Mbe Evidence

Front 1

Logical Relevance

Back 1

Evidence that has any tendency to make a material fact more or less probable than it would be without the evidence.
Warning signals – evidence may not be logically relevant (too remote) if it involves some other
Time
Event
Person
Than one directly in litigation

Front 2

Discretionary or Policy-Based Relevance

Back 2

Even relevant evidence may be excluded if its probative value is substantially outweighed by a danger of one or ore of the following
1. Unfair Prejudice
2. Confusion of the Issues
3. Misleading jury
4. Undue delay
5. Wasting time
6. Needlessly presenting cumulative evidence
7. NO UNFAIR SURPRISE (UNFAIR SURPRISE NOT LISTED IN 403)

Front 3

Recurring Logical Relevance Patterns

Back 3

Causation
Prior Accidents or Claims
Intent or State of Mind
Rebuttal Evidence
Comparable Sales to Establish Value
Habit Evidence

Front 4

Recurring Logical Relevance Patterns (Causation)

Back 4

Proving cause and effect (tends to show)
E.g. everyone who ate at the restaurant that day got sick

Front 5

Recurring Logical Relevance Patterns (Prior Accidents or Claims)

Back 5

For D’s, not admissible unless
1. They show common plan and scheme of fraud
2. Prior claims or accidents are relevant on issue of damages
For P’s – admissible to show the same instrumentality occurred under the same or similar circumstances are admissible – to show that the instrumentality is dangerous and defective

Front 6

Recurring Logical Relevance Patterns (Intent or State of Mind)

Back 6

To infer intent from prior conduct

Front 7

Rebuttal Evidence

Back 7

To rebut a defense – on the MBE it’s usually impossibility
Found a mouse in coca cola – P introduces mice in other coke cans to show it happens

Front 8

Recurring Logical Relevance Patterns (Comparable Sales to Establish Value)

Back 8

Sale price of other chattels or parcels of real property are admissible if
1. Same general description
2. Same general time period
3. Same geographic area

Front 9

Recurring Logical Relevance Patterns (Habit Evidence)

Back 9

Admissible to prove that on a particular occasion the person acted in accordance with the habit – at the time of the litigated event
Two elements – specificity (specific detailed content)
Recurrance (The D has ALWAYS done it and CONSISTENTLY done it – those are the magic words)
Other buzz words – invariable, automatically

Front 10

Overlapping Rules to Habit

Back 10

Disposition evidence – not admissible
Prior Act evidence – Not admissible (person did it once or twice? Cool – not admissible)
Habit Evidence: Admissible

Front 11

Recurring Logical Relevance Patterns (Business Routine)

Back 11

Routine practice admissible to show that the organization acted in accordance with the routine practice

Front 12

Recurring Logical Relevance Patterns (Industrial or Trade Custom)

Back 12

Admissible as non-conclusive evidence of standard of care

Front 13

The Tree Discretionary Policy-Based Relevance Exclusions

Back 13

Liability Insurance
Subsequent Remedial Measures
Settlements

Front 14

Liability Insurance

Back 14

General Rule: Not admissible to show person acted negligently or wrongfully to show ability to pay
Exceptions: Admissible when relevant to
1. Show ownership or control (when ownership or control is disputed)
2. Impeach credibility of witnesses by showing interest or bias (or motive)

Front 15

Subsequent Remedial Measures

Back 15

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measure is not admissible to prove negligence, culpable conduct, a defect in the product, a defect in the product’s design, or a need for warning or instruction
Exception: Court may admit these measures for another purpose, like impeachment or if disputed, proving ownership control or the feasibility of precautionary measures
1. Ownership and control (if disputed)
2. Feasibility of precautionary measures (if disputed)

Front 16

Settlements (general rule)

Back 16

Not admissible to prove fault, liability or amount of damages. This is a broad rule that covers
1. Actual Compromises
2. Offers to Compromise
3. Offers to Plead Guilty in Criminal Case
4. Withdrawn pleas of guilty
5. Please of nolo contendere
Therefore, admissions of liability or damage made in course of offer to compromise a claim disputed as to liability or as to an amount are not admissible

Front 17

Settlements (Limitations)

Back 17

There must be a claim
The claim must be disputed as to either liability or amount
Offer to pay medical expenses is not admissible – but it is if it accompanies an admission of fact

Front 18

Character Evidence (Four Preliminary Questions)

Back 18

What is the purpose to offer character evidence?
What is the method you are using to prove character?
What type of case is this – civil or criminal?
What trait of character is involved?

