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37 Cards in this Set

  • Front
  • Back
Overview of PA Rules of Evidence
Modeled upon and organized like FRE. Most rules are substantively identical, others preserve PA distinctions.
Sever statutes address evidentiary issues (Dead Man’s Act, Tender Years Exception)
When may probative evidence be excluded? (403 – Relevance)
FRE: Unfair prejudice which substantially outweighs probative value
PaRE 403: Unfair prejudice which MERELY outweighs probative value
Proving D’s character to show conduct in criminal cases
FRE: Opinion and reputation
PaRE: Reputation
Cross-Examining the D’s character witness
FRE: Convictions, Arrests & Acts
PaRE: Convictions only
Proving Victim’s Character to show conduct in criminal cases
FRE: Opinion and Reputation
PaRE: Reputation and Specific Acts (no opinion evidence)
Proving Character in Civil Cases
FRE: Generally inadmissible
PaRE: Generally inadmissible except in civil assault and battery cases – D may offer a witness to testify that P has a reputation for violence
MIMIC Balancing Test
FRE: Applies 403 Balancing Test (presumptively admissible)
PaRE: Applies a reverse 403. Other acts evidence is presumptively inadmissible unless probative value outweighs the prejudice
Sex Crimes (Criminal)
FRE – D’s sex accts may be offered against the D for any relevant purpose (including propensity)
PA – PA does not have this. IN PA 404(b) – D’s sex acts may not be offered to show D”s propensity. They may be offered to show another relevant purpose, like identify, intent, etc.
Sex Crimes (Civil)
FRE – D’s sex acts may be offered against D for any relevant purpose (including propensity)
PA – D’s sex acts may not be offered to show D’s propensity. They may be offered to show another relevant purpose (MIMIC)
Documentary Evidence
Ancient Docs
FRE – 20 years
PaRE – 30 years
Competency
FRE: every person is compenet to be a witness except (jurors and judges, state grounds in civil actions governed by state law) or in statutes)
PA: 601 retains restrictions that are not expressed in FRE (communication, oath, memory, perception). A person is incompetent if because of a “mental condition of immaturity” they suffer from weakness in
1. Communication – cannot communicate adequately (unable to express himself or herself so as to be understood either directly or through an interpreter)
2. Obligation to tell the truth – does not sufficiently understand the obligation to tell the truth or appreciate the consequences of lying
3. Memory – has an impaired memory or
4. Perception – was at any relevant time, incapable of perceiving accurately
Dead Man’s Statute
Arises when one party is dead and a witness to the event or transaction is called to testify
Rule: An interested survivor cannot testify for his or her own interests against the decedent or decedent’s representatives about communications or transactions with the decedent in a civil case unless there is a waiver
1. Witness must have direct stake in outcome
2. Witness must testify for his or her interest
3. Witness must testify against decedent or decedent’s representative
4. In PA, subject matter extends to all pre-death events
5. Applies only to civil cases
Dead Man Statute (waiver)
1. In PA, a witness who has been deposed or subject to rog concerning occurrences involving the decedent, and even if the discovery is never filed or used in evidence
2. In PA, cross examining a witness son pre-death events is a waiver of protection of the Dead Man’s statute
Scope of cross examination
In PA, doesn’t matter if you go outside scope of direct
Expert Opinion Testimony (standard of scientific/technical acceptance)
FRE: Daubert – reliability of principles and methodology
PaRE Frye: General acceptance of principles and methodology
Expert Opinion Testimony (To What kinds of cases does the standard apply?)
FRE: Scientific, technical, or other specialized knowledge
PaRE: Novel scientific, technical or other specialized knowledge
Expert Opinion Testimony (When permitted)
FRE: When it assist the trier of fact
PaRE: When it is necessary because it is beyond the ken (knowledge base) of laypersons
1. Eyewitness identifications – no
2. Revived memories – no
3. Child sex abuse/rape trauma syndrome – yes to show the psycodynamics of sexual abuse to explain complainants behavior
4. Battered Child/Spouse Syndrome – Yes
5. Professional Negligence/Malpractice – Yes
6. Product Design Defect – Yes
Expert Opinion Testimony (What part of Underlying basis of opinion may be disclosed on direct?
