Ls - Evidence Second Sem - Set 2

Front 1

Present Sense Impression Exception

Back 1

1) Declarant must perceive the event or condition (not necc. Participate – can be anonymous) 2) A statement describing or explaining an event or condition (not necc. Excited) 3) Made while the declarant perceived the threat or condition or immediately thereafter (a minute is too long) 4) Instinctive rather than deliberate.

Front 2

California Present Sense Impression Exception

Back 2

"Narrower than FRE; 3 differences 1) Statement must be offered to explain, qualify, or make understandable the conduct of the declarant (only when you need an out of court statement to explain ambiguous conduct) , 2) Declarant must participate in the conduct, 3) Was made while the declarant was engaged in such conduct - No “immediately after.”"

Front 3

Out of Court Identification

Back 3

"Statement is not hearsay if it is one of identification of a person made after perceiving the person. Declarant must testify at trial or hearing and be subject to cross-examination regarding the statement and must be willing to answer questions on cross or is considered unavailable. However, a bad memory is okay."

Front 4

Out of Court Identification in CA

Back 4

"A hearsay exception (Under FRE it isn’t hearsay): Statement must identify a party or another person who participated in a crime, Statement made when the event was fresh in the witness’s memory, Witness must testify that he made the id and that it was a true reflection of his opinion at that time. If declarant doesn’t remember the ID on the stand it is inadmissible."

Front 5

Party Admissions

Back 5

"Not Hearsay: 1) Offered against a party (not for a party’s benefit) 2) party’s own statement, in either an individual or a representative capacity or 3) the party has manifested an adoption or belief in the truth of the statement (personal knowledge is not required), or 4) Person must be authorized to make a statement or 5) Agent must be acting in scope of the agency or employment. (Not for independent contractors. Always Use Party admissions instead of statement against interests!!! In CA, Employee admissions may be inadmissible against employer."

Front 6

Factors for invoking Adoption by Silence

Back 6

"1) The statement was heard by the party against whom it is used 2) The party understood the statement 3) The subject matter was within the party’s knowledge 4) No physical or mental impediments to responding 5) The statement must have been such as would, if untrue, call for a denial 6) A reasonable person would have spoken under the circumstances"

Front 7

State of Mind Exception

Back 7

"1) A statement of the declarant’s then existing (while declarant is speaking) state of mind, emotion, sensation, or physical condition 2) backward looking statements are inadmissible unless about a declarant’s will. (Forward looking statements okay – Hillmon doctrine) Often used to show intent. Use the “What’s he really saying test?” To determine relevance/admissibility. In a homicide case, the state of mind of a victim must go to actions taken by the victim.. i.e. defense is suicide."

Front 8

Pheaster Statement

Back 8

"When the performance of an act by an individual is an issue, his intention to perform that act may be shown through his statement. If his statement includes a 3rd party, it can only go to his intentions and not the 3rd party’s intentions. The 3rd party may be entitled to a limiting instruction."

Front 9

Co-conspirator Exception

Back 9

"A statement is not hearsay when it is made by a coconspirator of a party during the course and in furtherance of the conspiracy – it is part of the information flow between conspirators to help them with their roles. The statement itself can be offered as evidence of the conspiracy but is not alone sufficient. Must be proven by a preponderance of evidence. Once the conspiracy is over (voluntary or involuntary), statements made by coconspirators are not admissible. Arrest ends, concealment may make it ongoing. Once the foundation is met, the statement can be used against all members of the conspiracy including those who join the conspiracy after the statement. When applying this – look to see if Bruton applies. Confrontation Clause Analysis doesn’t apply – party admissions."

Front 10

Who can repeat a statement under the coconspirator exception?

Back 10

"Any one of the conspirators, Anyone who overheard a statement by a conspirator, Statements of an undercover police officer who is acting as part of the conspiracy can repeat statements they’ve heard, but you can’t use the PO’s statements as they are not part of the conspiracy."

Front 11

Former Testimony

Back 11

This exception is used when there were two trials and one of the witnesses from trial #1 is unavailable to testify again in trial #2 and one party in trial #2 wants to use that witness’s statement. The witness must be unavailable for Trial #2. Testimony must have been given under oath. There must be substantial identity of the issues. The party in Trial #1 must have had opportunity and similar motive to cx witness as the party in Trial #2 “a predecessor in interest”. (Ex: can’t use civil testimony for criminal trial) Actual cx in T#1 not req’d.

Front 12

Declarations Against Interest

Back 12

"1) Declarant is unavailable 2) declarant has personal knowledge 3) statement is against interests: pecuniary, proprietary, or penal (societal in CA) - (makes them subject to trial or ruins their case) 4) a reasonable person would not have made the statement if they did not believe it to be true. (Objective, Subjective element – declarant must have an understanding that the statement is against interest. If this person is a party – use party admissions!! In criminal case, if D is trying to use a declarant’s statement against interests for exculpatory purposes, not admissible unless the statement is clearly trustworthy. If the statement includes someone else’s interests, it may not be admissible."

Front 13

Business Records Exception

Back 13

"1) Business record must be in writing 2) must be made in the course of a regularly conducted business activity (any kind of business, but not personal stuff), 3) Records must be regularly kept 4) Source of information going into the business record must have FRE 602 personal knowledge 5) Multiple people may contribute to the record; but the original source has to have personal knowledge 6) Each person who contributes must be acting in the ordinary course of business 7) Record has to be made at or near the time something occurred"

Front 14

How to get a business record admitted?

Back 14

To get it admitted – can put the custodian of records on the stand or have it self-authenticated.

