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189 Cards in this Set

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evidence is relevant if it has any tendency to make a fact more or less than would be the case without the evidence, all relevant evidence is admissible

exception to relevance

unless the court makes a discretionary determination that the probative value of the evidence is substantially outweighed by some countervailing pragmatic ground for exclusion

six types of pragmatic considerations

danger of unfair prejudice, confusion of the issues, misleading jury, undue delay, waste of time, unduly cumulative

Policy based exclusions: general rationales

balancing relevance with pragmatic considerations and encouraging parties to take socially useful conduct by promising them that their statements and actions won't be used against them in court

Liability evidence

rule: evidence that a person has or does not have insurance is not admissible for the purpose of proving that persons fault or absence of fault

Liability insurance exception

but such evidence may be admissible for some other relevant purpose, such as 1) proof of ownership or control if that issue is disputed

2) impeachment of a witness on the ground of bias

subsequent remedial measures

repairs and design or policy changes taken after an accident that might have prevented the accident or made it less likely

Remedial measures are not admissible to prove:

defendant's fault, (example: negligence, culpable conduct, defect in product design, or the need for warning or instructions

Exception for remedial measures

evidence may be admissible for some other relevant purpose such as proof of:

1) ownership or

2) control or

3) feasibility of remedial measures, if that issue is in dispute

Settlements and attempted settlements of civil cases, rule

if there is a disputed civil claim, evidence of settlement or offer to settle or statement of fact in settlement negotiation, is admissible if offered to prove either the liability or the amount of the claim

Exceptions to settlements and attempted settlements of civil cases

if the civil claim is brought by government statements of fact by the defendant during settlement negotiations in that civil case are admissible against that defendant at a later criminal trial; settlement evidence may be admissible if it is offered to impeach a witness on the ground of bias

VA distinction for settlements and attempted settlements

an express admission of liability for some other independent fact is admissible, even if it takes place during settlement negotiations. (but virginia law, like the federal rules, does not permit use of the plaintiff's financial demand or the defendant's offer during settlement negotiations

Requirement if a disputed claim

the ban on settlement evidence only applies if, at the time of the discussion, there is a claim (a demand of some sort) and that claim is disputed by the other side (either as to validity OR amount)

Offer to pay hospital bills or medical expenses

evidence that a party has paid or offered to pay an accident victim's medical expenses is not admissible to prove liability; to encourage charity; this rule does not include other statements made in connection with an offer to pay medical expenses

Plea discussions in criminal case

the following statements by the defendant or defense counsel in a criminal prosecution are not admissible for any purpose against that defendant, either in that criminal case or a subsequent civil case: 1) unsuccessful offers to plead guilty 2) withdrawn guilty plea 3) non-contest

Virginia distinction: allows nolo-contendere plea in criminal proceeding to be used as admission against party in civil litigation

character evidence:

refers to a person's general propensity or disposition; examples: honesty (or dishonesty), peacefulness (or violence) or carefulness (or carelessness)

in approaching a character evidence problem, you must first identify the purpose for which the evidence is offered

1) conforming conduct

2) impeachment

3: other purpose (than propensity)

4) essential element

General rule for character evidence

generally not admissible to prove propensity, generally admissible for impeachment; to show a witness's veracity, for a non-propensity purpose and when the trait itself is an essential element

Character evidence in criminal cases

evidence of the defendant's character is generally not admissible to prove propensity ("conduct in conformity"); fear that the jury will not convict the defendant because of the evidence but because he's a bad person

Exceptions to character evidence in criminal cases

defendant may introduce evidence of his own pertinent trait of good character; if defendant does so, the prosecution may rebut with evidence of bad character; defendant can evaluate the risk of unfair prejudice, and if the defendant is willing to open the door to character evidence, we will give him that option

form of character evidence

when character evidence is admissible to prove propensity, the only proper methods are 1) opinion or reputation; not allowed specific acts or conduct

VA: when character evidence is admissible to prove conforming conduct by some person, the character witnesses may only testify as to what they know about the person's reputation (opinion testimony is not allowed)

defendant's character offered by prosecution to rebut:

if defendant opened the door by calling witness, the prosecution may rebut in 2 ways: 1) by calling its own witnesses to testify to the defendant's bad character form: 1) opinion or reputation 2) by cross-examining defendants character witnesses by questioning their knowledge of specific acts by the defendant that are relevant to the character trait at issue