Front 19

What is the purpose or offer of character evidence

Back 19

Character directly in issue
Circumstantial of person’s conduct at time of litigated event
Impeach Credibility of witness

Front 20

Character in Civil Cases (General Rule)

Back 20

Not admissible when offered as circumstantial evidence to infer conduct at time of litigated event

Front 21

Character in Civil Cases (Exception)

Back 21

Character is Admissible in a civil case where the character of a person (party) is itself a material issue in the case
1. Negligent Hiring
2. Defamation
3. Wrongful Death

Front 22

Character in Civil Cases (Method of Proof)

Back 22

If it is in issue and admissible – you may use any one of the specific techniques

Front 23

Character in Criminal Cases

Back 23

No evidence of bad character unless and until defense opens the door (only by REPUTATION and OPINION). After accused offers evidence, prosecution may rebut by crossing the witness on any specific acts which would affect the opinion of the witness.
NEVER used as circumstantial evidence to infer conduct.

Front 24

Victim Character – Self-Defense

Back 24

Accused may show that the victim had bad character by reputation or opinion, prosecutor could then respond with bad reputation or bad opinion

Front 25

Victim Character – Sexual Misconduct (criminal Case)

Back 25

No opinion or reputation evidence
Specific Instances of sexual behavior only admissible if
1. Offered to prove third party was source of semen, injury or other physical evidence
2. Show past acts of consensual sex occurred between victims and accused
3. If exclusion would violate constitutional rights of accused

Front 26

Victim Character – Sexual Misconduct (Civil Case)

Back 26

Only if probative value substantially outweighs danger of harm to victim and unfair prejudice to any party (defense must have in camera hearing)

Front 27

Specific Instances of Prior Misconduct by the Accused

Back 27

Not admissible during the prosecution’s case in chief if the only purpose is to prove criminal disposition BUT
Prior crimes or prior acts of misconduct may be admitted at the initiative of the prosecution when the misconduct is irrelevant. MIMIC
Motive – show misconduct – fringe benefits
Intent
Identity – anything that would connect D to crime charged
Modus Operandi – another way to prove identity (must be specific)
Common Plan or Scheme – same transaction, scheme, plan or preparation

Front 28

Special Rule Involving Sexual Assault and Child Molestation

Back 28

Prior Similar Acts are allowed to show propensity

Front 29

Authentication of a Writing

Back 29

A writing is not admissible until It has been authenticated. A foundation must be laid showing that the writing is what it purports to be, i.e. that it is genuine. Writings are not self-authenticating – a testimonial foundation is required.

Front 30

Methods of Authentication

Back 30

Direct Evidence in the Form of
1. Admission
2. Eyewitness testimony
3. Handwriting Proof (next card)

Front 31

Handwriting Proof

Back 31

Can be proved by
Lay Witness – any witness familiar with signature
Expert witness – comparing disputed signature with genuine specimen of signature
Jury Comparison – Impermissible techniques by lay witness—can’t study for purposes of litigation

Front 32

Ancient Document Rule

Back 32

20 or more years
Regular on its Face
Found in a place of natural custody

Front 33

Solicited Reply Doctrine

Back 33

Proof that disputed evidence came in response to prior communication

Front 34

Quantum of Proof

Back 34

Sufficient evidence that reasonable jury could find genuine

Front 35

Self-Authenticating Documents

Back 35

Generally documents are not self-authenticating
There are exceptions – certain writings may be admitted without a foundation or testimonial sponsorship
A. Certified Copies of public or business records
B. Official publications (state motor vehicle dep’t – purpoting on face to be from public agency)
C. Newspaper and Periodicals
D. Trade Inscriptions or Labels
E. Acknowledged Documents - signs not just once, but twice. Certificate of authentication.
F. Signatures on certain commercial documents

