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173 Cards in this Set

  • Front
  • Back
Federal Rules apply to what proceedings
1. civil and criminal trials
2. bankruptcy proceedings
3. admiratly and maritime
4. contempt proceedings (except summary contempt)
Federal Rules Not Applicable in what proceedings
1. Preliminary questions of fact decided by judge
2. Grand jury proceedings
3. 7 other proceedings (see outline)
Relevancy defined
Evidence is relevant if the offered evidence has any tendency to prove/disprove a fact of consequence
FRE 403 balancing test
if the probative value (relevancy) is substantially outweighed by unfair prejudice, confuse jury, waste of time (not KY), undue delay, cumulative
FRE and surprise
not a proper objection to relevant evidence under FRE
appellate review standard for admit/exclude evidence
abuse of discretion
Similiar Accidents Negligence and products cases - when prior or other accidents are relevant
Relevant if
1. dangerous condition existed
2. product is defective
3. cause of accident
4. notice dangerous condition - provided substantially similiar conditions
Absence Other Accidents
Negligence and products cases - when absence of prior or other accidents are relevant
rebut a claim of:
1. dangerous condition
2. defective product
3. causation
4. notice provided substantially similiar conditions
Consciousness of guilt - when evidence relevant
conduct shows a person's consciousness of guilt admissible as circumstantial evidence ex: flight, attempted suicide, etc.
Out-of-court experiments/demonstrations - when admissible as evidence
may be relevant to cause of an accident provided occured substantially similiar conditions
Subsequent Remedial Measures
Generally inadmissible
-to encourage people to fix dangerous conditions
Examples of subsequent remedial measures
repairs, changes co. policies, firing an employee, installing safety devices, replacing floor, tile or rug, new warnings on products
When are subsequent remedial measures admissible?
For "other purpose" then negligence or culpable
F - Feasibility
I - Impeachment
C - Control
O - Ownership
Pre-accident repairs admissible?
Yes - if relevant
Are compromise/settlement offers admissible evidence?
Not admissible - civil claim
1. claim is valid/invalid
2. amount of damages

conduct and admissions made in compromise negotiations - excluded
Compromise/settlement offers - dispute rule
must be dispute as to fault (validity of claim) or amount of damages
--if both admitted evidence admissible
when compromise/settlement offer admissible
for "other purposes"
1. bias, prejudice, interest of a witness
2. negate a claim undue delay
3. efforts to obstruct an investigation
compromise/settlement - prior inconsistent statement
inadmissible to impeach by prior inconsistent statement
offers to plead guilty/nolo contendre - criminal cases
when not admissible?
1. Plea of guilty, later withdrawn
2. Offer to plead, nolo contendre
3. any statements by D during plea negotiations
plead guilty/nolo contendre - special rules
1. nolo contendre - inadmissible in subsequent civil trial
2. plead guilty - admissible as an admission in subsequent civil or criminal, at least for impeachment
offers to pay medical and similiar expenses - when admissible
general rule - evidence party offered to pay inadmissible
BUT - admissioni of fault while offering to pay is admissible
Generally, when liability insurance admissible evidence?
General rule - insurance/no insurance inadmissible
BUT statement of fault/stmt of insurance - fault admissible as admission
When can liability insurance be admitted for "other purposes?"
1. Proof of agency
2. Ownership
3. Control
4. Bia, prejudice or interest of W
Habit evidence - general rule
Evidence of a habit of a person or the routine practice of an organization is admissible to prove that the person or organization acted in confirmity therewith
Habit defined
specific acts of consistent behavior over a period of time by a person or organization
How to prove habit or routine practice?
Show
1. person's conduct was done enough time to qualify as a habit
2. person's conduct was consistent or without much variation
To whom can habit evidence apply?
persons and organizations
Not - animals/machines
Who can corroborate habit evidence?
Doesn't need to be corroborated. Single witness including party to lawsuit.
Is negative habit evidence allowed?
Yes
Don't drink, smoke, use drugs
What proof is allowed for habit evidence?
1. Specific acts conduct
2. opinion evidence, but
3. NOT reputation
General rule of admissibility character evidence?
Generally, character evidence is inadmissible to prove conforming conduct
--too prejudicial
When character evidence admissible in civil case?
