Wa Bar Evidence

Front 1

Procedure for Objections

Back 1

Must be timely and specific, and if sustained opponent must make an offer of proof

Front 2

Judicial Notice

Back 2

Legislative facts, Constitutions, statutes, or ordinances, etc. Adjudicative Facts (ER 201) Court may take judicial notice of facts in a case that are not subject to reasonable dispute because
- Generally known in the jurisdiction
- Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

Front 3

Relevance

Back 3

Any tendency to make any material fact more or less likely than without the evidence (low threshold) (401)

Front 4

What is admissible?

Back 4

- All evidence shown to be relevant is presumed admissible until opposing party established basis in rules to keep it out (402)

- Judge discretion to excude evidence whose relevance is substantially outweighed by unfair prejudice, confusion or waste of time (403).

Front 5

Subsequent Remedial Measures

Back 5

Evidence that D corrected the problem or fixed the allegedly hazardous condition after the accident or injury inadmissible unless D denies:
- feasibility, ownership or control
- applies to product liability cases.

Front 6

Offers to compromise/settle/pay medical bills

Back 6

Not admissible to prove liability

Front 7

Plea Bargains

Back 7

Only admissible to show bias

Front 8

What can Character Evidence not be used to show?

Back 8

Evidence of character is not admissible to show conformity on a specific occasion.

Front 9

Character evidence in civil trial

Back 9

Can use if character trait is an essential element of the charge, claim or defense

Front 10

Character of the Accused

Back 10

May show reputation evidence of a pertinent trait, and prosecution can then rebut only that trait.

Evidence of other crimes/acts may not be admitted for showing propensity to engage in behavior (unless SAMCORK):

- Signature (modus operandi - unique crime)
- Accident (number and nature of occurrences make mistake or accident unlikely)
- Motive (stole car to use in robbery)
- Common plan or scheme (several crimes are parts of a plan or uses same plan repeatedly to perpetrate diff but similar crimes)
- Opportunity
- Res Gestae (crime occurring around same time - completing the story)
- Knowledge

Can use information about sex crimes if accused of a sex offense and does not violate 403.

Front 11

Character of the Victim

Back 11

Criminal D may introduce a pertinent trait of the victim.
- Asserting she acted first in self-defense, may introduce testimony of victim's reputation for violence.

Rape Shield:
- Prohibits D charged with rape from introducing evidence of victim's sexual history, except where consent is at issue and the evidence consists of sexual history with the defendant.

Front 12

Character of the Witness

Back 12

Truthfulness -- attack and defend by reputation or specific acts in the discretion of the court but NOT extrinsic evidence.

Prior conviction -- impeachment by evidence of crime punishable by death or greater than 1 year sentence. (balancing test required)
- or conviction of crime involving dishonesty or false statement (no balancing test.
- Theft crimes are dishonest.
- Can't be more than 10 yrs since conviction/release (whichever is later) unless (balancing test) substantially outweighs prejudice
- Not admissible if pardoned or annulled
- Usually not admissible if juvi conviction
- Admissible even if on appeal
- Limiting instruction
- Must give notice of intent to use.

If criminal D wants to appeal admission of prior conviction must testify at trial. No error if he chooses not to testify.

Front 13

Habit Evidence

Back 13

A semi-automatic response to a repetitive stimulus is admissible to show conformity on a specific occasion.

Front 14

Requirements for Privilege

Back 14

To foster special relationship and encourage communication within them. Except for Spousal Testimony, privileged statements must be:
- Made in confidence
- Asserted at the first opportunity (such as dep)
- can't be waived (by voluntarily disclosing to a third person)

Front 15

Attorney Client

Back 15

Exception: ID of client and fact of representation, future crime or fraud, litigation between attorney and client

Corporate clients:
- Covers statement from members of corporate control group and employees instructed by boss to talk to atty.

Front 16

Physician Patient

Back 16

Applies to all docs:
- Patient must be seen for purpose of diagnosis, treatment, or medical assistance.

Waived if patient puts physical condition at issue in case, including by statute 90 days after filing personal injury case.

Defense attorney cannot speak w/ P's treating w/o consent, except at deposition. Even if priv is waived.

Waived: insanity, or diminished capacity defense or involving civil commitments.

Front 17

Marital Communication Privilege

Back 17

Protects confidential communications made during marriage.
- May be oral or conduct if intended to be confidential.

