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52 Cards in this Set
- Front
- Back
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Differences between FRE and WA ER
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A. Where character evidence is admissible, only reputation may be used
B. Admission by an EE admissible against ER only if EE is a speaking agent C. There is no residual hearsay exception in WA D. WA employs the Frye test for admission of new scientific evidence |
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Objections
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Must be Timely and Specific Objection to preserve any evidence issue on appeal (offer of proof if evidence is excluded)
A. Timely – object to question before answer given if possible. If objectionable testimony has come in, move to strike, ask for limiting instruction, or move for immediate mistrial if irreparably damaged B. Specific – Objection should include either the rule # or rule heading C. Limiting Instruction – when evidence is only admissible for a specific purpose, opponent should ask judge to give limiting instruction D. Offer of Proof – If opponent’s objection sustained, the proponent must make an offer of proof to preserve issue for appeal. An offer of proof consists of a. Calling the witness outside the presence of the jury, or describing what the testimony would have been b. Stating why evidence is admissible c. Why it is important to your case. E. Court will reverse only if error is prejudicial |
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Judicial notice
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generally known in jurisdiction or capable of ready determination from unquestionably accurate sources
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Legislative facts
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Ct. may take judicial notice of legislative facts, such as constitutions, statutes . . . when determining the constitutionality or interpretation of a statute or a common law rule
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Relevance
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Evidence is relevant if it has any tendency to make a material fact more or less likely than w/o ev.
A. ER 402 – All evidence shown to be relevant is presumed admissible until opposing party establishes rule to keep it out B. ER 403 - Relevant evidence may be excluded if: 1. Probative value is substantially outweighed by unfair prejudice 2. Confusion of jury 3. Waste of time/undue delay |
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Public Policy Exceptions to admitting evidence
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1. ER 407 - Subsequent remedial measures – evidence of repair or fix of condition cannot be used unless to show feasibility, ownership, or control.
2. ER 408, 409 - Settlement discussions – offers to pay not admissible to prove liability. Neither are statements accompanying compromise offers 3. Plea bargain discussions 5. Evidence of insurance 6. Character evidence (see below) 7. Rape Shield Statute (see below) |
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Character Evidence
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Evidence of character is not admissible to show conformity on a specific occasion. (Ask yourself whether it is being offered for impeachment, or some reason other than to show bad character or conformity).
A. Character Evidence in Civil Case - Only when character is directly at issue in the case – libel, slander, negligent hire, etc. . B. Character of Defendant in Criminal Case - 1. Defense - Anytime relevant. Only Reputation testimony concerning a pertinent trait 2. Prosecution - Defendant must first open door on particular trait – then P may rebut that trait raised by D. P may impeach D’s character witness and ask whether s/he has heard of specific acts by D that are inconsistent with the trait 3. Other Crimes – Prior Bad Acts — not for conformity (except prior sexual misconduct); but ok to show one of the following a. res gestae – crimes occurring around the same time and place to complete the story b. motive – stole car to use in the robbery c. identity/modus operandi – crimes so unique that they are like a signature d. common plan or scheme – where several crimes constitute constituent parts of a plan in which each crime is but a piece of a larger plan OR when a D devises a plan and uses it to repeatedly perpetrate separate but very similar crimes e. prior sexual misconduct – where D is accused of sex offense, prior evidence of a sex offense is admissible. |
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Character of Victim
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in Criminal Case may be raised by defendant if relevant (except Rape Shield Statute prevents bringing up sexual history of rape victim, unless the history is with the defendant and consent is at issue, have to show prior sexual history to show bias, or explain the presence of pregnancy, bruising, or venereal disease )
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Character of Witness
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a. ER 608 - a witness’ credibility can be attacked by means of character evidence only. By
i. Evidence of character for untruthfulness ii. Reputation, Or iii. In the discretion of the court, specific acts iv. BUT NONE OF THESE BY EXTRINSIC INFO v. Once Witnesses character for truthfulness has been attacked, evidence of truthful character may be introduced by way of reputation or specific acts (within the discretion of the judge) but NOT BY EXTRINSIC EVIDENCE b. ER 609 – Impeachment by evidence of conviction of a crime with possible death or greater than 1 years sentence (balancing test required) OR Conviction of a crime involving dishonesty (all theft crimes fit here) or false statements (admissible w/o standing i. Not admissible if more than 10 years since conviction or release, whichever later (unless prob. Value substantially outweighs prejudice ii. Not admissible if pardoned or annulled iii. Juvenile convictions iv. Admissible even if conviction is on appeal v. Proponent of witness entitled to limiting instruction (e.g. only admissible to impeach cred.) vi. Must give notice of intent to use |
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Habit
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semi-automatic response to specific stimulus – admissible to show conformity on specific occasions
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Privileges
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purpose is to foster special relationships and encourage communication with them. Except for spousal incompetency, to be privileged, the statement must be 1) made in confidence (watch out for 3rd parties involved in convo or told later) 2) asserted at the first opportunity 3) Not waived (voluntarily disclosed to a third party
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Attorney Client Privilege
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client holds the privilege, atty cannot disclose.
