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87 Cards in this Set

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FORM OF EXAMINATION OF THE WITNESS
Objectionable Questions
Motion to Strike
Objectionable Questions (7)
Narrative: must be interrogative not narrative.

Leading: Only permitted in certain situations. They tend to be yes/no q → suggests an answer to the w.
• Cross Examination
• Preliminary Matter not in dispute
• Difficulty Eliciting Testimony (e.g. very young w.)
• Adverse Party / Under Control of AP / Hostile or Uncooperative W.

Misleading or Compound or Argumentative → often also assumes as true some fact which is still in the controversy.

Assumes Facts not in Evidence

Unresponsive: When the w. answers outside the scope of the q. or does not really answer the q. at all.
Motion to Strike
Only effective where there is no basis or opportunity for an earlier objection. Usually the objection must be made after the Q is asked but b/4 the w. answers. Motion to Strike is appropriate if the Q is not objectionable but the answer is.
RELEVANCE
LOGICAL RELEVANCE
LEGAL RELEVANCE
CHARACTER EVIDENCE
LOGICAL RELEVANCE
Evidence that has any tendency to make a material fact more probable or less probable than it would be w/out the evidence. (generally same time, event or person as lit).
LOGICAL RELEVANCE - Similar Occurrences (8)
Similar Occurrences: admissible even though it does involve some other event, time or person.

1) Causation: to prove cause and effect

2) Prior Accidents or Claims:
• D wants to show prior acts of P: only to show (1) common plan or scheme of fraud; (2) relevant on issues of damages to π.
• P wants to offer other/prior acts involving same instrument: (1) to show notice or knowledge on pt of the ∆; (2) that instrumentality is in a dangerous or defective condition.

3) Intent or State of Mind in Issue: to infer intent from prior conduct (e.g. discrimination).

4) Rebuttal Evidence: Usually to rebut a claim of impossibility.
• NOT ADMISSIBLE UNTIL DOOR IS OPENED.

5) Comparable Sales to Establish Value
• Same general description or kind
• Same general time period
• Same general place.

6) Habit Evidence: relevant to show the person acted the same way on the occasion in question. DEF: specific, detailed conduct and reoccurrence to show conduct is habitual. (instinctively, invariably, automatically).
• Essay → 3 or more times

7) Business Routine: routine practice of an org (similar to habit) to infer acted in accordance on the occasion in question.

