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60 Cards in this Set
- Front
- Back
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PIS TOMA
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CA: Yes, PIS is always admissible for TOMA
FRE: Depends--> only if it is NOT hearsay. If it is hearsay, it must be given under oath subject to perjury at a trial, hearing, or in a deposition |
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PCS
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May be admissible to bolster a witnesses credibility if abiding by the rule against bolstering.
If being charged with a recent fabrication of the truth it is admissible, and for TOMA -Generally not admissible if attaching truthful character or impeachment of prior conviction. -Memory, FRE--not likely TOMA -Construy bias and PIS as recent fabrication to admit for TOMA -In order to be admissible, the statement had to occur before the reason for bias or prejudice arose |
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Hearsay Definition and components
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-Out of court statement offered for the TOMA.
-Describes something that happened, spoke prior to the court proceeding, and words are repeated in court to prove what the person said really happened. -Statement must be an assertion, and an assertion is only an assertion if it is intended to be one. |
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Non Hearsay Uses of Out of Court Utterances
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Effect on Listener
Verbal Acts Verbal Parts of Acts Linkage Why Police began an investigation Unique source of knowledge Statements irrespective of what was said Fresh Complaint of Rape |
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Effect on the Listener (NOT HEARSAY)
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The out of court statement will not be considered hearsay, but instead that they had an effect on the listener.
-"I am going to kill you" for duress -"Hey this is slick" for knowledge of slickness" |
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Verbal acts NH
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Words that when uttered have independent legal significance
-words that are part of a contract -words that provide notice |
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Verbal PARTS of Acts NH
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If the words uttered give meaning to an accompanying act that is ambiguous then the words are admissible as verbal parts of an act and are not hearsay
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Statements irrespective of what was said
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If offering a statement just to prove that a statement was made, then not TOMA and not hearsay
-"I'm dead" shows that he is still alive |
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Fresh Complaint of Rape
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-Needs to happen relatively soon after it occurs
-It is offered to corroborate the victim'stestimony, but can come in irrespective of impeachment as oppose to other forms of PCC -Only the fact that the complaint was made, not the details -Offer it firs as an excited utterance so you can offer it TOMA |
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Out of court statement of identification 801d1c
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An out of court statement identifying the person after perceiving the person is not hearsay, and thus admissible
-WITNESS MUST BE AVAILABLE FOR CROSS -CEC: have to remember making the ID |
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801d2 NOT HEARSAY
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Party admissions
Adoptive admissions Authorized admissions Employee admissions Co-conspirator |
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Party Admissions
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A statement offered against a party that is the party's own statement is not hearsay and is admissible.
-CA it is hearsay within an exception |
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Adoptive admissions (801d2b)
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If a party has manifested an adoption of belief in its truth then it will not be hearsay and is admissible if offered against that party.
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Adoption by silence
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If someone makes a statement that a reasonable person would deny was false, then it can be considered adopted by silence and thus admissible as not hearsay.
Foundation -heard it -prove they understood it -no impediments to their respnding or psychological reasons for failing |
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Authorized admissions (801d2c)
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If a statement is made by a person authorized by the party to make such a statement and is offered against that party, then the statement is not hearsay and will be admissible.
-NEED EXPLICIT OR IMPLICIT AUTHORITY TO SPEAK -CEO on behalf of a corporation -MUST BE IN SCOPE OF AUTHORITY |
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Employee (801D2d)
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If a statement is made by the party's agent concerning matters with the scope of employment, made during the existance of that relation and is offered against the employer, then it will not be hearsay.