Front 36

Authentication of Photographs

Back 36

1. Have a witness say its fair and accurate depiction of the object
2. But not if it’s a security camera – you’d have to do all kinds of chain of custody (e.g. anything that doesn’t speak for itself)

Front 37

Best Evidence Rule

Back 37

Must either
1. Produce Original Document or
2. Account for absence of original

Front 38

Accounting for Absence of Original

Back 38

If reasonable, then lay foundation for secondary evidence
Then a copy or oral testimony may be admitted to prove content of original

Front 39

Best Evidence Rule Applies to

Back 39

1. Legally Operative Documents – documents that create or destroy legal relationship in dispute
2. Witness’s knowledge comes from a document – witness wants to recite what he orally read

Front 40

Best Evidence Rule does not apply to

Back 40

1. Facts independent of the writing (e.g. a birth without a birth certificate - can establish it other ways)
2. Collateral Documents (e.g. a doctor’s license when the doctor testifies)

Front 41

Modifications to Best Evidence Rule

Back 41

1. Pubic records – certified copies admissible in place of originals
2. Voluminous Documents (can introduce a summary document if originals would be admissible if offered and made accessible to opposing parties)
3. Duplicates (on new slide)

Front 42

Duplicates

Back 42

Allowed under BER unless
1. Genuine Question is raised about authenticity of original
2. Circumstances make it unfair to admit duplicate in lieu of original (e.g. Xerox of one sentence of 100 page documents)

Front 43

Competency to Stand Trial

Back 43

Personal Knowledge and Oath
1. Perception
2. Memory
3. Communication
4. Sincerity (appreciation for the obligation to tell the truth – oath or affirmation)

Front 44

Common law Disqualifications Abandoned

Back 44

1. Lack of Religious Belief
2. Infancy
3. Mental Incompetency
4. Prior Convictions
5. Interest (motivated to lie)

Front 45

Dead Man Acts

Back 45

Typical Statute: An interested survivor cannot testify for his interest against the decedent or decedent’s representatives about communications or transactions with the decedent in a civil case unless a waiver
Elements
1. Must be interested witness
2. Must be testifying for his or her own interest
3. Against decedent or representative
4. Rule of competency – subject matter is important (barred from testifying to matters that decedent could contradict – not all matters)
5. Strictly civil
6. Can be waiver
Applicable in federal court only if state whose substantive law applies such a statute

Front 46

Objectionable Questions

Back 46

Narrative
Leading
Misleading or Compound Argumentative (even on Cross)

Front 47

Leading Questions permitted in Certain Situations

Back 47

Cross Exam
Preliminary matters
Difficulty eliciting testimony
Examining Adverse party or Genuinely hostile witness

Front 48

Witness Use of Writings in Aid of Testimony (basic rule)

Back 48

Witness usually cannot read testimony from previously prepared document but may use a writing in aid of oral testimony in two situations where the witness can’t remember

Front 49

Witness Use of Writings in Aid of Testimony (two situations)

Back 49

Refreshing Recollection
Recorded Recollection

Front 50

Refereshing Recollection

Back 50

1. When witness memory fails, anything can be used to jog memory of witness
2. Anything
3. Defense and jury must see it

Front 51

Recorded Recollection

Back 51

1. Still can’t remember-lay the foundation to read it into the record
2. Requirements:
At one time witness had personal knowledge
Writing made by the witness or under the direction of the witness
Timely made writing by witness
Establish reliability, accuracy of writing
Necessity – must be unable to remember all or part of the details
2. Writing is admitted by being read into evidence (Jury does not get to see it)
3. This is a hearsay exception

Front 52

Lay Opinion

Back 52

Admissible if
1. Rationally Based on Perception of Witness
2. Helpful to trier of fact

Front 53

Experts-Requirements

Back 53

1. Subject matter must be appropriate for expert testimony (must assist trier of fact – reliable and relevant)
2. Witness must be qualified as an expert (can be based solely on experience)
3. Should Possess reasonable certainty or probability regarding the opinion (more than guess work)
4. Supported by Proper Factual Basis (separate card)

