Ma Bar Essay & Mbe - Evidence

Front 1

Relevance defined

Back 1

evidence with tendency to make a material fact more probable or less probable then it would be without the evidence

Front 2

First question to ask about any relevance

Back 2

How is the evidence relevant?

Front 3

When evidence involves some other time, event, person than one involved directly in the litigation, what is the general rule?

Back 3

Generally INADMISSIBLE. Probative value is outweighed by pragmatic concerns (weak relevance, danger of confusion/misleading, time-consuming). BUT, may be relevant and admissible under the eight situations where similar occurrence evidence is admitted

Front 4

Situations where evidence of similar occurrences is relevant and admissible even though it involves some other person, even, or time

Back 4

1. Causation (prove cause/effect) (did a prior accident cause injury?)
2. prior accidents or claims (to show existence of dangerous condition, notice to the D, causation of accident)
3. intent/state of mind (no women ever hired as evidence of discriminatory intent)
4. rebuttal evidence (rebut impossibility)
5. comparable sales to establish value (must be similar type, general location & close in time)
6. habit evidence (look to FREQUENCY & PARTICULARITY of conduct)
7. business routine
8. industrial or trade custom (not determinative, just SOME evidence)

**Note, MA only allows habit evidence for business routine or IN REBUTTAL in an action against a decedent’s estate after P introduces evidence of promise/statement made by the decedent.

Front 5

Is evidence of similar occurrences admissible to show causation?

Back 5

Yes

Front 6

Is evidence of a plaintiff's prior accidents or claims admissible?

Back 6

No, unless
1) to prove common plan and scheme of fraud (that p often brings fraudulent suits)
2) where relevant on issue of damages to plaintiff (to show that injury stems from prior accident)

Front 7

Situations in which prior accidents or claims evidence arises

Back 7

1. when defendant wants to show prior accidents of p
2. when p wants to show prior accidents involving the same instrumentality

Front 8

Is evidence of prior accidents involving the same instrumentality admissible?

Back 8

Yes, when
1) the other accidents occurred under the same or similar circumstances, and
2) to show notice or knowledge of defendant that the instrumentality had defects

Front 9

Is evidence of prior event admissible to infer intent of defendant?

Back 9

Yes, under similar occurrence rules allowing evidence even though it involves another event, person, or time

Front 10

What is rebuttal evidence?

Back 10

Evidence only admissible to rebut an opponent’s evidence, when the opponent has opened the door. -Most common way to open door is to assert the defense of impossibility. Then P can offer evidence of another incident to rebut the defense of impossibility.

Front 11

When is evidence of comparable sales admissible to establish value of property?

Back 11

1. other property is of same kind
2. sale took place at about same time period AND
3. in same general geographical area

Front 12

When is evidence of a person's habits admissible to show that the person acted the same way on the occasion in question?

Back 12

--When the habit is specific and recurring

** MA only allows habit evidence for business routine or IN REBUTTAL in an action against a decedent’s estate after P introduces evidence of promise/statement made by the decedent

Front 13

Relevance of words describing behavior: always, instinctively, invariably, automatically

Back 13

Signal admissible evidence of habit

Front 14

Disposition evidence 1) defined 2) admissibility

Back 14

1. general evidence about character, such as disposition to be careful 2. Not admissible to infer conduct on occasion in question

Front 15

Prior act evidence 1) defined 2) Admissibility

Back 15

1) evidence of prior act 2) not admissible to infer conduct on occasion in question--only admissible on cross-examination of witness if p opens the door

Front 16

Habit evidence in MA

Back 16

Habit evidence is not admissible in MA. - Business routine evidence (habit of org.) admissible in MA to show that business acted in conformity with usual business routine.

Front 17

Is evidence of a business routine admissible?

Back 17

Yes, even though involves other event. Admissible to show that the business acted in conformity with usual business practice on the occasion in question.

Front 18

Industrial or trade custom evidence 1) relevance 2) admissibility

Back 18

1) Evidence of what non-parties trade or business does in a particular situation 2) admissible as non-conclusive evidence of the applicable standard of care

Front 19

Types of discretionary/policy-based relevance (where evidence is logically relevant but not admissible for policy reasons)

Back 19

1. liability insurance
2. subsequent remedial measures
3. settlements

Front 20

When is liability insurance admissible?

Back 20

1) Not admissible to show person acted negligently
2) Not admissible to show ability to pay
3) Admissible when relevant to show ownership or control of property when in dispute
4) Admissible to impeach credibility of witness by showing interest, bias, motive (that witness has stake in outcome-eg. ins. claims manager of d)

Front 21

When is evidence of subsequent remedial measures (subsequent repairs) admissible?

Back 21

1) Not admissible to show negligence, culpable conduct, product defect, design defect, lack of warning.
2) admissible to show ownership and control of property when disputed 3) Admissible to impeach (show feasibility of precautionary measures when feasibility is controverted)

Front 22

When is evidence of subsequent remedial measures admissible in MA?

Back 22

1) Not admissible to show negligence, culpable conduct, product defect, design defect, lack of warning.
2) admissible to show ownership and control of property when disputed 3) Admissible to show feasibility of precautionary measures (NOTE DIFF FROM FED: feasibility need not be controverted)

Front 23

When are settlements admissible for the MBE?

Back 23

1) evidence of settlement in a DISPUTED CIVIL CLAIM not admissible to prove fault, liability, or amt of damage or show weakness of D’s case (but make sure conversation is actually a settlement) BUT admissible for IMPEACHMENT on the basis of bias.
2) statements of fact made in COURSE OF SETTLEMENT DISCUSSIONS of disputed civil claim generally inadmissible for ALL purposes, EXCEPT where claim was made by govt in regulatory capacity—in that limited circumstance, statements of fact ADMISSIBLE in any later criminal case.

Front 24

When are settlements admissible in MA?

Back 24

1-statements of fact during compromise negotiations only excluded IF “inseparable part of the effort to compromise” and
2-no adoption of the federal rule that allows statements of fact during settlement discussions of civil claims with govt agencies to be admitted in criminal cases

Front 25

What is meant by settlement?

Back 25

Actual compromises, offers to compromise, offers to settle disputed claims.

Front 26

Is plea bargaining in a criminal case admissible?

Back 26

NO for offer to plead guilty, withdrawn pleas of guilty, pleas of nolo contendere, or statements of fact during a plea discussion.

HOWEVER, a guilty plea IS admissible in subsequent litigation based on the same facts.

Front 27

Requirements for settlement evidence to be inadmissible?

Back 27

1. Must be a claim (identifiable claimant who may make claim, need not be litigation yet) 2. Claim must be disputed as to liability or amt.

Front 28

Is an offer to pay medical expenses admissible?

Back 28

NO, inadmissible to prove liability (want to encourage charity).

BUT any accompanying admissions are admissible.

Front 29

In addition to offers to pay medical expenses, what else does MA exclude in the medical context?

Back 29

Any expressions of sympathy to the accident victim or the victim’s family if offered as an “implied admission” in a civil case

Front 30

Analysis when determining whether character evidence is admissible?

Back 30

1. What is the purpose of the character evidence?
2. What method to prove it?
3. Criminal or civil case?
4. What trait of character is involved?

Front 31

What are the three common purposes for offering character evidence?

Back 31

1. When character of the party is directly in issue
2. Character is circumstantial evidence of person's conduct at time of litigated event (to show acted in conformity w/ character)
3. Character to impeach credibility of witness (witness is not truthful)

Front 32

What are the three techniques for proving character? (permissible methods depend on purpose of evidence)

Back 32

1. evidence of specific acts of conduct from which character can be inferred
2. opinion testimony
3. reputation testimony

Front 33

Evidence may be admissible about which character traits?

Back 33

Those specific traits substantively of issue in case, like larceny-honesty perjury-truthfulness assault-violence/peacefulness
*general evidence of good/bad person not specific enough
**reputation for law-abiding = always relevant

Front 34

When is character evidence admissible in civil cases?

Back 34

ONLY when character of person is itself a material issue in case. 1) defamation-truth is defense 2) negligent entrustment-character of individual is element 3) wrongful death-decedent's character an issue for damage calculation

Front 35

When is evidence of the defendant’s character admissible in a criminal case?

Back 35

NOT admissible during prosecution’s case in chief
BUT, D may introduce evidence of a relevant character trait (by REPUTATION OR OPINION) to prove conduct in conformity thereby opening the door to rebuttal by prosecution

Front 36

When is character evidence admissible to show criminal disposition in order to infer guilt in crime at issue?

Back 36

Not admissible unless the d opens the door by offering evidence of good character for pertinent trait

Front 37

By what method can defendant use character evidence to show good trait pertinent to case (MBE/MA)?

Back 37

MBE: Reputation or opinion. NOT, by specific acts of good conduct bc could take too long.

MA: Reputation ONLY

Front 38

After d opens door to p's use of character evidence, can p present evidence of d's specific acts of conduct?

Back 38

Only on cross-examination (“Have you heard”…type questions BUT MUST TAKE THE ANSWER OF THE WITNESS). P cannot introduce own witnesses to testify to d's specific acts of conduct but can call witnesses to testify to opinion or reputation of d. (In MA, reputation only)

Front 39

For which crimes is the D’s character an element of the crime?

Back 39

NONE

Front 40

Can the accused present character evidence of victim to infer that victim was first aggressor (MBE/MA)?

