Evidence

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Direct Evidence

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goes directly to a material issue without intervention of an inferential process. Evidence is direct when the very facts in dispute are communicated by those who have actual knowledge by means of their senses.

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Circumstantial Evidence

Back 2

Circumstantial evidence is direct and relies on inference. It is evidence of a subsidiary or collateral fact from which, alone or in conjunction with a cluster of other facts, the existence of the material issue can be inferred.

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Testimonial Evidence

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oral evidence given under oath.

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Documentary Evidence

Back 4

evidence in the form of a writing, such as a contract or a confession.

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Real Evidence

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evidence consisting of THINGS as distinguished from assertions of witnesses about things. Real evidence includes anything conveyed firsthand sense impression to the trier of fact, such as knives, jewelery, maps, or tape recordings.

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RELEVANCE

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Evidence is RELEVANT if it tends to make the existence of any fact or consequence to the outcome of the action more probable than it would be without the evidence.

All relevant evidence is admissible if it is offered in an unobjectionable form and manner.

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Questions to ask regarding RELEVANCE

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What proposition is the evidence being used to prove?

Is this a material issue in the case?

Is the evidence probative of that proposition?

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RELEVANCE--General Rule

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Whenever testimony or exhibit evidence that relates to a time, event, or person other than the time, event, or person directly involved int he controversy being litigated is offered, the relevance of that evidence is suspect and should be examined more carefully.

The risk of confusion and unfair prejudice usually outweighs the helpfulness of this type of evidence.

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RELEVANCE Exception in general

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Previous similar happenings and transactions of the parties and others similarly situated may be relevant if they are probative of the material issue involved, and if that probative value outweighs the risk that the evidence will confuse the jury or result in unfair prejudice.

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RELEVANCE Exception -- Prior False Claims or Same Bodily Injury

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Evidence that a person has previously filed similar TORT CLAIMS or has been involved in PRIOR ACCIDENTS is GENERALLY INADMISSIBLE to show the invalidity of the present claim.

At best, such evidence indicates the plaintiff's tendency toward litigation or accident-proneness. In either case, the probative value is outweighed by the risk of confusion of issues and undue prejudice.

HOWEVER, if such evidence is introduced to show that the party has made previous FALSE claims, the evidence is usually relevant, under a common scheme or plan theory, to prove that the present claim is likely to be false. Similarly, where the prior claim was for an injury to the same portion of the P's body that she claims was injured in the present case, evidence of the prior claim or injury may be relevant to prove that her present claim is false or exaggerated.

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RELEVANCE Exceptions -- Similar Accidents or Injuries Caused by the Same Event or Condition

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Where similar accidents or injuries were caused by the same event or condition, evidence of those prior accidents or injuries is ADMISSIBLE TO PROVE:

1) that a defect or dangerous CONDITION EXISTED;

2) that the D had KNOWLEDGE of the defect or dangerous condition; and

3) that the defect or dangerous condition was the CAUSE of the present injury.

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RELEVANCE Exceptions -- Sales o Similar property

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Evidence of sales of similar personal or real property that are not too remote in time is ADMISSIBLE TO PROVE VALUE.

But remember: real property is considered unique. Thus, the problem of producing evidence of other transactions requires a preliminary finding that the character, usage, proximity, date of sale, etc., are sufficiently similar to the property in issue.

Evidence of prices quoted in OFFERS are NOT ADMISSIBLE because to determine the sincerity of these offers would lead to collateral disputes. However, offers by a present party in the action are admissible as admissions.

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RELEVANCE Exceptions -- Habit

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Habit describes one's regular response to a specific set of circumstances (e.g., "she always takes a staircase two steps at a time"). In contrast, character describes one's disposition in respect to general traits (e.g., "she's always in a hurry"). Since habits are more specific and particularized, evidence of habit is relevant and can be introduced in circumstances when it is not permissible to introduce evidence of character.

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RELEVANCE Exceptions -- Industrial or Business Routine

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evidence that a business or firm had an established business routine is relevant as tending to show that a particular event occurred.

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RELEVANCE Exceptions -- Industrial Custom distinguished from Business Routine

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Custom of the industry should be distinguished from business routine because in the latter case, the particular conduct and habit of a party are being offered to show that the party acted int eh same manner on the same occasion in question. Custom of the industry is offered to prove the actions of other persons in the same industry in an attempt to show adherence to or deviance from an industry-wide standard of care.

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Discretionary Exclusion of Relevant Evidence (PRAGMATIC RELEVANCE)

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A trial judge has broad discrtion to exclude relevant evidence if its probative value is substantially outweighed by the danger of UNFAIR PREJUDICE, CONFUSION OF THE ISSUES, OR MISLEADING THE JURY, or by considerations of UNDUE DELAY, waste of time, or needless presentation of cumulative evidence. [FRE 403].

"UNFAIR SURPRISE" is listed as an additional basis for exclusion under some state rules, but it was omitted under the FRs on the theory that surprise can be prevented by discovery and pretrial conference or mitigated by granting a continuance.

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Exclusion of Relevant Evidence for Public Policy Reasons (POLICY-BASED RELEVANCE)

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Certain evidence of questionable relevance is excluded by the FRs because public policy favors the behavior involved. This incldues:

Liability insurance

Subsequent remedial measures

Settlement offers

Withdrawn guilty pleas and offers to plead guilty

Payment of medical expenses

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Policy-Based Relevance -- LIABILITY INSURANCE

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Evidence that a person was or was not insured against liability is NOT ADMISSIBLE upon the issue of whether she ACTED NEGLIGENTLY or otherwise wrongfully. Nor is it admissible to show ABILITY TO PAY a substantial judgment.

Proof of liability insurance may be admissible for other purposes, like:

a) to prove ownership or control;

b) for purposes of impeachment; or

c) as part of an admission of liability (e.g., "Don't worry--my insurance company will pay off.")

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Policy-Based Relevance -- SUBSEQUENT REMEDIAL MEASURES

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Evidence of repairs or other precautionary measures made following an injury is inadmissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. The purpose of a rule is to encourage people to make such repairs.

It may, however, be admissible:

a) to prove ownership or control;

b) to rebut a claim that precaution was not feasible; or

c) to prove destruction of evidence.

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Policy-Based Relevance -- SETTLEMENT OFFERS

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Evidence of compromises or offers to compromise is inadmissible to prove liability for or invalidity of a claim that is disputed as to validity or amount. Such evidence is also inadmissible to impeach through a prior inconsistent statement [FRE 408].

The FRs also exclude "conduct or statements" made in the course of negotiating a compromise, as well as the offer to compromise itself. However, "conduct or statements" made during compromise negotiations regarding a civil dispute with a governmental regulatory, investigative, or enforcement authority are not excluded when offered IN A CRIMINAL CASE.

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Policy-Based Relevance -- WITHDRAWN GUILTY PLEAS AND OFFERS TO PLEAD NOT GUILTY

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Under the Federal Rules, neither withdrawn guilty pleas, pleas of nolo contendere, offers to plead guilty, nor evidence of statements made in negotiating such pleas are admissible in any proceeding [FRE 410]. Most jxns concur.

The evidentiary value of a withdrawn plea of guilty as an admission is deemed OFFSET BY THE PREJUDICIAL EFFECT of the evidence.

However, the protection of FRE 410 for plea negotiations may be validly waived unless there is an affirmative indication that the D entered the waiver agreement unknowingly or involuntarily.

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Policy-Based Relevance -- PAYMENT OF MEDICAL EXPENSES

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Evidence that a party paid (or offered to pay) the injured party's medical expenses is NOT ADMISSIBLE TO PROVE LIABILITY for the injury [FRE 409].

However, unlike the situation with compromise negotiation, admissions of fact accompanying offers to pay medical expenses ARE ADMISSIBLE.

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CHARACTER EVIDENCE -- Relevance Problem.

