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26 Cards in this Set
- Front
- Back
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Dead Man's Statute
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Alive and well!
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Judicial Notice
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Unlike FRE, civil jury does NOT have to accept as true JN facts.
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Prejudice/Probative Value Balancing Test
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PA eliminates FRE's "substantially" outweighs
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Proving Character
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D M/offer first - but only reputation E, no opinion
C-E of D's character Ws M/b limited to convictions undermining character |
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Balancing Test for Admission
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Flips FRE = presumptively inadmissible u/l P can convince the judge the probative value outweighs presumptive prejudice
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Proving Self-Defense & Sex Crimes
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PA has no 413, 414, 415 equivalent; look to balancing test.
Showing V's background = D can not only show V's convictions, arrests, acts that she knows of, but also c/offer V's criminal convictions for violence - even when she d/n/k about them |
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Ancient Documents
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Extends FRE term to 30y
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Expert Opinion Standard
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FRE = Daubert/reliability of principles and methodology; scientific, technical or other specialized knowledge
PRE = Frye/general acceptance of principles, methodology in the pertinent field; NOVEL scientific, technical or specialized knowledge |
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Expert Testimony - When Permitted?
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FRE = merely assists FF in coming to a conclusion
PRE = M/b beyond the ordinary person's knowledge base - NOT eyewitness IDs, revived memories or child sex abuse/rape truama - Admits battered child/spouse syndrome, professional negligence/malpractice, design defect |
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Expert Testimony - Underlying Basis
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Mandatory disclosure of basis if EW relied on it - admissibility irrelevant
No discretion - all M/b disclosed |
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Expert Opinion on Accused's Sanity
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FRE = cannot offer bottom-line opinion
PRE = no such rule! EW can say "he's nuts!" |
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Learned Treatises
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Not a hearsay exception in PA = c/n/b offered for its truth
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Impeachment - Prior Inconsistent Statements
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M/disclose and show statement to W before impeachment
Admissible as substantive E if: - under oath subject to perjury (deposition, former testimony, GJ) - statement is signed and adopted (affidavit, confession) - Mb verbatim recorded statement (audio, not stenographic) |
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Impeachment - Prior Convictions
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ONLY crimes for false statement and dishonesty
Cannot ask D about C-E on cross; only by EE - D/n waive error by not testifying, or by disclosing his conviction on direct - Preserves error by objecting to use of record Juvenile Adjudications = presumptively admissible against accused and all Ws (unlike FRE) |
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Prior Acts of Untruthfulness
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ONLY admissible if the act resulted in a conviction (u/l it c/b independently admissible under the 404(b) balancing)
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Prior Identifications
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Tougher than FRE = W M/b available for cross-examination AND M/testify as to having made the ID
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Plain Error Rule
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FRE allows court to recognize error "plain on its face" w/o objection and thereby preserve on appeal
PA has no such rule except for capital cases - basically, you snooze, you lose! |
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Dying Declarations
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FRE = civil cases and homicides ONLY
PRE = all cases |
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Business Records
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FRE = no opinions or diagnoses w/o opportunity to C-E
PRE = no accident reports in civil cases except for the purpose of diagnosis or treatment |
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Medical Diagnosis/Treatment
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Admissible ONLY if:
- statements made in contemplation of treatment - statements made to D's physician are admissible - statements to consulting physicians for purposes of litigation NOT admissible |
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Tender Years Exception
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Civil or criminal - for children under 12y in cases of sexual assault
- Judge M/find statement reliable - Child M/testify or M/b found unavailable - M/g notice of intent to use the statement |
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Catch-All Hearsay Exception
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No catch-all under PRE!
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Attorney-Client Privilege
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Survives death
Observations, identity, fee arrangements, pre-relationship physical and documentary E, statements made to or in 3P presence (who is not an agent of the attorney) are NOT privileged. Exceptions where purpose is to elicit fraud or illegality, disputes b/t privilege holders, malpractice actions |
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Physician-Patient Privilege
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Civil cases only - only to communications that would tend to "blacken the character" of the patient
- Privileged = about HIV - NOT privileged = alcoholism, mental illness Not privileged = doctor's observations not based on opinion, court-ordered exams |
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Spousal Communications
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Each spouse c/invoke privilege u/l communication was made in 3P presence.
Each spouse can waive Survives death and divorce Applies to civil and criminal cases NOT privileged = spouse/child abuse or communications made in furtherance of criminal activity or fraud |
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Spousal Immunity
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Civil = spouse incompetent to testify at trial and canNOT be waived u/l its' a divorce, support, custody or abuse case
Criminal = competency c/b waived by testifying spouse u/l proceeding involves spousal/child abuse, rape, murder, involuntary deviant sexual intercourse |