Back 40

Yes, by reputation or opinion. After d has opened the door, the prosecutor can respond by showing reputation or opinion about the victim or the accused.

In Mass., the court has DISCRETION to admit victim’s PRIOR ACTS of violence but D CANNOT introduce evidence by reputation or opinion. Prosecution can rebut by showing victim’s character for PEACEFULNESS, but SJC has left open the question of whether prosecution can rebut with evidence of D’s character for violence

Front 41

What does accused’s presentation of character evidence of victim open the door to (MBE/MA)?

Back 41

MBE: 1. prosecution showing reputation/opinion evidence for victim's good traits 2. reputation/opinion evidence about bad traits of d

MA: Prosecution can rebut by showing victim’s character for PEACEFULNESS, but SJC has left open the question of whether prosecution can rebut with evidence of D’s character for violence

Front 42

What is the rule where the accused in a homicide presents evidence that victim was the first aggressor?

Back 42

Federal – If D in a homicide case offers evidence OF ANY KIND that victim was first aggressor (even non-character evidence like “victim swung first”), prosecution may introduce evidence of victim’s good character for peacefulness

MA – even in homicide case, prosecution can’t introduce evidence of victim’s good character for peacefulness unless D introduced evidence of victim’s prior acts of violence

Front 43

What is the rule about the defendant’s knowledge of the victim’s bad character for violence?

Back 43

Federal and MA – D may offer evidence of his own prior knowledge of victim’s bad character for violence (reputation or bad acts) for purpose of showing D’s state of mind (fear of victim)

Front 44

Rape shield statute in criminal cases

Back 44

In criminal case of sexual misconduct generally:
1) no opinion or reputation evidence of v's sexual behavior
2) Specific instances of victims sexual behavior admissible only (a) to prove third party was source of harm (b) to show prior acts of consensual intercourse between parties OR (c) if exclusion would violate constitutional rights of accused (e.g. love triangle defense)

Front 45

Rape shield statute in civil cases

Back 45

Victim's sexual behavior only admissible when probative value substantially outweighs danger of harm to victim and unfair prejudice to party and notice and in camera hearing held

Front 46

When are prior crimes or acts of misconduct admissible to prove a material fact other than character or disposition?

Back 46

When relevant to prove a material fact other than character or disposition, including but not limited to MIMIC: 1. motive 2. intent 3. mistake (absence of) 4. identity 5. modus operandi 6. common plan scheme (also opportunity, preparation, etc)

Front 47

When can prior crimes or acts be admitted to show modus operandi?

Back 47

When the crime was committed in a distinctive and unusual way---a true signature crime.

Front 48

When can prior crimes or acts be admitted to show a common plan or scheme?

Back 48

When evidence shows act done in preparation for or part of common plan.

Front 49

In what cases do the MIMIC exceptions to the inadmissibility of specific acts evidence apply?

Back 49

civil and criminal

Front 50

What is the method of proof in MIMIC-purpose crimes?

Back 50

Can show by:
-conviction
-evidence (witnesses, etc) that prove crime occurred: conditional relevancy standard—prosecution need only produce sufficient evidence from which a reasonable juror could conclude that D committed the other crime
-upon D’s request, prosecution must give pretrial notice of intent to introduce MIMIC evidence
-SUBJECT TO 403 WEIGHING

Front 51

Rule 403

Back 51

Evidence may be excluded if judge believes the probative value is substantially outweighed by the danger of unfair prejudice.

Front 52

Can evidence of prior acts be used in sexual assault and child molestation cases?

Back 52

Federal: Yes, evidence of specific prior acts of sexual assault or child molestation may be admitted in civil or criminal cases charging d with these crimes. * no need for arrest, charge or conviction for acts. Any evidence will do.

MA: HAS NOT ADOPTED THIS RULE

Front 53

If you see a WRITING, what potential issues should you be wary of?

Back 53

-authentication
-best evidence rule
-hearsay

Front 54

What is required to admit a writing?

Back 54

1. Authentication: testimonial foundation must be laid, unless evidence falls into self-authenticating category
2. Must meet best evidence rule

Front 55

What is foundation?

Back 55

testimony showing that the writing is what it purports to be, is genuine

Front 56

Methods of authentication

Back 56

1. admission
2. eyewitness testimony (someone saw X sign it)
3. handwriting proof
4. meets ancient document rule
5. meets solicited reply doctrine
6. self-authenticating writings

Front 57

Who can give handwriting proof?

Back 57

1. Lay witness familiar with signature (can't have become familiar in prep for litigation) 2. expert witness or 3. jury to compare disputed signature with genuine signature (not lay witness)

Front 58

Ancient document rule

Back 58

Writing authenticated when: 1) 20 or more years old **30 years in MA 2) regular on its face 3) found in a place of natural custody

Front 59

Solicited reply doctrine

Back 59

Writing authenticated when proof that disputed doc came in response to prior communication

Front 60

How much evidence is necessary to lay a proper foundation?

Back 60

"sufficient evidence to justify a jury finding of authenticity or genuineness"
--Don't need to convince judge of anything by any standard

Front 61

Self-authenticating documents(no foundation reqd)

Back 61

1. certified copies of public/business records
2. official publications
3. newspapers/periodicals
4. trade inscriptions/labels
5. acknowledged documents (aka notarized)
6. signatures on certain commercial docs (e.g. promissory note)

All of these SHIFT burden to the other side to DISPROVE

Front 62

What happens in MA when a contract or writing is pleaded in a complaint and not denied in the answer?

Back 62

It is prima facie authenticated and admissible.

Front 63

How are photos authenticated?

Back 63

Any witness who was familiar with the scene at the time of the event can state that the photo is "a fair and accurate representation of the scene.”

Front 64

How are photos authenticated when no witnesses?

Back 64

1. show camera was functioning properly 2. show time at which camera was functioning 3. show how camera and film were handled until presentation in court.

Front 65

Best evidence rule: 1. defined 2. applicability

Back 65

1. expresses a preference for original 2. only to writings, including films, photos, x-rays, recordings

Front 66

Analysis under best evidence rule

Back 66

When seeking to prove CONTENT of a writing, must 1. produce original document OR 2. reasonably account for absence and then copy or oral testimony is admissible to prove content of original

Front 67

When does best evidence rule apply?

Back 67

1. writings (including films, photos, xrays, recordings) AND 2. party wants to prove CONTENT of a writing AND 3. Fact to be proved does NOT have existence independent of writing

Two primary situations: 1. legally operative documents (docs that by their existence create or destroy a legal relationship in dispute, eg. will, divorce decree, deed, contract) OR 2. when witness's sole knowledge comes from doc and witness wants to recite orally what he read

Front 68

When DOESN’T the best evidence rule apply?

Back 68

-Facts that have an existence independent of a writing (e.g. fact of birth w/out birth cert. fact of payment w/out receipt)

-where independent knowledge (don’t need to produce time sheets where you are discussing the hours you actually worked)

-collateral documents (minor importance to the case)

Front 69

What qualifies as the “original writing”

Back 69

-the writing itself or any counterpart intended to have same effect (multiple originals signed by parties), film negatives, printout of computer data
-mechanically created duplicates (NOT handwritten) unless: (a) a genuine question is raised about authenticity of original OR (b) unfair to admit duplicate in lieu of original

IN MA:
-can’t use copies made in prep for trial; only copies made in regular course of business
-CAN use photocopies of public records, banks, insurance and medical records if CERTIFIED as accurate by custodian

Front 70

Exceptions to best evidence rule (when you don’t have to produce the original even though legally operative or no independent knowledge)

Back 70

1. public records: certified copies admissible
2. voluminous documents: summaries, etc admissible if (a) originals would be admissible if offered and (b) originals made accessible to opposing party

Front 71

What excuses are acceptable for non-production of original in accordance with best evidence rule

Back 71

1-document lost or cannot be found without due diligence
2-destroyed without bad faith
3-cannot be obtained with legal process

If these shown by PREPONDERANCE of the evidence, then secondary evidence is ok

Front 72

When is a witness competent?

Back 72

1. Communicable personal knowledge
2. Can appreciate obligation to tell the truth (take the oath)

* Dead man's statute doesn't apply

Front 73

Common law disqualifications for lack of competency (abandoned)

Back 73

infancy, lack of religious belief, mental incompetency, prior convictions, interest (except dead man's statute)

Front 74

Dead man's statute: when applicable

Back 74

1. applicable in 1/2 states, NOT MA
2. Not applicable in fed court unless ct is applying state law in state w/ dead man's statute

Front 75

Dead man's statute defined

Back 75

In a civil case, an interested witness is INCOMPETENT to testify for his own interest against the decedent or decedent's estate about communications or transactions with the decedent unless there is a waiver

**IN MA, get around lack of a dead man’s statute by having a hearsay exception where estate can counter with decedent’s other pre-death statements

Front 76

Elements of dead man's statute

Back 76

1. W must be interested, have direct stake in outcome
2. W must testify for her own interest
3. W must testify against decedent
4. W must testify about communications/transactions with the decedent 5. It must be a civil case
6. There must not have been a waiver (e.g. failure to object, when decedent gets before jury via deposition made before death)

**NOT IN MA

Front 77

How do we know whether dead man' statute applies on exam?

Back 77

Question tells you that the state whose contract law applies has a dead man statute.

Front 78

Objectionable questions in court

Back 78

1. narrative
2. leading
3. Misleading or compound or argumentative

Front 79

When are leading questions permitted?