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The rules regarding the use of character evidence are affected by 3 major concerns:

(i) the purpose for which evidence of character is offered;

(ii) the method to be used to prove character; and

(iii) the kind of case, civil or criminal.

Purposes to offer character evidence:
a) to prove character when character itself is the ultimate issue in the case;
b) to serve as circumstantial evidence of how a person probably acted; or
c) to impeach credibility of a witness

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Means of proving CHARACTER

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Depending on the jxn, the purpose of the offer, and the nature of the case, the following types of evidence may be used to prove character:

i) evidence of specific acts as demonstrating character;

ii) opinion testimony;

iii) testimony as to a person's general reputation in the community.

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CHARACTER EVIDENCE -- Civil Cases

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Evidence of character to prove the conduct of a person in the litigated event is generally INADMISSIBLE in a civil case. This is because the slight probative value of character is outweighed by the danger of prejudice, the possible distraction of the jury from the main question in issue, and the possible waste of time required by examination of collateral issues.

A person's GENERAL BEHAVIOR PATTERNS (as distinguished form her habits and business routines) are IRRELEVANT and inadmissible in evidence.

EXCEPTION: When a person's character itself is one of the issues in the case, character evidence is not only admissible, but indeed the best method of proving the issue.

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CHARACTER EVIDENCE -- Accused in a Criminal Case

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The general rule is that prosecution cannot initiate evidence of the bad character of the D merely to show that she is more likely to have committed the crime of which she is accused. However, the accused may introduce evidence of her good character to show her innocence of the alleged crime.

D can do this by calling a qualified witness to the stand. The prosecution rebuts the D's character evidence through cross examination of the witness on the stand.

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CHARACTER EVIDENCE -- Victim in Criminal Case

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The D may introduce reputation or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show the D's innocence. However, by specific exception, the D cannot show the bad character of rape victims.

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CHARACTER EVIDENCE -- Prosecution Rebuttal

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Once the D has introduced evidence of a bad character trait of the alleged victim, the prosecuiton may counter with reputation or opinion evidence of:

(i) the VICTIM'S GOOD CHARACTER; or

(ii) the DEFENDANT'S BAD CHARACTER for the SAME TRAIT.

[FRE 404(a)]

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CHARACTER EVIDENCE -- Rape Cases

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In rape cases (or anything involving sexual misconduct), evidence offered to prove the sexual behavior or sexual disposition of the victim is generally inadmissible. Exceptions to this include:

i) where the evidence of sexual behavior by the victim is offered to prove that a person other than the accused was the SOURCE OF SEMEN, INJURY, OR OTHER PHYSICAL EVIDENCE, it is admissible.

ii) In civil cases, evidence offered to prove the sexual disposition or behavior of the alleged victim is admissible if it is otherwise admissible under the FRs and its probative value substantially outweighs the danger of harm to the victim or unfair prejudice to any party.

iii) Procedure requires that the party file a motion 14 days before trial describing the evidence and its purpose, and must serve the motion on all parties and notify the victim.

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CHARACTER EVIDENCE -- Specific Acts of Conduct Generally Inadmissible

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When a parson is charged with one crime, extrinsic evidence of her other crimes or misconduct is inadmissible if such evidence is offered solely to establish a criminal disposition.

"MIMIC": Admissible if independently relevant (e.g., to show Motive, Intent (or opportunity), absence of Mistake, Identity (or knowledge), or Common plan or scheme)

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CHARACTER EVIDENCE -- Prior acts of sexual assault or child molestation

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Evidence of a D's prior acts of sexual assault or child molestation is admissible in a civil or criminal case where the D is accused of committing an act of sexual assault or child molestation.

The party who intends to offer the evidence must disclose the evidence to the D 15 days before trial (or later with good cause).

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JUDICIAL NOTICE

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Judicial notice is the RECOGNITION OF A FACT AS TRUE WITHOUT FORMAL PRESENTATION OF EVIDENCE. Judicial notice, like the presumption, is a judicial shortcut and a substitute for proof.

FRE 201(b) defines a fact that may be noticed as "one not subject to reasonable dispute in that it is either (i) generally known within the territorial jxn of the trial court" (notorious facts); or (ii) "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned (manifest facts).

Judicial notice may be taken of such facts AT ANY TIME, whether or not requested, and such notice is mandatory if a party requests and supplies the court with the necessary information.

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REAL EVIDENCE -- In General

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Real or demonstrative evidence is addressed directly to the trier of fact. The object in issue is presented for INSPECTION BY THE TRIER OF FACT. Ordinarily the evidence is addressed to the sense of sight (e.g., exhibition of injured arm to jury to demonstrate extent of injury), but it may be directed to other senses as well (e.g., sound recording of factory noise played during nuisance trial).

Often a concern for proper authentication of the object. The possibility often exists that physical production of the thing may be too BURDENSOME or may inspire PREJUDICIAL EMOTIONS outweighing its probative value.

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Types of REAL EVIDENCE

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Direct (may be offered to prove the facts about the object as an end in itself)

Circumstantial (facts about the object are proved as a basis for an inference that other facts are true)

Original (real evidence may be original)

Prepared (like a sketch or a model prepared for trial)

(D-COP)

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Requirements for Admissibility of REAL EVIDENCE

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Real evidence must be relevant, authenticated (usually by recognition testimony or by establishing a chain of custody), shown in the same/original condition at trial, and have legal relevance.

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Requirements for Admissibility of REAL EVIDENCE -- Chain of Custody

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If the evidence is of a type that is likely to be confused or can be easily tampered with, the proponent of the object must present evidence of chain of custody. The proponent of the evidence must show that the object has been held in a substantially UNBROKEN CHAIN OF POSSESSION.

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Requirements for Admissibility of REAL EVIDENCE -- Legal Relevance

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Assuming the object has been properly identified and is probative, the discretion of the trial judge is called upon to decide whether some auxiliary policy or principle outweighs the need to admit the real evidence. Some policies limiting the use of real evidence frequently concern:

(i) PHYSICAL INCONVENIENCE of bringing the object into the courtroom;

(ii) INDECENCY OR IMPROPRIETY; or

(iii) UNDUE PREJUDICE where the probative value of the object or exhibit is outweighed by the danger of unfair prejudice.

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REAL EVIDENCE -- Reproductions and Explanatory Real Evidence

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When properly authenticated, relevant photographs, movies, diagrams, maps, sketches, or other REPRODUCTIONS ARE ADMISSIBLE if their value is not outweighed by the danger of unfair prejudice. On the other hand, items used entirely for EXPLANATORY PURPOSES (such as sketches, anatomy charts, etc.) are permitted at trial, but are usually NOT ADMITTED INTO EVIDENCE.

Maps/charts/models must be authenticated to show that they are FAITHFUL REPRODUCTIONS of the object or thing depicted.

Almost all jxns allow the exhibition of a child to show whether she is of the same race as the putative father in paternity suits.

The exhibition of injuries in personal injury or criminal cases is generally permitted, though the court has the discretion to exclude this evidence if it is prejudicial.

The court, in its discretion, may permit experiments or demonstrations to be performed in the courtroom.

Scientific experiments may be permitted so long as: 1) the conditions are substantially similar to those that attended the original event; and 2) the experiment will not result in undue waste of time or confusion of the issues.

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DOCUMENTARY EVIDENCE

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Documentary evidence must be relevant in order to be admissible. In the case of writings, the authenticity of the doc is one aspect of its relevancy. Doc evidence may also be excluded, even if authenticated, if it violates a rule of competency such as the best evidence or hearsay rule.

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DOCUMENTARY EVIDENCE: Types of Authenticating the Evidence

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Admissions -- a writing may be authenticated by evidence that the party against whom the writing is offered has either ADMITTED its authenticity or ACTED UPON the writing as authentic.

Testimony of Eyewitness -- A writing may be authenticated by testimony of one WHO SEES IT EXECUTED or HEARS IT ACKNOWLEDGED.

