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114 Cards in this Set
- Front
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Logical Relevance 401 |
Evidence that has any tendency to make a material fact more or less probable than it would be without the evidence. |
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Legal Relevance 403(b) Examples of unfair prejudice |
Even relevant evidence may be excluded if its probative value is substantially outweighed by its prejudicial effect.
a danger of one or ore of the following |
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evidence of similar happenings to prove causation |
Proving cause and effect (tends to show)
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similar occurrences to prove prior accidents or claims |
not admissible unless: 3. to show instrumentality is defective and dangerous (other accidents involving the same instrumentality occurred under the same circumstances) |
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Similar occurrences: Intent or State of Mind |
To infer intent from prior conduct
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Similar Occurrences: Rebuttal Evidence |
To rebut defense of impossibility
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Similar Occurrences: Comparable Sales to Establish Value |
Sale price of other chattels or parcels of real property are admissible if:
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Simlar Occurences: Habit Evidence |
Admissible to prove that on a particular occasion the person acted in accordance with the habit
Requires: 1. specificity, and 2. reoccurrence
buzzwords: instinctively, invariably, automatically, always |
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Overlapping Rules to Habit 1. Disposition 2. Prior Act 3. Habit |
Disposition evidence – not admissible |
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Similar Occurrences: Business Routine |
Routine practice admissible to show that the organization acted in accordance with the routine practice |
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Similar Occurrences: Industrial or Trade Custom |
Admissible as non-conclusive evidence of standard of care |
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The Three Discretionary Policy-Based Relevance Exclusions |
Liability Insurance |
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Liability Insurance |
Not admissible to show person acted negligently or wrongfully or to show ability to pay
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Subsequent Remedial Measures
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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
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Settlements (general rule) |
Not admissible to prove fault, liability or amount of damages.
Limitations: 1. there must be a claim 2. the claim must be disputed as to liability or amount |
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Offer to pay medical expenses |
not admissible, even though not a settlement offer
Limitation: if an admission of fact accompanies a naked offer to pay, the admission may be admitted. |
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Character Evidence (Four Preliminary Questions) |
1. What is the purpose to offer character evidence? |
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Methods of proving character evidence |
1. Specific acts of conduct 2. Opinion 3. Reputation |
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Character in Civil Cases (General Rule) |
Not admissible as propensity evidence (to show party acted in a similar manner for the events in question) |
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Character in Civil Cases (Exception)
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Character is Admissible in a civil case where the character of a person (party) is a material issue in the case:
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Character in Civil Cases: Method of Proof |
Method of proof: specific acts, opinion, reputation all admissible! |
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Character in Criminal Cases (3 steps) |
1. offered by prosectution: bad character not admissible to show propensity, UNLESS and UNTIL 2. If Defendant offers evidence of good character for a relevant trait (reputation or opinion only) THEN 3. Prosecutor may present evidence of the bad character of the accused (may call witnesses to testify to D's opinion or reputation--NO specific acts)
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Victim Character – Self-Defense |
As part of self-defense defense:
1. Defendant may show that the victim had bad character for violence by reputation or opinion,
2. Prosecutor can respond with: A. victim's good reputation or opinion, OR B. defendant's bad reputation or bad opinion |
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Victim Character – Sexual Misconduct (criminal Case) |
Defenses's evidence of victim's sexual history or sexual predisposition to prove consent is limited: 1. No opinion or reputation; 2. specific instances of sexual behavior only admissible if: A. offered to prove 3rd party was source of semen or other physical evidence, B. to show prior acts of consensual intercourse between vic and D, or C. exclusion would violate constitutional rights of D |
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Victim Character – Sexual Misconduct (Civil Case) |
Only if probative value substantially outweighs danger of harm to victim and unfair prejudice to any party (defense must have in camera hearing)
(Reverse 403(b)) |
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Specific Instances of Prior Misconduct by the Defendant (MIMIC) |
Identity – anything that would connect D to crime charged
*Applies to Civil Cases too |
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Special Rule Involving Sexual Assault and Child Molestation |
In Civil or Criminal Cases: Prior Similar Acts are allowed to show propensity |
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Authentication of a Writing |
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. |
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Methods of Authentication |
Direct Evidence in the Form of |
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Handwriting Proof (Authentication) |
Can be proved by |
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Ancient Document Rule |
20 or more years
Regular on its Face Found in a place of natural custody |
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Solicited Reply Doctrine |
Proof that disputed evidence came in response to prior communication
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Quantum of Proof |
Sufficient evidence that reasonable jury could find genuine
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Self-Authenticating Documents
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Authentication of Photographs
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1. Have a witness (doesn't have to be photographer) say its fair and accurate depiction of the object |
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Best Evidence Rule |
Party seeking to prove the content of a writing (film, phots...) Must either |
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Accounting for Absence of Original
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If reasonable, then lay foundation for secondary evidence |
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Best Evidence Rule Applies to |
