has raised. The trial judge's primary responsibility is to superintend the trial fairly. As a general rule, questions of law are for the trial judge to determine and questions of fact are for the jury.

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PROCEDURAL CONSIDERATIONS - RELATIONSHIP OF PARTIES, JUDGE, AND JURY - Preliminary Determination of Admissibility

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

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PROCEDURAL CONSIDERATIONS - RELATIONSHIP OF PARTIES, JUDGE, AND JURY - Preliminary Determination of Admissibility - Preliminary Facts Decided by Jury

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

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PROCEDURAL CONSIDERATIONS - RELATIONSHIP OF PARTIES, JUDGE, AND JURY - Preliminary Determination of Admissibility - Preliminary Facts Decided by Judge - What Evidence May Be Considered

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

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PROCEDURAL CONSIDERATIONS - RELATIONSHIP OF PARTIES, JUDGE, AND JURY - Preliminary Determination of Admissibility - Preliminary Facts Decided by Judge - Presence of Jury

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

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PROCEDURAL CONSIDERATIONS - RELATIONSHIP OF PARTIES, JUDGE, AND JURY - Preliminary Determination of Admissibility - Testimony by Accused Does Not Waive Privilege Against Self-Incrimination

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

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PROCEDURAL CONSIDERATIONS - RELATIONSHIP OF PARTIES, JUDGE, AND JURY - Preliminary Determination of Admissibility - Judicial Power to Comment upon Evidence

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

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PROCEDURAL CONSIDERATIONS - RELATIONSHIP OF PARTIES, JUDGE, AND JURY - Preliminary Determination of Admissibility - Power to Call Witnesses

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A judge may call and interrogate witnesses on her own initiative.

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PROCEDURAL CONSIDERATIONS - RELATIONSHIP OF PARTIES, JUDGE, AND JURY - Preliminary Determination of Admissibility - Rulings

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

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PROCEDURAL CONSIDERATIONS - RELATIONSHIP OF PARTIES, JUDGE, AND JURY - Preliminary Determination of Admissibility - Instructions on Limited Admissibility of Evidence

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A judge will restrict evidence to its proper scope and instruct the jury accordingly.