Similar accidents or injuries caused by the same event or condition

evidence of prior accidents or injuries caused by the same event or condition is admissible to prove (i) the existence of a dangerous condition (ii) that the defendant had knowledge of the dangerous condition and (iii) that the dangerous condition was the cause of the present injury


describes a person's regular response to a specific set of circumstances. in contrast, character describes' ones disposition in respect to general traits; Evidence of a person's habit may be admitted to prove that on a particular occasion the person acted in accordance with the habit

Industrial or business routine

evidence showing that a particular business had an established business routine is relevant as tending to she that a particular event occurred

Industry custom as evidence of a standard of care

industry custom may be offered to show adherence to or deviance from and industry wide standard of care. However, industry custom is not conclusive on this point; e.g. and entire industry may be acting negligently

Subsequent remedial measures

evidence of repairs or other precautionary measures made following an injury is not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for warning or instruction. However, it may be admissible to prove i) ownership or control ii) rebut a claim that the precaution was not feasible iii) prove that the opposing party has destroyed evidence.

Settlement offers and withdrawn guilty pleas

Evidence of compromises or offers to compromise is not admissible to prove or disprove the validity or amount of a disputed claim. Not even even direct admissions of liability during compromise negotiations are admissible. Likewise, withdrawn guilty pleas of nolo contender and offers to plead guilty are inadmissible.

Offers to pay medical expenses

payment of or offers to pay the injured party's medical expenses are inadmissible. However, unlike the situation with compromise negotiations, admissions of fact accompanying offers to pay medical expenses are admissible

Character evidence may be offered as substantive, rather than impeachment evidence to:

i) prove character when it is the ultimate issue in the case or ii) serve as circumstantial evidence of how a person probably acted.

Means of proving character

a. evidence of specific acts

b. opinion testimony of a witness who knows the person and

c. testimony as to the person's general reputation in the community

Character evidence is generally not admissible in civil cases

unless character is directly in issue, evidence of character offered by either person in the litigated event is generally not admissible in a civil case.

Accused in criminal case- generally only accused can initiate character evidence

prosecution cannot initiate evidence of bad character of the defendant merely to show that she is more likely to have committed the crime. the accused however may introduce evidence of her good character to show her innocence of the alleged crime

How defendant proves character

A witness for the defendant may testify as to the defendant's good reputation for the trait in question and may give his personal opinion concerning that trait of the defendant

Once the defendant opens the door by introducing character evidence, the prosecution may rebut it by:

1) cross examining the witness regarding his basis for his testimony, including whether he knows or has heard of specific instances of the defendant's misconduct or

2) calling qualified witnesses to testify to the defendant's bad reputation or give their opinions of the defendant's character

Victim in criminal case character evidence:

except in rape cases, the defendant may introduce reputation or opinion evidence of a bad character trait of the alleged victim when it is relevant to show the defendant's innocence. Once the defendant has introduced evidence of a victim's bad character for a pertinent trait, the prosecution may counter with reputation or opinion evidence of (i) the victim's good character for the same trait or (ii) the defendant's bad character for the same trait

Rape Victim's past behavior generally inadmissible

in any civil or criminal proceeding involving alleged sexual misconduct, evidence is offered to prove the sexual behavior or sexual disposition of the victim is generally inadmissible

Exception in criminal cases for rape victim's past behavior

in a criminal case, specific instances of a victim's special behavior are admissible to prove that someone other than the defendant is the source of semen, injury or other physical evidence. Also, specific instances of sexual behavior between the victim and the accused are admissible by the prosecution for any reason and by the defense to prove consent

Exception in civil cases for rape victim's past behavior

Evidence of the alleged victim's sexual behavior is admissible if it is not excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the victim.