Back 79

1. cross examination
2. direct examination for preliminary matters
3. when difficult to elicit testimony bc witness old, feeble, child, dumb, forgetful, etc.
4. When examining adverse party or someone under control of adverse party or hostile witness

Front 80

Can witness use writings to aid testimony?

Back 80

Witness can only read testimony from previously prepared document to aid oral testimony in two situations:
1. refreshing recollection
2. recorded recollection

Front 81

When can a writing be used to refresh recollection?

Back 81

When a witness's memory fails

Front 82

What kind of writing can be used to refresh recollection?

Back 82

ANY writing eg. w's own statement, another's statement

Front 83

Can an opposing party see writing used to refresh recollection? Put in evidence? Use in cross-ex?

Back 83

Yes

Front 84

What safeguards are in place to avoid abuse where one side is using a document to refresh a witness’s recollection?

Back 84

Adversary has right to:
1-inspect memory-refresher
2-use it on cross
3-introduce it into evidence

Front 85

When is recorded recollection used?

Back 85

When witness can't remember something that she once had personal knowledge about, her OWN WRITING can be admitted in place of testimony if writing is shown to be reliable

Front 86

How do recorded recollection and refreshing recollection compare?

Back 86

1. Recorded recollections are admitted in place of testimony. Refreshing recollections are not admitted, unless by opposing party.
2. Recorded recollections ok when witness never remembers. Refreshing recollections only give w hints, she must then remember independently.
3. since refreshing recollections not admitted, no need for foundations, hearsay, best evidence, etc. Recorded recollections require foundation, but are exempt from hearsay rule.

Front 87

Foundation requirements for admission of writings for purpose of recorded recollections.

Back 87

1. showing writing to witness fails to jog memory
2. witness had personal knowledge at a prior time
3. The writing was made by witness, under supervision of witness, or adopted by witness at time of making.
4. Writing made at time when knowledge was fresh in witness's memory.
5. witness can vouch for accuracy of writing when made or adopted.

Front 88

How is recorded recollection or learned treatises brought into evidence?

Back 88

Read to jury. They don't get actual writing unless introduced by opponent.
**both are admitted under exceptions to the hearsay rule

Front 89

When is lay opinion admissible?

Back 89

1. when rationally based on perception of witness (w has personal knowledge)
2. And when helpful to trier of fact (meaning relevant); up to judge’s commonsense discretion – e.g. drunk/sober, speed of vehicle, sane/insane, emotions of another person, handwriting

**BUT, in MA a lay person cannot give a direct opinion on a person’s sanity EXCEPT witnesses to a will and testator’s physician can give opinion re: sanity at time of signing.

Front 90

When is expert opinion admissible?

Back 90

1. subject matter is appropriate for expert testimony (scientific, technical or other specialized knowledge will be helpful to jury in deciding a fact)
2. witness is qualified as expert (education and/or expertise)
3. Expert has opinion based on “reasonable degree of probability or reasonable certainty” AND using one of three permissible data sources:
-personal knowledge; and/or
-other evidence in the trial made known to expert by hypothetical questions;
-facts outside the record if “of a type reasonably relied upon by experts in the particular field in forming opinions”

Front 91

What subject matter of expert witness testimony meets the "appropriate subject matter" requirement for expert opinion testimony?

Back 91

Must convince judge, by preponderance of evidence, that the opinion testimony is: 1. Reliable (methodology) 2. Relevant (fits facts of case)

Reliability based on four principal factors (Daubert test)
[TRAP]: TESTING of principles or methodology, RATE of error, ACCEPTANCE level by other experts in the discipline, PEER REVIEW and publication

Front 92

Qualification requirement for expert testimony

Back 92

Any qualifications, including experience. Need not be formal, academic.

Front 93

Define requirement that expert opinion testimony must be supported by proper factual basis.

Back 93

Three types of facts satisfy requirement:
1. facts w/in personal knowledge of expert
2. facts supplied to expert in court, usually via hypo. Facts must be already admitted evidence OR
3. Facts of a type that experts in field use in their normal practice (e.g. radiologists report okay, don't need to have seen x-rays)

**in MA, all facts upon which expert relies must be admissible.
**In fed rules, facts of type that experts in normal practice would use need not be admissible.

Front 94

What is the biggest barrier to admission of a learned treatise?

Back 94

Hearsay.

Front 95

When is learned treatise admissible under federal rules?

Back 95

Treatise established as authoritative is admissible for truth (substantively) on direct or to impeach contrary opinion by opposing party (substantively & to impeach).
--it is READ into evidence, NOT an exhibit
--Learned treatise is an EXCEPTION to the hearsay rule
--Only admissible in MA when used to contradict opposing expert on cross-ex; does NOT come in substantively. EXCEPT, for medical malpractice, can come in as substantive evidence if author is recognized in his profession as an expert on the subject & 30 days pretrial notice. Indep evidence req’d to establish author’s expertise

Front 96

When is learned treatise admissible in MA?

Back 96

--Only admissible in MA when used to contradict opposing expert on cross-examination; NOT substantive evidence
--EXCEPTION for medical malpractice. Can come in as substantive evidence if author is recognized in his profession as an expert on the subject & 30 days pretrial notice. Indep. evidence req’d to establish author’s expertise

Front 97

How is a treatise established as authoritative?

Back 97

1. When opposing party actually relied on treatise 2. By eliciting admission of treatise's authority in cross-examination 3. By calling own expert witness to testify that text is authoritative 4. Judicial notice

Front 98

What kind of right does a party have to cross-examine?

Back 98

Party has an absolute right to cross-examine a witness who testifies live. --If a witness refuses to answer cross ex questions after testifying on direct, direct testimony must be stricken.

Front 99

Is opinion testimony (lay or expert) permissible when it addresses an ultimate issue in the case?

Back 99

Yes, provided all other reqmts for opinion are met BUT, often it is viewed as unhelpful if it is in legal jargon “It looked like the defendant was driving with reckless disregard…”

In MA: witness in a criminal case NOT allwed to state: “in my opinion, the defendant is guilty (or innocent)”

Front 100

On what topics can a party cross-examine under fed and MA rules?

Back 100

Any relevant matter to case in MA

Under fed rules, cross-examination cannot exceed the scope of direct.

Front 101

Collateral matters doctrine

Back 101

Can't introduce extrinsic evidence to impeach/contract a witness.

Collateral matters: matters relevant only to contradict witness, not relevant to substantive issues.
Extrinsic evidence: anything other than cross-examination of witness

Front 102

What is extrinsic evidence?

Back 102

Anything other than cross-examination of witness (including documents, bringing other witnesses)

Front 103

Can one bolster her own witness?

Back 103

ONLY after there has been an appropriate impeachment

Front 104

Is a prior consistent statement admissible to bolster a party's testimony?

Back 104

No, unless prior impeachment. --Hearsay if offered for truth. --If offered to corroborate w's testimony, impermissible bolstering without prior impeachment.

EXCEPT prior identification of a person is admissible as an exclusion from hearsay

Front 105

When are prior consistent statements admissible?

Back 105

When the statement is one of identification, it can be admitted for its truth Requirements - witness must be in court and cross-examinable

Front 106

In MA, may one impeach one's own witness?

Back 106

1) Can impeach own witness by prior inconsistent statement.
2) BUT cannot attack the character of one's own witness IF witness testimony catches the party by surprise & if witness confronted with prior statement on stand and given an immediate oppty to deny or explain.

Front 107

What are the techniques for impeaching an adversary's witness?

Back 107

1. prior inconsistent statement
2. showing of witness's bias, interest, or motive to misrepresent.
3. sensory deficiencies
Bad character for truthfulness:
4. testimony of w's bad reputation or opinion (reputation only in MA) about w's lack of truthfulness.
5. prior conviction of crime
6. Bad acts (without conviction) that reflect adversely on witness’s character for truthfulness
7. contradiction

Front 108

For what purpose are prior inconsistent statements admissible in MA and fed?

Back 108

1. Admissible to impeach. To show contradiction.
2. In fed court, admissible substantively ONLY IF prior inconsistent statement given under oath and at formal proceeding.
3. In MA, admissible substantively ONLY IF prior inconsistent testimony in GRAND JURY TESTIMONY and (a) testimony not coerced (b) w's own statement and not that of interrogator, eg. leading questions (c) must be some corroboration of w's prior inconsistent grand jury testimony if it is an essential element of the crime

Front 109

Does counsel need to CONFRONT witness with a prior inconsistent statement while the witness is still on the stand or may it be later proven by extrinsic evidence?

Back 109

Federal – Need not confront on stand; timing is flexible, but must give witness an opportunity to return to the stand to explain UNLESS WITNESS IS THE OPPOSING PARTY

MA – Other party’s witness – no need to confront on stand but must give opportunity to return to stand to explain UNLESS witness IS the opposing party. OWN witness-must be confronted while on stand

Front 110

Is extrinsic evidence admissible to impeach an adversary's witness?

Back 110

Yes, it is admissible to show all techniques except to show prior bad acts or contradictory facts that are collateral. This would be inefficient.

Front 111

Is a prior inconsistent statement of a party admissible for truth?

Back 111

Yes, because qualifies as an admission under the admission exception to the hearsay rule.

Front 112

Is evidence of a witness's bias, interest or motive admissible? For what purpose?