8) Industrial or Trade Custom: admissible as non-conclusive evidence of standard of care.
LEGAL / DISCRETIONARY/POLICY-BASED RELEVANCE (6)
Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of...
• Unfair Prejudice
• Confusion of Issues
• Misleading the Jury
• Undue Delay
• Waste of Time
• Cumulative Evidence
• (not unfair surprise)
LEGAL / DISCRETIONARY/POLICY-BASED RELEVANCE - Examples
Liability Insurance:
• NOT ADMISSIBLE to show person acted negligently or wrongfully or to show ability to pay.
• ADMISSIBLE to show ownership or control or impeach by showing interest or bias.
Subsequent Remedial Measures:
• NOT ADMISSIBLE to show negligence, culpable conduct, a defect in a product, a defect in a product’s design or need for a warning.
• ADMISSIBLE to show ownership and control or to impeach (feasibility of precautionary measure).
• Policy → encourage safety measures
Settlements:
• NOT ADMISSIBLE to prove fault, liability or amount of damage.
o Applies to: (1) actual compromises; (2) offers to compromise; (3) offers to plead guilty; (4) withdrawn pleas of guilty; (5) pleas of nolo contendere AND
• Admissions of fact, liability or damage made in the course of an offer to compromise a claim disputed as to liability or amount.
***Claim → facts must have matured enough so there’s an identifiable π & indication π intends to sue.
Offer to pay Medical Expenses:
• NOT ADMISSIBLE as evidence of guilt
• ADMISSIBLE if an admission of fact accompanies.
4
CHARACTER EVIDENCE
Character in Civil Cases
Character in Criminal Cases
Character in Civil Cases
• Not Admissible when offered as evidence of conduct in conformity w/ character.
• Admissible when character is directly at issue in the case. (e.g. defamation, negligent entrustment, wrongful death).
• Method of Proof: Specific Acts, Opinion, Reputation – all okay.
Character in Criminal Cases
• Bad Character of the ∆ is NOT ADMISSIBLE at the initiative of the prosecution
• Victim Character / Self Defense
• Victim’s Character / Sexual Misconduct
• ∆ Other Crimes for a Non-Character Purpose
• Sexual Assault / Child Molestation
Bad Character of the ∆ is NOT ADMISSIBLE at the initiative of the prosecution
• First Step → Accused must offer evidence of good character for the trait at issue and THEN the prosecution may respond by showing bad character.
• Method of Proof: (1) for defense → Opinion or Reputation. (2) prosecution → may ask about Specific Acts on C/E or by calling a W. re. Opinion or Reputation.
Victim Character / Self Defense
accused may take the initiative in a homicide or assault case, as part of self-defense plea to show character of victim to infer he was the first aggressor.
• Method of Proof: (1) for defense → Opinion or Reputation. (2) prosecution → Opinion or Reputation of victim or defendant. CAN’T USE SPECIFIC ACTS!!!
Victim’s Character / Sexual Misconduct
• CRIMINAL CASE: only if offered (1) to prove that a third party was the source of the semen, injury or other physical evidence, (2) to show prior acts of consensual intercourse b/n victim and accused, or (3) if exclusion would violate constitution.
o Method of Proof: No Opinion or Reputation only Specific Instances.
• CIVIL CASE: admissible only if probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.
• PROCEDURAL REQUIREMENTS: notice & an in camera hearing.
∆ Other Crimes for a Non-Character Purpose
• NOT ADMISSIBLE if the only purpose is to prove criminal disposition (i.e. likely to have committed crime b/c of bad character).
• ADMISSIBLE to prove a material fact other than character disposition. [motive, opportunity, preparation, plan, knowledge, identity, or absence of mistake or accident]
o Motive
o Intent – or specific mental state. (this really means absence of mistake).
o Modus Operandi – must be specific enough / distinctive methodology.
o Identity – anything that identifies the plaintiff.
o Common Plan or Scheme
o BUT → can be excluded if not legally relevant.
o Applies to CIVIL CASES as well.
WITNESS AND TESTIMONIAL EVIDENCE
COMPETENCY
WITNESS’S USE OF WRITINGS IN AID
OF TESTIMONY
CREDIBILITY AND IMPEACHMENT
OPINION TESTIMONY
COMPETENCY
o Personal Knowledge and Oath (simplified under FRE) → age and mental only if necessary

