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147 Cards in this Set
- Front
- Back
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RELEVANCE Subsequent Remedial Measures (Rules & Exceptions)
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(407) Not admissible to show: -Negligence -Culpable Conduct -Defect in product (products liability) -Need for warning instruction
Exceptions (can use to show): -Ownership and Control when disputed -Impeachment -Feasibility of precaution |
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RELEVANCE Settlement Negotiations (Rules & Exceptions) |
(408) Not admissible to show: Civil Cases -Civil settlements -Offers to settle -Conduct/Statements made during Settlement Negotiations -Offered to prove/disprove "validity or amount"
Criminal Cases -Guilty plea that was later withdrawn -Nolo Contendere Plea -Statement made during a proceeding on either of those pleas (guilty plea + solo contend.) -Statement made during plea discussions w/ attorney if discussion did not result in guilty plea or resulted in later withdrawn guilty plea
Exceptions: -In any proceeding: in which another statement made during the same plea or guilty plea discussions have been introduced and fairness compels statements be considered together
-In a criminal proceeding: for perjury/false statements, if P made the statement under oath, on the record, & w/ counsel present
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HEARSAY
State Rule & Define: Assertive Conduct Non-assertive Conduct Negative Hearsay Indirect Hearsay |
(800) Assertive Conduct: Meant to be an assertion/has meaning (e.g. nod)
Non-assertive Conduct: Not meant as an assertion (e.g. being caught drunk on video tape)
Negative Hearsay: Lack of hearsay (e.g. attempting to submit lack of complaints)
Indirect Hearsay: Simple background info that is technically hearsay but never challenged |
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HEARSAY Definitional Non-Hearsay
State Rule & List Categories |
(800) The following are not hearsay and admissible.
Verbal Acts: when act/statement is element of crime OR offered to show simply that statement was made (e.g. statement "you're a prostitute" in a slander suit) (e.g. legally operative language, terms of contract or gift given) Also, if statement merely resolves ambiguity in physical act, words are verbal parts of the act and not hearsay (e.g. handing someone $ while saying "here's the 5 bucks I owe you")
Effect on Listener: statement submitted not to assert truth of matter asserted, just explanation of why someone acted a particular way or to show that party had notice
Verbal Objects: item that suggests a statement
Machine/Animal Speak: conduct from non-human sources, even if intended as an assertion is not considered hearsay. The non-human sources who relate the testimony may explain meaning of non-human statements
Circumstantial Evidence of State of Mind/Memory: (e.g. problem where wife says she hates husband in will) |
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HEARSAY Hearsay Exclusions Statements by Declarants Who Testify
State Rule & List Elements & Categories |
(801) Elements: Under oath Other proceeding Inconsistent Subject to Cross
Categories: Prior Inconsistent Statements Prior Consistent Statements Prior Statements of ID
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HEARSAY Hearsay Exclusions Opposing Party Statements
State Rule & List Categories
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(801) Categories: Made by party in individual capacity Adoptive Admission Speaking Agent By Agent in Scope of Employment Co-Consipirator Statment
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HEARSAY Hearsay Exceptions
State Rule & List Categories |
(803) (1) Present Sense Impressions (2) Excited Utterance (3) Then Existing Mental/Emotional/Physical Condition (4) Statements for Medical Treatment/Diagnosis (5) Past Recollection Recorded (6) Business Records (7) Absence of a Record (8) Public Record (18) Learned Treatises |
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HEARSAY Unavailable Declarants
State Rule & List Categories in which a Declarant is Unavailable |
(804)(a) (1) Claim of Privilege (2) Refusal to Testify (3) Lack of memory (4) Death, illness, infirmity (5) Unavoidable Absence |
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HEARSAY Unavailable Declarants
State Rule & List Exceptions for Unavailable Declarants |
(804)(b) (1) Former Testimony (2) Dying Declarations (3) Statements Against Interest (6) Statements Admissible b/c of Forfeiture by Misconduct |
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CONFRONTATION CLAUSE Crawford Doctrine
State Crawford Rule |
RULE: Out of court testimonial statements used by prosecutor in criminal case violates confrontation clause if: (1) no opportunity to cross at time statement made; or (2) if no opportunity to cross at time of trial b/c declarant unavailable
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CONFRONTATION CLAUSE Crawford Doctrine
What does "testimonial" include? |
"Testimonial" includes: (1) Statements made w/ expectation of future prosecution; and
(2) Prior Testimony: -Grand jury -Preliminary Hearing -Former Trial |
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CONFRONTATION CLAUSE Crawford Doctrine
What does "testimonial" not include? |
"Testimonial" does not include: -Private statements -Some/most common hearsay statements (co-conspirator, business records) -Dying declarations -Forfeiture by misconduct -Present confrontation (crossable at trial) -Prior confrontation (crossable before trial & now unavailable) -Statements use for purpose other than showing truth of matter asserted |
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CONFRONTATION CLAUSE The Emergency Doctrine
What rule does Davis v. Washington give us? |
Davis v. Washington GF calls after altercation w/ bf, cops come and question but gf won't testify later
Rule: Interviews w/ police after 911 call can be testimonial if primary purpose to seek to collect past facts for later trial but NOT testimonial if gathering facts to enable police assistance to maintain ongoing emergency
Relevant intent is speaker's intent |
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CONFRONTATION CLAUSE The Emergency Doctrine
What rule does Michigan v. Bryant give us? |
Michigan v. Bryant Guy dying from gunshot wound
Rule: If there is an ongoing emergency, facts gathered in an effort to diffuse such ongoing investigation fall within the scope of the Emergency Doctrine.