-DO NOT NEED IMPLICIT OR EXPLICIT AUTHORITY TO SPEAK -DOES NOT EXIST WITHIN THE CEC |
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Co-conspirator exception (801d2e)
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A statement by a co-conspirator of a party during the course and in furtherance of the consipiracy, will not be hearsay and thus admissible
-Must be against the party -Need to prove that conspiracy existed -Conspiracy ends when it either succeeds or ends |
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803 Hearsay Exceptions
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-Exceptions make it not barred by hearsay, but still may be subject to 403 balancing, relevance, violate rule against character evidence
-DO NOT have to worry about the availability of the declarant to testify 1) present sense impression -Excited utterance -then existing mental, emotional, or physical condition -Past recollection recorded -BRE -Absence of entry in a business record -Ancient document exception -Learned treatises -Judgment of Previous Conviction |
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Present Sense Impression (1)
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A statement describing an event or condition made wile the declarant was perceiving the event or condition, or immediately thereafter
-Declarant can be anonymous, but you need to demonstrate that they had personal knowledge: sometimes the statement itself can establish personal knowledge Foundation: 1) Declarant must perceive the event or condition 2) Declarant needs to explain the event or condition 3) Explanation has to be made while perceiving the event CEC: Much narrower--can only be offered to clarify the conduct of the declarant and the statement must be made while engaged in the conduct...IMMEDIATELY AFTER NOT ALLOWED |
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Excited Utterance
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A statement relating to a startling event made while the declarant was under the stress of the excitement caused by the event
-NEED Personal knowledge -Totality of the circumstances to determine excitement Foundation -Startling event -Cannot prove the startling event by the statement itself, need more -Statement relates to the event -must be made while the person was still stressed from the event |
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Then existing mental emotional or physical condition (3)
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Statement of declarant's then existing state of mind or physical condition, but not including a backward looking statement of memory to prove the fact remembered
-SOM examples: intent, affection, jealousy, anger... -I hate that guy okay, the light was red, not -EXCEPTION statement of memory or belief related to the execution, revocation, identification or terms of the declarant's will (can be backward looking) -What's he really saying test and relevancy, big -Must be own state of mind, not someone elses |
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Hilmon
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When the performance of a particular act of an individual is at issue in a case, his intention to perform that act may be shown through statement made out of court and will not be considered hearsay...
Narrow theory: Statements are admissible only to prove the intent of declarant Broad thoery (majority): intent of declarant and other parties referenced in the statement -CEC: adopts broad theory |
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Statements made for purposes of medical diagnosis
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-all four risks of hearsay reduced
-Declarant must be unavailable -Now applies to nurses and paramedics -can be parent of baby -CEC: only applies in child abuse cases |
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Past Recollection Recorded
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A memorandum concerning a matter which a witness once had knowledge, but now has insufficent recollection to testify accurately, that is shown to have been made by the witness when the matter was fresh in the witness' mind
-must try to refresh first -witness must be on the stand -still have to satisfy BER Foundation: -Witness had personal knowledge -W prepared or adopted the record of event -The record was prepared while fresh in the memory -W can vouch that the record accurately reflects their memory -At trial, W, cannot fully and accurately recall the event after attempts to reflect recollection |
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Business Records Exception
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-Personal knowledge of how the record was generated
-Government agencies are businesses Foundation: -Record must be made in the course of regularly conducted business -It was a regular practice to make such a record -Source of the information has to have personal knowledge as to what she speaks -made at or near the time of the transaction -Authenticate -CEC: medical diagnosis does not fall within the BRE, only records that are more clear cut, such as blood test or XRAy |
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Absence of entry in business records
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Evidence that a matter is not included in a regularly kept business record offered to prove the nonoccurrence or existence of the matter will be admissible
-Same as BRE, but didnt happen |
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Public Records Exception
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Records created by the government detailing the activities of the agency, matters observed pursuant to duty, or factual from an investigation against the government are admissible as an exception to hearsay
-For factual findings of an investigation you can attack the trustworthiness of the source -matters observed by the POs is excluded.(only PvD) |
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Oates Rule
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If a police report is inadmissible per 803 (8), it is not admissible under the BRE
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Ancient Docs expetion
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-Combine with 901b8 which authenticates such docs
-20 yrs feds -30 yrs cali |
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Learned Treatisees
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Statement contained in published treatises, established as reliable authority by testimony of an expert or judicial notice
-can use to impeach an expert witness -Can offer for the TOMA of the treatise -Need expert on stand -Establish reliability: expert, judicial notice, offer your witness CEC: very narrow...can use to impeach, but difficult for TOMA |
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Judgment of Previous Conviction
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Evidence of a final judgment adjudging a person guilty of a crime to prove any fact essentila to sustain the judgment is admissible as an exception to hearsay
-Exception when judgment against someon other than the accused offered by the government in a criminal prosecution for purpose OTHER THAN IMPEACHMENT -Can't use a plea of no lo contendre |
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804 Exception to hearsay
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DECLARANT MUST BE UNAVAILABLE
-Former testimony -Dying Declaration -Statemetnt Against Interest |
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Availability
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-Imperfect memory is not sufficient, need to completely not remember anything
-Sick or crazy is not enough...need to be not worth it to wait for you to get better -Adhering to death threats does not make one unavailble |
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Former Testimony (804b1)
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Statements made in testimony given as a witness in another hearing may be admissible if the party who the testimony is now being offered had an opportunity and similar motive to cross..