Back 112

1. Yes admissible to impeach an adversary's witness.
2. For purpose of showing bias or motive, not for truth. e.g. can show that witness received money in settlement from opponent OR that prosecutor's witness is awaiting trial

CAN BE PROVEN BY EXTRINSIC EVIDENCE & NEED NOT CONFRONT ON STAND (though ct may require)

Front 113

Is evidence of a witness’s sensory deficiencies admissible? For what purpose? Is confrontation required? Can extrinsic evidence be used?

Back 113

Yes; can introduce evidence of sensory deficiencies at time of event or when on the stand to suggest a mistake
No confrontation required
Extrinsic evidence OK

Front 114

Is evidence of a witness’s bad character for truthfulness admissible? By what method? Is confrontation required? Can extrinsic evidence be used?

Back 114

Yes to show they might be lying, can attack ANY witness through opinion or reputation (Federal) or just reputation (MA) of bad character for truthfulness…but no specific acts.
No confrontation required
Extrinsic evidence OK

Front 115

When are prior bad acts (no conviction) usable to impeach an adversary's witness?

Back 115

FED: Only when specific acts of deceit or lying, MUST CONFRONT ON STAND & NO EXTRINSIC EVIDENCE.

MA: NOT ALLOWED.
Limited exception where victim of rape on stand & where court finds by indep. Evidence pattern of INTENTIONAL false accusations of rape

Front 116

What convictions be used to impeach an adversary's witness in federal court?

Back 116

1. Any crime that involves deceit or false statement as an ELEMENT OF THE CRIME admissible subject to time limitation. Includes fraud, larceny by trick, embezzlement, perjury.

2. Felonies (crime punishable by more than 1 year) admissible subject to time limitation unless probative value outweighed by danger of unfair prejudice.

FOR BOTH categories, conviction or release generally must be w/in
10 years unless proponent shows that probative value on issue of credibility is substantial.

Front 117

**IMPORTANT**

What convictions can be used to impeach an adversary's witness in MA courts?

Back 117

Convictions admissible for:
-any felony OR any misdemeanor if a SENTENCE (jail time or fine) imposed.
-IF probative value outweighs prejudice. For criminal defendant, court must consider SIMILARITY of prior conviction as prejudice factor.
-Unless too remote:
(a) Felonies are too remote if more than 10 years have elapsed since release from state prison; if more than 10 years since IMPOSITION of sentence to fed prison; or if more than 10 years since conviction if no sentence. BUT admissible if defendant convicted of other crime w/in past 10 years.
(b) Misdemeanors when more than 5 years have elapsed since sentence imposed are too remote. Except admissible if defendant has been convicted of crime w/in past five years.

Front 118

What extrinsic evidence is admissible to impeach an adversary's witness by showing his prior convictions?

Back 118

Only the certificate of conviction.

Front 119

Can an attorney ask if witness was arrested for passing counterfeit money?

Back 119

NO – under FRE can only ask about the underlying act UNLESS asking about arrest w/ regard to bias (if you have a plea agreement/awaiting trial and trying to get a good deal)

Front 120

How does one impeach by showing a witness's specific acts of deceit or lying?

Back 120

**Not permissible in MA.
For Feds, only on cross-examination. Ask whether the witness did it. No extrinsic evidence is permitted. If witness denies, atty is out of luck.

Front 121

Requirements for impeaching a witness by showing specific acts of deception or lying

Back 121

1. Must be on cross-examination
2. Must have good faith-reasonable basis for believing that the specific acts were done.
3. Act must directly involve deceit or lying.

Front 122

When is rehabilitation of a witness after impeachment admissible?

Back 122

1. Admissible when impeachment involved a character attack, such as prior conviction, act of deceit or lying, bad reputation/opinion for truth. 2. Not admissible when prior impeachment involved prior inconsistent statement or bias/motive/interest of witness.

Front 123

What are the primary ways in which a witness can be rehabilitated?

Back 123

1) by showing witness’s GOOD character for truthfulness (only where other side suggested your witness was LYING not simply mistaken)
2)Prior consistent statement to rebut a charge of recent fabrication

Front 124

When is positive reputation for truth evidence admissible?

Back 124

Admissible to rehabilitate a witness after impeachment involving a direct character attack. (specific act of lying/deception, prior conviction, bad rep for truth)

Front 125

When is a prior consistent statement admissible?

Back 125

1) To rebut an express or implied charge of recent fabrication or improper influence or motive. - the prior consistent statement must have been before the alleged motive arose E.g. attorney over-coaching.
2) NOT admissible to rebut impeachment of prior inconsistent statement bc point of inconsistent statement testimony was to show that w was inconsistent, not to show truth.

Front 126

Does a prior consistent statement come in substantively in MA/in fed cts?

Back 126

1. In MA, only admissible to rehabilitate; does not come in substantively.
2. IN fed courts, prior consistent statement to rebut charges of recent fabrication or improper influence is admissible for its truth under the prior consistent statement exception to the hearsay rule.

Front 127

Where do the privileges come from in federal court?

Back 127

Fed question cases: “governed by the principles of common law as they may be interpreted by the federal courts in light of reason and experience”
Diversity cases where state substantively applies, the privilege law of that state comes in, along with state law on COMPETENCY (dead man’s statutes) and burdens of proof/presumptions.

Front 128

Requirements for atty-client privilege to apply

Back 128

1. attorney and client
2. confidential communication (objects and pre-existing documents not privileged)
3. made during a professional legal consultation (includes intent by the client to establish a professional legal relationship AND when predominantly legal advice is sought)
4. unless privilege waived by CLIENT
5. or an exception is applicable: a) future crime or fraud b) client puts legal advice at issue c) disputes between parties to atty & client d) joint clients (privileged as to third parties but not as to each other)

Front 129

When does the attorney-client privilege apply to protect information from disclosure?

Back 129

Confidential communications between attorney and client made during a professional legal consultation are privileged from disclosure unless waived by the client or the representative of the deceased client.

Front 130

What is subject matter waiver?

Back 130

Voluntary waiver of privilege as to some communications will also waive the privilege as to other communications if:
-partial disclosure is intentional
-same subject matter
-fairness requires that disclosed & undisclosed communications be considered together

Front 131

What is the effect of inadvertently disclosed privileged communications?

Back 131

Inadvertent disclosure of privileged communication will not waive privilege so long as privilege-holder:
(a) took reasonable steps to prevent disclosure, and
(b) takes reasonable steps to correct the error

Front 132

Are retainer negotiations protected by atty client privilege?

Back 132

Yes

Front 133

What happens to protected atty-client info after client's death?

Back 133

privilege survives and can be asserted by representative of the deceased client.

Front 134

Who can waive the atty-client privilege?

Back 134

Client

Front 135

future crime or fraud exception to the atty-client or psychiatrist-patient privilege

Back 135

No protection of info that would facilitate future crimes or frauds

Front 136

At issue exception to the atty-client and patient-psychiatrist privilege

Back 136

info not protected when client or patient affirmatively puts communication in issue

Front 137

Disputes between parties of professional relationship exception to professional privileges

Back 137

Info relevant to actions for fee or malpractice is not protected

Front 138

Joint client exception to professional evidentiary privileges

Back 138

There is no protection covering info exchanged when 2 or more parties communicate with an atty about a matter of common interest. Atty can't divulge but either party can.

Front 139

Is privileged atty-client info protected in MA when inadvertently disclosed?

Back 139

Balance five factors: 1. reasonableness of precautions to avoid inadvertent disclosure 2. length of time since disclosure 3. Scope of production (more likley protected when many docs discovered) 4. Extent of inadvertent disclosure 5. interests of justice and fairness

Front 140

What does a physician-patient privilege apply to & where does this privilege exist?

Back 140

Applies to:
-confidential communication or information acquired by a physician from a patient
-for the purpose of DIAGNOSIS or TREATMENT of a medical condition
-also applies to psychotherapists

BUT, does not exist EXCEPT for psychotherapists in MA and in Fed court based on Fed law. The only time it will come up on exam is another state & they give the statute.

Physician or psychotherapist privilege is LOST if patient expressly or impliedly puts physical or mental condition in issue.

Front 141

Psychiatrist-patient privilege defined

Back 141

The patient has a privilege against disclosure of confidential information acquired by the physician/psychiatrist in a professional relationship entered into for the purpose of obtaining treatment.

Front 142

Requirements for psychiatrist-patient privilege to apply

Back 142

1. Patient must be seeking treatment --no privilege for non-treating physician --no privilege for court appointed psychiatrist
2. Information acquired must be confidential and necessary to facilitate professional treatment

Front 143

Patient Litigant Exception to Physician-Patient privilege

Back 143

Privilege is waived if patient sues or defends by putting physical or mental condition in issue.

Front 144

IS there an ordinary doctor-patient privilege in MA and fed cts?

Back 144

MA—No; only psychotherapy
Fed—No if based only on fed law; only psychotherapy

Front 145

What are the two evidentiary privileges between husband and wife?

Back 145

1. spousal immunity privilege 2. confidential marital communications privilege

Front 146

Spousal immunity privilege

Back 146

One spouse can't be forced to give adverse testimony against the other in criminal cases ONLY, lost upon DIVORCE, Holder = witness spouse

IN MA, there is no spousal immunity privilege in grand jury proceedings

Front 147

Requirements for spousal immunity privilege

Back 147

1. married at time of trial
2. no restrictions on types of testimony protected. Protects against all testimony
3. applies only in criminal cases (and in Mass, only in actual trial—no immunity privilege in grand jury)

Front 148

Who holds spousal immunity and confidential marital communications privileges? In MA?