Homicide cases- victim's character for peacefulnesss to rebut self defense claim

in a homicide case in which the defendant pleads self-defense, evidence of any kind that the victim was the first aggressor (e.g. eyewitness testimony that the victim struck first) opens the door to evidence that the victim had good character for peacefulness. This evidence can be introduced regardless of whether the defendant has introduced character evidence of the victim's generally violent propensity

Specific acts of misconduct

evidence of a person's other crimes or misconduct is inadmissible if offered solely to establish a criminal disposition or bad character

Specific acts of misconduct: admissible if independently relevant

evidence of other crimes or misconduct is admissible if these acts are relevant to some issue other than defendant's character or disposition to commit the crime or act charged. Such issues include motive, intent, absence of mistake or accident, identity, or common plan or scheme. In a criminal case, the prosecution must, upon request provide for reasonable notice prior to trial of the general nature of any of this type of evidence it intends to introduce.




Mistake (absence of)


Common plan or scheme

Requirements for specific acts admissibility

(i) there must be sufficient evidence to support a finding that the defendant committed the prior act, and (ii) its probative value must not be substantially outweighed by the danger of unfair prejudice

Prior acts of sexual assault or child molestation

evidence of a defendant's prior acts of sexual assault or child molestation is admissible in a case where the defendant is accused of committing an act of sexual assault or child molestation. The party intending to offer this evidence must disclose it to the defendant 15 days before trial (or with later good cause)

Judicial notice

judicial notice is the recognition of a fact as true without formal presentation of evidence

facts appropriate for judicial notice

courts take judicial notice of indisputable facts that are either matters of common knowledge in the community (notorious facts) or capable of verification by resort to easily accessible sources of unquestionable accuracy. Courts have increasingly taken judicial notice of scientific principals as a type of manifest fact. Judicial notice of such facts may be taken at any time, whether or not requested.

Procedural aspects of judicial notice

if a court does not take judicial notice of a fact on its own accord, a party must formally request that notice be taken of the particular fact. Judicial notice may be taken for the first time on appeal. FR provide that a judicially noticed fact is conclusive in a civil case but not in a criminal case. In a criminal case, the jury is instructed that it may, but is not required to, accept s conclusive any judicially noticed fact.

Real evidence

in general; real or demonstrative evidence is actual physical evidence addressed directly to the trier of fact. Real evidence may be direct, circumstantial, original or prepared

Real evidence must meet the following legal requirements:

1) authentication

2) condition of object (substantially same condition)

3) Balancing test- legal relevance

Reproductions and explanatory real evidence

relevant photos, diagrams, maps or other reproductions are admissible if their value is not outweighed by the danger of unfair prejudice. However, items used entirely for explanatory purposes are permitted at trial, but are not usually admitted into evidence

Maps, charts, models etc

usually admissible for the purpose of illustrating testimony but must be authenticated (testimonial evidence that they are faithful reproductions of the object or thing depicted)

Exhibition of child in paternity suits

almost all courts permit exhibition of child to show whether she is the race of the putative father. Courts are divided with respect to the propriety of exhibition for the purpose of proving physical resemblance to the putative father.

Exhibition of injuries

exhibition of injuries in personal injury or criminal case is generally permitted, but the court has discretion to exclude this evidence if unfair prejudice would result

jury view of the scene

the trial court has the discretion to permit the jury to view places at issue in a civil or criminal case. The need for view and changes in the condition of the premises are relevant considerations here.


The court, in its discretion, may permit experiments or demonstrations to be performed in the courtroom. Demonstrations of bodily injury may not be allowed where the demonstrations would unduly dramatize the injury.

Documentary evidence

in general, documentary evidence must be relevant in order to be admissible. in the case of writings, the authenticity of the document is one aspect of its relevancy


as a general rule, a writing or ay secondary evidence of its content will not be received in evidence unless the writing is authenticated by proof that shows that the writing is what the proponent class it is. The proof must be sufficient to support a jury finding of genuineness

Authentication of pleadings or stipulation

the genuineness of a document may be admitted by the pleadings or by stipulation

Evidence of authenticity

examples of proper authentication: admissions, eyewitness testimony, handwriting verificatoins

handwriting verifications

a writing may be authenticated by evidence of the genuine ness of the handwriting of the maker. This evidence may be the opinion of a non expert with personal knowledge of the alleged writer's handwriting or the opinion of an expert who has compared the writing to samples of the maker's handwriting. Genuineness may also be determined by the trier of fact through comparison of samples.