When person's character is an essential element of a charge, claim or defense
Examples of common types civil cases person's character is admissible
1. Defamation
2. Negligent entrustment
3. Negligent hiring
4. Child Custody
5. Civil fraud (misrepresentation - honesty/dishonesty material issues)
What types of evidence are admissible where a person's character is directly in issue?
1. Reputation
2. Opinion
3. Relevant specific acts
--criminal or non criminal acts, no conviction - arrest or charges required
Criminal Cases - when character evidence admissible?
element of crime (rare - criminal perjury or fraud)
1. Mercy Rule - Accused his good character
2. Victim's Character - issue of self defense
3. Sexual Assault/Child Molestation
4. Attack/Rehabilitate W Character for Truth
Character evidence -
Mercy Rule in criminal cases
Mercy Rule - Accused offers character evidence - his good character
1. Accused opens door
2. Rebuttal by prosection
3. Reputation/opinon only - no specific acts
Character evidence -
Victim's character on issue of Self Defense
Assault, battery, homicide
accused right to offer evidence of Victim's violent character
1. Accused opens door to Victim's violent character
2. Rebuttal by prosection
3. Reputation/opinion only, not specific peaceful acts of Victim
KY - accused does not open door to his character for violence
Character evidence -
Sexual Assault/Child Molestation cases
evidence of prior sexual acts by the D is admissible for any relevant purpose, including propensity to commit sex offenses
--not been adopted in Kentucky
Character evidence
-character for truth
admissible to attack/rehabilitate a witness's character for truth and veracity
1. reputation or opinion testimony only
What is general rule for character of victim in sexual assualt cases?
Generally, evidence of past sexual misconduct is excluded including evidence of other sexual history and the victim's sexual predisposition
Character of victim in sexual assault case -
When may specific acts of victim's sexual hisotry be admissible?
1. another person was source of injury or source of semen
2. consent prior sexual acts between V and D
3. constitutionally required - Sixith Amendment\
KY - rules don't mention sixith amendment - but can always make consitutional arguements
When is evidence of other wrongs, acts or crimes admissible?
(exception - prior sex crimes)
- to prove something relevant other than conforming conduct
MIAMI KOPPS
Motive, Intent, Absence of mistake or accident, Identity (Signature), Knowledge, Opportunity, Preparation, Plan, Scheme (Common)
KY - other crimes admissible if intertwined - to show integral parts of one continous transaction - ex: murder during armed robbery
What level of proof is required for "other crimes" evidence?
sufficient evidence to support a finding by the jury that the D committed the other crimes
What are the legal qualifications to testify?
C - communicate
O - oath or affirmation
M - Memory
P - personal knowledge (not expert W)
When is juror competent to attack the validity of a verdict or indictment?
General rule - jury may not impeach its own verdict
Exception -
1. extraneous prejudicial information
2. outside influence
3. Mistake on verdict form
KY - no evidence rule re jury misconduct
Exclusion of W - what is "invoking the rule"
Judge - order W out of courtroom
Mandatory if requested by a party
Exlusion of W
Which W not excluded?
P - a party
R - representative -not a natural party
E -Essential to party's case (expert W)
S - Statute - exempt by
S
What if W violates the exclusion of W rule?
1. refuse allow W testify
2. declare mistrial
3. instruct jury - consider credibility of W
4. declare W in contempt of court
What questioning allowed on direct examination?
generally no leading Q (except preliminary, jog memory, communication prob)
except W:
H - Hostile
A - Adverse
W - Witness identified with adverse party
What questioning allowed on cross examination?
generally leading q allowed
except: W and X examiner on same side
What is the scope of cross examination?
Federal rule - Closed Scope -only subjects covered on direct plus credibility of W
Open Scope - all relvant
KY - Modified Open Scope
W cross examined on any matter relevant to any issue except judge may limit in interest of justice
Can court permit inquiry into new subjects not covered on direct exam?