Back 148

1. Spousal immunity privilege: witness spouse
2. Confidential marital communications privilege: both spouses (can only be waived by both spouses)
***confidential marital communications privilege can never be waived by either spouse in MA--No testifying allowed. It’s basically a rule of incompetency.

Front 149

When do spousal privileges NOT apply?

Back 149

-When case involves an injury/action between members of that family
-communications/acts in furtherance of a jointly perpetrated future crime or fraud

Front 150

Confidential marital communications privilege defined

Back 150

FED: A husband or wife shall not be required or, without the consent of the other, shall not be allowed to disclose a confidential communication made by one to the other during the marriage.
MA: Both spouses are PROHIBITED from testifying about any private, oral conversations between the spouses that occurred during the marriage and no waiver is permitted. (Exceptions after death of spouse, where in furtherance of jointly-perpetrated future crime/fraud, communications/acts “destructive of family unit”)

Front 151

Requirements for confidential marital communications privilege

Back 151

1. Married at time of protected communication (even if now divorced) 2. Protects only confidential communications
3. Applies in civil and criminal cases

Front 152

Privilege for unemancipated minor children in MA

Back 152

Unemancipated minor children living with parent are prohibited from testifying against that parent in criminal proceedings UNLESS the victim is a family member OR living in the household

Front 153

When does state evidence law apply in federal court?

Back 153

In diversity cases, when state substantive law applies:
1. presumptions and burdens of proof
2. competency of witnesses (e.g. dead man's statute)
3. privileges

Front 154

What type of federal law governs evidentiary privileges?

Back 154

Federal common law (AKA federal decisional law)

Front 155

Definition of hearsay

Back 155

Out of court statement by a person offered to prove the truth of the matter asserted

Front 156

Rationale for excluding hearsay

Back 156

Opponent has no opportunity to cross-examine the person who made the statement and whose perception, memory, and sincerity are at issue.

Front 157

Three specific situations where hearsay not being offered for its truth

Back 157

1. verbal acts or legally operative facts
2. Out of court statement offered to show effect on person who heard or read the statement
3. Out of court statement offered as circumstantial evidence of declarant's relevant state of mind

Front 158

What are verbal acts or legally operative facts? What is their effect?

Back 158

words that have relevant legal significance by fact of being used e.g. words of offer/acceptance defamation conspiracy bribery cancellation misrepresentation waiver permission

Effect: these are excluded from the rule against hearsay because not offered for their truth.

Front 159

What are out of court statements offered to show the effect on the person who heard or read the statement? Are these statements hearsay?

Back 159

E.g. words to show notice, good faith reason for action/inaction, motive, knowledge, etc.

Excluded from rule against hearsay because not offered for their truth

Front 160

What are out of court statement offered as circumstantial evidence of declarant's relevant state of mind? Are these hearsay?

Back 160

E.g. “I am Superman” to show insanity

Exception to rule against hearsay because not offered for truth.

Front 161

When can a witness's own prior statements be hearsay?

Back 161

When offered for purpose of establishing truth UNLESS fit an exception to or exclusion from rule against hearsay. E.g. witness can say "I am innocent" but CANNOT SAY "I told them I was innocent."

Front 162

What are the hearsay EXCLUSIONS (i.e. non-hearsay)?

Back 162

1-prior statements of identification
2-prior consistent statements to rebut charge of recent fabrication, improper influence, or improper motive
3-prior inconsistent statements given under oath at a formal procceding
4-party admissions **BUT in MA, this is classified as “hearsay exception”

Front 163

Categorical EXCLUSIONS (Non-hearsay) for prior statements of a witness. Does the declarant need to be present at the hearing?

Back 163

1. prior inconsistent statements given under oath at a formal proceeding 2. prior consistent statements to rebut charge of recent fabrication, improper influence or improper motive.
3. prior statement of identification made by a witness.
* Declarant need not be present at hearing in question
**Remember that in MASS, a prior inconsistent statement is NOT ordinarily admissible as substantive evidence unless prior grand jury testimony. Prior consistent statement also NOT admissible substantively.

Front 164

EXCEPTIONS to the rule against hearsay

Back 164

1-forfeiture by wrongdoing
2-former testimony
3-statement against interest
4-dying declaration (in MA, only for victim in HOMICIDE case)
5-excited utterance
6-present sense impression (not in MA)
7-present state of mind
8-declaration of intent
9-present physical condition
10-statement for purpose of medical treatment/diagnosis
11-business records
12-public records
13-past recollection recorded
14-learned treatise
*AND, in MA party admissions considered a hearsay “exception”
**MA ADDS:
1-statements of decedents in civil action
2-specialized medical business records
3-statements by child victims of sexual acts

Front 165

Types of spontaneous statements and effect

Back 165

-present state of mind
- statement of existing intent to prove intended act
- excited utterance
- present sense impression
- declaration of present physical condition
These are hearsay exceptions

Front 166

Admission of party defined and effect

Back 166

Declaration of a party offered AGAINST the party
- need not be against interest at time of making
- statement need not be based on personal knowledge
- Can be in form of legal conclusion
non-hearsay/exclusion from hearsay rule (only an exception in MA)

Front 167

What is the effect of a statement by a party's agent or servant concerning a matter within the scope of the agency or employment, made during existence of the relationship?

Back 167

It is a vicarious admission, admissible against the employee under the admissions exclusion from the hearsay rule

Front 168

What is a confrontation violation?

Back 168

Under 6th amendment, prosecution may not use hearsay against a criminal defendant EVEN IF an exception applies if:
1-statement is TESTIMONIAL (e.g. responses to police interrogation & grand jury testimony)
2-declarant is unavailable
3-D had no opportunity for cross-examination on prior occasion or at trial
UNLESS, forfeiture exception applies – court finds by preponderance that D’s conduct was designed to prevent witness from testifying

Front 169

For which hearsay exceptions must the declarant be unavailable?

Back 169

1-former testimony
2-dying declaration
3-statement against interest
4-statement of personal or family history
5-forfeiture by wrongdoing

Front 170

What is forfeiture by wrongdoing and what is the effect?

Back 170

Court finds by preponderance that D’s conduct was designed to prevent witness from testifying
If so, defendant forfeits ANY hearsay and 6th amendment objections

Front 171

Former testimony defined and effect

Back 171

Testimony given in an earlier proceeding by person NOW UNAVAILABLE is admissible if (1) party against whom testimony was offered had opportunity to examine the person; and (2) motive to conduct cross-exam was similar. In civil case, also admissible if party against whom testimony offered was in privity with a party in earlier proceeding who had opportunity and motive to examine.

Hearsay Exception

Front 172

Requirements for admission of former testimony

Back 172

Excepted from hearsay rule when DECLARANT UNAVAILABLE and
Meaningful opportunity to cross in prior hearing :
1. same issue and motive in both proceedings
2. if Crim case: party against whom the testimony was offered was also party in first case OR, if civil case: above or party against whom testimony offered was in privity with party from first case

Front 173

Is a grand jury testimony of an unavailable declarant against the accused in a criminal case admissible?

Back 173

No, bc accused did not have chance to cross-examine in grand jury.

Front 174

When is a witness unavailable?

Back 174

[PAILS]
1. privilege
2. Absence from jurisdiction
3. illness or death
4. lack of memory
5. “stubborn refusal”

Front 175

Statement against interest defined and effect

Back 175

Declaration of a person, now UNAVAILABLE as witness, against that person's pecuniary, proprietary, or penal interest at the time the statement was made

exception from hearsay rule

Front 176

Is a statement that exposes declarant to criminal liability and exculpates the accused admissible as a statement against interest?

Back 176

Such 3rd party exceptions are admissible only when "corroborating circumstances clearly indicate the trustworthiness of the statement" Otherwise violates hearsay rule.

Front 177

Differences between admissions and statements against interest

Back 177

Differences
(a) statement against interest must be against interest at time statement made - admission must be against interest at trial
(b) statement against interest may be made by any person -admission can only be made by party
(c) Statement against interest requires personal knowledge -admission requires no personal knowledge
(d) statement against interest requires unavailability

Front 178

Why very rare to have both admissions and statement against interest exceptions to the hearsay rule apply?

Back 178

Bc statement against interest requires unavailability AND Admission is necessarily by party AND Unlikely that party unavailable

Front 179

Dying declaration defined and effect

Back 179

Fed: In a prosecution for a criminal homicide or in any civil proceeding, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause of circumstances of the impending death.

MA: only usable for criminal homicide (i.e. declarant is dead victim)

Exception to hearsay

Front 180

Requirements for dying declaration

Back 180

1. made under a sense of impending death (on exam, declarant should say something about impending death)
2. Declarant must be unavailable at time of trial but need not die under fed rules (Need to die in MA)
3. Admissible in homicide or civil case under fed rules. Admissible only in homicide case under MA rules.
4. Declaration must concern cause or circumstances of impending death.

Front 181

What MA exception to the hearsay rule came into being after the dead man's statute was abolished?

Back 181

MA allows admission of declaration of deceased person in civil cases when made: 1. in good faith and 2. on personal knowledge
**d not think he will die when he makes declaration
**can be made years before death.

Front 182

What hearsay exceptions DO NOT require unavailability?