Ancient documents. Document that may be authenticated by evidence that it:

1) is at least 20 years old

2) is in such a condition as to be free from suspicion as to authenticity and

3) was found in a place where such a writing would likely be kept

Reply letter doctrine

a writing may be authenticated by evidence that its as written in response to a communication sent to the claimed author


photographs are admissible only if 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. Ordinarily, it is not necessary to call the photographer to authenticate the photograph; a witness familiar with the scene is sufficient

Unattended camera- proper operation of a camera

if a photograph is taken when no person who could authenticate the scene is present, the photograph may be admitted upon a showing that the camera was properly operating at the relevant time and that the photograph was developed from film obtained from that camera

x-ray pictures, electrocardiograms etc

must be show that process used is accurate, machine was working and that the operator was qualified to operate it

Compare- authentication of oral statements

when a statement is admissible only if said by a particular person, authentication of the identity of the speaker is required

self-authenticating documents

certain writings are said to prove themselves. Extrinsic evidence is not required for the following: (i) domestic public documents bearing a seal (ii) similar official foreign public documents, (iii) certified copies of public records (iv) official publications (v) newspapers and periodicals, (vi) trade inscriptions, (vii) acknowledged documents, (viii) commercial paper and related documents and (ix) certified business records.

Best evidence rule

To prove the terms of a writing, the original writing must be produced if the terms of the writing are material. Secondary evidence of the writing is admissible only if the original is unavailable.

Applicability of the best evidence rule

the rule applies to two classes of situations, namely where (i) the writing is a legally operative or dispositive instrument or (ii) the knowledge of a witness concerning a fact results from having read it in the document

Non applicability of the best evidence rule

- fact to be proved exists independently of writing

- writing is collateral to the litigated issue

- summaries of voluminous records

-public records

Admissibility of secondary evidence of contents

if the proponent cannot produce the original writing in court, he may offer secondary evidence of its contents (handwritten copies, notes, oral testimony) if a satisfactory explanation is given for the non production of the original

Valid excuses justifying the admissibility of secondary evidence include

1) loss or destruction of the original

2) the original is in possession of a third party outside the jurisdiction and is unobtainable

3) the original is in the possession of an adversary who, after the due notice, fails to produce the original

Parol evidence rule

if an agreement is reduced to writing with the intent that it embody the full and final expression of the bargain, that writing is the agreement and hence constitutes the only evidence of it. Prior or contemporaneous negotiations or agreements are merged into the written agreement, and they are inadmissible to vary the terms of the writing

When the parol evidence rule does not apply:

- incomplete or ambiguous contract

- reformation of contract

- challenge to validity of contract

Federal rules of competency for witnesses

- the witness must have personal knowledge of the matter about which he is to testify and

- the witness must declare he will testify truthfully

Dead man acts:

provide that a party or person interested in the event 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.

Interested person

a person is interested if he stands to gain or lose by the judgment or the judgment may be used for or against him in a subsequent action. A predecessor in interest of the interest party is also disqualified.

Leading questions

generally improper on direct examination, however may be permitted: on cross-examination, to elicit preliminary or introductory matter; when the witness needs aid to respond because of loss of memory, immaturity or physical or mental weakness or; when the witness is hostile

Use of memoranda by witness

a witness cannot read her testimony from a prepared memorandum. However, a memorandum may be used in certain circumstances

Present recollection revived

a witness may use any writing or thing for the purpose of refreshing her present recollection. She may not read from the writing while she actually testifies because the writing is not authenticated and not in evidence.

Past recollection recorded

where a witness states that she has insufficient recollection 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.

Foundation for past recollection recorded must include:

1) the witness at one time had personal knowledge of the facts in the writing;

2) the witness was made by the witness or under her direction, or it was adopted by the witness

3) the writing was timely made when the matter was fresh in the witness's mind

4) the writing is accurate and

5) the witness has insufficient recollection to testify fully and accurately

Inspection and use on cross examination

whenever a witness has used a writing to refresh her memory on the stand, an adverse party is entitled to have the writing produced at trial, to cross-examine the witness thereon and to introduce portions relating to the witness's testimony into evidence

Opinion testimony

the general police of the law is to prohibit admissibility of opinion evidence except in cases where the courts are sure that it will be necessary or at least helpful.