Yes - but no leading Q's allowed
Refreshing recollection - general rules
1. writing may not introduced as evidence - only opponent for impeachment
2. need not be admissible
3. doesn't have to be written or adopted by W
4. writing doesn't have to be prepared close to time of event
5. original not required be produced
6. can be hearsay
7. trial court - can permit W to look at while testifying
Impeachment - general rules
1. Good-faith basis - for fact Q
2. Rule Against Bolstering - no rehabilitation evidence unless first attacked
3. collateral Issue rule - extrinsic evidence not admissible to prove a collateral issue
4. Special rule when the accused testifies on a preliminary matter - not subject to cross exam on other matters (motion to suppress)
5. Impeachment of own W - cool
6. Impeachment of religious beliefs - can't attack/enhance credibility
Impeachment - Bias, Prejudice, Interest, Motive
Admissible?
admissible - any evidence show W may have motive to testify for/against
if W denies - extrinsic evidence admissible
Impeachment - Mental Disability - Sensory
Admissible?
admissible - any evidence affect W's ability to observe, communicate or remember
if W denies - extrinsic evidence admissible
Impeachment - Specific Contradiction on a Material Issue
Admissible?
Always relevant, and not collateral if offerted to prove a material issue
Cross - exam - about a collateral issue may be allowed, but extrinsic evidence not admissible if collateral matter and denied by W
Impeachment - prior inconsistent statement by a testifying W
admissible?
may be admissible to impeach credibility and dmissible as substantive evidence (prove truth)
Prior Inconsistent statement
W denies prior stmt or lack of memory
is extrinisic evidence admissible?
generally, unless collateral matter then bound by W's answer
For what is prior inconsistent statment made by a party to the suit admissible?
prior statement by party is admissible as an admission and is admissible as substantive evidence and for impeachment and is not hearsay
For what is prior inconsistent statement made under oath admissible?
substantive evidence
impeachment purposes
not hearsay
For ehat is prior inconsistent statement that is hearsay exception admissible?
ex: excited utterance
substantive evidence
impeachment purposes
When is a prior inconsistent statement, not by party, not under oath, and not a hearsay exception admissible?
only impeachment purposes
not hearsay (impeachment statements not hearsay)
When may extrinsic evidence of prior inconsistent statment by W be admitted?
Generally, if W is afforded an opportunity to explain or deny during trial and opposing party can question W
Character Impeachment
-truthfulness always a material issue
-only reputation or opinion
-no specific acts
-must relate to untruthfulness of the W
General Rule - when is extrinsic evidence of prior inconsistent statement admissible against W?
Generally not admissible unless W afforded an opportunity to explain or deny the prior statement at some point during the trial and the opposing party is also given an opportunity to question W
Why is character impeachment for truth automaticallly a material issue?
Because W must testify under oath
When may W be impeached by prior acts of untruthfulness?
W may be impeached by any specific acts relevant to untruthfulness?
-no conviction, arrest, charge required
-examiner must have good faith basis
-must not be too remote in time
-court has discretion to limit
-limiting instruction is required if requested
-if denied extrinsic evidence not admissible
What crimes qualify for impeachment purposes?
1. felony convictions
2. all crimes involving dishonesty or false statements
KY - misdemeanor convictions not admissible to impeach (only felony)
General Rule - when is extrinsic evidence of prior inconsistent statement admissible against W?
Generally not admissible unless W afforded an opportunity to explain or deny the prior statement at some point during the trial and the opposing party is also given an opportunity to question W
When may a judge exclude prior conviction involving dishonesty/false statements?
Prior convictions automatically admissible to impeach. Judge may not exclude b/c too prejudicial
-For all other convictions the judge has discretion to exclude
KY - rule 403 balancing test applies
Why is character impeachment for truth automaticallly a material issue?
Because W must testify under oath
When may W be impeached by prior acts of untruthfulness?
W may be impeached by any specific acts relevant to untruthfulness?
-no conviction, arrest, charge required
-examiner must have good faith basis
-must not be too remote in time
-court has discretion to limit
-limiting instruction is required if requested
-if denied extrinsic evidence not admissible
What crimes qualify for impeachment purposes?
1. felony convictions
2. all crimes involving dishonesty or false statements
KY - misdemeanor convictions not admissible to impeach (only felony)
When may a judge exclude prior conviction involving dishonesty/false statements?
Prior convictions automatically admissible to impeach. Judge may not exclude b/c too prejudicial
-For all other convictions the judge has discretion to exclude
KY - rule 403 balancing test applies
Impeachment by crime
What time limits are there on admitting prior conviction of a crime?