a. Exceptions – identity of client and fact of representation, as well as future crime/fraud, litigation between atty and client. Also, giving illegal advise is not protected b. Corporate clients – Upjohn test – privilege covers statements from corporate control group and ees with knowledge who are told by superior to report to corporate attorney |
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Physician/Patient Privilege
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applies to all doctors. Patient must be seen for purposes of diagnoses, treatment, or medical advice (liberal interpretation in criminal cases). Waived if patient puts physical condition in issue, including by statute 90 days after filing personal injury case. Even after waiver, D attorney in personal injury case may not speak to P’s treating doctors without consent, except at deposition. Waived if insanity or diminished capacity defense or for involuntary civil commit.
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Psychologist/Patient Privilege
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Protected to the same extent as attorney client privilege
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Marital Communication Privilege
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protects confidential communications made during marriage
a. May be oral communication or conduct if intended to be confidential b. Either spouse may assert privilege, even if subsequently divorced. Key – were they married at time of statement? c. Spousal Incompetency/ Testimony – Spouse cannot testify or be forced to testify against spouse while married i. Irrelevant whether info obtained in confidence ii. Irrelevant whether they were married when info was obtained. Key – were they married at time of trial (prior to indictment in criminal case)? iii. Spouse can prevent other from testifying (unlike in fed ct.) except in cases involving the family like spousal or child abuse |
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Other Privileges
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WA has a lot – including mediators, interpreters, journalists . . . etc. Same rules for creating and maintaining these privileges apply
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Witness Competency
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Witnesses are incompetent if they are incapable of receiving facts or relating facts and impressions truthfully. No spec. age for children, but red flag if child is under 10
A. Dead Man’s statue – Interested parties may not testify against the interest of someone who derives his right from the deceased person, when the only person who could contradict the testimony is dead. Key – was there a transaction with the deceased? |
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Leading Questions
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A. OK during cross
B. OK during direct examination if a. Covering minor facts that are preliminary or foundational b. Questioning a child, or person with diminished capacity or language problems c. Necessary to refresh recollection d. Questioning an expert witness e. Questioning a hostile (adverse) witness |
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Opinion Testimony: Lay Opinion
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Lay Opinion - is it rationally based on sense perception and will it be helpful to the fact finder? Permissible lay opinions include:
1. Weather 2. Speed 3. Physical Description 4. Sanity 5. Handwriting or voice identification, if foundation for familiarity |
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Opinion Testimony: Expert Opinion
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Must be beyond understanding of average layperson
2. Must be qualified by knowledge, skill, training, education, or experience 3. Once Qualified, expert can answer hypo based opinions on inadmissible evidence such as hearsay, but only if such evidence is relied on by other experts or refer to treatises 4. Expert must testify to a reasonable degree of probability 5. Frye Test - If opinion is based on novel scientific theory, then the theory must have gained general acceptance that field i. DNA and battered wives syndrome have met the standard ii. Polygraph and hypnotizing have not. 6. Opinion on the ultimate issue – permitted, but not if it incorporates legal opinion or invades the province of the jury |
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Hearsay: Definition and approach for essay writing
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An out of court statement offered to prove the truth of the matter asserted (can include conduct that intended to convey a message). Inadmissible unless exception applies
A. Approach for essay writing 1. Was the statement made out of court (regardless of whether the speaker is in court now)? 2. Offered for the truth of the matter asserted, or for some other purpose (e.g., notice)? 3. Is the out-of-court statement a document containing double hearsay? 4. What exceptions are raised by the facts? |
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Not Hearsay if offered for purpose other than truth, such as . . .