Front 54

Expert Opinion – Supported by Proper Factual Basis

Back 54

1. Facts within personal knowledge of expert
2. Presented to expert in court by evidence – usually through hypothetical question – must be based on admitted evidence
3. Opinion based on personal knowledge not within evidence, not admissible, but as facts that are reasonably relied upon making out of court professional decision

Front 55

Learned Treatise

Back 55

1. Most Common Problem – Hearsay
2. How can you establish learned treatise as authoritative?
Opposing expert relied on text of treaty
Listening and admission on cross exam
Call your own expert witness
Judicial notice

Front 56

Do you need an expert’s opinion to support a learned treatise?

Back 56

No and you don’t need to wait for the opposing expert to deny it

Front 57

The Learned Treatise Exception

Back 57

Text may be offered for its truth
Statement contained in a learned text, treatise, article, periodical or pamphlet concerning a relevant discipline is admissible as an exception to the rule against hearsay if established as reliable by
A. Reliance by your expert on direct
B. Admission on Cross
C. Testimony of an expert or
D. Judicial Notice
LIMITS
1. Expert must testify unless judge takes judicial notice
2. Treatise is admitted by being read to the jury – text itself is not received by evidence

Front 58

Cross-Exam

Back 58

1. Party has absolute right to cross-exam a witness who testifies live (if the witness refuses to answer any cross-exam questions after testifying on direct – direct is stricken)
2. Cross exam should not exceed the scope of direct
3. Collateral matters doctrine (separate card)

Front 59

Colalteral Matters Doctrine

Back 59

Impeachment by Contradiction of Witness is limited. Cross-examiner is bound by the answers given by the witness as to collateral matters
1. No extrinsic evidence allowed
2. Extrinsic evidence means anything other than cross exam
3. Relevant matters are those relevant only to show the contradiction (lied - misrepresented – exaggerated)

Front 60

Credibility and Impeachment Rules focus on one thing

Back 60

Credibility of witness

Front 61

Accrediting your own witness

Back 61

1. You can’t do so unless there has been an appropriate impeachment
2. Prior consistent statement admissible if statement is one of identification made by the witness who testifies at trial (excluded from hearsay definition) BUT
3. Can’t be supported if made by a witness who didn’t testify at trial

Front 62

Impeaching your own witness

Back 62

A party may impeach it’s own witness

Front 63

Five basic impeachment techniques

Back 63

Prior Inconsistent Statement
Bias or Interest or motive
Prior Conviction of a Crime
Specific Acts of Deceit or Lying
Bad reputation or opinion for truth and veracity

Front 64

Prior Inconsistent Statement

Back 64

1. The credibility of a witness may be impeached by a showing that on some prior occasion the witness made a statement different from and inconsistent with a material portion of the witness’s present in court testimony – generally admissible only to impeach – not for it’s truth and not for affirmative or substantive evidence
2. But if the prior inconsistent statement was given under oath and at a trial hearing or other proceeding or in a depo such a statement is admissible for its truth.
3. Extrinsic Evidence is admissible to prove the prior inconsistent statement
4. Foundation – witness has to have the opportunity or deny
5. Prior Inconsistent Statement of a party qualifies as an admission

Front 65

Bias, Interest, Motive

Back 65

May be shown by extrinsic evidence after a foundation is laid by inquiry on cross-exam of the target witness

Front 66

Prior Convictions

Back 66

Usable to impeach if conviction is for the proper kind of crime
1. Any crime within the past ten years involving honesty (fraud, larceny, by trick, embezzlement, perjury BUT NOT robbery or ordinary larceny because no deceit or false statement), judge has no discretion to exclude it
2. OR a felony not involving dishonesty or false statement admissible to impeach in the discretion of the court
3. Convictions can’t be too remote (general guideline 10 years)
4. EXTRINSIC EVIDENCE ADMISSIBLE)