Generally, must be within 10 years. But convictions more than 10 years old may be admissible if
1. Notice to opposing party
2. Balancing Test - (opposite of 403) the court finds the probabtive value of the old conviction substantially outweighs its prejudicial effect
Impeachment by crime
What is the effect of a pardon on the admissiblility of a prior conviction?
Prior conviction inadmissible if W pardoned and 1) no subsequent felony conviction and 2) pardon is based on a finding of innocence
Impeachment by crime
When are juvenile adjudications admissible?
1. if the accused testifies - inadmissible
2. all other W - at the discretion of the court
KY - juvenile adjudications are inadmissible to impeach
Impeachment by crime
Is prior conviction admissible if case presently on appeal?
Fed - Yes
KY - Yes
Impeachment by crime
- what details of prior admissible convictions are allowed?
type of crime, date, sentence
KY - identity of crime may not be disclosed unless W denies the conviction
Cross exam Character W
-general rule when D offers evidence of their good character (Mercy Rule)
If D offers good character W - D's character W on cross-exam may be asked about their knowledge of specific acts of D's conduct
-if character W testifies to reputation in the community - "have you heard...
opinion testimony -
"do you know... or are you aware....
Cross exam Character W
-what are limitations on cross exam of character W?
1. good faith factual basis
2. D's reputation at time of offense (not trial)
3.**extrinisic evidence not admissible to prove D's prior acts
4. specific acts subject 403
5. limiting jury instruction (not as evidence D committed acts)
6. improper to ask character W if opinion would change if knew D guilty of crime charged
Cross exam. character W
When is an examiner bound by W's answer on cross-examination - no extrinsic evidence is allowed?
1. W unequivocally admits the basis of impeachment (e.g. admist bias, prior inconsistent statement)
2. no extrinsic evidence on collateral matter
3. W denies prior acts of untruthfulness - dishonesty and no conviction
4. cross-examination of character W with "have you heard" or "do you know" type questions
How do you rehabilitate a W following impeachment?
1. redirect - have W explain
2. character W - earlier W's good character for truth - reputation and opinion only - bolstering rule
3. Use of prior consistent statement
When can you use a prior consistent statement to rehabilitate a W?
Adverse party on cross-examination suggests
W lied, changed story, improper motive
-prior consistent statement admissible provided prior statement made at time before W had motive to lie
What are the two conditions for lay W?
1. personal knowledge
2. Judge believes lay opinion will 1) help or b) assist the jury to decide the case
When are lay W opinions not admissible?
1. P or D should win/lose
2. legal conclusions
When is expert testimony admissible?
1. subject matter scientific, technical, specialized knowledge
2. expert opinion will help jury
3. opinion relevant and based on reliable methods
How do you prove scientific principle or technique is reliable?
1. expert opinion
2. judicial notice
3. general acceptance in scientific community
What are the Daubert factors a trial court uses to ensure reasoning and methodology of expert testimony is reliable?
T - tested (or capable of testing)
A - general acceptance
P - peer review or publication
E - Error rate (known or potential)
Who qualifies as an expert?
S - Skill
K - Knowledge
E - Experience
E - Education
T - Training
What kinds of facts/data may an expert base his opinion on?
1. personal knowledge of facts learned before/during trial
2. hypothetical questions based on evidence at trial
3. Reasonable Reliance Rule**
other experts in the same field - including hearsay
--if facts data relied on by expert is otherwise inadmissible (hearsay) those outside sources should not be disclosed to the jury unless trial court finds probative value substantially outweighs its prejudicial effect (reverse 403)
KY - if found to be trustworthy and necessary and not privileged, facts and data relied on by an expert W may, at discretion of the court, be dislcosed to the jury, even though based on otherwise inadmissible evidence
May an expert state an opinion that embraces an ultimate issue in the trial?
Fed - Yes
KY - ?

