Pennsylvania Evidence

Front 1

In PA, a judicially noticed fact must be treated in what way by a jury in a civil trial (in contrast to under the FRE)?

Back 1

A PA civil jury need not accept the fact as true - under FRE, civil jury must accept the fact as true.

Front 2

The PA counterpart to FRE 403 (exclude evidence where unfair prejudice substantially outweighs probative value):

Back 2

unfair prejudice which [merely] outweighs probative value

Front 3

When proving character in PA, what sort of evidence may be used, in contrast to under the FRE?

Back 3

reputation only - FRE allows reputation and opinion

Front 4

When cross-examining a defendant's character witness, what evidence may be used in PA, in contrast to under FRE?

Back 4

only convictions of the witness - under FRE, can use witness's convictions, arrests and acts

Front 5

Balancing test for the admission of prior bad acts under MIMIC character evidence exception (motive, intent, etc) in PA, in contrast to under FRE:

Back 5

bad act presumptively inadmissible in PA, admissible only if probative value outweighs the prejudice

under FRE, presumptively admissible, exclude only under 403, where unfair prejudice substantially outweighs probative value

Front 6

In proving self-defense in PA, a defendant can offer what evidence about victim's background, in contrast to under FRE:

Back 6

D in PA can offer criminal convictions for violence even if he didnt know about them

under FRE, can offer all V's background (convictions, arrests, acts) IF D knew about it

Front 7

Regarding sex-crimes, PA has a counterpart to rule 404(b) (character evidence not admissible to prove conformity therewith, except MIMIC), but NO counterpart to which FRE rules?

Back 7

413, 414 and 415 (allowing admission of prior offenses of sexual assault, child molestation in criminal and civil cases, to show conformity therewith)

Front 8

For a document to fall under PA's ancient documents hearsay exception, the document must be how old (compared to FRE):

Back 8

30 years (versus 20 under FRE).

Front 9

The scope of cross-examination of a party in PA:

Back 9

a party may be cross-examined by an adverse party on any relevant matter

Front 10

In contrast to the federal approach, PA uses what standard for accepting expert testimony:

Back 10

PA follows the Frye rule - general acceptance of principles and methodology (but do not need general acceptance of the conclusions)

FRE follows Daubert, reliability of principles and methodology

Front 11

PA applies its standard for assessing expert testimony to what kinds of testimony?

Back 11

NEW, NOVEL scientific, technical, or other specialized knowledge - contrast to FRE, which applies Daubert to scientific, technical or other specialized knowledge

Front 12

In contrast to the FRE, when does PA allow expert testimony - give the standard and six specific examples:

Back 12

only when the info is beyond the knowledge base of a lay person - test focuses on necessity (vs FRE, admissible when it assists)
Ex: In PA, can you have expert: 1. eyewitness identifications = no 2. revived memories = no 3. child sex abuse/rape trauma syndrome = no 4. battered child/spouse syndrome = yes 5. professional negligence/ malpractice = yes 6 product / design defect = yes

Front 13

What part of an experts underlying basis for an opinion must be disclosed in PA, in contrast to under FRE:

Back 13

mandatory disclosure rule - must disclose facts or data relied on in forming opinion, even if otherwise inadmissible (under FRE, only evidence with is otherwise admissible, unless probative value outweighs danger of unfair prejudice)

Front 14

How much discretion does an attorney exercise in admission of underlying basis of an expert's opinion in PA:

Back 14

all comes in, no discretion (vs FRE - once judge determines admissible, in atty's discretion to use)

Front 15

In PA, is expert's opinion re: a defendant's mental state admissible?

Back 15

YES (contrast to federal Hinkley rule, expert c/n offer final opinion of D's mental state)

Front 16

In PA, how can a learned treatise be used? Is it hearsay?

Back 16

cannot use for substantive evidence, hearsay exception does not apply, cannot be considered for its truth - can only use to impeach (FRE, treatise falls under hearsay exception)

Front 17

What must be done in PA to use a witness's prior inconsistent statement to impeach?