Broadened Davis Rule: The relevant intent is now both the speaker's intent and the questioners intent
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AUTHENTICATION
State Rule & List Ways to Authenticate Evidence |
901(b) (1) Testimony of a Witness w/ Knowledge (2) Non-expert opinion about Handwriting (3) Comparison by Expert Witness (4) Distinctive Characteristics & the Like (5) Opinions about a Voice (6) Evidence about a Telephone Conversation (7) Evidence about Public Records (8) Evidence about Ancient Documents or Data Compilations (9) Evidence about a Process/System (10) Methods Provided by a Statute/Rule
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AUTHENTICATION
State Rule & List Types of Evidence that are Self-Authenticating
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902 (1) Domestic public documents that are sealed & signed (2) Domestic public documents that are NOT sealed but are signed & certified (3) Foreign public documents (4) Certified copies of public records (5) Official publications (6) Newspapers & Periodicals (7) Trade inscriptions and the like (8) Acknowledged documents (9) Commercial paper/related documents (10) Presumptions under a federal statute (11) Certified domestic records of a regularly conducted activity (12) Certified foreign records of a regularly conducted activity |
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AUTHENTICATION
Explain: Who Authenticates? What is a Missing Link? What about Telephone Conversations? |
Who authenticates? 104(b) - Jury if judge lets it through and jury can give evidence whatever weight it wants -Judge can prevent it from going through if "no reasonable jury" would authenticate
Missing Links -A missing link in the evidentiary chain does not prevent admission of real evidence so long as there is sufficient proof that evidence is what it purports to be & has not been altered (stricter in criminal cases)
Telephone Calls Self-ID on phone call not enough. Need corroboration. |
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RELEVANCE
What does Rule 401 state? Who decides what is relevant? |
401 Evidence is relevant if it (probative prong) has any tendency to make a fact more or less probable and (materiality prong) the fact is of consequence in determining the action
104 Judge decides |
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RELEVANCE
Relevance is admissible unless what provides otherwise? |
402 US Constitution Federal Statutes Federal Rules of Evidence (e.g. 403) SCOTUS Rules |
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RELEVANCE
What does Rule 403 state? |
403 Relevance Test (Balancing) -Presumption of admissibility -Probative value is substantially outweighed by prejudicial effect
Examples Unfair prejudice Confuse the issue Mislead the jury Needless delay
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RELEVANCE Pragmatic Relevance
When is evidence excludable under rule 403? |
403 1. Probative value is substantially outweighed by the prejudicial effect 2. Confusion of Issues 3. Misleading jury 4. Undue Delay 5. Waste of time |
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RELEVANCE Logical Relevance
What are 8 situations where evidence involves some other time, event, or person and yet is still admissible? |
1. Complicated issues of causation 2. Prior accidents or claims (only if used to show fraud or amount of injury to P 3. Relevant intent/state of mind at issue 4. To rebut claims/defense of impossibility 5. Comparable sales to establish value (same kind, time, place) 6. Habit evidence (406) (specific, regular, automatic) 7. Industrial/Business Routine 8. Industrial custom as standard of care |
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RELEVANCE Logical Relevance
What are 4 specific instances where evidence is not admissible? |
1. Subsequent remedial measures (407) (unless to show ownership/control or rebut feasibility)
2. Liability insurance (411) (unless to show ownership/control or impeach showing bias/interest/motive)
3. Settlement Negotiations (408) (unless to show bias/prejudice)
4. Offers to pay medical bills (409) (unless statement of liability made while paying such expenses) |
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RELEVANCE
Explain the following: Limited Admissibility Rule of Completeness "Shortness of Life" |
Limited Admissibility 105: allows limiting instructions to jury when statement cannot be redacted to limit scope
Rule of Completness 106: If party introduces all/part of writing/recorded statement & adverse, adverse party may require other part that fairness would dictate need be included
Shortness of Life 403: Allows judge to limit evidence to stop untimely delay w/ little additional value (e.g. repetitive testimony, # of witnesses) |
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RELEVANCE
Explain the function of judge/jury |
104(a): Judge decides -Preliminary question about whether witness is qualified -Privilege exits -Evidence is admissible
104(b): Jury decides -Relevance of evidence when it depends on whether fact exists -BUT judge acts as gatekeeper |
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CHARACTER EVIDENCE
What is the general rule regarding character evidence? |
404(a)(1) Unless an essential element of a charge claim, or defense, character evidence is not admissible to prove their propensity to act in certain manner (character and conformity therewith)
However, see 404(a)(2) & (3) |
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CHARACTER EVIDENCE
What are the types of character proof? |
405 Opinion & Reputation 405(a) If character evidence is admissible under 404, it may be proved by reputation /opinion testimony -However, ON CROSS, court may allow inquiry into relevant specific acts
Specific Acts 405(b) Character evidence admissible if essential element of claim, charge, defense |
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CHARACTER EVIDENCE
What is the exceptions to the general rule regarding character evidence for a defendant or victim in a criminal case?
State the Rule & Explain
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404(a)(2) -- ONLY CRIM Cases Exceptions
Character of Criminal D (A) D can offer info about D's pertinent trait and if admitted, prosecutor can offer evidence to rebut
Character of a crime victim: (B) (subject to limitation in 412 (sex crimes), D may offer evidence of alleged victim's pertinent trait and if admitted, prosecutor may -offer evidence to rebut; and -offer evidence of D's same trait
(C) in homicide case, prosecutor may offer evidence of alleged victim's peacefulness to rebut evidence that victim was first aggressor
If one of above exceptions apply, 405(a) limits above rules to only Reputation/Opinion NO specific acts UNLESS essential element of charge/defense |
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CHARACTER EVIDENCE
What does "pertinent" mean?
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"Pertinent" means: Relates to an element of claim or defense
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CHARACTER EVIDENCE
Does Rule 404 prohibit use of character evidence to attack credibility? |
No. 404(a)(3) Evidence of witness character admissible under 607, 608, & 609
607: Evidence of character admissible to attack witness credibility (CAN attack the credibility of either your own or adverse witness)
608: Evidence of character admissible to prove witness character for truthfulness/untruthfulness. 608(a) is restricted solely to reputation/opinion evidence. 608(b) creates exception for specific acts)
609: (cross on conviction) Evidence of criminal convictions admissible to impeach witness (more info on later note card) |
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CHARACTER EVIDENCE
Under what circumstances is evidence of past crimes, wrongs, or acts admissible?