Allowed if judge believes opinion will help the jury decide the case

Special Rule of Exclusion - criminal case expert w may not express an opinion whether D did or did not have mental state which constitutes an element of the crime (John Hinckley rule) - No KY rule - case law unclear
8 roles of judge at trial
1. duty and discretion to exercise reasonable control
2. duty prevent inadmissible evidence
3. admissibility of confession must be outside presence of jury
4. other preliminary matters (other than confession) shall also be out of presence of jury if 1) interests of justice or 2) accused testifies and requests exclusion
5. admissible against one party but not for another purpose or against another party - a limiting instruction (upon request)
6. writing or recording introduced - adverse party introduce another portion
7. Preliminary questions
7.1 C Compentency of W
7.2 A Admissibility of Evidence
7.3 P Privileges
8. Examination of W by Judge
KY - jurors may ask Q of W in writing - at discretion of the court
Hearsay
Definition
An out of court statement
by a person
offered to prove the statement is true
Hearsay
What is a "statement"
oral
written
assertive conduct
Hearsay
What is assertive conduct?
any out-of-court conduct by a person intended as a substitute for words
intent to communicate is required
What are five hearsay exclusions?
CAPPP Rule
C Co-conspirator statements
A Admission by party opponent
PPP - prior statements by testifying W
P - Prior Inconsistent Statements by Testifying W - given under Oath (Ky prior oath not required)
P - Prior Consistent Statements
P - Prior Identification of a person
KY - these are hearsay exceptions
When are co-conspirator statements admissible against co-conspirator?
When trial court finds by preponderance of evidence
1. conspiracy existed
2. declarant was a member of conspiracy
3. person against whom statement made was also a member of conspiracy
4. statement made during conspiracy
5. statement made in furtherance of conspiracy
When is an admission by a party opponent admissible?
1. relevant statement by party to the lawsuit
2. offered in evidence by opponent party
When are prior statements of testifying W admissible?
1. declarant must testify at the trial or hearing, and
2. must be subject to cross examination about the prior statement
Prior statements testifying W
Prior inconsistent statements
-Prior inconsistent statement by testifying W given under oath
KY rule - prior oath not required
Prior statements testifying W
Prior consistent statement
offered to rebut declarant recent fabrication or improper influence or motive to rehabiltate impeached W
Prior statements testifing W
Prior identification of a Person
not hearsay if
1. declarant testifies at trial
2. is subject to cross examination

2 important rules
-if doesn't testify - can't have third party testify who they identified (e.g. police0
-if does testify but can't recall or turncoat - third party can testify (e.g. police)
What is todays confrontation clause (sixth amendment) analysis?
In Crawford, Supreme Court - "testimonal" hearsay statements are not admissible against an accused unless
1) the hearsay declarant is unavailable to testify, and
2) the accused has or had an opportunity to cross examine the declarant
unless 2 elements satisfied statement is inadmissible even if clearly reliable or satisfies hearsay exception
What are "testimonal" statements under the confrontation clause (sixith amendment)?
"testimonal statements" are those made during police interrogations where the circumstances objectively indicate
1) there is no ongoing emergency and
2) the primary pupose is to prove past events relevant to later prosection.

not admssible as violative of the Confrontation Clause
What are "non-testimonal" statements under the confrontation clause (sixith amendment)
"non-testimonal" statements are those made in course of police interrogation where circumstances objectively indicate primary purpose of the interrogation is to provide police assistance to meet an ongoing emergency
Are sworn affidavits prepared by state drug laboratories admissible against the accused?
Implicates confrontation clause
Not admissible against the accused unless the lab report is made avaialble to the defense for cross examination
"testimonal hearsay" inadmissible unless W testifies at trial or if unavailable the accused had prior opportunity for cross-examination of the analyst (even if admissible under business records exception)
23 hearsay exceptions
*1 present sense impression
*2 excited utterance
*3 then existing state of mind
*4 stmt diagnosis and treatment
*5 past recollection recorded
*6 business records
*7absence of business records
*8 public records
*9 absence of public records
*10 family records
*11 ancient documents
*12 market reports - commercial publications
*13 learned treatises
10 minor ones
most based on trustworthiness or necessity
Present Sense Impression
Hearsay exception
statement by speaker which describes or explains some event or condition during the event or immediately thereafter
Excited Utterance
Hearsay exception
-startling event
-personal knowledge
-event causes stress or excitement
-spontaneous statement
-still in shock
-relates to startling event
state of mind
hearsay exception
P physical condition
E emotional condition
M mental condition is admissible hearsay if declarant's state of mind is relevant
4 distinct parts
1. then-existing
--present condition
--show subsequent conduct
2. joint conduct
majority rule - admissible against both X and Y
3. Memory or Belief
-not admissible
4. Testator's Will
-testator statement is admissible hearsay, even if statement based on memory or belief
state of the body
medical exception to hearsay
hearsay exception
"medical exception"
admissible hearsay so long as reasonably pertinent (relevant) to either diagnosis or treatment
recorded recollection (past recollection recorded)
hearsay exception
1. W has "present" memory problems
2. attempt to refresh fail
3. W previously wrote or adopted anotehr writing or recording which describes the matter while "fresh in W's memory"
4. writing becomes substitute for memory
5. only contents of writing are admissible
6. writing is not admissible as an exhibit by the proponent, but may be introduced into evidence by opponent party
Business Records
Hearsay exception
K - kept in regular course of business
R - routine record
A - at or near event
P - Personal Knowledge (record made by employee with business duty to record)
KY - an opinion in a business record is not admissible if the opinion would be inadmissible if the person giving the opinion were testifying
Business Records may be authenticated in which three ways?