o Common Law Disqualifications Abandoned
-> Infancy: No set age at which a child w. is automatically deemed incompetent.
-> Mental Incompetency: not automatically incompetent.
-> Interest: all gone but 1
• Dead Man Acts: (under FRE state’s DMA can apply in Fed Ct – diversity). An (i) interested survivor cannot (ii) testify for his interest (iii) against the decedent or decedent’s representatives (iv) about communications or transactions w/ the decedent (iv) in a civil case (v) unless there is a waiver. RATIONALE → fear of perjury.
o Waiver → if decedent’s statement gets in by depo.
WITNESS’S USE OF WRITINGS IN AID OF TESTIMONY - Refreshing recollection.
When the W. memory fails, anything can be used to job her memory. W MUST SAY SHE DOESN’T REMEMBER.
• Rights of Opposing Party: Anything you use to refresh the recollection of the W. can be seen, used on cross, or put into evidence by the other party.
Recorded Recollection
• If the W. is unable to remember all or part of the details of a transaction about which she once had personal knowledge, her own writing, shown to be reliable, may be admitted in place of her testimony. Admitted by being read into evidence. (this is a hearsay exception) FOUNDATION →
• At one time W. had personal knowledge
• The writing was made by, under the supervision of, or adopted at the time of its making by the W.
• Show the writing was made when the event was fresh in her memory.
• Must show the reliability of the writing
• couldn’t remember all or part of the details.
CREDIBILITY AND IMPEACHMENT
Cross-Examination
Accrediting Your Own Witness
Impeaching Your Own Witness
Impeaching Your Adversary’s Witness
Impeaching a Hearsay Declarant
Rehabilitation After Impeachment
Cross-Examination
• Party has an absolute right to C/E a W. who testifies live.
• Cross Examination should not exceed the scope of direct (re. issues such as agency, damages, etc.)
• Collateral Matters Doctrine: bound by the answers given by W. on cross. No extrinsic evidence is allowed to contradict a W. on a collateral matter.
• Def. Anything whose only relevance is to show the contradiction.
Accrediting Your Own Witness
• No BOLSTERING your own w. unless there has FIRST been an appropriate impeachment.
• PRIOR CONSISTENT STATEMENTS would be admissible for its truth if the statement is one of identification. (anyone can testify as to the prior [consistent] statement of identification so long as the w. is there).
Impeaching Your Own Witness
allowed
Impeaching Your Adversary’s Witness
• Prior Inconsistent Statement
• Showing Motive, Interest, or Bias
• Prior Conviction of a Crime
• Specific Acts of Deceit or Lying
• Bad Reputation or Opinion
Prior Inconsistent Statement
o Legitimate Purposes
 Only to Impeach → Generally, but
 ***Admissible For Truth → if the prior statement was
• given under oath
• at a trial, hearing, or other proceeding or in a deposition (but not grad jury testimony)
 As an Admission → If the PIS was made by a party. (see hearsay exceptions)
o Method:
 Extrinsic Evidence Admissible
o Foundation: Opposing party must have a chance to respond
Showing Motive, Interest, or Bias
o Legitimate Purpose:
 To show motive, interest or bias only
o Method:
 Extrinsic Evidence admissible
o Foundation:
 EE only available after cross-examination
Prior Conviction of a Crime (character attack)
o Legitimate Purpose:
 To Impeach if
• it’s a crime of dishonesty or false statement (no discretion to exclude).
• it’s a felony not involving dishonesty or false statement (w/in discretion of court).
• CAN’T BE TOO REMOTE – more than 10 years from date of conviction or release.
 To prove a fact essential to the judgment if
• It was a felony conviction = crime punishable by death or imprisonment in excess of 1 yr.
• ***This applies to civil and criminal cases.
o Method:
 Extrinsic Evidence (e.g. certificate of conviction)
o Foundation:
 Not necessary
Specific Acts of Deceit or Lying (character attack)
o Legitimate Purpose:
 To Impeach if
• Raised in good faith.
• Act must involve deceit or lying.
o Method:
 ***Cross-Examination Only – so you must take the answer of the witness.
Bad Reputation or Opinion
for truth or veracity only. (character attack).
a. Legitimate Purpose:
i. To Impeach
b. Method:
i. Must call a witness – can give reputation or offer opinion re. reputation but CAN’T SUPPORT W/ SPECIFIC ACTS.
Impeaching a Hearsay Declarant
can be impeached to the same extent as those of an in-ct witness. (i.e. an inconsistent statement).
Rehabilitation After Impeachment
 Good Reputation (opinion) for truth may be shown IF impeachment involved a character attack [prior conviction, act of deceit or lying; bad reputation/opinion for truth].
 Prior Consistent Statement to rebut an express or implied charge of recent fabrication or improper influence or motive.
• Must be a pre-motive statement
• ***Admissible for its truth.
OPINION TESTIMONY - Lay Opinion
• Admissible if →
 Rationally based on the perception of the W. (personal knowledge)
 Helpful to the trier of fact: (can’t offer legal conclusions) AND
 Not based on scientific, technical or specialized knowledge.