Handwriting Verifications -- A writing may also be authenticated by evidence of the genuineness of the handwriting of the maker. This can be done through non-expert opinion (someone who has personal knowledge of the person's handwriting) or comparison of writings, done by a professional.

Ancient Documents

Reply Letter Doctrine

Photographs (must be identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a correct representation of those facts.

X-rays, electrocardiograms, etc. require a different form of authentication

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DOCUMENTARY EVIDENCE: Types of Authenticating the Evidence -- Ancient Docs

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A doc may be authenticated by evidence that it:

i) is at least 20 YEARS OLD;

ii) is in such condition as to be FREE FROM SUSPICION concerning its authenticity; and

iii) was FOUND IN A PLACE where such writing, if authentic, would likely be kept.

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DOCUMENTARY EVIDENCE: Types of Authenticating the Evidence -- Reply Letter Doctrine

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A writing may be authenticated by evidence that it was written in response to a communication sent to the claimed author. The content of the letter must make it unlikely that it was written by anyone other than the claimed author of the writing.

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DOCUMENTARY EVIDENCE: Types of Authenticating the Evidence -- X-rays, Electrocardiograms, etc.

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Unlike photographs, an X-ray picture cannot be authenticated by testimony of a witness that it is a correct representation of the facts. Therefore, a different procedure is necessary:

1) It must be shown that the PROCESS USED IS ACCURATE (in the case of x-rays, the court will usually take judicial notice of this);

2) Then it must be shown that the MACHINE ITSELF WAS IN WORKING ORDER and the OPERATOR WAS QUALIFIED to operate it; and

3) A CUSTODIAL CHAIN must be established to forestall the danger that the evidence has been substituted or tampered with.

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DOCUMENTARY EVIDENCE: Types of Authenticating the Evidence -- Self-Authenticating Documents

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There are certain writings that are said to "prove themselves" or are "self-identifying" on their face. FRE 902 specifically provides that extrinsic evidence of authenticity as a condition to admissibility is not required as to the following:

a) certified copies of PUBLIC RECORDS;

b) OFFICIAL PUBLICATIONS (i.e., books, pamphlets, or other publications purporting to be issued by a public authority);

c) Printed materials purporting to be NEWSPAPERS OR PERIODICALS;

d) TRADE INSCRIPTIONS, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin;

e) DOCUMENTS ACCOMPANIED BY A CERTIFICATE OF ACKNOWLEDGMENT executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments;

f) COMMERCIAL PAPER, signatures thereon, and documents relating thereto, to the extent provided by general commercial law; and

g) BUSINESS RECORDS certified as such by a custodian or other qualified person.

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BEST EVIDENCE RULE (BER)

Back 45

More accurately called the "original document rule," the BER is as follows:

In proving the terms of a writing (recording, photograph, or X-ray), where the terms are material, the original writing must be produced. Secondary evidence of the writing, such as oral testimony regarding the writing's contents, is permitted only after it has been shown that the original is unavailable for some reason other than serious misconduct of the proponent.

The rule applies to writings and expresses a preference for originals; exact words of a writing should be presented to the court.

[FRE 1002]

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Applicability of the BEST EVIDENCE RULE

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The rule applies to two classes of situations:

(i) where the writing is a LEGALLY OPERATIVE OR DISPOSITIVE INSTRUMENT such as a K, deed, will or divorce decree; or

(ii) where the KNOWLEDGE OF A WITNESS concerning a fact results from having READ it in the document.

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BEST EVIDENCE RULE -- Where writing is collateral to litigated issue

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The BER does not apply to writings of minor importance (i.e., ones that are collateral) to the matter in controversy. The test of "collateralness" is likely to take into account:

i) CENTRALITY of the writing to the major issues of a litigation;

ii) COMPLEXITY of the relevant features of the writing; and

iii) Existence of a GENUINE DISPUTE as to the contents of the writing.

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PAROL EVIDENCE RULE (PER)

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If an agreement is reduced to a writing, that writing is the agreement and hence constitutes the only evidence of it. ALL PRIOR OR CONTEMPORANEOUS NEGOTIATIONS or agreements ARE MERGED into the written agreement. Parol (extrinsic) evidence is not admissible to add to, detract from, or alter the agreement as written.

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PAROL EVIDENCE RULE -- Incomplete or Ambiguous Contract

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In some situations, the written instrument may be valid but still incomplete or ambiguous. In these cases parol evidence is admitted not to contradict or vary the writing but to complete the entire agreement of which the writing was only part.

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PAROL EVIDENCE RULE -- Challenge to Validity of K

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The PER does not bar admission of parol evidence to show what appears to be a contractual obligation is, in fact, no obligation at all. Thus, evidence is admissible to show that the K WAS VOID OR VOIDABLE and has been avoided, or was made subject to a valid CONDITION PRECEDENT that has not been satisfied. Specifically, PE is admissible to establish or disprove a K attacked on the grounds of:

1) Fraud, duress, or undue influence inducing consent;

2) Lack of consideration;

3) Illegality of Subject Matter;

4) Material alteration;

5) Nondelivery, if the agreement required delivery for the instrument to be effective; or

6) Execution or delivery upon a condition precedent, as long as the parol condition does not contradict the writing. However, proof of an oral condition subsequent allegedly made at or before the time of the written K would be barred by the rule.

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TESTIMONIAL EVIDENCE -- Competency of Witnesses

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Witnesses are generally presumed to be competent until the contrary is demonstrated.

There are 4 basic testimonial attributes that every witness must have to some degree:

the capacity to OBSERVE,

to RECOLLECT,

to COMMUNICATE, and

to APPRECIATE THE OBLIGATION TO SPEAK TRUTHFULLY

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MODERN WITNESS DISQUALIFICATION -- Infancy

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There is no precise age at which an infant is deemed competent or incompetent to testify under oath. This is determined by the capacity and intelligence of the particular child.

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MODERN WITNESS DISQUALIFICATION -- Insanity

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An insane person, even one who has been adjudicated incompetent, MAY TESTIFY, provided he understands the obligation to speak truthfully and possesses the capacity to give a correct account of what he has perceived in reference to the issue in dispute.

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MODERN WITNESS DISQUALIFICATION -- Lack of Religious Belief

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Lack of religious belief is no longer a basis for excluding a witness (was under CL)

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MODERN WITNESS DISQUALIFICATION -- Conviction of Crime

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The CL disqualification of felons has been removed by statute in most states. However, conviction of crime may be shown to AFFECT THE CREDIBILITY of the competent witness.

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MODERN WITNESS DISQUALIFICATION -- Interest

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The CL disqualification of parties or interested persons has been abolished in most states. The only remaining traces of this are shown by the Dead Man Acts.

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MODERN WITNESS DISQUALIFICATION -- Judge as Witness

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FRE 605 provides that the presiding judge MAY NOT TESTIFY AS A WITNESS, and that no objection need be made to preserve that point.

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MODERN WITNESS DISQUALIFICATION -- Juror as Witness

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Under FRE 605, jurors are INCOMPETENT TO TESTIFY before the jury in which they are sitting.

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DEAD MAN ACTS

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The last remaining vestige of true incompetency of a witness appears in the Dead Man Acts. These statutes exist in most jxns and their provisions vary from state to state. Although there is no Dead Man Act in the FRE, state Dead Man Acts operate to disqualify witnesses in federal cases where state law provides the rule of decision.

RULE: A person or party interested in the event, or his predecessor in interest, is incompetent to testify to a PERSONAL TRANSACTION OR COMMUNICATION WITH A DECEASED, when such testimony is offered against the representative or successors in interest of the deceased. The rationale of the statute is to PROTECT ESTATES FROM PERJURED CLAIMS.

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EXAMINATION OF WITNESS: Leading Questions

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A question is leading and generally objectionable on direct when it suggests to teh wtiness the fact that the examiner expects and wants to have confirmed. Questions calling for "yes" or "no" answers and questions FRAMED TO SUGGEST THE ANSWER DESIRED are usually leading.