FRE 703 – only evidence which is otherwise admissible unless Court finds that probative value outweighs danger of unfair prejudice
PaRE – It’s all coming in if an expert legitimately relies on it
Expert Opinion Testimony (When and How much of underlying basis must be disclosed?)
FRE: At any time and as much as counsel chooses or the court directs of what is otherwise admissible evidence
PaRE - It’s all coming in, must be disclosed on direct
Expert Opinion Testimony (Opinion of the Accused’s Sanity)
FRE: No testimony that D was “insane,” did not know the difference between right and wrong,” or understood the nature and qualify of his actions
This rule does not exist under PaRE 704(b)
Learned Treatise
FRE 803(18) – HS Exception = substantive evidence
PA – Not admissible substantively – can only be used to challenge opinion
Disclosure of prior inconsistent statement before prove-up witness testifies
FRE: As long as witness is given an opportunity to explain or deny the inconsistent statement, an extrinsic or prove-up witness may be called. The statement need not be shown to the witness
PA: Before a prove-up witness may testify to the statement, a written statement must be shown to the witness
When is Prior Inconsistent Statement admissible as substantive evidence
FRE – statement given under oath and subject to perjury
Three ways under PA law
1. federal way
2. Witness signed and adopted statement
3. Statement was recorded
Prior Convictions
What types admissible to impeach? FRE – crimes punishable over 1 year and crimes of dishonesty and false statement
PA – Only crimes of dishonesty or false statement
Juvenile Adjudications
FRE: inadmissible against accused
PaRE: Presumptively admissible against accused & all witnesses
Prior acts of untruthfulness
FRE – any act that can indicate untruthfulness
PA – Any act that witness has been convicted of
Prior Identification
FRE – witness must be subject to cross but need not testify to making the identification
PA – Witness must be subject to cross and testify to making the ID
Plain error rule in PA
Does not exist. If you don’t object, you waive
Dying Declarations
FRE – applies only in civil cases & homicide
PA – Applies in all cases
Business records
FRE – opinions and diagnoses are admissible
PA – Opinions and diagnoses are not admissible without an opportunity to cross examine (we’ll take facts not opinions)
Statements Made for Purposes of Medical Diagnosis/Treatment
FRE – statements admissible if pertinent to treatment
PA – statements are admissible if made in contemplation of treatment (doesn’t apply if you’ve been ordered to be examined)
PA Tender Years Exception
Hearsay exception good for civil & criminal cases of sexual assault
Sex crimes on children under 12
1. Judge must find statement reliable
2. Child must testify or judge must find child psychologically unavailable in adversarial hearing at which defendant may not be present when child testifies
3. Proponent must give notice of intent to use statement
Catch All Exception in PA
Doesn’t exist dude
A-C Priv
Not privileged: observations, identity, attorney, fee arrangements, pre-relationship physical or documentary evidence. Statements made to or in the presence of 3rd party who is not an agent of attorney
Privilege survives death
Exceptions: Where the purpose of the communication is to elicit fraud or illegality and malpractice actions
Physician-Patient
Applies only in civil cases and only to communications which would “tend to blacken the character of the patient. This phrase is narrowly read. Communications about alcoholism or mental illness are not protected, while statements about HIV are privileged
Not privileged: a doctor’s observations and opinions not based on communications, court-ordered examinations, where patient is litigant
Spousal Communications Privilege
1. Each spouse may invoke a privilege not to divulge confidential marital communications unless made in presence of or disclosed to 3rd party. priv must be waived by both parties
2. Priv applies to both civil and criminal cases and surivies death and divorce
3. Priv does not apply in cases of spousal or child abuse or in communications made in furtherance of a criminal activity or fraud
Spousal Immunity or Competency
Civil Cases: Spouses, at time of trial, are incompetent to testify against each other. Incompetency may not be waived/ Exceptions: proceedings involving divorce, support custody and abuse. Remember there is no federal spousal immunity.
Criminal Cases: Competency may be waived by the testifying spouse. Exceptions: proceedings involving spousal or child abuse, rape, murder, involuntary deviate sexual intercourse