-If you use clerk transcript of first testimony it is subject to BRE, hearsay, authentication but 803-8 can be used for hearsay and a public record is self authenticating Elements: 1) Declarant unavailable 2) Similar parties* 3) Party who the testimony is being offered against had an opportunity to cross 4) substantial identity of the issues |
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Civil v. Criminal (FRE & CEC)
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Criminal=Must be same parties
Civil CEC & Broad Reading of FRE: can be different parties as long as they have a similar motivation in cross Narrow reading of FRE: If different testimony against those who fit the property meaning of predecessor in interest is admissible |
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Dying Declaration (804b2)
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A statement made by a declarant while believing that his or her death is imminent, concerning the cause or circumstances of the impending death,
-must prove that they believed they were going to die -Statements to the declarant, likely effect on the listener FRE: You have to be UNAVAILABLE at the time of trial, and is limited to homicide in criminal CEC: Have to be dead at trial...no limiations |
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Statement Against Interest (804b3)
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A statement that the time was made that was so far against the interest of the declarant, that a person in the declarant's position would not have made the statemet unless believing it to be true
-Must be unavailable and NOT a party -Interests: pecuniary, property, civil liability, criminal liability -NEED personal knowledge.. -FRE: if it exposes declarant to criminal liability, and exculpate's the accused...need corroboration -CEC: Declaration against social interest are admissible--ridicule or disgrace in the community |
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FRE 807 Exception to hearsay
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If not enumerated in 803 or 804, the court may admite otherwise inadmissible hearsay if finding comparable guarantees of the trustworthiness of the statement, it is more probative to the point than any other evidence, and there is sufficient notice to the party it is being offered against.
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104a v. 104b
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Before evidence can be admitted, someone must determine preliminary facts
104a issues: regarding the admissibility and whether an exemption exists -BER, Privilege 104b: Questions to be answered by the jury per the judges discretion? -was there an original? Test: Can we trust the jury to disregard the evidence if it is inadmissible |
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Confrontation Clause
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6th Amendment to the constitutions provides that in all criminal prosecutions the accused shall have the right to confront the witnesses against him.
-Does not require eyeball to eyeball confrontation unless making an ID -Does not apply to civil cases and where declarant testifies Per Crawfod, if the declarant does not testify in a criminal trial the hearsay is only admissible against a D if the statements are not testimonial -arises in face to face, cross ex, and hearsay -If something is not offered for TOMA then no hearsay and there is no confrontation clause issue |
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Testimonial Statements
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Statemetns that were made under circumstances which would lead an objective witness reasonably to believe the statement would be available for use at a later trial
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Nontestimonial Statements
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A casual remark to an acquaintance
-statements made to family members or friends -Statements to doctors and nurses if their primary job is clinical, and not a conduit for police interrogration -911: it always depends...was it in aid of an ongoing emergecy |
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Bruton Doctrine
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When multiple defendants are charged with a crime and one of them makes a statemetn that incriminates himself as well as the others and may be admissible as a party admission it violates the confrontation caluse because the individual cannot be cross examined when asserting his fifth amendment right
-Statements may be admitted when the statements are not incriminating on their face and the court edits the statements to exclude all references to the other D |
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Chambers Doctrine
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Sometimes rules of evidence must give way to greater values. If the rules of evidence prevent a D from putting on a defense exceptions may be made.