Leading questions are permitted on CROSS.

Judges will usually allow leading questions on DIRECT in noncrucial areas IF NO OBJECTION IS MADE:

i) if used to elicit PRELIMINARY OR INTRODUCTORY MATTER;

ii) when the witness NEEDS AID TO RESPOND because of loss of memory, immaturity, or physical or mental weakness; or

iii) when the witness is HOSTILE and improperly uncooperative, and ADVERSE PARTY, or a person IDENTIFIED WITH AN ADVERSE PARTY.

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EXAMINATION OF WITNESS: Improper Questions

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Misleading

Compound

Argumentative

Conclusionary

Assuming Facts Not in Evidence

Harassing or embarrassing

Calls for a Narrative Answer

Calls for Speculation

Lack of Coundation

Nonresponsive Answer

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EXAMINATION OF WITNESS: Improper Questions -- Misleading

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a question is misleading and is thus not permitted if it is one that cannot be answered without making an unintended admission.

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EXAMINATION OF WITNESS: Improper Questions -- Compound

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Questions that require a single answer to more than one question are not permitted.

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EXAMINATION OF WITNESS: Improper Questions -- Argumentative

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Argumentative questions, which are leading questions that reflect the examiner's interpretation of the facts, are improper.

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EXAMINATION OF WITNESS: Improper Questions -- Conclusionary

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A question that calls for an opinion or conclusion that the witness is not qualified or permitted to make is improper

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EXAMINATION OF WITNESS: Improper Questions -- Assuming Facts not in Evidence

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An atty is not allowed to ask a question that assumes a disputed fact is true when it has not been established in the case.

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EXAMINATION OF WITNESS: Improper Questions -- Cumulative (Asked and Answered)

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An atty is generally not permitted to ask a question that has already been asked ans answered. More repetition is allowed on cross than on direct, but if it is apparent that the cross-examiner is not moving forward, the judge may disallow the question.

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EXAMINATION OF WITNESS: Improper Questions -- Harassing or Embarrassing

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The trial judge, in her discretion, may disallow cross that is unduly harassing or embarrassing.

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EXAMINATION OF WITNESS: Improper Questions -- Calls for a Narrative

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Some courts generally prohibit questions calling for a narrative answer, i.e, a question allowing a witness to answer by recounting relevant facts, rather than a series of specific questions.

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EXAMINATION OF WITNESS: Improper Questions -- Calls for Speculation

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An examining atty may not ask a witness to speculate, i.e., theorize as to fact, because such testimony is not based on the witness' personal knowledge.

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EXAMINATION OF WITNESS: Improper Questions -- Lack of Foundation

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A witness must have personal knowledge as to the facts of his testimony. Insufficient personal knowledge may subject testimony to an objection for lack of foundation.

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EXAMINATION OF WITNESS: Improper Questions -- Nonresponsive

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A witness' response must address only the specific question asked by the examining attorney; otherwise the testimony is subject to being stricken for nonresponsiveness.

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Refreshing Recollection

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A witness may use any writing or thing for the purpose of refreshing her present recollection, but usually may not read from the writing while she actually testifies, since the writing is NOT AUTHENTICATED, is NOT IN EVIDENCE, and may be used solely to refresh her recollection.

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Recorded Recollection

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Where a witness has insufficient recolleciton of an event to enable her to testify fully and accurately, even after she has consulted a writing given to her on the stand, the WRITING ITSELF MAY BE READ INTO EVIDENCE if a proper foundation is laid for its admissibility (this is an exception to the hearsay rule).

The foundation for receipt of the writing into evidence must include proof that:

1) The witness at one time had PERSONAL KNOWLEDGE of the facts recited in the writing;

2) The writing was MADE BY THE WITNESS or made UNDER HER DIRECTION or that it was ADOPTED BY THE WITNESS;

3) The writing was TIMELY MADE when the matter was fresh in the mind of the witness;

4) The writing is ACCURATE (witness must vouch for its accuracy);

5) The witness has INSUFFICIENT RECOLLECTION to testify fully and accurately.

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Opinion Testimony by Lay Witnesses

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Opinions by lay witnesses are generally inadmissible. However, in cases where, from the nature of the subject matter, no better evidence can be obtained, such opinions may be admitted.

Opinions by lay witnesses can be admitted when:

1) It is rationally BASED ON THE PERCEPTION OF THE WITNESS;

2) it is HELPFUL TO A CLEAR UNDERSTANDING of her testimony or to the determination of a fact in issue; and

3) it is NOT BASED ON SCIENTIFIC, TECHNICAL, OR OTHER SPECIALIZED KNOWLEDGE (if so, the witness' testimony would need to meet the requirements for expert testimony under Rule 702).

Situations where admissible:
--general appearance or condition of person (i.e., "about 50 yrs old)
--state of emotion (i.e, appeared "angry")
--matters involving sense recognition (i.e., object was "heavy")
--voice or handwriting identification
--speed of moving object
--value of her own services
--rational or irrational nature of another's conduct (sanity)
--intoxication

Not admissible:
--agency or authorization (witness generally may not state a conclusion as to her authorization).
--contract or agreement (no opinions about whether an agreement was made).

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Opinion Testimony by Expert Witness

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1) Under FRE 702, expert opinion testimony is admissible if the subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact in understanding the evidence or determining a fact in issue.

TEST for subject matter:
i) The opinion must be RELEVANT (i.e., it must "fit" the facts of the case); and
ii) The methodology underlying the opinion must be reliable (i.e., the proponent of the expert testimony must satisfy the trial judge by a preponderance of the evidence that (a) the opinion is based on sufficient facts or data; (b) the opinion is the product of reliable principles and methods; and (c) the expert has reliably applied the principles and methods to the facts of the case).

2) Witness must be qualified as an expert

3) Expert must possess reasonable probability regarding his opinion

4) Opinion must be supported by proper factual basis

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Qualification of Expert Witness

Back 77

To testify as an expert, a person must have special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his training relates [FRE 702].

Front 78

Expert Testimony: Proper Factual Basis

Back 78

Expert's opinion may be based one or more of these 3 possible sources of information:

1) facts that the expert knows from his own personal observation;

2) facts presented in evidence at trial and submitted to the expert, usually by hypothetical question; OR

3) facts not in evidence that were supplied to the expert out of court, and which are of a type reasonably relied upon by experts in the particular field in forming opinions on the subject.

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Scope of CROSS EXAMINATION

Back 79

On cross examination, leading questions are permissible, as well as efforts of impeachment. Most significant restriction is that the scope of cross cannot range beyond the subject matter of direct (but this restriction does not apply to inquiries directed toward impeachment of a witness).

Restrictions on scope -- Under FRE 611(b), cross is limited to:

i) matters brought out on direct, and the inferences naturally drawn from those matters; and

ii) matters affecting the credibility of the witness.

Collateral matters -- the cross-examiner is bound by the answers of the witness to questions concerning collateral matters.

Front 80

IMPEACHMENT

Back 80

Impeachment means the casting of an adverse reflection on the veracity of the witness. Primary method of impeachment is by cross-examination of the witness under attack, though witness are often impeached by extrinsic proof that casts doubt on credibility. In terms of relevance, any matter that tends to prove or disprove the credibility of the witness should be admitted here.

Front 81

IMPEACHMENT: Accrediting or Bolstering

Back 81

The gen. rule is that a party may not bolster or accredit the testimony of his witness until the witness has been impeached.

Exceptions:
1) In some cases, a party may prove that the witness made a timely complaint
2) evidence of any prior statement of identification made by a witness is admissible not only to bolster the witness' testimony, but also as substantive evidence that the identification was correct.

Front 82

Who can impeach their witness

Back 82

Modernly (contrary to the traditional rule), ANY PARTY can impeach his own witness, including the party calling him.