Front 67

Specific Acts of Deceit or Lying

Back 67

May be asked about in cross-examination
1. Direct blunt evidence
2. Good faith required
3. Act must involve deceit or lying
4. No extrinsic evidence permitted – limited to cross exam

Front 68

Bad reputation for truth and veracity

Back 68

Can be used to impeach – can’t bolster it with specific acts

Front 69

Rehabilitation after impeachment

Back 69

Good reputation (opinion) for truth may be shown if impeachment involved a character attack (prior conviction, act of deceit or lying, bad reputation/opinion for truth)
Prior consistent statement to rebut an express or implied charge of recent fabrication or improper influence or motive (see next card)

Front 70

Prior Consistent Statement

Back 70

1. Not usually to rebut charge of prior inconsistent statement
2. To rebut charge of recent fabrication or improper influence or motive (you put someone up in a hotel? They made a prior consistent statement before that)
3. Must be pre-motive
4. Admissible for its truth

Front 71

Attorney Client Privilege (defined)

Back 71

Confidential communications between attorney and client made during professional legal consultation are privileged form disclosure unless waived by the client or the representative of deceased client (privilege survives death of client)

Front 72

Elements

Back 72

1. The right parties (atty or representative of atty)
2. Confidential Communications. Not shouted in a crowded elevator, physical evidence or pre-existing documents don’t count.
3. Professional legal relationship
Predominantly legal advice is sough if
1. Intent by client to establish professional legal relationship (covering retainer negotiations)
2. LEGAL ADVICE – not if client is acting as a witness, notary public, real estate broker

Front 73

Exceptions (this is for all privileges)

Back 73

1. Future crime or fraud (can’t perpetuate it)
2. At issue exception (when client or patient puts the communication in issue in litigation)
3. Disputes between parties to professional relationship

Front 74

Joint Client Exception

Back 74

1. Can testify to what other client said if client sues each other (no privity between them)
2. But they are privileged if sued together

Front 75

Physician/Psychiatrists Patient Privilege (defined)

Back 75

Patient has a privilege against disclosure of confidential info acquired by the physician/psychiatrist in a professional relationship entered into for the purpose of obtaining treatment. Most fed courts recognize only psych-patient and decline to recognize ordinary dr./patient

Front 76

Physician/Psychiatrists Patient Privilege (Key Elements)

Back 76

Patient must be seeking treatment (has to seek it himself – not under court order or anything)
Information acquired must be confidential and necessary to facilitate professional treatment

Front 77

Physician/Psychiatrists Patient Privilege (waiver)

Back 77

Happens all the time
1. Waived if patient sues or defends by putting physical or mental condition at issue
2. Basically all personal injury suits

Front 78

Husband-Wife Spousal Privileges (Spousal Immunity)

Back 78

One Spouse can’t be forced to give adverse testimony against the other in a criminal case
Requirements
1. Valid Marriage at time of trial
2. Protects against any and all testimony
3. Holder of priv is witness spouse not party spouse (e.g. witness spouse can still testify if she wants to)
4. Applies only in criminal case

Front 79

Confidential Marital Communications Privilege (Defined)

Back 79

A husband or wife shall not be required or without the consent of another shall not be allowed to disclose a confidential communication by one to the other during the marriage

Front 80

Confidential Marital Communications Privilege (Requirements)

Back 80

Also how it is different form spousal immunity
1. Married not necessarily at time of trial but at time of protected communication (privilege outlasts marriage)
2. Protects only confidences, not all testimony
3. Holder of privilege is either spouse, not just a witness spouse

Front 81

When will state law apply in federal court?