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Either under Rule 404(b) or 405
404(b)
While general rule is that you cannot use bad acts to prove action in conformity therewith, YOU CAN use evidence of past crimes, wrongs, or acts to prove something else, such as MIMIC
-M: Motive or opportunity, -I: Intent or knowledge, -M: Mistake absence of mistake, -I: Identity, -C: Common plan or preparation
Notice: In criminal case, if D requests, prosecutor must provide reasonable notice before trial or during trial (for good cause)
405:Specific instances of conduct that meet the exceptions described in 404(a)(2) (exceptions for D or V in a criminal case) are admissible when the person's character is an essential element of a charge, claim, or defense. |
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CHARACTER EVIDENCE
Explain what it means for character to be an element of a charge, claim, or defense. |
Character as an element of a charge, claim, or defense would be, for example, a parent's character (e.g. alcoholic) in a child custody battle
Criminal Cases Other than self-defense, almost never applicable b/c don't charge people with a crime for "who they are"
Civil Cases Can apply (e.g. defamation cases, negligence, entrapment, child custody, wrongful death)
Insanity Defense Character is not an element |
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CHARACTER EVIDENCE
What is the general rule regarding character in sex offense cases (rape shield)? |
412(a) Cannot use evidence of other sexual behavior (acts); or Victim's sexual predisposition (reputation/opinion) |
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CHARACTER EVIDENCE
What are the exceptions to the general rule regarding character in sex offense cases for criminal matters? |
412(b) Exceptions: Criminal Cases -Specific sexual acts offered to prove someone other than D was source of semen, injury, or physical evidence -Specific sexual acts with the D if used to argue consent -If exclusion of evidence would violate D's constitutional rights
If exception applies, do reverse 403 balancing analysis |
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CHARACTER EVIDENCE
What are the exceptions to the general rule regarding character in sex offense cases for civil matters? |
412(b) Exceptions: Civil Cases -May admit evidence if offered to prove victim's sexual behavior/sexual predisposition if probative value substantially outweighs harm to victim and unfair prejudice |
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CHARACTER EVIDENCE
What is the proper procedure to follow for evidence of character in sex offense cases? |
412(c) If offering evidence under 412(b) (exceptions), must file motion 14 days before trial served oral parties & notify victim or guardian
Then court will have private in camera hearing w/ parties to give victim and parties a right to be heard |
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CHARACTER EVIDENCE
Answer the following: Is evidence of a victim's past false charges allowed of sexual misconduct? Can evidence of acquittal be used? What of evidence that victim recanted past charges?
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Victim's past false charges Yes. Can be asked about this (credibility issues)
Acquittal No. Can never be asked about acquittal in order to establish charges were based on false allegations
Recanted Yes. Sufficient to establish falsity of claims |
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CHARACTER EVIDENCE
What is the Lustful Disposition Doctrine? |
413 Let's proof of other sexual assaults in trials for sexual assaults Still must pass 403 balancing test Also must provide notice 15 days before trial or later for good cause
414 extends 413 exception to child molestation cases (allow evidence of any other child molestation)
415 extends 413 and 414 to civil cases (so any evidence of sexual assault OR child molestation) |
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CHARACTER EVIDENCE
Can evidence of habit and routine practice be admitted? |
406 Yes. Habit of a person or routine practice of an organization may be allowed to prove on particular occasion, person or org. acted in conformity w/ habit/routine practice. Must be specific, regular, and automatic
No corroboration necessary. |
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HEARSAY Hearsay Exclusions Statements by Declarants Who Testify
Explain Prior Inconsistent Statements offered for truth of the matter asserted |
801 Excluded from hearsay if: (1) If statement inconsistent w/ declarant's testimony & given under penalty of perjury at -Trial, -Hearing, -Other proceeding (prelim. hearing, grand jury indictments) -Deposition (2) Declarant must testify & be subject to cross
Consider (strictly for the purpose of impeachment): 613(b) If offering extrinsic evidence of prior inconsistent statement, must give witness opportunity to explain/deny statement & adverse party is given opportunity to examine witness about it
Also: can always be offered not for substantive truth of the matter asserted but merely to attack witness's credibility |
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HEARSAY Hearsay Exclusions Statements by Declarants Who Testify
Explain Prior Consistent Statements |
801 Excluded from hearsay if:
Declarant must testify & be subject to cross Can use this exclusion to rehabilitate a witness that has been accused of changing his/her story
Statement is consistent w/ D's testimony & offered to rebut express/implied charge that D recently fabricated or acted from improper influence or motive in testifying (e.g. witness says x on stand before witness said Y)
Must be made pre-motive (before alleged fabrication, influence, motive); and has to be under federal rule (600s) |
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HEARSAY Hearsay Exclusions Statements by Declarants Who Testify
Explain Prior Statements of ID |
801 Excluded from hearsay if:
Identifies person as someone D perceived earlier -Known persons allowed -Line-ups -Voice IDs -Sketches (sometimes)
(Watch out for Confrontation Clause violations) |
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HEARSAY Hearsay Exclusions Opposing Party Statements
Are opposing party statements admissable |
801 Allows statements made by opposing party if made by party in individual/representative capacity (party's own statement)
Admission need not be against the Declarant's interest (only unfavorable at trial)
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HEARSAY Hearsay Exclusions
One of two criminal defendants confesses? What is the confrontation clause implications And what are the solutions other than exclusion of the confession |
Bruton Circumstance D1 oral confession that he and D2 did crime, TC admitted confession w/ limiting instruction only to D1. Reversed b/c of Confrontation Clause violation
Confrontation Clause violated if: -Facially incriminating confession -Of a non-testifying Co-D -Introduced at joint criminal trial
Four Possible Solutions (1) Separate Trials (costs time/$) (2) Redact Confession (hard to redact in way that isn't obvious what has been removed) (3) Try together & hope Co-D testifies (4) Separate juries (most judges won't do it & difficult)
Admission need not be against the Declarant's interest (only unfavorable at trial)
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HEARSAY Hearsay Exclusions Opposing Party Statements
What is an adoptive admission? What is the limitation on an adoptive admission? |
801 Statement party manifested that it adopted or believed to be true (adoptive admission) (e.g. nodding after statement)
US v. Hoosier Silence can be adoptive omission
Limitation Silence after Miranda may not be used for impeachment
Policy: If you didn't do it, would have denied it Admission need not be against the Declarant's interest (only unfavorable at trial) |
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HEARSAY Hearsay Exclusions Opposing Party Statements
What is the speaking agent exclusion? |
801 Party is authorized to make a statement on the subject
Need corroboration of Declarant's authority Admission need not be against the Declarant's interest (only unfavorable at trial) |
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HEARSAY Hearsay Exclusions Opposing Party Statements
Explain the exclusion pertaining to statements made by the party's agent/employee in the scope of employment. |
801 Statement was made by an employee or agent in the scope of the employee or agent's employment
Corporations Corps. qualify Documents are the way corps. speak
Who is an Agent? Independent contractors are not agents Public employees not historically admissible (trent to allow)
What is "within scope?" BROAD
Must be corroborated of Declarant's scope of authority Admission need not be against the Declarant's interest (only unfavorable at trial) |
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HEARSAY Hearsay Exclusions Opposing Party Statements
What is a Co-Conspirator statement? |
801 Statement admissible if: -Declarant and D conspired and statement made -During course; and -In furtherance of conspiracy
No requirement of actual conspiracy charge Need corroboration of existence of conspiracy or participation besides statement itself Admission need not be against the Declarant's interest (only unfavorable at trial) |
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HEARSAY Hearsay Exceptions
Explain the Present Sense Impression exception.