Front 83

Impeachment Methods: PRIOR INCONSISTENT STATEMENTS

Back 83

For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. This may be proved by either cross-examination or extrinsic evidence. To prove the statement by extrinsic evidence, (i) a proper foundation must be laid; and (ii) the statement must be relevant to some issue in the case (i.e, it cannot be a collateral matter).

In most cases, prior inconsistent statements are hearsay. However, where the statement was made under oath at a prior trial, hearing, or other proceeding, or in a deposition, it is admissible NON-HEARSAY.

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Impeachment Methods: BIAS or INTEREST

Back 84

Evidence that a witness is biased or has an interest in the outcome of the suit tends to show that the witness has a MOTIVE TO LIE. A witness may always be impeached by extrinsic evidence of bias or interest, provided that proper foundation is laid.

Front 85

Impeachment Methods: CONVICTION OF CRIME

Back 85

Under certain circumstances, a witness may be impeached by proof of conviction of a crime [FRE 609]. The fact that the witness (including a D who testifies in a criminal case) has been convicted of a crime may usually be proved by either eliciting an admission on cross-examination or by the record of conviction.

A witness' character for truthfulness may be attacked by ANY CRIME if it can be readily determined that the conviction of the crime required proof of an act of DISHONESTY or FALSE STATEMENT.

If the crime is one not involving dishonesty, the trial court has the discretion to exclude it:

a) if the accused is being impeached, the felony conviction will only be admitted if the gov't shows that its probative value outweighs its prejudicial effect;

b) if the witness is not the accused, any felony conviction is admissible, but may also be withheld if its probative value SUBSTANTIALLY outweighs the danger of unfair prejudice; and

c) balancing tests may be used (probative value > risk of unfair prejudice)

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Impeachment Methods: CONVICTION OF CRIME (2)

Back 86

--Conviction must not be too remote (inadmissible if more than 10 yrs has lapsed since the date of conviction or the date of release from confinement, whichever is the later date).

--Juvenile offenses are generally not admissible for impeachment purposes (judge has discretion in a criminal case to admit it if the offense was committed by any witness other than the accused).

--In most jxns, a conviction may be shown even though the witness has subsequently been PARDONED.

--in most jxns, a conviction may be used to impeach even though an appeal is pending.

--where the prior conviction was obtained in violation of the person's 6th Am rights, the conviction is generally invalid for all purposes (including impeachment).

--A prior conviction may be shown either by the cross-examination of the witness or by introducing a record of the judgment. NO FOUNDATION NEED BE LAID. On cross though, the questions must be asked in good faith.

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Impeachment Methods: PRIOR BAD ACTS

Back 87

Maj view is that, subject to discretionary control of the trial judge, a witness may be interrogated upon cross with respect to any immoral, vicious, or criminal act of his life that may AFFECT HIS CHARACTER and show him to be UNWORTHY OF BELIEF. Such inquiry is permitted only if the misconduct is PROBATIVE OF TRUTHFULNESS.

Extrinsic evidence is not permitted. A specific act can be elicited only on cross.

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Impeachment Methods: OPINION OR REPUTATION EVIDENCE FOR TRUTHFULNESS

Back 88

A witness may be impeached by showing that she has a poor reputation for truthfulness. This is usually done by asking other witnesses about her general reputation for truth and veracity in the community in which she lives.

Front 89

Impeachment Methods: SENSORY DEFICIENCIES

Back 89

A witness may be impeached by showing that he had no knowledge of the facts to which he testified, or that his faculties of perception and recollection were so impaired as to make it doubtful that he could have perceived those facts. Such a showing can be made either on cross or by use of extrinsic evidence.

DEFECTS OF CAPACITY:
--Perception of disabilities
--Lack of memory
--Mental disorders

LACK OF KNOWLEDGE:
--Expert witnesses
--opinion witnesses
--character witnesses (who can generally only testify as to reputation).

Front 90

Impeachment Methods: REHABILITATION of Impeached Witness

Back 90

A witness who has been impeached may be rehabilitated on redirect examination or by extrinsic evidence.

For the purpose of rehabilitation, a witness may explain or clarify facts brought out on cross.

When a witness' character for truthfulness has been attacked, the party for whom the impeached witness has testified may call other witnesses to testify to the good reputation for truthfulness of the impeached witness.

Front 91

Impeachment Methods: PRIOR CONSISTENT STATEMENT

Back 91

Generally, a party man not ordinarily rehabilitate a witness by showing a prior consistent statement. This is true even when the witness has been impeached by showing a prior inconsistent statement.

Exceptions: Where the opposing counsel has impeached the credibility of a witness by making an express or an implied charge that the witness is lying or exaggerating because of some motive, counsel may introduce a prior consistent statement made by the witness before the time of the alleged motive to lie or exaggerate.

Front 92

OBJECTIONS

Back 92

Unless an objection is made by opposing counsel, almost any kind of evidence will be admitted. Failure to object is deemed a WAIVER of any ground for objection.

Trial judge, may, however, raise plain errors affecting substantial rights.

Front 93

OBJECTIONS: Offers of Proof

Back 93

On some occasions, error can't be based on exclusion of evidence unless there has been an "offer of proof" that discloses the nature, purpose, and admissibility of the rejected evidence.

There are 3 types of "offers of proof":

1) Witness Offer (examination of witness om the stand, out of the jury's hearing)

2) Lawyer Offer (counsel states in narrative form what the witness would have testified had he been permitted to do so). Not a preferred method.

3) Tangible Offer (a marked, authenticated, and offered item of tangible evidence is on its own an offer of proof).

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TESTIMONIAL PRIVILEGES

Back 94

Testimonial privileges, which permit one to refuse to disclose and prohibit others from disclosing certain sorts of confidential information in judicial proceedings, have 2 basic reasons fro their existence: (i) PRACTICALITY, and (ii) society's desire to ENCOURAGE CERTAIN RELATIONSHIPS by ensuring their confidentiality, even at the high price of losing valuable information.

Front 95

TESTIMONIAL PRIVILEGES: Who may assert a privilege?

Back 95

A privilege may only be asserted by the party whose interest is sought to be protected or by someone authorized to assert it on the holder's behalf (e.g., guardian of incompetent holder). If privilege is held by more than 1 person, each may assert the privilege. In some cases, the person with whom the confidence was shared may claim it on the holder's behalf (e.g., attorney).

Front 96

TESTIMONIAL PRIVILEGES: Confidentiality

Back 96

To be privileged, a communication must be shown to have been made in confidence.

Front 97

TESTIMONIAL PRIVILEGES: Waiver

Back 97

All types of privileges are waived by the following:

(i) FAILURE TO CLAIM THE PRIVILEGE by the holder herself or failure to object when privileged testimony is offered.

(ii) VOLUNTARY DISCLOSURE of the privileged matter by the holder (or someone else with the holder's consent) unless the disclosure is also privileged; or

(iii) A CONTRACTUAL PROVISION waiving in advance the right to claim a privilege.

Front 98

TESTIMONIAL PRIVILEGES: Eavesdroppers

Back 98

Privilege not invalidated because the communication was heard by an eavesdropper. However, whether an eavesdropper may testify varies by jxn:

Traditional View: eavesdropper may testify to what he has overheard.

MODERN: as long as the holder of the privilege was not negligent, there is no waiver of the privilege, and the eavesdropper is also prohibited from testifying.

Front 99

ATTY-CLIENT PRIVILEGE

Back 99

Communications between an atty and client, made during professional consultation, are privileged from disclosure.

Requires that the atty-client relationship exist at the time of the communications.

Front 100

ATTY-CLIENT PRIVILEGE: Representative of Client

Back 100

one having the authority to obtain legal services or to act on advice rendered by an atty, or on behalf of the client.

Front 101

ATTY-CLIENT PRIVILEGE: Attorney

Back 101

An "attorney" is any person who is authorized, or in many jxns, who is REASONABLY BELIEVED by the client to be authorized, to practice law in any state or nation.