Back 182

1-present sense impression
2-excited utterance
3-existing mental/emotional/physical condition
4-statements for purpose of medical diagnosis/treatment
5-recorded recollection
6-records of regularly conducted activity or absence of entry in records
7-public records or reports or absence of record or entry

Front 183

Declaration of existing state of mind and effect

Back 183

e.g. admissible state of mind when witness in a probate of a will that left nothing to daughter testifies that decedent said “I do not love my daughter any more”

Present state of mind exception to hearsay , no need for unavailability

Front 184

Declaration of existing intent to do something in the future offered to infer that the intended future act was done defined & effect

Back 184

admissible when witness testifies that Declarant said he was going to meet with X on Monday to prove that he did meet with X on Monday

state of mind exception to hearsay, no need for unavailability

Front 185

Excited utterance defined & effect

Back 185

statement relating to startling event or condition is admissible when made by declarant still under stress of excitement caused by event or condition

exception to hearsay, no need for unavailability

Front 186

Requirements for excited utterance exception to hearsay rule

Back 186

1. Startling event 2. made under stress of excitement 3. concerns the facts of the startling event
**make sure no long passage of time/excitement didn't wear off
**look for words of excitement like, exclaim, scream, shout

Front 187

Present sense impression defined and effect

Back 187

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

Exception to hearsay for FED, no need for unavailability
DOES NOT EXIST IN MA

Front 188

Differentiate between excited utterance and present sense impression

Back 188

both spontaneous statement exceptions to hearsay rule
--excited utterance needs startling event or excitement.
--present sense impression can't have any time lapse. Excited utterance can have small time lapse if still excited.

Front 189

Present sense impression exception to hearsay rule in MA

Back 189

Not an exception in MA

Front 190

Declaration of present pain, suffering or physical condition. Defined and effect.

Back 190

A declaration of then existing physical or mental condition is admissible to show the condition. eg it hurts!

Exception to hearsay, no need for unavailability

Front 191

Statement for purpose of medical diagnosis and treatment – define & effect.

Back 191

Statement made for purpose of diagnosis or treatment and describing medical history or past symptoms or the general character of the cause or external source of the symptoms insofar as reasonably pertinent to diagnosis or treatment.

Must be: 1. made to ANYONE (normally medical personnel) 2. For purpose of diagnosis or treatment (applies even when diagnosis only for purpose of giving testimony)

FED: Exception to hearsay, no need for unavailability
IN MA: ONLY for statements to TREATING physician and does not include statements about general cause of condition

Front 192

Who decides preliminary questions of fact upon which admissibility depends? Examples?

Back 192

1. The judge decides and is NOT bound by rules of evidence.
2. E.g. state of mind of declarant in dying declaration exception, whether declarant speaking under stress in excited utterance exception

Front 193

How can one impeach a hearsay declarant?

Back 193

Just like any live witness. Typically done with prior inconsistent statements.

Front 194

What to look for when writings admitted in exam questions

Back 194

1. best evidence rule 2. Hearsay

Front 195

Business records requirements

Back 195

Admissible as exception to hearsay

Requirements:
1. Records of business of any type
2. made in regular course of business (i.e. germaine to business)
3. business regularly keeps such records
4. made at or about the time of the event recorded (contemporaneous)
5. contents consist of
-info observed by EEs of the business (personal knowledge) OR
-statement falls within indep hearsay exception

In MA – record must also be made “in good faith” and “before the beginning” of the proceeding for which offered into evidence

Front 196

How must the foundation be laid for business records evidence?

Back 196

-call sponsoring witness to testify to the 5 elements of the business record hearsay exception; need not be the author, can be records custodian or other knowledgeable person in the business.
OR
-written certification under oath attesting to elements of business records hearsay exception w/ advance notice to opposing party.

Requirements:
1. Records of business of any type
2. made in regular course of business (i.e. germaine to business)
3. business regularly keeps such records
4. made at or about the time of the event recorded (contemporaneous)
5. contents consist of
-info observed by EEs of the business (personal knowledge) OR
-statement falls within indep hearsay exception
AND In MA – record must also be made “in good faith” and “before the beginning” of the proceeding for which offered into evidence

Front 197

What public records are admissible as an exception to hearsay?

Back 197

Records of a public office or agency setting forth:
(1) activities of the office or agency (e.g. payroll records); or
(2) matters observed pursuant to duty imposed by law (weather bureau records of temperatures; or
(3) NOT IN MA – findings of fact or opinion resulting from an investigation authorized by law (e.g. OSHA inspection report)

Front 198

Are police reports admissible as an exception to hearsay?

Back 198

Police reports prepared for prosecutorial purposes are NOT admissible against a criminal defendant under public records or business records exceptions.

Front 199

What additional hearsay exceptions are unique to MA?

Back 199

1. specialized exceptions for business & public records involving medical matters (hospital records, medical records, medical report of deceased physician who treated a personal injury victim)
2. statement of a child-victim of sexual act (REQUIRES UNAVAILABILITY) – but note this could raise confrontation issues

Front 200

What is required for the MA hearsay exception for business & public records involving medical matters?

Back 200

Covers:
-Hospital records: that describe treatment & medical history of a patient
-medical records of hospitals or physicians relating to services rendered to an injured person re: treatment, opinions, diagnoses, opinion re general causation IF report subscribed & sworn to by the physician (or agent) who rendered the services
-medical report of a deceased physician who treated a personal injury victim is admissible in a civil tort action by injured person

Front 201

What is required for MA hearsay exception for statement of a child-victim of sexual act?

Back 201

1-child unavailable for any reason
2-statement has adequate reliability
3-person who heard the child make the statement testifies

Front 202

Does MA allow habit evidence? Does it ever allow any habit evidence?

Back 202

No – MA does not admit evidence of habit to show that a particular act occurred. However, it does allow evidence of business habit; i.e. evidence of a business practice or custom is admissible if it is sufficiently uniform and regular.

Front 203

Does MA exclude offers to compromise?

Back 203

MA excludes settlement offers, but not the admissions of fact made during settlement negotiations.

Front 204

Does MA allow evidence of benevolent gestures?

Back 204

No – MA excludes statements, writings, or benevolent gestures expressing sympathy relating to pain, suffering or death, made to a person or his family as evidence of an admission of liability in a civil matter.

Front 205

Does MA allow evidence of victim’s prior violent conduct in a self-defense case?

Back 205

Massachusetts grants trial judges the discretion to allow evidence of the victim’s prior conduct for the limited purpose of establishing that the victim was the first aggressor in a self-defense case. The evidence can be admitted even if the defendant lacked knowledge of the conduct.

Front 206

What is the relevance of past behavior of a rape victim in a rape case in MA?

Back 206

1. General rule +
2. False accusations if corroborating evidence
3. Love Triangle
MA follows the general rule, moreover, evidence of prior subsequent false accusations of rape by the complainant/rape victim may be admissible if there is corroborating evidence that such false accusations were in fact made. The courts have carved out a “love triangle” exception which allows the D to offer evidence of a sexual relationship b/w the complainant and a 3d party as a basis for arguing that the complainant had a motive to lie about whether incident at issue was consensual.

Front 207

Is there an exception for prior acts of sexual assault or child molestation in MA?

Back 207

MA does not specifically have an exception admitting evidence of prior acts of sexual assault or child molestation. This evidence may be admitted, however, if it relates to Motive, Intent, Absence of Mistake, Identity, Common Plan – MIMIC.

Front 208

Can a judge take judicial notice of municipal ordinances and rules or regulations of administrative bodies in MA?

Back 208

No – such things are not subject to judicial notice, but copies of such may be admitted as permitted by statute.

Front 209

What happens if an opponent fails to specifically deny the genuineness of an instrument pleaded in MA?

Back 209

This relieves the proponent of the burden of proving the authenticity.

Front 210

What does the Best Evidence Rule apply to in MA?

Back 210

It applies only to conventional writings and recordings. Not photographs, for example.

Front 211

What about duplicates? What is their status in MA?

Back 211

The Uniform Photographic Copies of Business and Public Records as Evidence Act provides that copies, in any form, made in the regular course of business are admissible as the equivalent of originals.

Front 212

How can you prove the contents of a writing, photograph or recording in MA?

Back 212

An oral admission of a party can be used to prove the contents of such things.

Front 213

Is there a Dead Man’s Statute in MA? What does that mean?

Back 213

No Dead Man Act. Thus, a declaration of a deceased witness is admissible if there is proof that the declaration was made in good faith, and upon personal knowledge.

Front 214

What is the proper means of examining an expert in MA: If she has first hand knowledge? If she doesn't have first hand knowledge?

Back 214

If expert has firsthand knowledge: “On the basis of the information, what is your expert opinion?” If no firsthand knowledge, must pose question as hypothetical.

Front 215

What evidence is allowed to support expert conclusions in MA?

Back 215

MA will not permit an expert to base an opinion on inadmissible facts, even if those facts are of a sort ordinarily relied on by experts in the field. In MA, expert opinion must be based on acts that are both admissible AND customarily relied on.

Front 216

Can a witness offer an opinion on the ultimate issue of the case in MA? What should I take note of in sexual abuse cases?

Back 216

1. Generally no - MA follows traditional rule
2. More recently the trend has been to allow experts to touch on the ultimate issue if helpful to jury
3. Especially in child sexual abuse cases can't use expert testimony to bolster the credibility of a child witness

Front 217

Does MA allow polygraph evidence?