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803(1) Elements: Describe/explain event/condition Made while/immediately after Declarant perceived it NOTE: this can be a drawing (just needs to describe explain event) (e.g. sketch artist image)
Policy: Little time to forget
No corroboration needed |
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HEARSAY Hearsay Exceptions
Explain the Excited Utterance exception. |
803(2) Elements: Startling event Caused stress of excitement in Declarant Statement made while under stress of excitement Statement must relate to event
No corroboration needed
NOTE: Be on lookout! Many statements that the Excited Utterance exception applies to, Present Sense Impression applies to as well
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HEARSAY Hearsay Exceptions
Explain the Then Existing Mental, Emotional, Physical Condition exception. |
803(3) Must be forward looking, not after the fact (Shepard)
Can use for: -Declarant's then existing physical condition -Declarant's then existing mental/emotional condition -His later conduct (Hillman: act subsequently in accordance w/ state of mind) -Facts about his will
Cannot use for: Can't use memory/belief to prove fact remembered or believed UNLESS relates to validity/terms of Declarant's will
Timing? Immediate
Problems? Fact laden statements not purely mental state
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HEARSAY Hearsay Exceptions
Can you use the Then Existing Mental, Emotional, Physical Condition exception to prove a third party acted in accordance with the Declarant's statement? |
803(3) Pheaster Problem: You can use 803(3) to prove third party acted in accordance with the Declarant's statement but you need additional evidence (need corroboration) |
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HEARSAY Hearsay Exceptions
Explain the Statements for Medical Treatment exception. |
803(4) Elements: Made for (reasonably pertinent to) medical diagnosis/treatment; and Describes medical history; past/present symptoms/sensations/their inception, or their general cause
BROAD. Can be from patient to Dr. or nurse, Dr. to Dr., Nurse to Dr., Good Samaritan to Dr./Nurse
but NOT Dr. to patient. |
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HEARSAY Hearsay Exceptions
What is the Renville Test for the Statements for Medical Treatment exception? |
803(4) (1) Declarant's motive in making statement is for purpose of promoting treatment/diagnosis; and (2) Content reasonably relied on by physician in treatment/diagnosis |
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HEARSAY Hearsay Exceptions
Explain the Past Recorded Recollection exception. |
803(5) Elements: Matter witness once knew but now cannot recall to testify Made or adopted by witness when matter was fresh; and Accurately reflects witness's knowledge
Can ONLY use this if Declarant testifies; MUST lay foundation |
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HEARSAY Hearsay Exceptions
Explain the Business Records Exception. |
803(6) Elements: Business (or org., nonprofit, illegal corp.) Record made & kept in course of reg. business Source of info. in record is someone w/ knowledge Info. in record is recorded or close in time to event
Must lay foundation Must authenticate (902(11) and (12) Bring a witness -Custodian of record or other qualified witness UNLESS lack of trustworthiness of preparation
How to tell if lacks witness trustworthiness? MAJ: individual person w/ knowledge must be part of business/routine |
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HEARSAY Hearsay Exceptions
Explain the Absence of Record exception. |
803(5) Admitted to prove something didn't happen. |
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HEARSAY Hearsay Exceptions
Explain the Public Records exception. |
803(8) Record of event/act/condition/opinion/diagnosis if: -Record made near/at time from info from person w/ knowledge -Kept in course of regularly conducted activity -Making record regular practice (e.g. police record)
Must be corroborated w/ custodian/qualified witness or authentication 901(11) or 901(12) or statute permitting certification
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HEARSAY Hearsay Exceptions
In a criminal case, do reports from lab technicians qualify as Public Records?
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801(8) Reports from lab technicians don't qualify b/c generally considered law enforcement |
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HEARSAY Hearsay Exceptions
If a document's trustworthiness is questionable, what are the factors to weigh? |
801(8) If potentially shady Doc, invoke: Trustworthiness Factors: -Time of investigation -Special skill/experience of official -Whether hearing was held (if held, level conducted) -Possible motivational problems |
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HEARSAY Hearsay Exceptions
Can the information in the Public Records contain factually based opinions/findings/concl.? |
801(8) Depends. Fed: you can include factually based opinions, findings, and conclusions 9th Cir: limits to purely legal conclusions |
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HEARSAY Hearsay Exceptions
Explained the Learned Treatise exception. |
803(18) Permits full use of treatise when: -Shown to be reliable authority -Expert relies on it on direct |
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HEARSAY Hearsay Exceptions
When is a Declarant Unavailable?