- EITHER spouse may assert privilege EVEN if divorced

Front 18

Spousal Testimony

Back 18

Spouse cannot testify (or be forced to testify) against spouse WHILE married.
- Irrelevant whether infor obtained in confidence or married when obtained.
- MUST be married at time of TRIAL (or INDICTMENT in crim case)

Front 19

Witness Competency

Back 19

Witnesses are copetent if they are capable of receiving facts or relating facts and impressions truthfully.
- No special age for kids (red flag under 10)

Front 20

Dead Man's Statute

Back 20

Interested person 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.

Front 21

Leading Questions

Back 21

Ok during cross but only ok during D if:
- Minor prelim facts or foundational
- Questioning a child, person w/ diminished mental capacity or lang problems
- Necessary to refresh recollection
- Questioning an expert, or hostile witness

Front 22

Lay Opinion Testimony

Back 22

Must be rationally based on sense perceptions and helpful to the fact-finder (e.g. height weight speed estimates)
- Make sure witness has adequate basis for rational opinion and is not guessing or speculating.

Front 23

Expert Testimony

Back 23

SQUINT

- Subject Matter must be beyond the understanding of the average juror
- Qualified (SKEET - skill, knowledge, education, experience, training)
- Ultimate issue (opinion permitted, but not if incorporates legal opinion or invades the province of the jury)
- Novel Scientific Principle or Device (must have gained general acceptance in the relevant scientific community under the Frye test)
- Testimony (may answer hypos, base opinions on inadmissible evidence such as hearsay as long as other experts would in the field, or refer to learned treatises; must testify to a reasonable degree of probability)

Front 24

Hearsay

Back 24

Hearsay is an out of court statement offered to prove the truth of the matter asserted is inadmissible unless an exception applies.

Front 25

Prior Statement Exception

Back 25

Prior Statement:
- Inconsistent statement made under oath
- Prior consistent statement to rebut recent fabrication
- Prior identification of a person.

Front 26

Admission by party opponent

Back 26

Admission (offered against a party)
- Adoptive, Tacit (failure to deny if heard, able to respond, & RP would respond if untrue, but no tacit admission if law enforcement officer is w/in earshot -- 5th amendment)
- Vicarious Admission by a Speaking Agent
- Co-conspirator Statement (conspiracy must be established by substantial independent evidence, both parties conspirators, statement made during the course & in furtherance of the conspiracy)

Front 27

Unavailable

Back 27

Dead, or too disabled, incompetent, valid privilege, refuses to testify despite threat of contempt, unable to remember, or absent from jurisdiction & offering party has used all available means to get appearance.

Front 28

Hearsay exceptions requiring unavailability

Back 28

Former Testimony, Dying Declaration, Statement against interest, Statement of personal or family history.

Front 29

Former Testimony

Back 29

Given under oath,

Party against whom statement is offered had similar opportunity and motive to develop former testimony

Front 30

Dying Declaration

Back 30

Speaker believed death was imminent and certain.
- Admissible only in homicide and civil cases.
- Stateent must concern cause or circumstance of impending death.
- Speaker had opportunity for personal knowledge.

Front 31

Statement against interest

Back 31

Against declarant's pecuniary, proprietary or penile interest.
- Objectively/subjectively against interest when made.
- In criminal case, statement that inculpate or exculpates the defendant will not be admitted without corroborating evidence.

Front 32

Hearsay exception (not requiring unavailability)

Back 32

Present sense impression, Excited Utterance, Mental State, Medical treatment, Recorded Recollection, Business Records, public records under seal, Learned Treatises, Ancient documents (NON-EXCLUSIVE)

Front 33

Present Sense Impression

Back 33

Spontaneity rationale: statement must be made while the speaker is sensing the event or immediately thereafter (5 min may be too long)

Front 34

Excited Utterance

Back 34

Must be a shocking event and statement is related to the event and made while speaker is excited in shock or pain.
- Can be hours later if speaker sufficiently injured or upset.

Front 35

Mental State

Back 35

Statement offered to show the speaker's state of mind, emotions, sensations, or physical condition (pain, fear, love, hate, intent)
- Present state of mind, not past, unless relates to making or revocation of will.
- Must be relevant to issue in case.

Front 36

Hillmon Doctrine

Back 36

Statement of intent to do something relevant to show intent was carried out.

Front 37

Medical Treatment

Back 37

Statement made to health care provider for purposes of diagnosis or treatment
- Statement must be reasonably pertinent to diagnosis or treatment.
- Statement of fault not permissible (unless victim of abuse identifying abusing family member)
- Can include medical history or past symptoms.