Opinion testimony by lay witnesses

opinions by lay witnesses are generally inadmissible. However, there are many cases where no better evidence may be obtained. In most jurisdictions under the FR, opinion testimony by a lay witness is admissible when it is: (i) rationally based on the witness's perception, (Ii) helpful to a clear understanding of his testimony or helpful to the determination of the fact in issue, and (iii) not based on scientific, technical or other specialized knowledge

Situations where opinions of lay witnesses are admissible. an opinion of a lay witness is generally admissible with respect to:

1. general appearance or condition of a person 2. state of emotion of a person 3. sense recognition 4. voice or handwriting identification 5. speed of moving object. 6. value of own services 7. rational or irrational nature of anthers conduct and 8. intoxication of another

Situations where lay witnesses are not admissible

opinions of lay witnesses are not admissible with regard to whether one acted as an agent or whether agreement was made

An expert may state an opinion or conclusion, provided

(i) the subject matter is one where scientific, technical or other specialized knowledge would assist the trier of fact (ii) the witness is qualified as an expert (iii) the expert possesses reasonable probability regarding his opinion and (iv) the opinion is supported by a proper factual basis

The expert's opinion may be based on one or more of three possible sources of information:

i) personal observation ii) facts made known to the expert at trial or iii) facts not known personally, but supplied to him outside the courtroom and of a type reasonably relied upon by experts in a particular field

Opinion on ultimate issues

an expert may render an opinion as to the ultimate issue in the case. However, in a criminal case in which the defendant's mental state constitutes an element of a crime or defense, an expert may not, under the FR state an opinion as to whether the accused did or did not have the mental state in issue

Authoritative texts and treatises

an expert may be cross-examined concerning statements contained in any publication established as reliable authority either by the testimony of this expert or another expert, or by judicial notice. Under the FR, these texts and treatises can be used not only to impeach experts, but also as substantive evidence, subject to the following limitations:

1) an expert must be on the stand when an excerpt is read from a treatise and 2) the relevant portion is red into evince but is not received as an exhibit

Cross examination

cross examination of adverse witnesses is a matter of right in every trial of a disputed issue of fact, but the scope of cross-examination is frequently a matter of judicial discretion

Restrictions on scope of cross examination

generally limited to: the scope of direct examination, including all reasonable inferences that may be drawn from it, and testing the credibility of the witness

Collateral matters cross examination

the cross examiner is generally bound by the answers of the witness to questions concerning collateral matters. Thus, the response may not be refuted by extrinsic evidence. However, certain recognized matters of impeachment, such as bias, interest, or a conviction may be developed by extrinsic evidence because they are sufficiently important. The trial court has considerable discretion in this area.

Prohibits impeaching your own witness unless:

is an adverse party identified with an adverse a party, is hostile, is one whom the party is required by law to call or, gives surprise testimony that is affirmatively harmful to the party calling him

Impeachment methods

cross examination and extrinsic evidence.

Prior inconsistent statements

a party may show, by cross examination or extrinsic evidence, that the witness has, on another occasion, made statements inconsistent with his present testimony. To prove the statement by extrinsic evidence, a proper foundation must be laid and the statement must be relevant to some issue in the case

Foundation for extrinsic evidence

can be introduced to prove a prior inconsistent statement only if the witness is, at some point, given an opportunity to explain or deny the statement. The exception to the rule is that inconsistent statements by hearsay declarants may be used to impeach despite lack of foundation

Evidentiary effect of prior inconsistent statements

usually, prior inconsistent statements are hearsay, admissible only for impeachment purposes. If however, the statement was made under oath at a prior proceeding, it is admissible non hearsay and may be admitted as substantive evidence of the facts stated.

Bias of interest

evidence that a witness is biased or has an interest in the outcome of a suit tends to show that the witness has a motive to lie

Conviction of a crime

a witness may be impeached by proof of conviction of a crime (arrest or indictment is not sufficient) for certain crimes. A pending review or appeal does not affect the use of a conviction for impeachment

Any crime involving dishonesty or false statement

a witness may be impeached by any crime, felony or misdemeanor, requiring an act of dishonesty or false statement. The court has no discretion to bar impeachment by these crimes.