Back 81

If SUBSTANTIVE LAW APPLIES
1. Presumption and burdens of proof
2. Competency of Witnesses
3. Privileges

Front 82

Federal Privilege Law in Federal Question or Federal Criminal Cases

Back 82

Governed by the principles of the common law as they may be interpreted by the courts of the US in light of reason and experience

Front 83

Hearsay (defined)

Back 83

Out of court statement offered for the purpose of establishing the truth of the matter asserted in the statement

Front 84

Declarat v. Witness

Back 84

Declarant makes or writes out of court statement
Witness or writing (produced in court)

Front 85

Hearsay Rationale

Back 85

D doesn’t have an opportunity to cross-exam the person whose perception, memory and sincerity are in issue

Front 86

Specific Non-hearsay Situations

Back 86

This is where the out of court statement is not being offered for its truth 1. Verbal Acts or Legally Operative Facts – where words spoken or written have relevant legal significant in the case of virtue of being spoken or written (I accept! Cancel my insurance! Take my car, go to Miami!)
2. Out of court statement offered not for its truth but to show its effect on person who heard or read it
3. Out of court statement offered not for its truth but as circumstantial evidence of the declarant’s state of mind

Front 87

Prior Statements of the Witness (Hearsay?)

Back 87

Yes – a witness’s own prior statements may be hearsay

Front 88

Prior Statement of a Witness not Hearsay

Back 88

Offered for their truth – would be hearsay under common law. But the federal rules EXCLUDE them from he definition of hearsay by express rule provisions. Therefore admissible non-hearsay. They are
1. Prior inconsistent statements given under oath at trial, hearing or other proceeding or deposition
2. Prior Consistent Statements to rebut charge of recent fabrication or improper influence or motive
3. Prior statement of identification made by a witness

Front 89

Hearsay exceptions that require unavailability

Back 89

Former Testimony
Statements Against Interest
Dying Declaration – Statement Made under Belief of Imminent Death

Front 90

Admission of Party “Opposing Party’s Statement”

Back 90

Definition: Statement of a party offered against the party.
Rationale: Estoppel. No special reliability since:
1. Need not be against interest at time of making statement
2. Need not be based on personal knowledge
3. Can be in form of legal conclusion
4. Considered non-hearsay under federal rules of evidence
5. Vicarious admission by the party’s agent or servant concerning a matter within the scope of the agency or employment made during existence of relationship (old way was if speech was authorized – no more

Front 91

Former Testimony

Back 91

Definition – testimony given in earlier proceeding by person now unavailable. Admissible if testimony now offered against party who had or (in civil case – whose predecessors in interest had) an opportunity and similar motive to develop it by direct, cross, or redirect.
Requirements
1. Meaningful opportunity for cross (similar issue and motive, some identity of the party)
2. Unavailability

Front 92

Statements Against Interest

Back 92

Declaration of a person now unavailable as a witness against that person’s pecuniary, proprietary or penal interest at the time statement was made.
Limitation
A statement that tends to expose declarant to criminal liability and offered in criminal case must be supported by corroborating circumstances that clearly indicate its trustworthiness

Front 93

Statements Against Interest v. Party Admission

Back 93

1. SAI must be against interest at time statement made
2. SAI may be made by any person, not necessarily a party
3. SAI requires personal knowledge
4. Requires unavailability

Front 94

Dying Declaration

Back 94

Statement Made under belief of imminent death. Statement made by declarant while believing that the declarant’s death was imminent concerning the cause or circumstances of the impending death
Requirements
1. State of mind – you have to actually believe you are dying
2. Need not die but must be unavailable at time of trial
3. Homicide or civil case
4. Must concern cause or circumstances of impending death

Front 95

Unavailability

Back 95

Privilege
Refuses to Testify
Memory Fails
Dead or Sick
Process or Reasonable Means

Front 96

The Spotaneous Statements

Back 96

Declaration of existing state of mind in issue
Declaration of existing intent to do something in the future offered to infer that the intended act was done
Excited Utterance
Present Sense Impression
Declaration of Present Pain, Suffering or Physical Condition
Declaration of Past Physical Condition

Front 97

Excited utterance (definition)

Back 97

Statement relating to startling event or condition admissible when made while declarant was still under stress of excitement caused by event or condition

Front 98

Excited Utterance (requirements)

Back 98

1. Startling event
2. Made under stress of excitement
3. Concerns facts of startling event
4. Things to consider
Nature of event
Time lapse and what is going on during time lapse
Language of excited – Bar examiners will typically use a verb of excitement

Front 99

Present Sense Impression

Back 99

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

Front 100

Present Sense Impression v. Excited Utterance

Back 100

For PSI - unnecessary to have a startling event or excitement
But for PSI must have almost precise contemporaneousness – no appreciable time lapse

Front 101

Declaration of Present Pain, Suffering or Physical Condition

Back 101

Declaration of then Present Pain, Suffering or Physical Condition Admissible to show the condition (It hurts!)