OPINION TESTIMONY - Expert Opinion + Learned Treatise.
 Appropriate Subject Matter (must be appropriate for expert testimony): must assist the trier of fact.
• Methodology must be reliable and opinion must be relevant – fit the facts of the case. (convince judge by a PREPONDERANCE OF THE EVIDENCE b/c these are conditions to admissibility)
 W. must be qualified as an expert: Need not be formal or academic, experience will suffice.
 X-pert has reasonable certainty or probability re. opinion or conclusion: This is more than guess-work.
 Opinion must be supported by a proper factual basis: Facts supporting the opinion must be either → (focus is on reliability of data)
• W/in personal knowledge of the expert (i.e. treated party)
• Supplied by the evidence in court – usually through a hypo. or
• Facts are of a type that experts in that field would reasonably rely upon in making a professional opinion. (e.g. rad. report)
 Learned Treatise: can use to rebut or contradict/impeach only. (requires a door opening). Is admitted for it’s truth in these circumstances.
• Must first be established as Authoritative and Reliable
o If opponent used the same treatise
o Elicit admission on C/E
o Call your own W.
o Judicial Notice (for a well known treatise).
• Expert Must Testify (unless judge takes judicial notice)
• Treatise is read into evidence only.
WRITINGS / DOCUMENT RELIABILITY - GENERAL RULE OF AUTHENTICATION
Writing is not admissible until it has been authenticated. A foundation must be laid showing the writing is what it purports to be. (usually also involves hearsay).
Direct Evidence
 Admission
 Eyewitness Testimony
 Handwriting Proof
• Lay Witness: any person familiar w/ the signature can testify (cannot be familiar solely b/c of litigation).
• Expert Witness: Comparing the disputed signature to an genuine signature.
• Jury Comparison: comparing genuine w/ disputed.
Circumstantial Evidence
• Ancient Document Rule: (1) 20 or more years, (2) regular on its face, (3) found where you would expect to find it.
• Solicited Reply Doctrine: Proof that disputed document came in response to a prior communication.
Quantum of Proof
Sufficient to support a finding by the jury that the evidence is genuine. (reasonable belief). Judge → determines admissibility; Jury → determines genuineness.
Self Authenticating Documents
• Certified Copies of Public or Business Records
• Official Publications: books or pamphlets from a public agency.
• Newspapers and Periodicals
• Trade Inscriptions or Labels: (e.g. campbell’s soup can)
• Acknowledged Documents: (re. validity of signature)
• Signatures on Certain Commercial Docs.
Authentication of Photographs
Any w. can state it is a fair representation, assuming the w. is familiar with the original incident.
• Calling a Witness: establish presence @ original scene → does photo fairly and accurately represent the condition → yes → authenticated!
• No Witness: show camera was operating properly → time camera was operating → film was handled properly.
Best Evidence Rule
Party seeking to prove the content of a writing (includes films, photos, X-rays, and recordings) must either (1) produce the original or (2) account for the absence. (judge must find the excuse is legitimate).
Best Evidence Rule - Applies to
 Applies To:
• Legally Operative Documents: docs that by their existence create or destroy a legal relationship that is in dispute (e.g. deed)
• Witness’s sole knowledge comes from reading or listening.
Best Evidence Rule - Does not Apply to
 Does Not Apply To:
• Facts Independent of Writing: (i.e. w. has personal knowledge of a fact that happens to have been written down).
o KEY Q → Is the fact not in existence w/out the document?
• Collateral Documents: the issue the docs attest to are not in dispute.
Best Evidence Rule - Modifications
 Modifications to the BER: Places where a writing can substitute in place of original w/out explanation
• Public Records: certified copies admissible in place of originals
• Voluminous Documents: If not convenient to be produced in court, summaries, charts or calculations will suffice if
o originals would be admissible, and
o originals are made accessible to opposing party.
• Duplicates: admissible to the same extent as the original. (Every copy is a duplicate except handwritten copy) UNLESS
o a genuine question is raised about the authenticity of the original, or
o it would be unfair to admit the duplicate in lieu of the original. (e.g. only part of the duplicate is offered).
HEARSAY (3 Major Topics)
Definition of Hearsay
Specific Non-Hearsay Situations
Exceptions to the Rule Against Hearsay
Definition of Hearsay
an out-of-court statement offered **for the purpose** of establishing the truth of the matter asserted in the statement. Including a witness’s own prior out-of-court statement.
• Is it an out-of-court statement?
• Is it being offered for its truth?
• Policy → Excluded b/c it denies the opponent the opportunity to C/E the person whose perception, memory and sincerity are in issue.
Specific Non-Hearsay Situations
Verbal Acts or Legally Operative Facts