1. Custodian (qualified W) testifies
2. affidavit filed by custodian (qualified person)
3. stipulation by adverse party
Absence of business records or public records
2 separate hearsay exceptions
1. all records of this type are routinely recorded
2. a diligent search of the records failed to disclose that a particular business/public record occured
Public Records and Reports
hearsay exception
-public record where government employee had a duty to record and report
-unnecessary to be routine or contemporaneously
Must fall w/in 3 categories
-activities of the agency
-matters observed by public employee where a duty to observe and report
-"factual findings" in government reports in civil cases, including opinions and conclusions (unless not trustworthy)
Public Records and Reports
What are the limitations in criminal cases?
Matters observed by law enforcement are not admissible
-but admissible against the prosecution on behalf of the accused
-factual findings are not admissible against accused
--but admissible against government on behalf of the accused
KY - more restricitive - law enforcement reports are not admissible (criminal and civil)
Family Records
hearsay exception
-statements of pedigree (personal or family history) contained in family records
Market Reports and Commercial Publications
hearsay exception
tabulations of information
-phone books
-credit reports
-etc.
Learned Treatises
hearsay exception
authorative, reliable, published work
M - Medicine
A - Art
S - Science
H - History

admissible if statement used during the examination of an expert W (direct or cross) and the published work is properly authenticated
Learned Treatises
how do you authenticate?
1. reliance by the expert
2. admission by the expert
3. other experts testify
4. judicial notice by court
5. stipulation by opponent parties
Learned Treatise
What is admissible and for what purpose?
hearsay exception
-substantive and impeachment
-only contents of the text and are read to jury
-publication may not be received in evidence as an exhibit for use by the jury during deliberations
When is a declarant unavailable for hearsay exception purposes?
P - Privilege
R - Refuses to testify
I - Incapacitated
S - Subpoena (good faith effort)
M - Lack of Memory
What are the 4 hearsay exceptions where the declarant must be unavailable?
SFPD (san francisco police department)
S - statement against interest
F - Former Testimony
P - Pedigree
D - Dying declaration
Former Testimony
Hearsay exception
Declarant must be unavailable
1. Prior testimony by W in a trial or proceeding (same/diff)
2.Prior testimony under oath
3. Opportunity to examine W at earlier hearing or proceeding
4. Party against whom earlier testimony is now offered had a similiar motive to develop W's testimony
5. W (declarant) is unavailable
focus is two things
1. opportunity to cross exam at earlier proceeding
2. issues substantially alike
Dying Declaration
hearsay exception
C - cause of death, relates
U - unavailable (PRISM rule)
B - belief of impending death
A - admissible in all civil cases, but only homicide criminal cases
KY - dying declaration are admissible in all criminal and civil proceedings
statement against interest
hearsay exception
statement of a nonparty declarant may be admissible if
1. contrary pecuniary, proprietary, civil, penal, or render invalid claim
2. resonable person not make statement unless believed true
3. declarant is unavailable

Special Rules - criminal case
1. Declarant is unavailable and
2. other evidence, clearly indicated declarant's confession is corroborated
KY - all statements against penal interest require corroboration
Forfeiture by wrongdoing
hearsay statement by declarant may be admissible, even if usually barred
1. wrongdoing by party
2. intent to make declarant unavailable
3. cause declarant to be unavailable
SCT - confrontation clause rights of an accused are only waived if the accused engaged in wrongdoing, which was intended to cause W to become unavailable
Hearsay within Hearsay
1. admissible if each level of hearsay conforms to exception (or is not hearsay)
Residual Exception to hearsay
hearsay exception
out-of-court statement has equivalent guarantees of trustworthiness if
1. stmt evidence of material fact
2. stmt more probative than any other evidence reasonably available to the proponent
3. purpose of evidence rules and interests of justice will be best served by admission
KY - does not have residual exception
When do authentication problems arise when a party offers evidence?