State & Explain each. |
804(a) Declarant unavailable when:
(1) Claim of Privilege Exempt from testifying due to privilege claim How to claim for unavailability: call to stand, assert privilege, judge upholds.
(2) Refusal to Testify Contempt
(3) Lack of Memory
(4) Death, illness, infirmity Does NOT include minor ailments; can include mental condition
(5) Unavoidable Absence Cannot be subpoenaed/brought in through other reasonable means MUST show good faith effort to get them back or to depose them -Cannot use this exception if proponent procured/wrongfully caused declarant's unavailability as witness -In criminal matter, violates confrontation clause if you don't make good faith effort Barber v. Page |
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HEARSAY Hearsay Exceptions
Can a person both be "subject to cross" and "unavailable?" |
Yes. A Declarant can be "subject to cross" under 801(d)(1) (Prior consistent/inconsistent/ID) and unavailable under 804(a)(3) (Lack of Memory). |
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HEARSAY Hearsay Exceptions
What are the exceptions for unavailable declarants? |
804(b)
(1) Former Testimony (2) Dying Declarations (3) Statements Against Interest (4) Statements Admissible b/c of Forfeiture by Misconduct |
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HEARSAY Hearsay Exceptions
Explain the Former Testimony exception for unavailable declarants. |
804(b)(1) Former Testimony (1) Testimony given as witness at trial, hearing, or deposition (either in this proceeding or diff. one)(not grand jury)
(2) Testimony offered against party who had opp./similar motive (e.g. similar issue involved in both cases) to develop testimony by cross/direct
If criminal: party to prior proceeding had opp. to cross D If civil: instead of party in prior proceeding, is a "predecessor in interest" to present opponent |
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HEARSAY Hearsay Exceptions
Under the Former Testimony exception, what is a "predecessor in interest?" |
Lloyd "Predecessor in interest if examiner questioned about a common nucleus of operative fact. |
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HEARSAY Hearsay Exceptions
Explain the Dying Declarations exception for unavailable Declarants. |
804(b)(2) In civil case OR prosecution for homicide, statement that the Declarant, while believing the Declarant's death to be imminent, made about its cause or circumstance
-Even though rule uses word "prosecution," can be used by P or D. -Not sure if actual/personal knowledge required. -Whether judge or jury decides varies case-by-case |
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HEARSAY Hearsay Exceptions
Explain the Statements Against Interest exception for unavailable Declarants. |
804(b)(3) Factors (to determine if against interest): -Context -Conflicting Interest -One-way Interest -Circumstantially adverse facts -Declarant's understanding -Statements against social interest
Different from Opposing Party Statements -Not required to be a party to suit -Must be against interest -Must be unavailable declarant
MUST be corroborated in Criminal Cases
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HEARSAY Hearsay Exceptions
Explain the Statements Against Interest exception for unavailable Declarants in the context of criminal cases. Must the statement be against the Declarant's interest? |
804(b)(3) In criminal cases, this exception requires corroboration
Yes, statements must be purely against the Declarant's interest. If partially against interest, must cut out parts that are not against interest (curry favor) -Maj. view says you must also cut out neutral parts.
This rule still subject to Crawford. |
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HEARSAY Hearsay Exceptions
Explain Forfeiture by Misconduct in the context of hearsay. Who determines admissibility? How is the Confrontation Clause affected? |
804(b)(6) Your wrong actions caused Declarant's unavailability.
Judge determines admissibility 104(a) D cannot claim his rights under Confrontation Clause are violated if D makes Declarant unavailable through wrongdoing. |
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HEARSAY Hearsay Exceptions
Explain Forfeiture by Misconduct in the context of child molestation cases. What about marrying witness? What about third party co-conspirators (hit man)? |
804(b)(6) Child molestations cases Have to show D's intent is that child not testify when asking child "not to tell anyone"
Marrying the Witness Could invoke 804(b)(6)
Third Party Co-Conspirators They're covered by 804(b)(6)
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WITNESSES Competency of Witnesses
What is the common law rule regarding the competency of witnesses? What is the rule now? |
601 Under common law, many reasons why witnesses thought to be incompetent Now, under 601, presumption that everyone is competent to take stand |
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WITNESSES Competency of Witnesses
Is an insane person competent to take the stand? |
Yes. However, cannot testify if: -No personal knowledge -Cannot recall -Doesn't understand duty to testify truthfully |
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WITNESSES Competency of Witnesses
What is the personal knowledge requirement? What is the Oath requirement? |
602 Personal Knowledge Requirement -Jury decided how much personal knowledge witness has (No speculation, e.g. cannot testify about something in someone else's head)
603 Oath Requirement -Must take oath to (a) remind witness of importance; and (b) make witness liable for perjury |
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WITNESSES Competency of Witnesses
What is the rule regarding the competency of child witnesses? What is the rule regarding the competency of previously hypnotized witnesses? |
Child Witness 6 year old competent to testify
Previously Hypnotized Witness D has constitutional right to testify even if previously hypnotized |
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WITNESSES Competency of Witnesses
What are Dead Man's Statutes? |
State Statutes that limit testimony about transactions w/ deceased persons |
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WITNESSES Competency of Witnesses
What are the rules regarding Lawyers as Witnesses? |
Generally prohibited.