Front 102

ATTY-CLIENT PRIVILEGE: Corporation as Client

Back 102

A corporation can be a client; The statements of ANY CORPORATE OFFICIALS OR EMPLOYEES made to the atty are protected if they were authorized or directed by the corporation to make such statements.

Front 103

ATTY-CLIENT PRIVILEGE: Confidential Communication

Back 103

A communication is "confidential" if it was not intended to be disclosed to third persons, other than those to whom disclosure would be in furtherance of the rendition of legal services to the client or those who are necessary for the transmission of the communication. Communications made in the known presence and hearing of a stranger are not privileged.

Front 104

ATTY-CLIENT PRIVILEGE: Duration

Back 104

The atty-client privilege applies indefinitely. Termination of the atty-client relationship doe snot terminate the privilege. The privilege continues to apply after the client's death.

Front 105

ATTY-CLIENT PRIVILEGE: When privilege does NOT apply

Back 105

1) Legal Advice in Aid of Future Wrongdoing -- no privilege if the services fo the atty were sought or obtained as an aid in the planning or actual commission of something that the CLIENT KNEW, OR SHOULD HAVE KNOWN, WAS A CRIME OR A FRAUD.

2) Claimants Through Same Deceased Client -- no privilege regarding a communication relevant to an issue between parties, all of whom claim through the same deceased client.

3) Dispute Between Attorney and Client -- no privilege for a communication that is relevant to an issue of BREACH OF DUTY by the atty to his client (malpractice) or by the client to her attorney (e.g., client's failure to pay her attorney's fees).

Front 106

ATTY-CLIENT PRIVILEGE: Waiver

Back 106

only the client may waive the atty-client privilege.

Front 107

ATTY-CLIENT PRIVILEGE: Work Product

Back 107

Atty's work product is not protected by the atty-client privilege if prepared for the atty's OWN USE. However, these docs may be protected by the "work product" rule.

Front 108

PHYSICIAN-PATIENT PRIVILEGE

Back 108

In a substantial number of jxns, a physician (and in some jxns, a dentist or nurse) is foreclosed from divulging in judicial proceedings information that he acquired while attending to a patient in a professional capacity.

ELEMENTS:

1) Professional member of relationship must be present

2) Information must be acquired while attending patient

3) Information must be necessary for treatment.

PP Privilege is a statutory privilege, not yet adopted in all jxns.

Front 109

PHYSICIAN-PATIENT PRIVILEGE: Exceptions

Back 109

Privilege does not apply when:

1) Patient puts physical condition in issue

2) In aid of wrongdoing (no privilege if physician's services were sought or obtained in aid of the planning or commission of a crime).

3) Dispute between physician and patient (e.g., malpractice, failure to pay bill).

4) Agreement to Waive the Privilege by contract (like through a life insurance policy)

5) Federal cases applying federal law of privilege (in cases where the state doesn't have the privilege, the federal courts do not recognize the PP privilege. They do, however, recognize the psychotherapist-client privilege).

6) Criminal Proceedings (split in authority--in some states, cannot be invoked in criminal proceedings).

7) Patient holds the privilege, so he has the right to claim or waive it.

Front 110

PSYCHOTHERAPIST/SOCIAL WORKER-CLIENT PRIVILEGE

Back 110

The USSC recognizes a federal privilege for communications between a psychotherapist (psychiatrist or psychologist) or licensed social worker and his clients. Thus, the federal courts and virtually all states recognize this privilege.

Front 111

HUSBAND-WIFE Privilege

Back 111

Traditionally, spouses were absolutely barred from testifying against each other during the marriage. This has been abandoned.

However, a married person may not be compelled to testify AGAINST her spouse in a criminal case.

Additionally, a separate privilege exists in most jxns that protects confidential communications during marriage.

Front 112

Spousal Immunity -- Privilege not to testify in criminal cases

Back 112

When a privilege of spousal immunity is invoked, a married person whose spouse is the D in a criminal case MAY NOT BE CALLED AS A WITNESS BY THE PROSECUTION, and a married person MAY NOT BE COMPELLED TO TESTIFY against his spouse in ANY criminal proceeding.

In Fed courts, only the witness-spouse may invoke the privilege. In some state courts, the privilege belongs to the party-spouse.

Must be a valid marriage for privilege to exist.

Privilege may be asserted only during marriage

Front 113

Privilege for Confidential Marital Communications

Back 113

In any civil or criminal case, either spouse, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were husband and wife.

Both spouses hold privilege

Communications must have been made during the marital relationship

Communication must have been made in reliance upon the intimacy of the marital relationship. Therefore, routine exchanges of business nature, abusive language, and misconduct directed at the spouse are NOT privileged.

Front 114

PRIVILEGE AGAINST SELF-INCRIMINATION

Back 114

Under the 5th Am, a witness cannot be compelled to testify against himself. Thus, any witness may refuse to answer any question whose answer might incriminate him.

Front 115

CLERGY-PATIENT PRIVILEGE

Back 115

A person has a privilege to refuse to disclose, and to prevent others from disclosing, a confidential communication by the person to a member of the clergy in the clergy member's capacity as a spiritual adviser.

This includes a priest, rabbi, minister, or any other similar functionary or religious organization, or reasonably believed to be so by the person consulting him.

Front 116

ACCOUNTANT-CLIENT PRIVILEGE

Back 116

This is a statutory privilege, found in a number of jxns, which is similar to the attorney-client privilege.

Front 117

PROFESSIONAL JOURNALIST PRIVILEGE

Back 117

The SC has held that there is no constitutional protection for a journalist's source of information, so the existence of the privilege is limited to individual state statutes (still held by less than half of the states though).

Front 118

GOVERNMENTAL PRIVILEGES

Back 118

INFORMANTS -- gov't generally has a privilege to refuse to disclose the identity of a person who has furnished to law enforcement information purporting to reveal the commission of a crime.

GOV'T REPS -- the privilege can be claimed by an appropriate representative of the government, such as a prosecutor.

No privilege exists if the identify of the informer or his interest in the subject matter of his communication has been voluntarily disclosed by a holder of the privilege, such a as a prosecutor, or if the informer appears as a witness in the same case.

Judge may dismiss proceedings if, in the case of when the gov't elects not to disclose the identity of an informer and there is reasonable probability that the informer could provide testimony necessary to the fair determination of guilt or innocence.

There is also a catch-all privilege that attaches to certain communications made BY OR TO PUBLIC OFFICIALS.

Front 119

HEARSAY

Back 119

Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

If a statement is hearsay, and no exception is applicable, the evidence must be excluded upon appropriate objection to its admission.

Front 120

"Hearsay within Hearsay"

Back 120

An out-of-court statement that incorporates other hearsay within it is known as "hearsay within hearsay" and is admissible only if both the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule.

Front 121

HEARSAY: Reason for Excluding Hearsay

Back 121

The reason for excluding hearsay is that the adverse party was denied the opportunity to cross-examine the declarant.

Front 122

HEARSAY: "Statement"

Back 122

For the purposes of the hearsay rule, a "statement" is: (i) an ORAL or WRITTEN ASSERTION; or (ii) NON-VERBAL CONDUCT INTENDED AS AN ASSERTION.

However, non-assertive conduct--conduct that the declarant DID NOT INTEND AS AN ASSERTION, but which is being offered as an assertion--is not hearsay under most modern codes and the FRE.

Front 123

HEARSAY: "Offered to Prove the Truth of the Matter Asserted"

Back 123

Basic reason for rejecting hearsay evidence is that a statement offered to prove that which it asserts is true may not be trustworthy without the guarantees of cross-examination.

EXAMPLES of out-of-court statements that are NOT HEARSAY:

--Verbal acts of legally operative facts. There are certain utterances to which the law attaches legal significance (i.e., words of contract, defamation, bribery, etc.) which are not hearsay because the issue is simply whether the statements were made.

--Statements offered to show effect on hearer or reader

--statements offered as circumstantial evidence of declarant's state of mind; i.e., to show that the declarant BELIEVED them to be true.

