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35 Cards in this Set
- Front
- Back
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Always start by mentioning relevance. "Evidence must be relevant to be admissible. All relevant evidence is admissible unless some rule excludes it. Here, the evidence is relevant because..." |
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What is difference between exclusion of probative evidence between Fre and PA? |
FRE: prejudice substantially outweighs probative value. PA: prejudice outweighs probative value |
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How may a D prove character in a criminal case? |
FRE: Opinion and reputation. PA: Reputation only. |
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What evidence can be used for cross-examing Ds character witness? |
FRE: Convictions, arrests and acts. PA: Convictions only. |
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What evidence can be used for proving victim's character in criminal cases? |
FRE: Opinion and reputation PA: Reputation and specific acts that W has personal knowledge of (no opinion) |
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What is balancing test for "other crimes, wrongs, acts"? |
FRE: Presumptively admissible and applies the 403 balancing test. PA: Applies a reverse 403. Other acts evidence is presumptively inadmissible unless the probative value outweighs the prejudice. |
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What evidence to use for sex crimes (criminal cases)? |
FRE: Ds sex acts may be offered against D for any relevant purpose, including propensity. PA: Ds acts may not be offered to show Ds propensity. they may be offered to show another relevant purpose (MIMIC) |
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What evidene to use for sex crims (civil cases, D charged w/molestation)? |
FRE: Ds acts may be offered against D for any relevant purpose, including propensity. PA: Ds acts may not be offered to show Ds propensity. They may be offered to show another relevant purpose (MIMIC). |
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What are ancient documents? |
FRE: 20 years PA: 30 years. |
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What is required for competency? |
FRE: Everyone is competent to be a witness. PA: Four things make a person incompetetn to be a witness COMP: (i) Communication - cannot communicate adequately (ii) Oath: does not understand the obligation to tell the truth under oath or consequences of lying (iii) Memory: has an impaired memor (iv) Perception: was at any relevant time incapable of perceiving accuratly W convicted of perjury is incompetent to testify in a civil case. |
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What is Dead Man's Statute? |
An interested survivor (direct stake) cannot testify for his interest against the decedent or the decedent's representative about communications or transactions w/decedent in a civil case unless there is waiver. (i) extends to all pre-death matters (ii) W who has been deposed or subject to interrogatories/RFAs re: occurrences involving decedent may not be barred from testifying, even if the discover was conduct prior to decedent's death, and even if the discovery is never used in evidence. (a) if you represent a deceased party and send discovery to other side - you have waived dead man's rule. (ii) cross-examining a W on pre-death event is a waiver |
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What is scope of cross-examination? |
A party may be cross-examined on any relevant matter. |
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What is standard for expert testimony? |
FRE: Daubert PA: Frye (general acceptance of principles & methodology) |
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What kinds of cases does the standard apply to for expert testimony? |
FRE: Scientific, technical or other specialized knowledge PA: Novel scientific, technical or other specialized knowledge (e.g. judges no longer have to decide whether DNA is generally accepted). |
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When is expert testimony permitted? |
FRE: To assist the trier of fact PA: When necessary b/c beyond the ken of laypersons (i) not allowed for: eyewitness identifcation, revived memories (ii) Allowed for: child sex abuse/rape trauma syndrome; battered child/spouse syndrome; professional negligence/malpractice (expert must be in same specialty, eg cardiology), product defects |
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What party of underlying basis of opinion may be disclosed on direct? |
FRE: Only evidence which is otherwise admissible unless the court finds that probative - prejudice PA: All evidence the expert reasonably relies upon is admissible. |
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When and how much of the underlying basis must be disclosed? |
PA: All underlying information must be disclosed. |
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Can opinion be used for Ds sanity? |
FRE: No testimony that D was insane did not know the difference between right and wrong or understood the nature and quality of his act. PA: No bar to the direct expression of Ds mental state. |
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Can learned treatise be used? |
FRE: Hearsay exception: LT can be offered as substantive evidence for its truth. PA: Can only be used to impeach an expert or show the basis of an expert's opinion. Cant be used for truth. |
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Disclosure of prior inconsistent statement before prove-up witness testifies? |
FRE: As long as W is given an opportunity to explain/deny the inconsistent statement, an extrinsic prove-up W may be called. Statement need not be shown to W. PA: Before a prove-up W may testify to the statement, a written statement must be shown to W. |
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When is a prior inconsistent statement admissible as substantive evidence? |
FRE: given under oath and subject to perjury PA (i) same as FRE, (ii) signed and adopted, or (iii) recorded |
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What type of prior convictions admissible? |
FRE: (i) crimes punishable by over 1 year, (ii) crims of dishonesty and false statement PA: only crimes of dishonesty and false statemetn w/in 10 years. |
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Are Ds juvenile adjudications admissible? |
FRE: No PA: presumptively admissible against D and all witnesses |
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When are prior act of untruthfulness admissible? |
FRE: May impeach a witness w/prior acts of untruthfulness PA: need a conviction or must otherwise fit in the other bad act (MIMIC) rule |
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When use prior identification? |
FRE: Witness must be subjet to cross but need not testify to making the identification PA: witness must be subject to cross and testify to making the identification |
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No plain error rule in PA. |
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Dying Declarations? |
FRE: Applies only in civil and homicide. PA: Applies in all cases. |
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Business records? |
FRE: Opinions and diagnoses are admissible. PA: Opinions and diagnoses are not admissible w/o an opportunity to cross-examine. |
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Statements made in medical diagnosis? |
FRE: Statements are admissible if pertinent to treatment PA: Statements are admissible if made in contemplation of treatment. |
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Tender years exception? |
Sex crimes on children under 12 admissible as exception to hearsay rule: (i) judge must find statement reliable (ii) child must testify or judge find child unavailable in adversarial hearing at which D msy not be present when child testifies (iii) proponent must give notice of intent to use the statement. |
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No hearsay catchall in PA. |
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Attorney-client privilege? |
not privileged: observations, identity, fact of attorney representation, fee arrangements, pre-relationship physical or documntary evidence, statements mad to or in presence of a 3P who is not an agent or attorney
Privilege survives death
Exceptions: where the purpose of communications is to elicit fraud or illegality. Malpractice.
Recent developments: A-C privilege works both ways. What attorney syas is also privileged. |
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Physician-patient privilege? |
Applies only in civil cases and only to communications that would tend to blacken the character of patient. HIV is priv, mental illness and alcohol not
Not privileged: doctor's observations and opinions not based on communications; court orderd exams where patient is litigant. |
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Spousal communications? |
Each spouse may invoke privilege not to divulge confi marital communications unless made in presence or disclosed to 3P. must be waived by both parties.
Priv applies to both civil and criminal cases and survivies death and divorce.
Priv does not apply in cases of spousal or child abuse or in communications made in furtherance of a criminal activity or fraud. |
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What is spousal immunity? |
Civil cases: spouses, at the time of trial, are incompetent to testify against each other. Cant be waived. exceptions: divorce, support, custody, and abuse. There is no federal spousal immunity.
Criminal cases: competency may be voluntarily waived by the testifying spouse. Exceptions, spousal or child abuse, rape, murder, involuntary deviate sexual intercourse. |