Narrow Exceptions -Testimony relates solely to uncontested matter -Test will relate solely to formality (no substantive evidence) -Relates only to nature/value of legal services -If refusal to testify would be hardship |
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WITNESSES Competency of Witnesses
What are the rules regarding Jurors as Witnesses? |
606 Pre-verdict Testimony by Jurors -Prohibition of testimony before jurors Exceptions -Extraneous prejudicial info. -Outside info -Mistake on verdict form (clerical error) (e.g. they put guilty when meant not guilty)
Post-verdict Testimony by Jurors Court will not address internal juror mattes (e.g. juror intoxication) |
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WITNESSES Competency of Witnesses
What are the rules regarding Judges as Witnesses? |
605 Presiding judge cannot testify
However, 614 Judges can call and examine witnesses |
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WITNESSES Direct & Cross Examination
Are leading questions allowed on Direct? |
No. However, allowed when: -Necessary to develop witness testimony (e.g. children, elderly, lunatics, lower intelligence) -When party calls hostile witness, an adverse party, or witness identifies w/ adverse party and is uncooperative -When more trouble than its worth (with preliminary matters) |
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WITNESSES Direct & Cross Examination
Are leading questions allowed on Cross? |
Yes. Can and should use leading questions. |
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WITNESSES Impeachment
What is the scope of cross? |
Cross limited to: -Credibility of a witness -Matters brought up in direct (including inferences therefrom) |
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WITNESSES Direct & Cross Examination
When can you refresh a recollection? |
612 -Anything can be used to refresh present recollection (sound, smells, writings) -Adverse party can admit refreshing document as evidence (NOT party using it)
Best to refresh recollection before trial
Divide in courts on whether you can use all documents to refresh a witness's memory before testifying or only those not subject to privilege |
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WITNESSES Direct & Cross Examination
What is the Procedure for refreshing a recollection? |
612
Adverse party can (in criminal case) have writing produced at hearing, inspect it, cross examine witness about it, and delete any portions unrelated. Portions deleted over objection preserved for record |
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WITNESSES
What does it mean to refresh a witness's recollection? |
Use material to refresh memory. Material introduced may only be used to refresh (it is not evidence so doesn't need to be authenticated, comply w/ Best Evidence Rule) If evidence qualifies as "past recorded recollection," then can be introduced as substantive evidence on direct. |
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WITNESSES Direct & Cross Examination
What happens if there is a Direct and no Cross or Cross ends prematurely? (e.g. witness dies) |
Courts can either strike the testimony or keep parts only if cross happened |
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WITNESSES Direct & Cross Examination
What is "the rule" regarding excluding witnesses?What are the exceptions to the general rule? |
General Rule: Keeps witnesses from hearing other witness testimony
Exceptions to General Rule -Party who is natural person -Party representative of party that is not natural person (e.g. corp. rep.) -Person whose presence essential to claim (e.g. case agent) -Authorized by statute (e.g. crime victims)
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WITNESSES Impeachment
What are the 3 General Ways to Impeach? |
1. Bias, motivation, etc. 2. Defects in sensory/mental capacity 3. Untruthful Disposition |
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WITNESSES Impeachment
What are the 2 Specific Ways to Impeach? |
Prior Inconsistent Statements Contradicting Witnesses
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WITNESSES Impeachment
Explain the General Method of Impeaching a Witness to Show Bias. Are fees to expert witnesses considered bias? |
Not specifically in rules but allowed.
If passes 403 test, allowed to show bias. Can allow extrinsic evidence
You an use fees that are paid to expert as grounds for possible bias
Can use extrinsic evidence
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WITNESSES Impeachment
Explain the General Method of Impeaching a Witness to show Defects in Sensory/Mental Capacity. |
Used to show witness might not have perceived event accurately (e.g. due to not wearing glasses) Can use to impeach Can use extrinsic evidence
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WITNESSES Impeachment
What are the 3 ways to Impeach a Witness to show Untruthful Disposition. |
608(b): Cross on specific acts of misconduct that casts doubt on honesty (may include conduct ending in conviction)
609: Cross on conviction
608(a) Character witness says witness is untruthful |
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WITNESSES Impeachment
Explain the Method of Impeaching a Witness to show Untruthful Disposition on Cross using specific acts of misconduct that cast doubt on honesty. |
608 Generally cannot use character evidence but 404(a)(3) creates exceptions for witnesses.
608(a) says evidence of UN-truthfulness may be admitted to attack credibility of witness (either reputation/opinion testimony) BUT to submit evidence of truthfulness, must wait to be attacked CAN use extrinsic evidence (only rep. & opp.)
608(b) says, however, that you can use evidence of prior bad acts on CROSS if probative of truthfulness (acts of honesty/dishonesty, NOT violence) to impeach (1) witness; or (2) witness testifying about witness who testified on cross
NOTE: for 608(b), questioner MUST take answer of witness (meaning no extrinsic evidence other than witness' own words may be used) (CAN'T PROVE IT UP)
Also, questioner must have good faith basis for believing witness engaged in conduct (subject to judicial discretion) |
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WITNESSES Impeachment
What are the rules regarding attacking a witness's character for truthfulness by evidence of a criminal conviction? |
609(a): (1) If witness NOT D, crimes punishable by imprisonment for more than 1 year or death admitted subject to 403 (civil or crim.)
If witness is D and crim. case, admitted if (403 minus "substantially")
(2) if crime of falsehood, gets in (civil or crim.)
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WITNESSES Impeachment
Are there any limits on attacking a witness's character for truthfulness by evidence of a criminal conviction? |
609(b): if more than 10 years have passed since conviction/release from prison (whichever is later), admissible ONLY IF: -Probative value substantially outweighs prejudicial effect (reverse 403)(must be supported by specific facts/circumstances); AND -Proponent gives adverse party reasonable written notice of intent to use so party has opp. to contest it |
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WITNESSES Impeachment
Can convinctions that have been pardened or annulled be admitted? |
609(c): Evidence of a conviction that was pardon, annulment, or certificate of rehab not admissible unless: A) for a conviction that was rehabbed: the person has not been convicted of later felony; OR B) Pardoned/annulled/etc. pardon etc. was based on finding of innocence |
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WITNESSES Impeachment
Is evidence of juvenile adjudication admissible? |
609(d): Yes, (only if): -Criminal case; -Witness other than D; -Apply 609; -Necessary to fairly determine guilt/innocence |
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WITNESSES Impeachment
If a conviction is pending appeal, is it admissible? |
609(e): Yes and evidence of appeal is also admissible |
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WITNESSES Impeachment
Are Alford (nolo) pleas admissible? |
Yes, can be considered. Do balancing test.