Front 124

HEARSAY: Non-human Declaration

Back 124

Hearsay only applies to out-of-court statements by a PERSON.

Therefore, data generated completely electronically, behavior of drug-sniffing dogs, radar readings, etc. are not hearsay.

Front 125

Statements that are NON-HEARSAY under the FRE

Back 125

FRE 801(d) provides that certain statements, when relevant, are not hearsay:

1) Prior Statements by a Witness

2) Admissions by Party-Opponent

Front 126

NON-HEARSAY: Prior Statements by a Witness

Back 126

Certain statements by a person who testifies at the trial or hearing, and is subject to cross-examination about the statements, are not hearsay.

A witness' PRIOR INCONSISTENT STATEMENT is not hearsay if it was made UNDER OATH at a prior proceeding or deposition.

A PRIOR CONSISTENT STATEMENT, regardless of whether made under oath, is not hearsay if it is offered to rebut an express or implied charge that the witness is lying or exaggerating because of some motive.

A witness' PRIOR STATEMENT OF IDENTIFICATION after perceiving him is not hearsay.

Front 127

NON-HEARSAY: Admissions by Party Opponent

Back 127

An admission by a party-opponent is not hearsay at all under FRE. An admission is a statement made or act done that amounts to a PRIOR ACKNOWLEDGMENT by one of the parties to an action of one of the relevant facts.

To be an admission, the statement need not have been against interest at the time it was made. Statement may even be in the form of an opinion.

Personal knowledge is not required.

A party may expressly or impliedly adopt someone else's statement as his own, thus giving rise to an "adoptive admission"

Judicial and Extrajudicial Admissions

Front 128

NON-HEARSAY: Admissions by Party Opponent -- Judicial and Extrajudicial Admissions

Back 128

Formal judicial admissions (in pleadings, responses to RFAs, stipulations) are CONCLUSIVE; informal judicial admissions made during testimony CAN BE EXPLAINED; extrajudicial (evidentiary) admissions ARE NOT CONCLUSIVE AND CAN BE EXPLAINED.

Front 129

NON-HEARSAY: Admissions by Party Opponent -- Adoptive Admissions -- Silence

Back 129

If a party fails to respond to accusatory statements where a reasonable person would have spoken up, his silence may be considered an implied admission.

ELEMENTS:

1) The party must have HEARD AND UNDERSTOOD the statement;

2) The party must have been PHYSICALLY AND MENTALLY CAPABLE OF DENYING the statement; and

3) A REASONABLE PERSON WOULD HAVE DENIED the accusation under the same circumstances.

Note: failure to reply to an accusation or statement made by police in a criminal case can almost NEVER be used as an implied admission of a criminal act.

Front 130

NON-HEARSAY: Admissions by Party Opponent -- Vicarious Admissions

Back 130

An admission is frequently not the statement or act of the party against whom the admission is offered at trial. So, the question is: what relationship must exist between the declarant and the party to make the former's statement admissible against the latter?

1) CO-PARTIES -- Admissions of a party are not receivable against her co-Ps or co-Ds merely because they happen to be joined as parties to the action.

2) AUTHORIZED SPOKESPERSON -- The statement of a person authorized by a party to speak on its behalf can be admitted against the party as an admission.

3) PRINCIPAL-AGENT -- Statements made by an agent concerning any matter within the scope of her agency, made during the existence of the employment relationship, are admissible against the principal.

4) PARTNERS -- In a partnership, an admission of one partner, relating to matters within the scope of the partnership business, is binding upon her co-partners.

5) CO-CONSPIRATORS -- Admissions of one conspirator, made to a 3rd party in furtherance of a conspiracy to commit a crime or a civil wrong, at a time when the declarant was participating in the conspiracy, are ADMISSIBLE against co-conspirators.

6) PRIVIES IN TITLE & JOINT TENANTS (State Cts Only) -- admissions of each joint owner are admissible against the other, and admissions of a former owner of real property made at the time she held title are admissible against those claiming under her.

7) PRELIM DETERMINATION OF AGENCY OR CONSPIRACY -- before a ct may consider a hearsay statement admissible as a vicarious admission, they must make a preliminary determination of the declarant's relationship with the party against whom the statement is being offered.

Front 131

NON-HEARSAY: Admissions by Party Opponent -- Vicarious Admissions -- Prelim Determination of Agency or Conspiracy

Back 131

PRELIM DETERMINATION OF AGENCY OR CONSPIRACY -- before a ct may consider a hearsay statement admissible as a vicarious admission, they must make a preliminary determination of the declarant's relationship with the party against whom the statement is being offered.

When making a determination of (i) the declarant's authority to make the statement; (ii) the existence and scope of an agency relationship; or (iii) the existence of a conspiracy and participation by the declarant and 3rd party, the COURT MUST CONSIDER THE CONTENTS OF THE OFFERED STATEMENT, but the statement alone is insufficient to establish the required relationship or authority.

Front 132

HEARSAY EXCEPTIONS -- Declarant Unavailable

Back 132

A declarant is unavailable if:

(i) He is exempted from testifying by court ruling on the ground of PRIVILEGE;

(ii) He persists, despite a court order, in REFUSING TO TESTIFY concerning the statement;

(iii) He testifies to LACK OF MEMORY of the subject matter of the statement;

(iv) He is unable to be present or testify because of DEATH OR PHYSICAL MENTAL ILLNESS; or

(v) He is absent (e.g., beyond the reach of the trial court's subpoena) and the statement's PROPONENT has been UNABLE TO PROCURE his ATTENDANCE OR TESTIMONY by process or other reasonable means.

Front 133

HEARSAY EXCEPTIONS (DECLARANT UNAVAILABLE) -- Former Testimony of Unavailable Declarant

Back 133

The testimony of a now unavailable witness given at another hearing or in a deposition taken in accordance with law is admissible in a subsequent trial as long as there is a sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examine at the prior hearing was meaningful.

Front 134

HEARSAY EXCEPTIONS (DECLARANT UNAVAILABLE) -- Statements Against Interest

Back 134

A statement of a person, now unavailable as a witness, against his pecuniary, proprietary, or penal interest when made, as well as collateral facts contained in the statement, is ADMISSIBLE under the statement against interest exception to the hearsay rule.

REQUIREMENTS:

1) The statement must have been AGAINST PECUNIARY, PROPRIETARY, OR PENAL INTEREST WHEN MADE;

2) Declarant must have had PERSONAL KNOWLEDGE OF THE FACTS;

3) Declarant must have been AWARE THAT THE STATEMENT IS AGAINST HER INTEREST and she must have had NO MOTIVE TO MISREPRESENT when she made the statement; and

4) Declarant must be UNAVAILABLE AS A WITNESS.

Front 135

HEARSAY EXCEPTIONS (DECLARANT UNAVAILABLE) -- Dying Declarations (Statements Under Belief of Impending Death)

Back 135

In a prosecution for HOMICIDE OR CIVIL ACTION, a declaration made by the now unavailable declarant while BELIEVING HIS DEATH WAS IMMINENT that concerns THE CAUSE OR CIRCUMSTANCES of what he believed to be his impending death is ADMISSIBLE. The declarant need not actually die, but he must be unavailable.

Front 136

HEARSAY EXCEPTIONS (DECLARANT UNAVAILABLE) -- Statements of Personal or Family History

Back 136

Statements concerning birth, marriage, death, relationship etc., are admissible under an exception to the hearsay rule.

Statement need not have been made before the controversy.

Usually, the declarant must be a family member of the family in question.

Personal knowledge is required.

But, there are other ways to prove pedigree (e.g., vital statistics, marriage certificates, family records, death certificates, etc.)

Front 137

HEARSAY EXCEPTIONS (DECLARANT UNAVAILABLE) -- Statements Offered Against Party Procuring Declarant's Unavailability

Back 137

The statements of a person (now unavailable as a witness) are admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant's unavailability.