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Opinion Testimony from a Lay Witness
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A non-witness testimony of pinion is limited to those inferences that are rationally based in the perception of the witness, helpful to understand the witness' tetimony, and are not based on scientific, technical, or other specialized knowledge
-must have personal knowledge |
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Opinion Testimony of Experts
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A witness qualified as an expert may offer opinion testimony if scientific, technical, or other specialized knowledge will assist the jury in understanding the evidence to determine a fact in issue if the testimony is based on sufficient data, is produced through a reliable principle and methods, and applied these principles reliably to the facts inthe case.
-WILL IT ASSIST THE JURY? -Can be based upon inadmissible evidence, but before disclosing it must substantially outweigh the prejudicial effect -CEC: not automatic balancing test, but can call for 352 objection |
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CA--Frye Test
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Expert opinion based on NOVEL scientific techinique is in admissible unless the technique is generally accepted as reliable in the relevant scientific community
-scientific evidence of dubious reliability -If it is in the experimental stage then it is not generally accepted, but once it crosses the line from experimental to demonstrable then it is inadmissible |
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FRE--Daubert
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General acceptance is only one of many factors that the court will look at in determining the reliability of the scientific technique employed:
-lab tests -accuracy rate -peer review literature -standards in place governing the technique -what exten is this expert testimony based on objective factors |
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Attorney client privilege
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A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made to his or her lawyer or the lawyer's representative for the purpose of facilitating the rendition of professional legal services to the client
-Applies if a reasonable person thinks they were speaking to a lawyer -The privilege is not ruined if reasonable steps to ensure confidentiality are taken |
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ACP as to Corporation
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Rejected controle test. Now looks for
1-Does it help provide legal advice 2-employees made aware of this purpose 3-requested by superiors 4-scope within employees duties 5-comms treated as confidential |
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Physician/Psychotherapist Privilege
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Information acquired in attending to a patient in a professional capacity that is necessary to enable him or her to act in that capacity is privileged.
-Patient holds privilege, but doc is obligated to assert -Not destroyed by family members -Physician does not apply in criinal cases -physician and psyco apply in both criminal and civil -Does not apply to necessary reports CEC: if having to hospitalize yourself for your own safety then it does not apply...Terrasoff as well -if putting your mental or physical condition in issue, then there is no privilege |
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Expert testimony refresh
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Lose privilege if use it to refresh on stand...if doing it before, the judge can compel you
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Spousal Testimonial Privilege
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Can refuse to testify
-Testifying spouse is the holder |
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Spousal Confidential communications privilege
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-Both spouses hold the privilege
-still applies after divorce -Ruined by presence of the third party -CEC-if revealed, only waives the privilege for the revealer |
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Clergy/Pentinent privilege
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Comms between a pentintent and clergy that are intended to be confidential and private
CEC: both petitioner and religious dude hold the privilege |
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Privilege for Official Info
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CA only
Information acquired by a public employee in the course of his or her duty and not open or official disclosed to the public Absolute privilege: barred by federal or state statute Conditional privilege: barr by a balancing of the interest of confidentiality as oppose to that in upholding justice |
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Presumption
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Basic Facts are offered, presumption arises.
Ways to attack: -basic facts -presumption itself If attacking the presumption if -Burden with going forward with evidence shifts, the presumption disappears and it goes to the jury to determine -Burden of proof shifts: the presumption still exists, but goes to the jury and they need to decide whether the evidence has sufficiently been shown that the presumed facts are not there |
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CA Prima Facie
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Creates a rebuttable presumption that only shifts the burden of proof if serving public policy
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Judicial Notice
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The court can take notice of:
Adjudicative: who what when where why Legislative: done in capacity as common law court in making new law...looks at the record outside Evaluative: background facts that you need to understand the adudicative facts |
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FRE 201
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Judicially noticed facts must be generally known within the territorial jurisdiction of the court or capable of accurate and ready determination by resort to sourced whose accuracy cannot be reasonably questioned
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