Front 38

Recorded Recollection

Back 38

Written/recorded when fresh in declarant's memory, insufficent recollection at trial, and can now testify under oath that statment was accurate when made or was preserved in unquestionably reliable manner (tape recording).
- Read to jury but not introduced into evidence.

Front 39

Business Records

Back 39

- Authenticated by custodian of records
- Maintained in regular course of business
- Created reasonably soon after the event.
- Relied upon internally in business
- Only facts, not opinions are admissible
- Absence of a notation in the business records where notation would normally be entered may also be introduced.

Front 40

Learned Treatises

Back 40

Only used with expert witnesses
- If offered solely for impeachment, not hearsay
- If offered for substantive purposes, offering party must establish that treatise is an authoritative source
- Testimony of the witness, affidavit of other experts, Judicial notice
- Must be relied upon by expert on direct or called to attention on cross.
- Read into the record.

Front 41

Ancient documents

Back 41

More than 20 yrs old, where authenticity has been established.

Front 42

Child Victim of Sexual Abuse

Back 42

Statement made by children under 10 offered in dependency or criminal proceedings.

Must have sufficient indicia of reliability surrounding making of statement.
Child must testify or there must be corroborative evidence of abuse

Proponent must provide notice of intent to offer

*Watch out for Confrontation Clause

Front 43

Confrontation Clause

Back 43

Prohibits introduction of testimonial outof court statement against a criminal defendant unless the declarant

- Appears as a witness at trial, OR
- is unavailable and the defendant had a prior opportunity to cross-examine the declarant concerning the statement.

Testimonial -- Covers prior testimony at a preliminary hearing, grand jury or at a formal trial and police interrogations.

- Primary puprose of the police action governs -- (e.g. Dealing with ongoing emergency situation (non-testimonial) OR investigating (testimonial.

- Look also to whether circumstances would lead a reasonable person to believe the statement was likely to be used in investigation or prosecution of crime.

Front 44

Authentication of physical evidence

Back 44

Have everyone who has had possession of the evidence testify, or have the witness who placed an identifying mark or seal on the evidence testify that he knows it to be the evidence in question.

If condition is important (temp of blood) must testify about that.

Front 45

Authentication of written doc

Back 45

Civil Case:
- Authentic and admissible if numbered and indexed copies are served on the opposing party at least 30 days before trial w/ notice of intent to offer evidence pursuant to 904, unless opposing party w/in 14 days serves written objections to their authenticity or admissibility.
- Bill or treatment record for a heath care provider, or bill for drugs or medical appliances on billhead/letterhead
- Bill or estimate of property damage that is on billhead/letterhead
- Weather or traffic signal report or standard US gov't table
- Photograph, xray, drawing, map, blueprint, or any other document relating to a material fact that has equivalent circumstantial guaranties of trustworthiness.

Front 46

Handwriting

Back 46

Judge or handwriting expert can compare handwriting to sample that is known to been written by purported author

Someone familiar with the purported author's handwriting, so long as the witness has an adequate foundation.

Front 47

Voice Identification

Back 47

- Witness who recognizes voice, with adequate foundation
- Self identification when answering the phone at their house
- Phone call to business that is internally consisent
- Distinctive characteristics.

Front 48

Authentication of ancient documents

Back 48

Documents for which there is no reason to be suspicious about their authenticity, that are located in a place they would be expected to be if authentic, and are at least 20 years old.

Front 49

Self Authentication

Back 49

- Public Docs under seal,
- Certified copies of public docs
- notarized docs,
- newspapers, and periodicals
- offical publications, signed commercial paper
-document w/ trade inscriptions etc. affixed in the course of business indicating ownership, control, origin.

Front 50

Best Evidence Rule

Back 50

When trying to prove the content of a writing, must offer original unless, through no fault of the offering party, original is unavailable.
- A writing includes any preserved data stored on computer.
- Duplicates, such as photocopies and any print from a negative are admissible unless there is a genuine issue of authenticity or other circumstances would make admission unfair.
- If original is lost (after diligent search), or destroyed (w/o bad faith), then secondary evidence may be admitted.

Front 51

Police Report Admissible?

Back 51

The report is hearsay, and the (statements) w/in the report are another layer of hearsay. If the report is offered for the truth of the matter, then a hearsay exception is required for each layer. A certified copy of the report would satisfy the public records hearsay exception. The report could also be admitted under the past recollections recorded if the officer remembers making the writing, can swear that the report was accurate when made, and has insufficient recollection about the details now.

Also, doc must be authenticated, either by the officer, or by a certified copy of the public record, which would be self-authenticating