Front 102

Declaration of Past Physical Condition

Back 102

Statement made for medical diagnosis or treatment and describing medical history of past symptoms or sensations, their inception or their general cause insofar as reasonably pertinent to diagnosis or treatment
Requirements
1. Made to Medical Personnel
2. Pertinent to either diagnosis or treatment (Even if diagnosis is only for the purpose of giving testimony)

Front 103

Who decides preliminary questions of fact upon which admissibility depends?

Back 103

The judge. He is not bound by the rules of evidence

Front 104

Impeaching the hearsay declarant

Back 104

When a hearsay statement has been admitted in evidence – credibility of declarant may be attacked by any evidence which would be admissible for that purpose if declarant had testified as a live witness

Front 105

Mixed Hearsay and Writings

Back 105

Be careful of best evidence rule!

Front 106

Business records Exception (defined)

Back 106

Records of a regularly conducted activity
Made at or near the time by or from an information transmitted by a person with knowledge are admissible if kept in the regular course of business and
If it was the regular course of that business to make the record unless the source of information or circumstances of preparation indicate a lack of trustworthiness

Front 107

Business records exception (rationale for reliability)

Back 107

Employees are under a business duty to be accurate in observing, reporting and recording business facts

Front 108

Business Records Exception (function of the exception)

Back 108

Allows the record to substitute for the in-court testimony of the employees

Front 109

Business Records Exception (Typical Problem Areas)

Back 109

1. Does the first exception apply? Is it germaine to business
Is it double hearsay? Because it’s supposed to substitute testimony for employees it can still have hearsay in it

Front 110

Sixth Amendment Right of Controntation

Back 110

Even though an out of court statement qualifies as an exception to the rule against hearsay – the accused’s Sixth Amendment right of confrontation may render the statement inadmissible when it’s offered against the accused in a criminal case

Front 111

Crawford v. Washington Holding

Back 111

Out-of-Court statements will be excluded even if they fit within a hearsay exception if
1. Offered against accused in criminal case
2. Declarant is unavailable at trial
3. OOC statement was testimonial
4. Accused had no opportunity to cross examine declarant’s testimonial statement when it was made UNLESS
5. Prosecution demonstrates that the D has forfeited his confrontation clause objection by wrongdoing that prevented the declarant from testifying at trial

Front 112

Testimonial

Back 112

Hearsay will be testimonial if declarant makes a statement that he or she anticipates will be used in prosecution or investigation of the crime

Front 113

Testimonial (some examples)

Back 113

911 Call – no
Signed police statement – yes

Front 114

Statements Taken by Police officers in course of investigation

Back 114

Non-testimonial and subject to confrontation clause when they are made under circumstances objectively indicating that primary purpose of interrogation is to meet an ongoing emergency

Front 115

Statements taken by police officers in course of interrogation are

Back 115

Testimonial and subject to conference clause when the circumstances objectively indicate that there is no ongoing emergency and primary purpose of interrogation is to establish or prove elements relevant to later criminal prosecution

Front 116

Testimonial Considerations

Back 116

very case specific but factors considered
1. Likely motivation and intent of declarant making the statement
2. Likely modification and intent of interrogator
3. Temporal element
4. Identity of person eliciting the statement
5. Degree, amount, circumstances and location of police interrogation (preliminary on scene questions or sustained structured questioning?)

Front 117

Lab Analysts Certificates

Back 117

Records prepared by laboratory technicians indicating blood alcohol, DNA or drug test results have in the past been admitted without business or public records exceptions against accused without presence in court of lab technician who prepared it
NOW VIOLATIVE OF CONFERENCE CLAUSE

Front 118

Forfeiture by wrongdoing

Back 118

Has to be with specific intent of keeping witness from testifying