Effect on the person

Declarant's State of Mind.

Prior Statemens of the Witness which are Not Hearsay.
Specific Non-Hearsay Situations: Verbal Acts or Legally Operative Facts
o Verbal Acts or Legally Operative Facts: Where the words spoken or written have relevant legal significance. (e.g. offer, acceptance, bribery, conspiracy, cancellation, defamation, misrepresentation,permission, waiver).
Specific Non-Hearsay Situations: Effect on the Person
o Effect On the Person: Offered to show the effect on the person who read or heard that statement. (e.g. notice, reason for action or inaction).
Specific Non-Hearsay Sitations: Declarant's State of Mind
o Declarant’s State of Mind: Offered not for truth but to show that the declarant believed them to be true. (e.g. that w. is insane, to prove knowledge, motive).
Specific Non-Hearsay Situations: Prior Statemens of the Witness which are Not Hearsay.
 Prior Inconsistent Statements: If given under oath at a trial, hearing, other proceeding or deposition. Grand Jury testimony does not qualify.
 Prior Consistent Statements: To rebut charge of recent fabrication or improper motive or influence.
 Prior Statement of Identification Made by a Witness: BUT the prior statement can be attested to by anyone. Remember the prior id must have been made by a current witness.
Exceptions to the Rule Against Hearsay
These are out-of-court statements offered for their truth, but are admissible b/c they fall under a recognized exception b/c it is believed they have built in guarantees of trustworthiness.
Exceptions to the Rule Against Hearsay: ADMISSIONS
ADMISSION OF A PARTY
VICARIOUS ADMISSION
ADOPTIVE ADMISSIONS
CO-CONSPIRATOR STATEMENTS
Admission of a Party
 ADMISSION OF A PARTY:
• Declaration of a party offered against the party. Need not be against interest at the time it’s made. (e.g. made 2M, admissible in tax fraud).
o ESSAY TIP → Any out of court statement by a party is probably admissible as an admission.
Vicarious Admission
 VICARIOUS ADMISSION: A statement by the party’s agent or servant concerning a matter w/in the scope of employment made during the existence of the relationship. *** Frequently Tested.
o Note → the “statement” can be part of a report.
Vicarious Admission
 VICARIOUS ADMISSION: A statement by the party’s agent or servant concerning a matter w/in the scope of employment made during the existence of the relationship. *** Frequently Tested.
o Note → the “statement” can be part of a report.
Adoptive Admission
 ADOPTIVE ADMISSIONS: offered (1) against the party and (2) party adopted it (express or implied).
• Silence: treated as an admission if (1) the party heard and understood the stmt; (2) was physically and mentally capable of denying the stmt; (3) TARP would have denied the accusation.
Co – Conspirator Statements
 CO-CONSPIRATOR STATEMENTS: Dec and party conspiredstmt made to a TP during and in furtherance of the conspiracy (civ or cim) (801).
• R1: co-c must prove conspiracy existed before can admit the stmt against ∆contents of stmt must be considered in determining dec’s relationship w/ the party (b/c judge can consider inadmiss ev - civ), but stmt alone not suff to estab the relationship.
• E: testimonial admissions by a co-c are admiss against the other only if opp to c-x the hearsay declarant.
Exceptions to the Rule Against Hearsay: UNAVAILABILITY EXCEPTIONS
FORMER TESTIMONY
STATEMENT AGAINST INTEREST
DYING DECLARATION
Former Testimony
FORMER TESTIMONY:
• W. must be unavailable,
• given at another hearing
• under oath, is admissible if
• opponent must have had a meaningful opportunity to cross examine at prior proceeding (or pred. in int). Grand Jury testimony doesn’t qualify.
o Requires a sufficient similarity of parties and issues.
Statement Against Interest
STATEMENT AGAINST INTEREST:
• W. must be unavailable,
• statement against pecuniary, proprietary or penal interest at the time the statement was made.
o Limitation: Statement exposing the declarant to criminal liability offered to exculpate the accused must be accompanied by corroborating circumstances indicating the trustworthiness of the statement.
Dying Declaration
DYING DECLARATION:
• Made under a sense of impending doom
• Unavailable witness
• Homicide or civil case
• Must concern cause or circumstances of impending death
Exceptions to the Rule Against Hearsay: RELIABILITY EXCEPTIONS
EXISTING STATE OF MIND
EXISTING INTENT
EXCITED UTTERANCE
PRESENT SENSE IMPRESSION
PRESENT PHYSICAL CONDITION
PAST PHYSICAL CONDITION
EXISTING STATE OF MIND
(When in Issue) → now offered for it’s truth! (e.g. “I believe I am the Pope” – insanity)
EXISTING INTENT
[A statement of a declarant’s then state of mind / intent to infer that the intent was carried.
EXCITED UTTERANCE