Gordon Factors: -Nature of conviction (deception crimes highly probative) -Recency/remoteness; -Similarly to charge; -D's record clean otherwise; -Importance of credibility -Importance of getting D's testimony |
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WITNESSES Impeachment
If a witness denies being convicted of a prior crime, can an attorney prove it up w/ extrinsic evidence under 609?
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609 allows attorney to prove it up with extrinsic evidence (certified copy of the conviction)
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WITNESSES Impeachment
Can you redact information about D's conviction? |
Yes, evidence can be redacted. |
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WITNESSES Impeachment
Explain the Method of Impeaching a Witness to show Untruthful Disposition on Cross using a character witness to say the witness is untruthful. |
608(a) This by it's very nature is extrinsic evidence Can use to attack witness's truthfulness/untruthfulness by reputation/opinion (no extrinsic evidence of specific instances of conduct) only If witness's character for truthfulness is attacked, witness (only after being attacked) can offer evidence of truthfulness |
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WITNESSES Impeachment
Does notice need to be given to a criminal D if evidence of prior conviction will be used to impeach? |
Federal Rule (Luce): No, unless the conviction or release from prison (whichever is later) is more than 10 years old. TN Rule: Yes, must provide notice |
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WITNESSES Impeachment
What is the procedure one must follow in order to use a Prior Inconsistent statement to impeach a witness? What about extrinsic evidence? |
613 IF INTRINSIC: don't have to disclose contents unless adverse party requests it.
IF EXTRINSIC: Two explicit requirements for admitting extrinsic evidence of prior inconsistent statements:
1. Witness must be given pop. to explain/deny statement (may happen by recalling witness to stand after extrinsic evidence introduced); and
2. Opposing party MUST be given chance to interrogate witness about extrinsic evidence
This rule doesn't apply if prior statement by party opponent (only for witnesses) NOTE: Can use prior inconsistent statement substantively (hearsay exclusion) IF: given under oath at proceeding/deposition & subject to cross |
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WITNESSES Impeachment
If witness has been impeached w/ a prior inconsistent statement, can the witness be rehabilitated w/ a prior consistent statement? |
613 Depends. Prior consistent statements (801 exclusion) may only be used to rehabilitate a witness through a charge of bias/fabrication (prior consistent statement must have been made pre-motive for the alleged fabrication). |
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WITNESSES Impeachment
What is "mere subterfuge?" |
Don't have a witness so just get third party to say something so you can bring in evidence |
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WITNESSES Impeachment
Can you use a Prior Inconsistent Statement as mere subterfuge to get evidence in? |
No. Cannot use use evidence to get in evidence not otherwise admissible
This type of action violates 607
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WITNESSES Impeachment
How do you impeach a witness by using a contradicting statement?
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Not in fed. rules (like bias) Show something witness said is not true |
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WITNESSES Impeachment
What is the collateral evidence rule? |
Judicially created rule Can't put in extrinsic evidence on a collateral issue
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WITNESSES Impeachment
When is extrinsic evidence allowed? |
Only if extrinsic evidence is deemed NOT collateral, can use to:
1. Impeach witness concerning a prior criminal conviction for crimes punishable by death or more than 1 year imprisonment or crimes of falsehood (regardless of punishment b/c tends to show untruthfulness) 609
2. Witness 1 may testify that witness 2 has a bad character for truthfulness (this could be in form of reputation/opinion evidence) 608
3. Show witness is biased
4. Show witness had a sensory/mental defect (e.g. wasn't wearing glasses and can't see w/o them) |
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WITNESSES Impeachment/Collateral Evidence
When is extrinsic evidence NOT allowed? |
1. No evidence of UN-CONVICTED bad acts 2. No evidence that a witness's testimony is wrong on point not independently relevant to the case 3. No evidence of a prior statement that is inconsistent if inconsistency does not relate to a material issue in the case |
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WITNESSES Impeachment
What are the three types of evidence that contradicts? |
1. Evidence that only contradicts (not admitted) 2. Evidence that not only contradicts but tends to prove substantive point (admitted) 3. Evidence that not only contradicts but tends to prove an impeaching point (admitted) |
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WITNESSES Impeachment
When can you use extrinsic evidence of a Prior Inconsistent Statement? |
When not collateral to the case |
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WITNESSES Impeachment
What is the Havens rule? |
Cannot bring in evidence illegally obtained on cross UNLESS D reasonably suggests and "opens the door" |
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WITNESSES Impeachment
How to you "repair credibility" of a witness? |
608(a) Can bolster the credibility of a witness after and only after the credibility of that witness has been attacked.
Can bring in info. on the truthfulness of the witness BUT ONLY AFTER the witness's credibility has been attacked |
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OPINION AND EXPERT TESTIMONY Lay Opinion Testimony
What opinions can lay witnesses testify to? |
701
Can give opinion testimony only if the opinion is rationally based on the perception of the witness and is helpful to a clear understanding by the jury.
Limitations -Must be rationally related to witness's perception -Must be helpful for jury to clearly understand witness's testimony or determining fact/issue |
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OPINION AND EXPERT TESTIMONY Lay Opinion Testimony
Who is an expert? |
702
Someone w/ specialized knowledge/skill/experience -Don't have to have a degree in subject (extensive experience or training or skill is sufficient) |
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OPINION AND EXPERT TESTIMONY Lay Opinion Testimony
What qualifies as an expert's basis for knowledge? |
703
Must be based on facts or data of which expert is personally aware and are reasonably relied upon by experts in his field.
Note*: these underlying facts or data need not be admissible in order for the expert to testify to his conclusions. Otherwise inadmissible underlying facts or data can be admitted if and only if their value in assisting the jury to evaluate the opinion substantially outweighs their prejudicial effect.
Firsthand knowledge Facts learned at trial -Testimony heard (can be exempted from "the rule") -Info. conveyed in hypo. question
Outside Data Expert witness can rely on inadmissible evidence so long as relied on by experts in field IF -Passes 403 test
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OPINION AND EXPERT TESTIMONY Lay Opinion Testimony
When is an expert qualified?