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1. Indirect evidence of mental state
2. Notice – “look out the floor is wet” not asserting whether or not floor was wet, just that person had notice 3. Duress 4. Impeachment 5. Words that have operative legal effect – like saying I Do at a wedding ceremony, posting a reward for capturing criminal |
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Hearsay Exemptions: 4 types
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statement made out of court but offered in ct to prove truth of matter asserted is hearsay even if the
speaker is now in court, except 1. Prior Inconsistent Statement under oath to impeach 2. Prior Consistent Statement offered to rebut allegation of recent fabrication – must have been said before there was a motive to lie 3. Prior ID – i.e. pretrial lineup 4. Admission by Party Opponent – may be self-serving when made and contain legal conclusions a. Opposing party’s deposition – need not be against interest when made b. Adoptive – by conduct or silence – speaker adopts statement of another as his own without attributing it to that person – think wolf case where man left note with boss that wolf bit a kid even though no personal knowl. c. Tacit admission – failure to deny an accusation, if party heard, was able to respond, and a reasonable person would respond if untrue. NO tacit admission if law enforcement w/in earshot – 5th am. d. Vicarious/Speaking agent – In WA, can’t be normal ees, must be a designated speaking agent e. Statement of co-conspirator – must establish a conspiracy by substantial independent evidence, both parties were in conspiracy, and that the statement was made in furtherance of it. Not admissible if statements made after being caught |
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Hearsay Exceptions: List of reasons for declarant being unavailable - must show this before an exception can be used
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A. ER 804 - Declarant Unavailable (Remember to consider Confrontation Clause if criminal case). Declarant may be unavailable due to 1) death or serious disability, 2)incompetence, 3) assert valid privilege, 4) refuses to testify despite threat of contempt, 5) unable to remember, or 6)absent from J and offering party has used all available means to obtain appearance
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Hearsay Exceptions: Former Testimony (must first show declarant unavailable)
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– If it was given under oath AND party against who statement is offered had similar opportunity and motive (can be different motive if monetary value in lit. changes drastically to develop former testimony.
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Hearsay Exceptions: Dying Declaration (must first show declarant unavailable)
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a. Speaker believed death was imminent and certain
b. Admissible only in homicide and civil cases c. Statement must concern cause and circumstances of impending death d. Speaker had opportunity for personal knowledge (no assumptions, watch if declarant was shot from behind |
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Hearsay Exceptions: Statement Against Interest (must first show declarant unavailable)
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a. against declarant’s pecuniary, proprietary, or penal interests (money, property, jail)
b. Objectively and subjectively against interest when made c. in crim cases, statement that inculpates or exculpates the D will not be admitted w/o corroborative evidence |
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Hearsay Exceptions: Statement of family history (must first show declarant unavailable)
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Statement of family history
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Hearsay Exceptions: Child Victim of Abuse (must first show declarant unavailable)
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Applies to children under 10, If unavailable, and statement is only evidence of abuse, then must have additional indicia of reliability/corroboration. Proponent must provide notice of intent to offer. Think Confrontation clause in criminal case
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ER 803 - Hearsay Exceptions - Declarant’s Availability Immaterial - Present Sence Impression
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Present Sense Impression – spontaneity rationale- must be made while speaker is sensing event or immediately thereafter, (5 minutes later may be too late)
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ER 803 - Hearsay Exceptions - Declarant’s Availability Immaterial - Excited Utterance
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a. Must be a shocking event
b. Statement must be related to the shocking event c. statement made while speaker is excited, in shock or pain. Can be hours later if speaker sufficiently injured or upset |
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ER 803 - Hearsay Exceptions - Declarant’s Availability Immaterial - Mental State
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a. statement used to show speakers state of mind, emotion, sensation, or physical condition.
b. Must be present state of mind, except if relates to wills. c. It must be relevant to issues in case. d. Hillmon Doctrine – statement of intent to do something relevant to showing it was carried out. E.g., “I intend to meet J tonight at X” is admissible on the issue of whether you and J were at X that night |
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ER 803 - Hearsay Exceptions - Declarant’s Availability Immaterial - Statement for Purposes of Medical Treatment
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a. if made to a health care provider for purposes of diagnoses or treatment
b. stmt must be reasonably pertinent to diagnosis or treatment – statement of fault not permissible except stmt of victim abuse identifying an abusing family member c. Can include medical history or past symptoms |
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ER 803 - Hearsay Exceptions - Declarant’s Availability Immaterial - Past Recollection Recorded
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a. distinguished from refreshed recollection which is not hearsay
b. written/recorded when fresh in declarant’s memory c. insufficient recollection at trial d. Can now testify under oath that stmt was accurate when made or preserved in unquestionably reliable manner e. Examples include diaries, inventories, calendars, recorded confession f. read to jury but not introduced into evidence |
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ER 803 - Hearsay Exceptions - Declarant’s Availability Immaterial - Business Records
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(look for double hearsay) – Most important hearsay exception
a. look for multiple levels of hearsay – most likely police or medical b. authenticated by custodian of record c. maintained in ordinary course of business d. created reasonably soon after event. e. relied upon internally in business f. if all criteria met, absence of notation in bus. Rec. where notation would normally be can also be introd. g. NOTE – Business records in WA take only facts, not opinion |
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ER 803 - Hearsay Exceptions - Declarant’s Availability Immaterial - Public Records Under Seal
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cert. copies of pub. Records admissible as exception and also self-authenticating. Opinions allowed in official docs, but police docs not allowed in crim case because confrontation clause.