PRESENT SENSE IMPRESSION
EU - Statement made concerning an exciting or stressful event while under stress caused by that event.

PSI - A statement describing or explaining an event or condition made while D was perceiving the event or immediately thereafter. NOT AN INTENT TO DO SOMETHING.
DECLARATION OF PRESENT PAIN, SUFFERING OR PHYSICAL CONDITION
Can also be mental condition. (e.g. “It hurts!”).
DECLARATION OF PAST PHYSICAL CONDITION
If made for the purposes of diagnosis or treatment. Includes medical history, past symptoms, or the general character of the cause or external source of the symptoms. Must be made to a medical professional.
**Applies even if diagnosis is only for the purpose of giving testimony.
DOCUMENTARY EXCEPTIONS
BUSINESS RECORDS
PAST RECOLLECTION RECORDED
PUBLIC/OFFICIAL RECORDS/REPORTS
BUSINESS RECORDS
1) Made by a business - can be non profit
2) W/in the regular course of business: to make the record and to do the observation.
3) By a person w/ knowledge or a duty to record.
4) Made near the event (unless a lack of trustworthiness is indicated.
- POLICE REPORT: no b/c w/ not under a duty to report.
- ABSENCE: can prove the non-occurrence if it was regular practice to record.
PUBLIC/OFFICIAL RECORDS/REPORTS
The following are admissible
 Records setting forth activities of the office/agency.
 Recordings of matters observed pursuant to a legal duty
• EXCEPTION → police observations in a criminal case.
 In a civil case or against the gov’t in a criminal case – records of factual findings from a legally authoritative investigation.
 IF – the writing is made near in time to the event & the employee had a duty to observe.
• Note → not usually admissible against a crim. defendant.
 Absence of a Public Record: admissible to prove the matter was not recorded or didn’t occur.
OTHERS (5)
• ANCIENT DOCS (803: admiss if (1) stmts in any auth doc 20 yrs or older OR (2) stmts in any doc affecting an int in property (regardless of age).
• VITAL STATISTICS: (803): records of births, marriages, and deaths legally req to be submitted to pub office, if report made to a pub officer.
• LEARNED TREATISES (803): pub work admiss if (1) called to attention of OR relied on by expert and (2) established as reliable by testimony of that W, other expert testimony, or jud notice.
• FEDERAL CATCHALL: stmt (1) has “equiv circumstantial guarantees of trustworthiness (2) strictly nec; and (3) notice of stmt given to adversary.
• FAMILY RECORDS (803): stmts of fact re pers or fam history in bibles, jewelry, engravings, genealogies, tombstone engravings, etc.
PRIVILEGES
Attorney-Client

Physician/Psychiatrist Patient Privilege

Husband – Wife Spousal Privileges
Attorney-Client
 Attorney or Client (or reps of either that are necessary)
 Confidential Communication: (NOT physical evidence or existing documents, i.e. not objects).
 Professional Legal Relationship:
• Intent to establish a professional legal relationship. (even if not successful).
• Predominantly legal advice (e.g. NOT tax).
Attorney-Client / Professional: Exceptions
 EXCEPTIONS → These 1st 3 apply to all professional privileges.
• Facilitating a Future Crime or Fraud
• Communication In Issue: (by client or patient) (i.e. mental patient puts capacity at issue).
• Disputes b/n Parties re. the professional relationship.
• Joint Client Exception: privilege does not apply b/n the parties. (rule only applies to attorneys).
Physician/Psychiatrist Patient Privilege (+ waiver)
• Patient must be Seeking Treatment: (no privilege if it’s a non-treating doctor).
• Information must be confidential and necessary to facilitate professional treatment. Rarely physician applies on the bar b/c not clear FRE recognizes.
• WAIVER: privileged is waived if patient sues or defends by putting physical or mental condition in issue.
Husband – Wife Spousal Privileges
Spousal Immunity Privilege