1. Legally Operative Documents – documents that create or destroy legal relationship in dispute |
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Best Evidence Rule does not apply to |
1. Facts independent of the writing (e.g. a birth without a birth certificate - can establish it other ways) |
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Modifications to Best Evidence Rule
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1. Pubic records – certified copies admissible in place of originals
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Duplicates
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Allowed under BER unless:
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Competency to Stand Trial
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Personal Knowledge and Oath |
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Common law Disqualifications Abandoned |
1. Lack of Religious Belief |
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Dead Man Acts |
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 |
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Objectionable Questions
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Narrative |
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Leading Questions permitted in Certain Situations (4) |
1. Cross Exam |
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Witness Use of Writings in Aid of Testimony (basic rule)
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Witness usually cannot read testimony from previously prepared document but may use a writing in aid of memory, if:
1. refresh recollection and
2. recorded recollection |
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Refereshing Recollection |
When witness memory fails, anything can be used to jog memory of witness
Opposing party can move the item into evidence |
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Recorded Recollection |
if witness unable to remember something she had personal knowledge of, her own writing may be admitted in place of her testimony if: 1. W doesn't remember 2. W made writing or supervised creation 3. made when W's memory was fresh 4. accurate when made read into evidence |
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Lay Opinion |
Admissible if
speed of car, sanity, intoxication, emotions |
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Experts Opinion testimony (5 Reqs His Quiet Strength Creates Possibilities) |
1. Helpful to jury 2. Qualified 3. Supported by proper Facts 4. Reasonable Certainty 5. based on reliable Principles |
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Expert Opinion – Supported by Proper Factual Basis |
1. Facts within personal knowledge of expert; or 3. Facts that are reasonably relied upon making out of court professional decision |
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Learned Treatise (authoritative if) |
if authoritative can be admitted (hearsay exception):
1. Opposing expert relied on text of treatise; |
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The Learned Treatise used as substantive evidence (limitations) |
Text may be offered for its truth as an exception to the rule against hearsay
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Cross-Exam
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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) |
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Colalteral Matters Doctrine
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Impeachment by Contradiction of Witness is limited. Cross-examiner is bound by the answers given by the witness as to collateral matters No extrinsic evidence allowed |
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Extrinsic evidence |
documents and witnesses (anything other than asking the witness a question) |
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Accrediting your own witness |
1. No bolstering unless there has been an appropriate impeachment
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Impeaching your own witness
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A party may impeach it’s own witness
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Five basic impeachment techniques (5) |
1. Prior Inconsistent Statement |
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Prior Inconsistent Statement |
1. generally admissible only to impeach – not for it’s truth or substantive evidence,
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Bias, Interest, Motive
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May be shown by extrinsic evidence after a foundation is laid by inquiry on cross-exam of the target witness |
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Prior Convictions
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Admissible to impeach if: Extrinsic evidence OK |
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Specific Acts of Deceit or Lying |
May be asked about in cross-examination |
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Bad reputation for truth and veracity |
Can be used to impeach – can’t bolster it with specific acts |
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Rehabilitation after impeachment |
1. 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)
2. Prior consistent statement |
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Prior Consistent Statement
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Admissible: 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) ***Must be pre-motive |
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Attorney Client Privilege (defined)
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Confidential communications between attorney and client made during professional legal consultation are privileged from disclosure unless waived by the client or the representative of deceased client (privilege survives death of client) |
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Elements
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1. The right parties (atty or representative of atty) |
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Exceptions to A/C Privilege (this is for all privileges) |
1. Future crime or fraud (can’t perpetuate it)
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Joint Client Exception |
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 |
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Physician/Psychiatrists Patient Privilege (defined) |
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
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Physician/Psychiatrists Patient Privilege (Key Elements)
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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 |
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Physician/Psychiatrists Patient Privilege (waiver)
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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 |
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Husband-Wife Spousal Privileges (Spousal Immunity) |
One Spouse can’t be forced to give adverse testimony against the other in a criminal case |
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Confidential Marital Communications Privilege (Defined) |
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 |
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Confidential Marital Communications Privilege (Requirements)
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Also how it is different form spousal immunity |
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When will state law apply in federal court?