Back 217

MA has traditionally rejected polygraph admissibility in criminal trials based on lack of acceptance in the scientific community. The SJC has recently suggested, however, that it might consider admitting such evidence if a party can show the test was reliable. The court would look to evidence that the test administrator was qualified and had administered a statistically valid number of independently verified and controlled tests with a high level of accuracy in his conclusions.

Front 218

What’s the scope of cross in MA?

Back 218

Wide open cross. A witness may be examined on any matter relevant to any issue.

Front 219

Can you impeach your own witness in MA?

Back 219

Yes – but your impeachment is limited to contradiction by prior inconsistent statements.

Front 220

Does MA require a foundation to be laid for impeaching with prior inconsistent statements?

Back 220

No – except when one is impeaching one’s own witness. Prior inconsistent statements are hearsay, and, therefore, may not be used to prove the truth of the statement unless they come within one of the hearsay exceptions.

Front 221

Can I impeach using juvenile records in MA?

Back 221

No – MA broadly protects the confidentiality of juvenile records and the adjudication of any child as a delinquent child is not lawful or proper evidence against that child for any purpose, including impeachment, in any proceeding in any court.

Front 222

What is the effect of a pardon in MA?

Back 222

MA, like federal courts, does not view a pardon as reversing a prior conviction or wiping out the underlying criminal act. The grantee of a pardon must prove the pardon was granted for rehabilitation, and the record subsequently sealed, in order for the prior conviction to remain beyond reach for impeachment purposes.

Front 223

How do I impeach through conviction of a crime in MA?

Back 223

1. Felony or misdemeanor 2. Court excludes if danger of unfair prejudice outweighs probative value 3. If non-defendant Witness - cannot be excluded. Misdemeanor only admissible w/ sentence.

Hint 223

FM Pre-Noon-Menstrual Syndrome

Front 224

What are the remoteness rules for impeachment with conviction in MA?

Back 224

Remoteness: Felony admissible if 1) 10 years from date of conviction if no sentence imposed; 2) 10 years from date of sentence imposition if HOC, not prison; 3) 10 years from end of imprisonment if prison. Misdemeanor = 5 years. Traffic violation w/ only fine = never admissible Nolo Contendre – not admissible Felony that would be too remote is admissible if new crime committed w/in 10 years (Misdemeanor new crime = 5 years)

Front 225

Can I impeach a witness with specific acts of misconduct in MA?

Back 225

No – this is not allowed in MA

Front 226

Can I impeach a witness using reputation testimony? What about opinion testimony?

Back 226

MA allows reputation evidence, but not opinion testimony. The reputation can include his business or professional circle. So, witness cannot say, “I believe W’s a liar.” But, can reach similar result with questions such as, “Are you aware of or familiar with X’s reputation for telling the truth?” “What is that reputation?”

Front 227

Can I call another witness to rehabilitate a witness who will state that W1 has a good reputation for truthfulness?

Back 227

Only when the first witness was impeached with past convictions or a bad reputation for veracity (bad character).

Front 228

Opposing counsel just objected to this witness’s testimony. I want to preserve the issue for appeal, what must I do?

Back 228

An offer of proof must be made subsequent to a sustained objection by opposing counsel before an error on appeal can be based on exclusion of evidence.

Front 229

Do the privileges survive death in MA?

Back 229

Attorney-client and patient-psychotherapist privileges survive the death of the client/patient. MA would likely hold the others to survive as well. Privilege belongs to estate (administrator/Executor) who may waive the privilege on behalf of estate. Exercise of the privilege in a manner inconsistent with decedent’s best interests can be grounds for appointment of a new administrator or executor.

Front 230

Are there any limits to the attorney-client privilege in MA?

Back 230

It does not apply if the services of the lawyer were sought or obtained to enable or aid anyone to commit what the client knew or reasonably should have know was a crime or fraud.

Front 231

What about marital communications. What privilege do they receive in MA?

Back 231

Absolute disqualification for private marital communications; spouses cannot testify about them even if they want to. Applies to oral, not written communications. Private defined by intent.

Front 232

What are the exceptions to the absolute rule of disqualification for private marital communications in MA?

Back 232

1. Declarations made by a deceased spouse, if court finds they were made in good faith and upon personal knowledge of declarant. 2. Proceedings involving K b/w H & W 3. Proceedings under Uniform Reciprocal Enforcement of Support Act. 4. Prosecutions for nonsupport, desertion, or neglect of parental duty 5. criminal proceedings where D is charged w/ a crime against his/her spouse 6. Criminal proceedings where D is charged w/ Violating a MA or out-state abuse prevention order. 7. Proceedings involving incest or abuse of person under 18 8. Threats made by one spouse against other. Don't know Shit, Prince Sherlock, CAP-IT! (Deceased, K, Support, Prosecution for Support, Crime against spouse, Abuse Prevention order, Incest, Threats)

Hint 232

Don't know Shit, Prince Sherlock, CAP-IT!

Front 233

What if a marital communication comes into evidence w/o objection or w/o judge excluding it in MA?

Back 233

It can then be used for whatever probative value it has.

Front 234

What happens if there is an inadvertent disclosure of privileged information in MA?

Back 234

Court will weigh factors to determine whether it comes in: 1) Reasonableness of precautions taken to prevent inadvertent disclosure 2) Amount of time it took the producing party to recognize error 3) Scope of production 4) Extent of inadvertent disclosure 5) The overriding interest of fairness and justice (I get) PTSD-Every Friday [Precautions, Time to recognize, Scope, Disclosure Extent, Fairness]

Hint 234

(I get) PTSD-Every Friday

Front 235

It’s a case of bastardy in MA. I want to testify I was impotent or out of town when the conception occurred. Can I? What about for intestacy matters?

Back 235

Yes – Lord Mansfield’s Rule has been abolished for paternity actions, but retained for matters of intestacy succession.

Front 236

What’s it called when a spouse doesn’t want to testify against her husband in MA? Are there limits to it?

Back 236

It’s called the spousal privilege. It doesn’t apply when there are allegations of child abuse or incest.

Front 237

Can a child testify against his/her parents in MA?

Back 237

An unemancipated minor living with a parent is prohibited from testifying against that parent in a criminal proceeding unless the victim is a member of the parent’s family and lives in the parent’s household. If either circumstance exists, the child must testify, if called.

Front 238

Are there limits to the Attorney-Client work product privilege in MA?

Back 238

If work-product is used to refresh a W’s recollection, the protection is waived and the opponent’s attorney may inspect the document.

Front 239

Is there a physician-patient privilege in MA?

Back 239

It’s not recognized in MA. But doctors do have a statutory duty not to make out-of-court disclosures of medical information w/o patient’s consent.

Front 240

Is there a psychotherapist/socialworker-client privilege in MA?

Back 240

Yes – These are recognized by statute. The SW privilege also applies to unlicensed social workers employed by government agencies and acting w/in the scope of their employment.

Front 241

What isn’t protected by the Shrink/Social Worker/Patient Privilege in MA?

Back 241

1. Commitment hearings 2. Court-ordered examinations where patient is warned that privilege will not apply. With crim D, statements are admissible only on issue of D’s mental condition. 3. Cases where a Pt puts his mental condition in issue and court finds disclosure is in interests of justice 4. Pt is deceased and it is a proceeding in which the patient’s mental or emotional condition is at issue and court finds disclosure in interests of justice 5. Child custody or adoption proceedings after an in camera hearing 6. Actions against the shrink/SW where disclosure is necessary or relevant; note: privilege protects communications, not the diagnosis itself. ICE-AS-DICe (Issue, Committment, Examinations, Against Shrink, Deceased & Issue, Child Custody)

Hint 241

ICE-AS-DICe

Front 242

What extra things does the privilege against self-incrimination cover in MA?

Back 242

Breathalyzer, Blood test, or field sobriety test – refusal can’t be used against D. But, refusal to submit to blood or genetic marker test can be used in paternity suits.

Front 243

Is there an Accountant-client privilege or Professional Journalist privilege in MA?

Back 243

No However, courts have established qualified protection for news reporters against discovery initiatives to any person who intends, at the inception of the news gathering process, to use the fruits of his research to disseminate information to the public. In a criminal action, however, disclosure may be mandatory to protect the rights of Ds.

Front 244

Is there a mediator’s privilege in MA?

Back 244

Communications relating to the subject of mediation made in the presence of a mediator as well as memoranda and work product of a mediator are inadmissible.

Front 245

Are there any random stupid public privileges?

Back 245

State individual income tax returns are privileged, but federal returns must be disclosed upon a sufficient showing of need?

Front 246

What about domestic violence counselor-victim privilege? Does it exist in MA?

Back 246

A counselor may not disclose confidential communications of a victim of domestic violence except in actions for discovery of communications that may exculpate the accused.

Front 247

What can a court do to protect trade secrets in MA?

Back 247

A court may issue a protective order limiting the disclosure of trade secrets, but must do so in a way that doesn’t prejudice the other side.

Front 248

What should a court do if a privilege interferes with an accused’s rights in MA?

Back 248

MA provides criminal defendants with broad confrontation rights under Article 12 of the MA Con. 1. D shows good faith basis for believing records have exclupatory evidence. 2. Judge reviews evidence in camera to determine relevance. 3. Relevant portions turned over to each side 4. Documents may be admitted after voir dire on materiality. GRTV - (Good faith, review, turned over, voir dire) This issue often arises in the context of psychologist or rape counselor records in a criminal trial.