Confidential Marital Communication Privilege
Spousal Immunity Privilege
 Spousal Immunity Privileges: One spouse can’t be forced to give adverse testimony against the other in a criminal case.
• Valid marriage at time of trial.
• Protects against any and all testimony.
• Witness/Spouse is holder NOT party spouse.
• Criminal Case only.
Confidential Marital Communication Privilege
 Confidential Marital Communication Privilege:
• Married at time of communication
• Protects confidential communication ONLY
• Holder of the privilege is either spouse not just the W.
• Applies to civil and criminal cases.
MISCELLANEOUS / FINAL CONSIDERATIONS
APPLICABILITY OF STATE LAW IN FEDERAL COURT
JUDICIAL NOTICE
PRELIMINARY QUESTIONS OF FACT
UPON WHICH ADMISSIBILITY
DEPENDS
BURDENS OF PROOF
SIXTH AM RIGHT OF CONFRONTATION
APPLICABILITY OF STATE LAW IN FEDERAL COURT

FEDERAL PRIVILEGE LAW
o State evidence law WILL APPLY in federal court IF state substantive law applies (i.e. diversity) w/ re. to –
 Presumptions and burdens of proof:
 Competency of witness (rem. Dead Man Acts)
 Privileges:
o Federal privilege law applies in federal question or in federal criminal cases (i.e. federal common law) (e.g. if a privilege is involved w/ a suit under the Federal Social Security Act).
JUDICIAL NOTICE RULE
recognition of a fact as true w/o formal presentation of evidence
o Rule: 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), including some scientific principles.
o Procedure: party must specifically request it; first time for request can be on appeal.
JUDICIAL NOTICE - Effect

Adjudicative v. Legislative Facts
conclusive in civil cases; in criminal cases, the jury is instructed that it may, but is not required to, accept as conclusive any judicially noticed fact.
 Adjudicative v. Legislative facts:
• Adjudicative: what the FRE speaks to; those that relate to the particular case
• Legislative: no need for common knowledge or indisputable verification; those relating to legal reasoning or lawmaking, such as the rationale behind a privilege.
JUDICIAL NOTICE - LAW
 MUST take notice of federal and state law and the official regulations of the forum state and federal government
 MAY take notice of municipal orders and private acts or resolutions of Congress or the local state legislature
 MAY take notice of the laws of foreign countries.
PRELIMINARY QUESTIONS OF FACT UPON WHICH ADMISSIBILITY DEPENDS
Shall be determined by the court. In making the determination, the court is NOT bound by the rules of evidence.
• Both parties must be given an opportunity to present evidence.
• @ the judge’s discretion whether the jury should be excused.
BURDENS OF PROOF
Prosecution is required to prove all elements beyond a reasonable doubt, (including lack of consent in a rape trial).
SIXTH AM RIGHT OF CONFRONTATION
o Rule: out-of-court statements, even if they fit in a HS exception, will NOT be admitted if:
 The statement is offered against the accused in a criminal case AND
 The declarant is unavailable at the trial (so no c-x) AND
 The out-of-court statement was testimonial UNLESS
 The accused had an opportunity to c-x the declarant’s testimonial statement when it was made OR UNLESS
 The prosecution demonstrates that the defendant has forfeited his Confrontation Clause objection by wrongdoing that prevented the declarant from testifying at trial.
Testimonial (Definition)
o Testimonial = a statement made to law enforcement officials that the declarant anticipates will be used in the prosecution or investigation of the crime. Includes:
 W statements made to police in response to questioning; any testimony given at a formal proceeding; forensic lab reports revealing drugs, fingerprints, firearms evidence, blood, DNA, etc.