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If SUBSTANTIVE LAW APPLIES |
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Federal Privilege Law in Federal Question or Federal Criminal Cases
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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
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Hearsay (defined)
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Out of court statement offered for the truth of the matter asserted |
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Declarant |
Declarant makes or writes out of court statement |
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Hearsay Rationale |
D doesn’t have an opportunity to cross-examine the person whose perception, memory and sincerity are in issue |
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Specific Non-hearsay Situations
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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!)
3. Out of court statement offered not for its truth but as circumstantial evidence of the declarant’s state of mind (D mounts insanity defense, witness testifies that D said "I am the pope") |
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Prior Statements of the Witness (Hearsay?)
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Yes – a witness’s own prior statements may be hearsay
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Prior Statement of a Witness not Hearsay |
Excluded: non-hearsay |
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Hearsay exceptions that require unavailability (3) |
1. Former Testimony |
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Admission of Party “Opposing Party’s Statement”
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Definition: Statement of a party offered against the party. |
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Former Testimony
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Definition – testimony given in earlier proceeding by person now unavailable. Admissible if testimony now offered against party who had an opportunity and similar motive to develop it by direct, cross, or redirect. |
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Statements Against Interest
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Declaration of a person now unavailable as a witness against that person’s pecuniary, proprietary or penal interest at the time statement was made. 1. tends to expose declarant to criminal liability and offered in criminal case must be 2.supported by corroborating circumstances that clearly indicate its trustworthiness |
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Statements Against Interest v. Party Admission |
1. SAI must be against interest at time statement made |
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Dying Declaration
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Statement Made under belief of imminent death. |
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Unavailability |
Privilege |
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The Spotaneous Statements (unavailability not required) |
1. Declaration of existing state of mind in issue |
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Excited utterance (definition)
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Statement relating to startling event or condition admissible when made while declarant was still under stress of excitement caused by event or condition |
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Excited Utterance (requirements)
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1. Startling event |
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Present Sense Impression
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A statement describing or explaining an event or condition made while declarant was perceiving the event or condition immediately thereafter |
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Present Sense Impression v. Excited Utterance
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For PSI - unnecessary to have a startling event or excitement |
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Declaration of Present Pain, Suffering or Physical Condition
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Declaration of then Present Pain, Suffering or Physical Condition Admissible to show the condition ("It hurts!")
Anyone who heard it can testify! |
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Declaration of Past Physical Condition
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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 |
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Who decides preliminary questions of fact upon which admissibility depends?
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The judge. He is not bound by the rules of evidence
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Impeaching the hearsay declarant
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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 |
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Business records Exception (defined)
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Records of a regularly conducted activity |
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Business records exception (rationale for reliability)
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Employees are under a business duty to be accurate in observing, reporting and recording business facts
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Business Records Exception (function of the exception)
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Allows the record to substitute for the in-court testimony of the employees
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Business Records Exception (Typical Problem Areas)
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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 |
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Sixth Amendment Right of Controntation
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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 |
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Crawford v. Washington Holding
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Out-of-Court statements will be excluded even if they fit within a hearsay exception if:
3. OOC statement was testimonial, and |
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Testimonial
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Hearsay will be testimonial if declarant makes a statement that he or she anticipates will be used in prosecution or investigation of the crime |
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Testimonial (some examples)
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911 Call – no |
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Statements Taken by Police officers in course of investigation
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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
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Statements taken by police officers in course of interrogation are
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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 |
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Testimonial Considerations
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very case specific but factors considered |
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Lab Analysts Certificates
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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 |
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Forfeiture by wrongdoing
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Has to be with specific intent of keeping witness from testifying |