Hint 248

GRTV

Front 249

How do prior inconsistent statements work in MA?

Back 249

Prior inconsistent statements are generally admissible in MA for impeachment purposes only and not as substantive evidence. Prior inconsistent Grand Jury testimony can be substantively admissible

Front 250

How are admissions by a party opponent treated in MA?

Back 250

Hearsay, within an exception.

Front 251

How are admissions by co-conspirators and joint venturers handled in MA?

Back 251

There must be sufficient non-hearsay evidence to establish an adequate probability that the declarant and defendant were engaged in the criminal enterprise. This foundation must be established as a preliminary matter before the hearsay statement can be admitted.

Front 252

How are dying declarations different in MA?

Back 252

1. Only for homicide 2. Actually dead 3. Fixed sense of impending death

Front 253

Does MA allow declarations of a deceased person?

Back 253

1. Good Faith 2. Personal Knowledge 3. Dead 4. Civil Declarations may include writings and need not be produced in the exact words used by the declarant.

Front 254

Define forfeiture by wrongdoing in MA?

Back 254

You break it, you bought it. If you cause the hearsay declarant's unavailability, his statements can be used against you.

Front 255

Is present sense impression recognized in MA?

Back 255

No.

Front 256

How are statements about bodily condition handled in MA?

Back 256

A statement made of then-existing bodily condition is admissible. If the statement is made to a physician for the purpose of diagnosis or treatment, statements of past or present conditions are admissible.

Front 257

How are business records handled in MA?

Back 257

Business records are admissible if: 1) Made in good faith 2) Made in regular course of business 3) Made before litigation 4) Was the regular course of business to make such a record GeRBeR - (Good Faith, Regular course, Before litigation, Regular pratice) Someone must testify to these facts but need not have personal knowledge of the facts contained.

Hint 257

GeRBeR

Front 258

How are Hospital records handled in MA?

Back 258

Separate statute for hospital/clinical records are admissible at the discretion of court if records are: 1) Made by a person with an obligation to report 2) Certified to be true and complete by the person with custody 3) Relate to treatment and medical history. OCR - (Obligation, Certified, Relate) Nothing referring to liability is admissible.

Hint 258

OCR

Front 259

Can I use a medical bill in MA?

Back 259

1. Tort or K for PI 2. Bill for services 3. Date/Place only 4. No reference to injury 5. Written notice to opposing party 6. 10 days before trial To Be Determined, Please Inspect With 10-blade (Tort [or K], Bill, Date/Place, no Injury, Written notice, 10 days

Hint 259

To Be Determined, Please Inspect With 10-blade

Front 260

Does MA allow statements made by hospital patients?

Back 260

MA does not allow direct evidence in the form of settlements, general releases, or other written statements made by a hospital patient w/in 15 days from the date the injuries were sustained. SRW-15 - Settlements, Releases, Written Statements w/in 15 days (Doesn't apply to: COP, MVFA - Tape) This rule does not apply to statements or releases obtained by police officers, motor vehicle inspectors, family members or attorneys. Tape recorded statements are admissible as are statements given outside the hospital.

Front 261

What is the ancient document rule in MA?

Back 261

Must be older than 30 years to qualify.

Front 262

Does MA have a catch-all exception to hearsay?

Back 262

No, but courts can create new exceptions.

Front 263

Can I use reputation evidence in nuisance cases?

Back 263

Yes – you can use general reputation to prove the existence of a nuisance.

Front 264

Are there special hearsay exceptions for children in MA?

Back 264

Yes – Care and custody cases and other criminal/civil cases alleging abuse.

Front 265

I want to introduce hearsay of a child in a care and custody cases in MA. What do I need to do?

Back 265

In cases of care, custody, welfare of a child, including foster care (but not divorce), a 3d party’s report of a child’s statements will be substantively admissible if: 1) Child under 10 2) Statements concern sexual contact 3) 3d person testifies in court 4) statement is evidence of a material fact. 10-STM (10, Sexual, Third Party, Material)

Hint 265

10-STM

Front 266

What about other civil/criminal cases alleging abuse, what must I do to admit a child's hearsay testimony?

Back 266

Must have: 1) Child under 10 2) Statements concern sexual contact 3) 3d person testifies in court 4) statement is evidence of a material fact. Plus 5) Child is unavailable 6) Statement more probative on point than any other evidence proponent can obtain through reasonable efforts 7) Statement is sufficiently reliable Unavailability can be through lack of memory or intense trauma of testifying in court. Judge may interview child to determine reliability. UPS 10-STM (Unavailable, more Probative, Statement reliable, Under 10, Sexual Contact, Third Party, Material fact)

Hint 266

UPS 10-STM

Front 267

What special things do I need to do to get a child’s hearsay in a criminal trial (other than an abuse case) in MA?

Back 267

To use child hearsay in a criminal trial in MA, the state must: 1) Give prior notice to the D 2) Show a compelling need to use it by more than a preponderance of the evidence 3) Produce independent corroboration of the out-of-court statement. NCC - Notice, Compelling, Corroboration

Hint 267

NCC

Front 268

What is the first complaint of sexual assault used for in MA?

Back 268

The evidence is only admissible to corroborate the complainant’s testimony, not as substantive evidence.

Front 269

When is first complaint testimony not admissible?

Back 269

When sexual assault and consent aren't at issue. Where neither the occurrence of a sexual assault nor the complainant’s consent is at issue, the evidence will serve no corroborative purpose and will be inadmissible under the first complaint doctrine.

Front 270

When are the results of a blood alcohol test admissible?

Back 270

In any criminal or civil proceeding if: 1) D consents to test 2) results were made available to D 3) D had a reasonable opportunity to have another test done by a doctor he selected. Cool, RAD RuDe - (Consent, Results Available to D, Reasonable opp for other Doc)

Front 271

When is a defendant allowed to present evidence of prior abuse in MA?

Back 271

In crim trials alleging violence, D can present evidence of physical, sexual or psychological abuse to show reasonableness of: 1. Apprehension of death or bodily harm 2. Belief exhausted non-violent means 3. Belief about amount of force needed Very Angry Nerf Followers (Violent crime, Apprehension, Non-violent means, Force)

Front 272

Can a court in MA allow alternative means of testifying to a witness who suffers from mental retardation.

Back 272

1. If severe emotional trauma 2. mentally retarded witness 3. Can have alternative method of testifying. SET-Ret-Alt - (Severe Emotional Trauma, Retarded, Alternative) Alternatives: Friend near, off-witness stand, video

Hint 272

SET-Ret-Alt

Front 273

What rules about Dr's rendering medical opinions in court?

Back 273

1. Can state an opinion w/o examining (must state basis of knowledge - X-rays, etc.) 2. Can state opinion about proximate cause (what, not who) of injury

Front 274

When are duplicates of computer data admissible?

Back 274

Duplicates of computer data or program files are admissible unless: 1. Question raised as to authenticity of original 2. It would be unfair to admit the duplicate instead of original Any printout or other output shown to reflect data accurately is considered an original.

Front 275

What rules for certified records?

Back 275

Certified copies/photo reproductions of records of: Hospital, Banks, Ins, other businesses, and Newspapers Always admissible - trumps hearsay & business entry exception

Front 276

How does the court determine relevance if it's looking through confidential files in camera?

Back 276

Bias, Motive to lie, Inconsistent ID. malcolm's BM is Inconsistent (Bias, Motive, Inconsistent ID) The information is relevant if it reveals bias, motive to lie, or any inconsistencies in the victim’s identification of the assailant.

Hint 276

malcolm's BM is Inconsistent

Front 277

I'm being sued in a bastardy action, can the fact that I refused to submit to a blood test be used against me?

Back 277

Refusal to submit to blood or genetic marker test can be used in paternity suits.

Front 278

The spouse is claiming testimonial privilege, is there a way to get what was said in?

Back 278

Excited utterances can be used when a spouse refuses to testify against his/her spouse claiming testimonial privilege.

Front 279

When can the prosecution introduce first complaint of a sexual assault evidence/

Back 279

The first out of court complaint made by the complainant after a sexual assault is admissible as part of the prosecution’s case in chief.

Front 280

The victim made several reports of her sexual assault, can I use them all?

Back 280

For cases tried after 10/29/05, CW is no longer allowed to admit more than one such complaint.

Front 281

The victim waited several weeks before reporting her sexual assault, will that affect admissibility?

Back 281

Under modified rules, freshness has no bearing on the complainant’s admissibility.

Front 282

What can the first report witness actually testify to? Can anyone other than the recipient testify about the first report?

Back 282

1. Details of the complaint 2. Relevant conditions that might help jury assess the complainant's veracity. The complainant can testify about the complaint and why it was made at that time.

Front 283

When is grand jury testimony admissible substantively in MA?

Back 283

1) The testifying witness is available at trial for cross; 2) the statement was not coerced; 3) Statement was clearly that of the witness and not simply confirmation of a statement by an interrogator; and 4) there is adequate corroboration of the testimony if the testimony concerns an essential element of the crime. Ann Coulter, Conventional Wisdom = Cow (Available, not Coerced, Clearly Witness, Corroboration)

Front 284

When is evidence that a defendant refused a BAC test admissible?

Back 284

Evidence that D refused to consent to any BAC is not admissible in any criminal proceeding except an action by the registrar of motor vehicles relating to the suspension of a license.