Back 17

must disclose or show statement to witness - in FRE, need not show statement to W before impeachment

Front 18

When may a prior inconsistent statement be introduced as substantive evidence, offered for its truth, in PA

Back 18

1. under oath, subject to perjury
2. statement signed and adopted (some sort of affirmation - an initial will do) by witness
3. recorded (on tape) statement in witness's voice
(FRE - only under oath, subject to perjury)

Front 19

What types of convictions are admissible in PA for impeachment:

Back 19

only crimes of dishonesty and false statement (PA does not have an FRE 609(i), allowing crimes punishable by over 1 year)

Front 20

How may a defendant's conviction, being used to impeach, be used in PA:

Back 20

only by extrinsic evidence (call witness, police, etc) - cannot ask D on cross-examination
(contrast FRE, same for D as for W)

Front 21

If a defendant wishes to contest the admission of a prior conviction, what effect if he does not testify or if he discloses the conviction on direct?

Back 21

NO WAIVER - D can preserve right on appeal to challenge admission of conviction

Front 22

What is the PA rule for admission of juvenile adjudications?

Back 22

presumptively admissible against accused and witnesses, if would have been admissible as a crime by an adult (vs FRE, inadmissible)

Front 23

In PA, are prior acts of dishonesty by a witness admissible for impeachment?

Back 23

NO, only if W convicted, unless independently admissible under 403(b) (unfair prejudice d/n outweigh probative value) (contrast to FRE, admissible on cross)

Front 24

What is necessary in PA to admit a prior identification by a witness under the hearsay exception?

Back 24

witness must be subject to cross AND must testify as to having made earlier id (vs FRE, W need only be subject to cross, may deny making id)

Front 25

Does PA have a plain error rule and what is it?

Back 25

NO - plain error rule under FRE says D must object to error unless is so plain (for plain errors, can raise 1st time on appeal) - in PA, must object, otherwise cannot raise on appeal, EXCEPT in capital cases

Front 26

When are dying declarations admissible in PA as exception to hearsay?

Back 26

in all civil and criminal cases (vs FRE, only civil and homicide)

Front 27

What content/sorts of records are not admissible in PA under the business records hearsay exception:

Back 27

no opinions or diagnoses w/o opportunity to cross (if expert offering opinion/diagnosis testifies, can use), and no accident reports in civil cases
(vs FRE, can use opinion, diagnosis, analysis in records)

Front 28

Under the PA 'statements made for purposes of medical diagnosis/treatment' hearsay exception, what statements are admissible:

Back 28

ONLY those made IN CONTEMPLATION of treatment - if ct ordered exam, not admissible (except if a party - then an admission); statements to consulting physicians are excluded

Front 29

PA tender years exception in civil and criminal cases of sexual assault:

Back 29

If child makes out of court statement re: crime and under 12, even if no other hearsay exceptions apply, statement is admissible if:
1. judge finds statement reliable
2. child must testify or judge finds unavailable in adversarial hearing (testimony would cause severe psych damage to child, etc); D man not be present
3. notice of intent to other side to use

Front 30

Does PA have an 807 residual hearsay exception (and what is 807)?

Back 30

NO (exception: if hearsay doesnt fall under any exceptions, will be admissible if it meets equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.)

Front 31

Scope of the PA atty-client privilege:

Back 31

-survives death
-does not apply to observations, identity, attorney, fee arrangements, pre-relationship physical or documentary evidence, statements made to or in the presence of non-agent 3rd parties (in crim case, NO waiver; in civil case, 3rd party --> waiver)
-exceptions: where purpose of communication is to elicit fraud or illegality; disputes b/w privilege holders, and malpractice actions

Front 32

Scope of the PA physician-patient privilege:

Back 32

applies only in civil cases and only to communications which would tend to blacken the character of the patient - narrowly read (ex, statements re alcoholism, mental illness not protected, re HIV is)
-not privileged: doctor's observations and opinions not based on communications, court ordered exams

Front 33

PA spousal communications privilege:

Back 33

-each spouse holds - both must waive
-privilege not to divulge confidential marital communications unless made in presence of or disclosed to 3rd party
-applies in both civil and criminal cases, survives death and divorce
*d/n apply in cases of spousal or child abuse or communications in furtherance of criminal activity or fraud

Front 34

PA spousal immunity/competency:

Back 34

-civil: spouses, at time of trial, are incompetent to testify against each other; may not be waived (exceptions - divorce, support, custody, abuse)
-criminal: competency may be waived by testifying spouse (exceptions - spousal or child abuse, rape, murder, involuntary deviate sexual intercourse)