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ER 803 - Hearsay Exceptions - Declarant’s Availability Immaterial - Learned Treatises
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only read to jury, not admitted into evidence
a. Used with expert witnesses b. If offered only for impeachment then not hearsay c. if offered for subst. purpose, proponent must establish the treatise is an authoritative source i. either by, testimony of witness ii. affidavits from other experts OR iii. judge can take judicial notice d. Must be relied upon by expert on direct or called to attn on cross |
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ER 803 - Hearsay Exceptions - Declarant’s Availability Immaterial - Ancient Documents
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where authenticity has been established
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ER 803 - Hearsay Exceptions - Declarant’s Availability Immaterial - Other Exceptions
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records of vital stats, personal family history recorded, records and stmts in docs affecting interest in prop, market reports and commercial publications, directories generally used and relied upon.
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Confrontation Clause
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In Crawford ct. said the CC prohibits introduction of testimonial out-of court statements against a criminal D unless the declarant
a. Appears as a witness at trial, OR b. Is unavailable and the D had a prior opportunity to cross-examine concerning the stmt. c. Testimonial evidence A. Clearly covers prior testimony at prelim. hearing, before a grand jury, or at formal trial, police inter. B. Would likely apply to stmts made by person claiming to be victim of a crime. Stmt made before crime is committed is probably not testimonial C. For 911 calls – if primary purpose of interrogation is to help police to meet an ongoing emergency then they are non-testimonial. If the primary purpose is to establish or prove past events for use in a criminal prosecution then it is testimonial. |
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Evidentiary Exhibits : Authentication or Identification
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First thing that should be considered any time a piece of physical evidence is offered
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Evidentiary Exhibits: Physical Evidence
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chain of custody – two methods
a. have everyone who had possession testify OR b. have witness who placed an identifying mark or seal on it testify she knows it to be the ev. In question |
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Evidentiary Exhibits: Written documents
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a. May be established in response to request for admission by other party. If other party unreasonably refuses,
they have to pay for cost of authentication b. ER 904 – civil case, following docs deemed authentic and admissible if numbered and indexed copies served on opposing party at least 30 days before trial with notice of intent to offer into evidence pursuant to this rule, unless opposing party objects within 14 days i. a bill or treatment record from healthcare provider on their letterhead ii. bill for drug or medical appliances on their letterhead iii. bill or estimate of prop damage on letterhead iv. weather or traffic signal report v. photo, x-ray, drawing, map, blueprint or any other doc relating to a material fact that has the equivalent circumstantial guaranties of trustworthiness c. witness to execution of a doc |
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Evidentiary Exhibits: Written Documents - Handwriting
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d. Handwriting – judge or handwriting expert can compare OR someone familiar with purported author’s
handwriting, so long as witness has adequate foundation to be familiar with author’s handwriting |
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Evidentiary Exhibits: Written Documents - Distinctive Characteristics - ER 901(b)(4)
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Distinctive Characteristics – Distinctive characteristics of a document or recording may
indicate that it is authentic, taken with the circumstances |
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Evidentiary Exhibits: Voice ID
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a. witness who recognizes voice
b. must have adequate foundation to be familiar with speaker’s voice c. Self-identification when answering phone is insufficient unless combined with calling a number in a directory with that name d. Telephone calls to businesses that are internally consistent e. Distinctive characteristics – same as for handwriting |
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Evidentiary Exhibits: Self-Authentication
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Several categories of docs fit here, no witness required to authenticate them. 1) public docs under seal, 2)certified copies of public docs, 3) notarized docs, 4) official publications, 5) signed commercial paper, 6) docs with trade inscriptions, tags or labels affixed in the course of business indicating ownership, control, or origin.
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Evidentiary Exhibits: Ancient Documents
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docs for which there is no reason to be suspicious about their authenticity, located in a place they would likely be if authentic, and at least 20 years old
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Evidentiary Exhibits: Judicial Notice
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Judicial Notice
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Best Evidence Rule
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1. Only applies when content of writing at issue and the witness’ testimony is based upon the preserved communication. Must offer original, unless through no fault of the offering party the original is unavailable
2. Duplicate OK unless authenticity at issue or otherwise unfair 3. Secondary evidence allowed if original is lost or destroyed without bad faith 4. Writing includes any preserved communication, including a recording, videotape, photo, or computer data |
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Rule 104(b)
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The court should admit evidence if sufficient proof is introduced to permit a reasonable juror to find in favor of its authenticity or identification
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First thing that should be considered anytime a physical piece of evidence is offered into evidence
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authentication or identification
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