Felony not involving dishonesty or false statement

a witness may be impeached by a felony that does not involve dishonesty or false statement, but the court has discretion to exclude it if: 1) the witness being impeached is a criminal defendant and the prosecution has not shown that the conviction's probative value outweighs its prejudicial effect or 2) the case of all other witnesses, the court determines that the conviction's probative value is substantially outweighed by its prejudicial effect

Remote, juvenile, and constitutionally defective convictions not admissible

generally, if more than 10 years have elapsed since the date of conviction or the date of release from confinement (whichever is later), the conviction is inadmissible. Juvenile convictions are similarly inadmissible. A conviction obtained in violation of the defendant's constitutional rights is invalid for all purposes, including impeachment

Effect of pardon

a conviction may not be used to impeach a witness if the witness has been pardoned and (i) the pardon is based on innocence, or (ii) the person pardoned has not been convicted of a subsequent felon

no foundation required for extrinsic evidence

a prior conviction may be shown by either direct or cross-examination of the witness or by introducing a record of the judgment. no foundation is necessary.

specific instances of misconduct- bad acts

under the fr, subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to an act of misconduct only if the act is probative of truthfulness. However, the cross-examiner must inquire in good faith.

Extrinsic evidence not permitted

extrinsic evidence of "bad acts" to prove misconduct is not permitted. A specific act of misconduct, offered to attack the witness's character for truthfulness, can be elicited only on cross examination of the witness. The cross-examiner may not reference any consequences the witness may have suffered as a result of his bad act

Opinion or reputation evidence for truthfulness

a witness may be impeached by showing that he has poor reputation for truthfulness. This may include evidence of reputation in business circles as well as in the community in which the witness resides. Under the FR, an impeaching witness may state his own opinion as to the character of a witness for truthfulness

Sensory deficiencies

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

Contradictory facts

extrinsic evidence of facts that contradict a witness's testimony may sometimes be admitted to suggest that a witness's mistake or lie on one point indicates erroneous or false testimony as to the whole.

Extrinsic evidence of contradictory facts to impeach is permitted where

i) the witness's testimony on a particular material fact is a material issue in the case (ii) the testimony on a particular fact is significant on the issue of credibility. or (iii) the witness volunteers testimony about a subject as to which the opposing part would otherwise be precluded from offering evidence.

Impeachment on collateral matter

where a witness makes a statement not directly relevant to the issue in the case, the rule against impeachment on a collateral matter applies to bar his opponent from proving the statement untrue either by extrinsic evidence or by a prior inconsistent statement.

Impeachment of hearsay declarant

under the federal rules, the credibility of someone who does not testify but whose out of court statement is introduced at trial may be attacked (and if attacked, may be supported) by evidence that would be admissible if the declarant had testified as a witness. The declarant need not be given the opportunity to explain or deny a prior inconsistent statement. In addition, the party against whom the out of court statement was offered may call the declarant as a witness and cross examine him about the statement


a witness who has been impeached can be rehabilitated by the following methods:

- explanation on redirect

- good reputation for truthfulness

- prior consistent statement


should be made after the question, but before the answer. Otherwise, a motion to strike must be made as soon as an answer emerges as inadmissible. At a deposition, objection to the form of a question, or to a testimonial privilege, should be made when the question is asked or it may be waived

General objections

a sustained general objection will be upheld on appeal if there was any ground for the objection. An overruled general objection will be upheld on appeal unless the evidence was not admissible under any circumstances for any purpose

Specific objections

a sustained specific objection, which states the reasons for the objection, will be upheld on appeal only if the ground stated was correct or if the evidence excluded was not competent and could not be made so

Opening the door

one who introduces evidence on a particular subject thereby asserts its relevance and cannot complain if his adversary thereafter offers evidence on the same subject

Rule of completeness-writings and recorded statements

where part or all of a writing or recorded statement is introduced into evidence, the adverse party may require the proponent of evidence to introduce any other part, or any related writing or recorded statement, that ought in fairness to be considered

Testimonial privileges

permit one to refuse to disclose, and prohibit others from disclosing certain confidential information in judicial proceedings

Who may assert a privilege

personal to the holder; may only be asserted by the holder

Attorney client privilege

communications between the attorney and client, made during professional consultation are privileged from disclosure

corporate clients

corporations are clients within the meaning of the privilege, and statements made by corporate officials or employees to an attorney are protected if the employees were authorized by the corporation to make such statements

confidential communication

to be protected, the communication must be confidential, but representatives of the attorney or client may be present without destroying the privilege; otherwise, communications made in the known presence and hearing of a stranger are not privileged

communications through agents

communications made to third persons are confidential and covered by the privilege if necessary to transmit information between the attorney and client