Front 15

Layered Hearsay

Back 15

"When there are multiple layers of hearsay, each layer must meet a hearsay exception or the entire statement is inadmissible."

Front 16

Public Records Exception

Back 16

"Covers public records of federal, state, or local gov’t, Designed to admit docs that are simple and factual or set out the internal function of the agency, if the doc describes primarily the conduct of citizens outside the agency, then it doesn’t fit under this exception. However, in civil actions and against the government in crim. cases, the factual components of an investigation can be used. Ex: accident reports. Look to the business records exception in some JNs. In CA, no limitation on gov’t using the docs against a D in a criminal case."

Front 17

Ancient Documents

Back 17

"Once they are authenticated, they are admissible as a hearsay exception. 20 year old docs in FRE, 30 yrs in CA."

Front 18

Learned Treatise Exception

Back 18

"If they are referred to in direct examination or cx by an expert witness, then the treatise can be read into evidence by the expert, but may not be received as an exhibit. The jury doesn’t get to take it into the deliberation room. You can use it for TOMA or impeachment (which isn’t hearsay). Their expert, your expert, or judicial notice of treatise."

Front 19

In what ways does the Confrontation Clause impact the admissibility of evidence?

Back 19

1)  Face to face confrontation at trial 2) cross examination 3) hearsay

Front 20

Confrontation Clause Analysis

Back 20

"When gov’t offers hearsay against a D in a criminal case, have to address confrontation clause. 1) Does not apply when prosecutor is offering D’s own statements against him. 2) If declarant testifies at trial, confrontation clause is satisfied. 3) If declarant does not testify at trial we must determine if the declarant’s statements are testimonial or non-testimonial. Testimonial statements are not admissible unless D had prior opportunity to cx the declarant."

Front 21

For purposes of the Conf. Clause – what makes a statement Testimonial or Non-testimonial?

Back 21

"Testimonial –formal statements made for the purpose of establishing or proving some fact (formal statements to gov’t officers, statements to police, affidavits, depositions, crime lab report, Post-Miranda statements, pretrial statements that declarant would reasonably expect to be used for prosecutions, statements that would lead an objective witness to believe it would be used a trial. Non-testimonial – ongoing emergency statements to police or requests for med assistance, casual remarks to friends and family, statements in the business records exception."

Front 22

Forfeiture by Wrongdoing & the Confrontation Clause

Back 22

"When D brings about a witness’ unavailability so the witness can’t testify at trial, the D has forfeited their rights under both confrontation clause and hearsay. Did the D silence the witness?"

Front 23

Bruton Doctrine

Back 23

"Generally, statements admissible for one purpose but not for another are admissible. Bruton is an exception. Only applies when multiple D’s are on trial together. It is a violation of conf. clause to use one D’s admission against another D. Elements: 1) an admission 2) the admission is by a non-testifying defendant 3) incriminate another D by name or obvious reference. If D is testifying – not a violation of confrontation clause. Okay if statement is admissible against all Ds. If you have this problem, separate the trials."

Front 24

Medical Diagnosis or Treatment Exception

Back 24

"Statements made by patients for purposes of medical diagnosis or treatment. Can be made to doctors, nurses, paramedics, etc. The medical professional must find the statement pertinent. Statements of fault not admissible. Exception for child abuse cases – If child identifies who touched him, it is considered pertinent because part of treatment is whether the child should go home tonight or whether the child should be placed in foster care. This exception also applies to statements made by others on the patient’s behalf. In CA: The rule only applies to statements made by minors and only applies to child abuse litigation."

Front 25

Past Recollection Recorded

Back 25

When you have a witness who can’t remember you can try to get their written recording of the event admitted through past recollection recorded. The document will be read into evidence but is not received as an exhibit unless offered by an adverse party. Use this as a last resort. Can only use while the witness is on the stand. Only applies to writings.

Front 26

Laying a Foundation for a Past Recollection Recorded Exception

Back 26

"1)W had personal knowledge 2) W prepared or adopted record of event 3) Prepared while event fresh in memory 4) W can vouch that the record accurately reflected witness’s memory 5) At trial, W cannot fully and accurately recall the event after attempts to refresh recollection"

Front 27

Refreshing recollection

Back 27

"When you use a document to refresh a recollection it is not admitted into evidence, however the other side has a right to look at it and cross-examine the witness on the basis of the document. Doctor-patient privilege is waived in this context if the doctor/witness uses his medical report to refresh."

Front 28

Lay Witnesses

Back 28

"Lay witnesses can testify in the form of opinions or inferences, as long as the opinions are: 1) Rationally based on the perception of the witness (personal knowledge) 2) Helps clarify a fact in issue 3) Not based on scientific, technical, or other specialized knowledge. 701 allows lay opinions but want the witnesses to be as detailed, factual and specific as they can and leave the conclusions to the jury - Problematic when testifying as to what someone else was thinking, but may be allowed under the right set of facts Ex: Gov’t of VI case – could testify that gun went off by accident"

Front 29

What are the hurdles prior to admitting an expert witness?

Back 29

Must be relevant and helpful to the trier of fact. The judge must certify the witness as an expert.

Front 30

Expert Testimony

Back 30

"An expert can be qualified to give opinions based on scientific, technical, or other specialized knowledge if 1) The testimony is based upon sufficient facts or data, 2) The testimony is the product of reliable principles and methods, and 3) The witness has applied the principles and methods reliably to the facts of the case."

Front 31

Basis for Expert Opinions

Back 31

"Facts that form the basis of expert opinions either need to be perceived by the expert or made known to the expert. These facts don’t have to be admissible evidence, but you can’t use the expert to make those facts known to the jury."