Front 138

HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Present State of Mind

Back 138

A statement of a declarant's then-existing state of mind, emotion, sensation, or physical condition is admissible. The exception is based on teh need to obtain evidence as to the declarant's internal state of mind or emotion. It must usually be made under circumstances of apparent sincerity. The statement is offered to establish the INTENT of a person.

Admissible when the declarant's state of mind is directly at issue.

Admissible when the declarant's state of mind is not directly at issue--if they are declaration so f intent offered to show subsequent acts of the declarant.

BUT, the hearsay statement is NOT ADMISSIBLE if it expresses a memory or belief of the declarant, and the statement is offered for the purpose of proving the TRUTH OF THE FACT REMEMBERED OR BELIEVED.

Front 139

HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Excited Utterances

Back 139

A declaration made by a declarant during or soon after a startling event is admissible. The declaration must be made under the stress of excitement produced by the startling event, and must concern the immediate facts of the startling occurrence.

Must have been made before the declarant had time to reflect upon it.

Front 140

HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Present Sense Impressions

Back 140

A present sense impression is an admissible exception to the hearsay rule.

This is because statements of present sense are usually safe from defects in memory. There is usually little or no time for calculated misstatement.

Front 141

HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Declarations of Physical Condition

Back 141

Declarations of present bodily condition are admissible as an exception to the hearsay rule, even though they are not made to a physician. Such declarations relate to symptoms, including the existence of pain.

Front 142

HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Past Bodily Condition

Back 142

Admissible if to assist diagnosis or treatment.

Declarations of past physical condition are generally excluded. However, recognizing that a patient has a strong motive to tell the truth when seeking medical treatment, the FRE admit declarations of past physical condition IF MADE TO MEDICAL PERSONNEL TO ASSIST IN DIAGNOSING OR TREATING THE CONDITION.

Front 143

HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Business Records

Back 143

Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event is admissible in evidence as proof of that act, transaction, occurrence, or event, if made int he regular course of any business, and if it was the regular course of such business to make it at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.

Hospital records generally admissible to the extent that they are related to the medical diagnosis or treatment.

Police reports generally qualify as business records in civil cases, but are generally not admissible against a criminal D under the business records exception.

Personal knowledge required of entrant.

BUT, business records prepared for litigation (i.e., an accident report of an employee, which is regular practice) are generally INADMISSIBLE.

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HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Past Recollection Recorded

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Witnesses are permitted to refresh their memories by looking at almost anything--either before or while testifying. This is called present recollection revived. However, if the party's recollection cannot be revived, a party can introduce a memorandum that the witness made at or near the time of the event. As long as proper foundation is laid, the contents of the memo can be introduced into evidence under the past recollection recorded exception.

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HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Public Records and Reports

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Created so that public officials do not have to constantly leave their jobs to testify, public records are admissible. Also, they are presumed trustworthy because officials are under a duty to record properly.

What can be admitted--Records, reports, statements, or data compilations, in any form, of a public office or agency are admissible to the extent that they set forth:

(i) The activities of the office or agency;

(ii) Matters observed pursuant to a duty imposed by law (excluding police observations in criminal cases); or

(iii) In civil actions or proceedings and against gov't in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

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HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Ancient Documents

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Statements in ANY authenticated document 20 YRS OLD OR MORE are admissible.

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HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Learned Treatises

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Most standard scientific treatises or authoritative works are INADMISSIBLE. However, FRE 803 provides for the admissibility of a learned treatise if the treatise is:

(i) called to the attention of the expert witness upon cross-examination or relied upon by her during direct; and

(ii) established as reliable authority by the testimony or admission of the witness, by other expert testimony, or by judicial notice.

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HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Reputation

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In addition to reputation testimony concerning someone's character, reputation evidence concerning someone's personal or family history, or concerning land boundaries or the community's general history, are admissible.

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HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Family Records

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Statements of fact concerning personal or family history contained in family Bibles, genealogies, jewelery engravings, engravings on urns, crypts, or tombstones, or the like are admissible hearsay.

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HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Market Reports

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Market reports or published compilations are admissible if generally used and relied upon by the public or by persons in a particular occupation.

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HEARSAY EXCEPTIONS -- Residual "Catch All" Exception

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The FRE provides a general catch-all exception of hearsay statements not covered by specific exceptions.

There are 3 requirements:

1) "TRUSTWORTHINESS" -- Statement must have "circumstantial guarantees of trustworthiness'" that are equivalent to those of statements admitted under other hearsay exceptions.

2) "NECESSITY" -- The statement must be offered on a MATERIAL FACT, and must be MORE PROBATIVE as to that fact than any other evidence which the proponent can reasonably produce so that the "INTERESTS OF JUSTICE" will be served by its admission.

3) NOTICE TO ADVERSARY -- the proponent must give notice in advance of trial to the adverse party as to the nature of the statement so that the adversary has an opportunity to prepare to meet it.

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Confrontation Clause Issue

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Because of the use of hearsay evidence in a criminal case may violate the Confrontation Clause, prior testimonial evidence is INADMISSIBLE against a criminal D unless the hearsay declarant is unavailable, and the D had an opportunity to cross-examine the hearsay declarant at the time the statement was made.

NOTE: D will have forfeited his right of confrontation if he committed a wrongful act that intended to keep the witness from testifying.

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Burden of Producing Evidence

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The party who has the burden of pleading usually has the burden of producing or going forward with evidence sufficient to make out a prima facie case. Once the party has satisfied the burden of going forward with the evidence, it is incumbent upon the other side to come forward with evidence to rebut the accepted evidence.

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Burden of Persuasion (Proof)

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After the parties have sustained their burden of production of evidence, the questions is whether the party with the burden of persuasion has satisfied it. The burden of persuasion for civil cases is usually by a preponderance of evidence (more probably true than not true) although some civil cases require proof of clear and convincing evidence (high probability). The burden of persuasion for criminal cases is beyond a reasonable doubt.

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PRESUMPTIONS

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A presumption is a rule that requires that a particular inference be drawn from an ascertained set of facts. It is a form of substitute proof in that proof of the presumed fact is rendered unnecessary once evidence has been introduced of the basic fact that gives rise to the presumption.

A presumption operates, until rebutted, to shift the burden of production to the party against whom the presumption operates. BUT remember, a presumption does not shift the burden of persuasion!

COMMON PRESUMPTIONS:
--LEGITIMACY (every person is presumed to be legitimate)
--AGAINST SUICIDE (when cause of death is in dispute, suicide is NOT presumed)
--SANITY (presumed sane)
--DEATH FROM ABSENCE (gone 7+ years and has not been heard from = presumed dead)
--OWNERSHIP OF CAR (AGENT DRIVER) (proof of ownership creates the presumption that the owner was the driver or the driver was the owner's agent)
--CHASTITY
--REGULARITY (officials in an official office are presumed to be properly performing their duties)
--CONTINUANCE (proof of continued duration for things of that nature)
--MAIL DELIVERY (presumed to have been delivered)
--SOLVENCY (presumed solvent)
--BAILEE'S NEGLIGENCE (proof of delivery of goods is a condition to a bailee and failure of the bailee to return the goods creates a presumption that he was negilgent)
--MARRIAGE (presumed valid).

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Judge vs. Jury Responsibility

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As a general rule, questions of law are for the trial judge while questions of fact are for the jury to decide.

Juries decide the relevancy of evidence, while a judge decides the competency of the evidence that is relevant.

Examples of preliminary facts to be decided by the jury include agency, authenticity of a document, credibility of a witness, and personal knowledge.

Requirements for hearsay exceptions, privileges, and expert testimony, as well as mental competence, must also be decided by the judge.

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Powers of the Judge

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A judge may comment on the weight of the evidence in federal courts, but generally not in state courts.

A judge may call and interrogate witnesses on her own initiative.

A trial judge has an obligation to rule promptly on counsel's evidentiary objections and, upon request, to state the grounds for her rulings.