Evidence Law_ Part Iii

Front 1

Case in Chief

Back 1

The portion of a trial whereby the party with the BURDEN OF PROOF in the case presents its evidence.

The term differs from a rebuttal, whereby a party seeks to contradict the other party's evidence. Case in chief differs from "case" in that the latter term encompasses the evidence presented by both the party with the burden of proof and the party with the burden of rebutting that evidence.

Front 2

The burden of production is best stated as follows:

Back 2

"Taking the evidence in light most favorable to the non¬moving party, could a rational trier of fact find each element of the charge, claim, or defense [beyond a reasonable doubt] [by a preponderance of the evidence] [by clear, cogent, and convincing evidence]?"

Front 3

What are the three burdens of persuasion?

Back 3

(1) Reasonable doubt.

(2) Clear, cogent, and convincing evidence.

(3) Preponderance of the evidence.

Front 4

Rule 803. Hearsay Exceptions;

Availability of Declarant Immaterial.

Back 4

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial.
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present sense impression.
(2) Excited utterance.
(3)Then existing mental, emotional, or physical condition.
(4) Statements for purposes of medical diagnosis or treatment.
(5) Recorded recollection.
(6) Records of regularly conducted activity.
(7) Absence of entry in records kept in accordance with the
provisions of paragraph (6).
(8) Public records and reports.
(9) Records of vital statistics.
(10) Absence of public record or entry.
(11) Records of religious organizations.
(12) Marriage, baptismal, and similar certificates.
(13) Family records.
(14) Records of documents affecting an interest in property.
(15) Statements in documents affecting an interest in property.
(16) Statements in ancient documents.
(17) Market reports, commercial publications
(18) Learned treatises
(19) Reputation concerning personal or family history.
(20) Reputation concerning boundaries or general history.
(21) Reputation as to character
(22) Judgment of previous conviction.
(23) Judgment as to personal, family, or general history, or boundaries.

Front 5

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Present sense impression.

Back 5

A statement describing or explaining
an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

Front 6

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(2) Excited utterance.

Back 6

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Front 7

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(3) Then existing mental, emotional, or physical condition.

Back 7

A statement of the declarant's then existing state of mind, emotion,
sensation, or physical condition (such as intent, plan, motive, design,
mental feeling, pain, and bodily health), but not including a statement of
memory or belief to prove the fact remembered or believed unless it
relates to the execution, revocation, identification, or terms of declarant's
will.

Front 8

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:


(4) Statements for purposes of medical diagnosis or treatment.

Back 8

Statements made for purposes of medical diagnosis or treatment
and describing medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the cause or external
source thereof insofar as reasonably pertinent to diagnosis or treatment.

Front 9

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(5) Recorded recollection.

Back 9

A memorandum or record concerning
a matter about which a witness once had knowledge but now has
insufficient recollection to enable the witness to testify fully and accurately,
shown to have been made or adopted by the witness when the
matter was fresh in the witness' memory and to reflect that knowledge
correctly. If admitted, the memorandum or record may be read into
evidence but may not itself be received as an exhibit unless offered by an
adverse party.

Front 10

(6) Records of regdarly conducted activity.

Back 10

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the
course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the
custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of
preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

Front 11

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(7) Absence of entry in records kept in accordance with the provisions of paragraph (6).

Back 11

Evidence that a matter is not included
in the memoranda, reports, records, or data compilations, in any form,
kept in accordance with the provisions of paragraph (61, to prove the
nonoccurrence or nonexistence of the matter, if the matter was of a kind
of which a memorandum, report, record, or data compilation was regularly
made and preserved, unless the sources of information or other
circumstances indicate lack of trustworthiness.

Front 12

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(8) Public records and reports

Back 12

. Records, reports, statements, or
data compilations, in any form, of public offices or agencies, setting forth
(A) the activities of the ofice or agency, or (B) matters observed
pursuant to duty imposed by law as to which matters there was a duty to
report, excluding, however, in criminal cases matters observed by police
officers and other law enforcement personnel, or (C) in civil actions and
proceedings and against the Government in criminal cases, factual
fmdings resulting from an investigation made pursuant to authority
granted by law, unless the sources of information or other circumstances
indicate lack of trustworthiness.

Front 13

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(9) Records of vital statistics.

Back 13

Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

Front 14

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(10) Absence of public record or entry.

Back 14

To prove the absence
of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and
preserved by a public office or agency, evidence in the form of a
certification in accordance with rule 902, or testimony, that diligent
search failed to disclose the record, report, statement, or data compilation,
or entry.

Front 15

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(11) Records of religious organizations.

Back 15

Statements of births,
marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or
marriage, or other similar facts of personal or family history, contained
in a regularly kept record of a religious organization.

Front 16

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(12) Marriage, baptismal, and similar certificates.

Back 16

Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

Front 17

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(13) Family records.

Back 17

Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings

Front 18

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(14) Records of documents affecting an interest in property.

Back 18

The record of a document purporting to establish or affect an interest in
property, as proof of the content of the original recorded document and
its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

Front 19

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(15) Statements in documents affecting an interest in property.

Back 19

A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

Front 20

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(16) Statements in ancient documents.

Back 20

Statements in a document
in existence twenty years or more the authenticity of which is established.

Front 21

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(17) Market reports, commercial publications.

Back 21

Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

Front 22

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(18) Learned treatises.

Back 22

To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

Front 23

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(19) Reputation concerning personal or family history.

Back 23

Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning
a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar
fact of his personal or family history.

Front 24

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(20) Reputation concerning boundaries or general history.

Back 24

Reputation in a community, arising before the controversy, as to boundaries
of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.

Front 25

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(21) Reputation as to character.

Back 25

Reputation of a person's character among associates or in the community.

Front 26

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(22) Judgment of previous conviction.

Back 26

Evidence of a final
judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

Front 27

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(23) Judgment as to personal, family, or general history, or
boundaries.

Back 27

Judgments as proof of matters of personal, family or
general history, or boundaries, essential to the judgment, if the same
would be provable by evidence of reputation.