1. demonstrative evidence
2. real evidence
3. documentary evidence
4. voice identifications
What is the basice rule of authentication?
before introduction of evidence must establish it is geniune
How much evidence is required to authenticate an item?
sufficient evidence a resonable juror could find the item genuine by a propondernce of the evidence
-judge must admit jury makes final decision
How do you authenticate demonstrative evidence?
demonstrative evidence - tangible evidence helps jury assist in deciding facts
-W substantially familiar with item shown
-exhibit fairly and accurately represents the scene
-exhibit will assist teh jury
-exhibit survives 403 balancing
--admisibility for use during jury deliberations is at discretion of the court
How do you authenticate photographs?
-only one W is necessary
-W must be familiar with scene (not necessary photographer or W present)
How do you authenticate sound recordings?
1. all voices on recordings must be identified
2. machine in proper order
3. recording is accurate
How do you authenticate real evidence?
1. establish object has connection with case
2. object has distincitive characteristics which is recognized by foundation W

Chain of Custody
If fungible the chain of custody must be proved to authenticate it
-each person who handled it must testify to its safekeeping (unless stipulated)
--not fatal if every link in chain can be established
---unless the item has been tampered with or altered only substantial compliance with chain of custody
Ancient documents
hearsay exception
-20 years or older
-found in proper place
-not suspicious on its face
When writing or recording is offered in evidence what are 5 evidentiary hurdles to overcome?
OPRAH RULE
O - original document (best evidence rule)
P - privileged document
R - relevant and not be subsntially outweighed by unfair prejudice, confuse jury etc.
A - authenticated (prima facie genuine)
H - hearsay (inadmissible)
What documents are self authenticating?
CONTAC
C Certified copy of public record
O Official gov't publications
N Newspapers and Periodicals
T trade inscriptions - lable or tag affixed to a product indicating ownership
A Acknowledged Documents - notarized
C Commercial paper (negotial instruments, bill of lading)
How do you authenticate a writing?
1. W admists
2. eyewitness testifies saw author write it
3. opinion by lay witness - handwriting
4. opinion by expert W
5. jury compare samples
6. ancient documents (hearsay exception)
7.Reply doctrine - written response
8. cirecumstantial proof
How do you authenticate voice identifications?
direct evidence - W testifies recognizes voice
circumstantial evidence - W recognizes speakers voice, speaker has specialized knowledge, W dials and speaker self identifies, W looked up business number and speaker referred to matters relevant to business
What is the Best Evidence Rule?
Party seeks to prove the contents of a writing, recording, or photograph, the original writing must be produced unless the proponent has a valid excuse for its non-production
Under BER - what does it mean to prove terms/contents of a writing?
1. Legally operative documents - writing creates/destroys legal relationship
2. Where a W is only competent to testify b/c read some writing

If facts exist independent of a writing, BER does not apply (birth certificate, death cert etc.)
What is the silent W rule?
BER
most of the time, photographs, videos are only used to aid the jury, not prove contents
if prove contents - silent W - A W may not testify as to the contents - must be introduced
What constitutes an "original" writing?
writing or recording or counterpoint itself
can be multiple originals if intended by parties
**three substitutes for an original
1. duplicates (Xerox)
-email sender is original and recipient is a duplicate
2. Certified copy of public record
3. summaries of voluminous records (usually business records)
--original records would be admissible hearsay
--opponent party pre-trial access
--summaries properly authenticated
What are valid excuses to having original document (BER)?