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702 When they have specialized knowledge that is helpful to the trier of fact
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OPINION AND EXPERT TESTIMONY Lay Opinion Testimony
Can experts testify on ultimate issues? |
704 Yes. BUT in criminal case, cannot say whether the defendant did or did not have the mental state necessary to commit the crime/defense. |
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OPINION AND EXPERT TESTIMONY Lay Opinion Testimony
What is the standard of reliability for Scientific Knowledge for experts? |
MUST BE RELIABLE & RELEVANT
Daubert Factors: -Whether theory/technique has been tested -Whether subject to peer review/publication -Error rate known and controlling standard; & -General acceptance in relevant field
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OPINION AND EXPERT TESTIMONY Lay Opinion Testimony
What is the standard for reliability in the fields? |
Apply Daubert factors, just tweak for that field |
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PRIVILEGE Attorney-Client Privilege
Who owns the privilege? |
Prop. 503 The client owns the privilege.
Accordingly, either the client can claim the privilege or the lawyer (but only on client's behalf) |
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PRIVILEGE Attorney-Client Privilege
What happens if information is disclosed to a third party? Lose privilege? |
Yes, unless the disclosure was in furtherance of the client obtaining legal advice |
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PRIVILEGE Attorney-Client Privilege
What should an attorney do if evidence is removed or altered? |
Should give it to police but don't have to reveal source |
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PRIVILEGE Attorney-Client Privilege
How does representation for joint clients work? |
Prop. 503 No privilege b/w clients who once had common interests but are now adverse parties |
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PRIVILEGE Attorney-Client Privilege
Is communication found in dumpster protected by privilege? |
No (same for lost docs/overheard convos) |
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PRIVILEGE Attorney-Client Privilege
What does the right to privilege turn on? |
Intent to maintain confidentiality and communication for the purpose of obtaining legal advice |
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PRIVILEGE Attorney-Client Privilege
Are corporations entitled to the privilege? |
Yes. Upjohn
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PRIVILEGE Attorney-Client Privilege
What are the exceptions to the attorney-client privilege? |
503(d) Client suing lawyer In furtherance of future crime/fraud Claimants through some deceased client Breach of duty by lawyer or client Lawyer acts as attesting witness on document executed by client Client Identity (invoked to get identity of client)
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PRIVILEGE Psychotherapist-Patient Privilege
Does this privilege extend to social workers? |
Jaffee Social worker included in privilege |
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PRIVILEGE Spousal Privilege
What are the two types of spousal privilege? |
1. Testimonial Privilege 2. Spousal Confidence Privilege |
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PRIVILEGE Spousal Privilege
Explain the Spousal Testimonial Privilege. When is it available? What is the purpose? |
Only available in criminal cases Purpose is to preserve marriage |
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PRIVILEGE Spousal Privilege
Who holds the Spousal Testimonial Privilege? |
Trammel Held only by witness-spouse |
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PRIVILEGE Spousal Privilege
What are the elements to the Spousal Confidence Privilege? Who holds the privilege? |
Elements Words/acts intended to be communication Valid marriage (at time comm. made) Applies only to confidential relationship |
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PRIVILEGE Privilege Against Self Incrimination
What is the scope? |
Protects natural persons (no corps.) Only testimonial evidence Doesn't apply to compelled production of incriminating evidence Refusal of act is not always a comm. that is testimonial (breathalyzer) |
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PRIVILEGE Privilege Against Self Incrimination
What is necessary to invoke privilege? |
Must lead to criminal liability (no civil) Immunity, statute of limitations defeats immunity
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PRIVILEGE Privilege Against Self Incrimination
Are business records of sole proprietorships protected? |
if contents not compelled, no privilege (so if Gov. just finds docs)
Act of producing them might be testimonial = complications b/c counsel would ask "are these these the docs..." and D would say yes/no, making it testimonial |
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BEST EVIDENCE RULE Original Document Rule
What is the Best Evidence Rule? |
1002
An original writing, recording, or photo is required in order to prove contents unless FRE or Fed Stat. provides otherwise |
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BEST EVIDENCE RULE Original Document Rule
What qualifies as a writing, recording or photograph? |
Can apply to musical score recording Doesn't apply to paintings/sculptures |
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BEST EVIDENCE RULE Original Document Rule
What does "original" mean? |
Doesn't mean absolute original, just doc that sparked controversy |
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BEST EVIDENCE RULE Original Document Rule
Is the use of duplicates okay? |
Yes, unless genuine question raised about origin/authenticity or circumstances make it unfair to admit |
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BEST EVIDENCE RULE Original Document Rule
Who decides if duplicates get in? |
Judge but goes to jury if: -Question as to whether doc. ever existed; -Question if another document produced at trial is original; -Other context accurately reflects |
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BEST EVIDENCE RULE Original Document Rule
When is non production of original excused? |
Original is destroyed |
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CHARACTER EVIDENCE
What are some examples of when character is an essential element of a charge, claim, or defense?
What type of character evidence gets in under 405 if such evidence is an essential element of a charge/claim/defense? |
1. Character of the party is material issue in the case (ex. defamation, slander, child custody)
2. Negligent entrustment
3. Wrongful Death (ex. loving husband vs. bad husband for loss of consortium)
4. Self Defense (reasonableness of fear)
All types get in. Reputation, Opinion, and Specific acts. |
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EXTRA
When is notice required to introduce evidence?
When is reverse 403 needed? |
609(b): must provide notice to of intent to use evidence of a conviction (after 10 years have passed) so party has pop to contest it
413: have to provide 15 days notice of intent to use evidence of sexual assaults
613: have to disclose contents of extrinsic evidence so have opp. to explain/deny
Reverse 403
609(b): if greater than 10 years conviction introduced, must pass reverse 403
609(a) if criminal D, 403 minus substantially
612(b): if passes reverse 403 |