LOCS
L Lost or destroyed (not in bad faith)
O Opponent party has possesion of original, and refuses to deliver
C Collateral purpose - not closely related to material purpose
S - service of subpoena - no way to subpoena document

Onece good excuse - any type of secondary evidence is now admissible (doc. oral)
Does BER apply to chattel bearing inscriptions?
not address fed rules
majority rule - trial court has discretion whether to apply BER
What function does judge have with BER?
1. whether BER applies to writing
2. whether a writing is an original or duplicate
3. whether valid excuse
4. whether summaries are admissible
What function does jury have with BER?
1. whether original
2. accuracy of writing
3. whether an original existed
what are four universally accepted privileges?
1. attorney-client privilege
2. psychotherapist-patient privilege
3. clergyman privilege
4. husband-wife
Fed/KY does not recognize doctor-patient
what powers does a confidential communication holder posess?
-privilege to refuse to disclose a confidential communication
-prevent others from disclosing the communication
are communications with disbarred attorney/psychotherapist privileged?
Yes - so long as believed professional is licensed
Are observations of an attorney privileged?
usually not
Who may assert a confidential privilege?
only the holder of the privilege
do privileged communications survive death?
Yes
How do you waive a confidential communication privilege?
-Failure to assert privilege in timely manner
-voluntarily dislcoses
--exception disclosure to spouse or clergyman
What are the exceptions to privileged communications?
1. crime fraud exception
2. breach of duty between attorney and client
3. joint-client exception
What two privileges are there for Husband-Wife privilege?
1. spousal testimony privilege
2. condfidential communication privilege
What is the spousal-testimonal privilege?
part of Husband-Wife privilege
allows a spouse to refue to testify agaisnt the other spouse in a criminal trial, but not apply to civil proceedings
-extends premarital matters
-federal trial voluntary testify against spouse - criminal trial
-not sham marriages
-even if shortly married before trial
-all adverse testimony, even observations
What are the exceptions to the spousal-testimonal privilege?
Where spouse may be compelled to testify

-spouse is a victim of crime or tort committed by other spouse
-a child of either is a victim
KY spousal testimonal privilege applies to both civil and criminal
KY - only applies after date of marriage
KY - either spouse may invoke privilege
what is the confidential communications privilege between spouses?
confidential communications between spouses during a valid marriage and intended to be confidential are privileged in both civil and criminal cases
-either spouse may invoke
-before/after marriage not protected
-survive death/marriage
-presumed confidential
-in presence of others not confidential
-observations by spouse not confidential
KY - "all knowledge" obtained by either spouse is privileged (so include observations)
What are exceptions confidential comunications - spouses - testimony (can be compelled)?
-charged with crime/tort against spouse/child
-civil action where adverse parties
-joint participants - future crime
what are some other privileges recognized in KY?
some not recognized?
-religious privilege
-counselor/client
-identify of informer
not recognized
accountant/client
journalist privilege
What is the contemporaneous objection rule?
With few exceptions, a proper objection or a motion to strike by a party is required to preserve any evidentiary ruling for appeal. Objection must be timely and specific and for the correct reason; and trial court must make an adverse ruling to preserve any objection for appeal
When are no objections requried to preserve appeal?
admitted evidence amounts to plain error
If evidence is excluded by a judge what must you do to preserve the issue for appeal?
the proponent must make an offer of proof on the record what the testimony/evidence would have been if admited
What are three methods for making offers of proof?
1. lawyer offer
2. witness offer
3. tangible offer
what is a motion in limine?
pre-trial ruling admissibility of evidence
-if trial court makes tenative pre-trial ruling - party must object at trial to preserve issue for appeal
Fed - if definitive pre-trial ruling no additional objection at trial to preserve issue
KY - rule similiar to federal rule
What are types of evidentiary errors?
1. Harmless error - no important right affected
2. reversible error - substantial right affected
3. plain error - affect a substantial right so obvious no timely objection is required - "palpable error" in KY
constitutional error - may be harmless or reversible
--but burden on prosection to convince an appealate court error was harmless beyond a reasonable doubt and did not affect the verdict
What is a presumption?
A procedural device that requires a jury to draw a particular conclusion if certain facts are proved, it is a subsittute for evidence

Once a party proves a basic fact (triggering fact) the jury is instructed to presume another fact exists - presumed fact

Once a party proves BASIC FACT A, in the absence of contrary evidence by the opponent party, the jury must accept as true that FACT B exists