No privilege where attorney acts for both parties

no privilege can be invoked in a lawsuit between the two parties

Three significant exceptions to the attorney client privilege:

1) if the attorney's services were sought to aid in the planning or commission of something the client should have known was a crime or fraud 2) regarding a communication relevant to an issue between parties claiming through the same deceased client and 3) for a communication relevant to an issue of breach of duty in a dispute between the attorney and client

Physician patient privilege

belongs to the patient, and he may decide to claim or waive it. Privileged, provided that: 1) a professional relationship exists 2) the information acquired while attending the patient in the course of treatment and 3) the information is necessary for the treatment

Physician patient privilege does not apply when:

the patient puts his physical conniption in issue; the physician's assistance was sought to aid wrongdoing; the communication is relevant to an issue of breach of duty in a dispute between the physician and patient; the patient agreed by contract; it is a federal case applying the federal law of privilege

criminal proceedings

in some states, the privilege applies in both civil and criminal cases. In a number of others, it cannot be invoked in criminal cases generally.

Psycho-therapist/social worker client privilege

recognize this

spousal immunity

a married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution. A married person may not be compelled to testify against his spouse in any criminal proceeding, regardless of whether the spouse is the defendant. Must be married, only lasts during marriage; privilege belongs to witness spouse

Confidential marital communications

civil or criminal case, confidential communications between spouses during a valid marriage are privileged. Either spouse can refuse to disclose the communication or prevent any other person from doing so. The marital relationship must exist when the communication was made. Divorce does not terminate; communications after divorce are not privileged. Communication must be made in reliance upon the intimacy of the marital relationship

When neither marital privilege applies

neither privilege applies in actions between the spouses or in cases involving crimes against the testifying spouse or either spouse's children

Privilege against self incrimination

witness cannot be compelled to testify against himself. Any witness compelled to appear in a civil or criminal proceeding may refuse to given an answer that ties the witness to the commission of a crime.

Clergy or accountant privilege

a privilege exists for statements made to a member of the clergy or an accountant, the elements of which are very similar to the attorney client privilege

professional journalist privilege

there is no constitutional right for a professional journalist to protect his source of information, so any privilege in this area is limited to individual state statutes on the subject

governmental privileges

official information not otherwise open to the public or the identity of an informer may be protected by a privilege for the government. No privilege exists if the identity of the informer is voluntarily disclosed by a holder of the privilege

hearsay rule

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


for the purposes of the hearsay rule, a "statement" is a person's (i) oral or written assertion, or (ii) nonverbal conduct intended as an assertion

"offered to prove the truth of the matter"

if the out of court statement is introduced for any purpose other than to prove the truth of the matter asserted, there is no need to cross examine the declarant; so the statement is not hearsay.

following out of court statements are not hearsay:

- verbal acts or legally operative facts

- statements offered to show their effect on the listener or the reader

- statements offered as circumstantial evidence of declarant's state of mind

Nonhuman declarations

no such thing as animal or machine hearsay

A prior statement by a witness is not hearsay if:

- the prior statement is inconsistent with the declarant's in court testimony and was given under penalty of perjury

- the prior statement is consistent with the declarant's in court testimony and is offered to rebut a charge that the witness is lying or exaggerating because of some motive or offered to rehabilitate a witness whose credibility has been impeached on some other ground

- the prior statement is one of identification of a person as someone the witness perceived earlier

Statements by an opposing party (admissions by an party opponent)

an opposing party's statement is not hearsay under the FR. These statements are traditionally called "admissions of a party opponent" To be an admission, these statement need not have been against the declarant's interest when made, and may even be in the form of an opinion. Personal knowledge is not required; the admission may be predicated on hearsay.

Judicial and extrajudicial admissions

formal judicial admissions are conclusive. Informal judicial admissions made during testimony and extrajudicial admissions are not conclusive and can be explained

adoptive admissions

a party may make an admission expressly or impliedly adopting or acquiescingg in the statement of another


if a reasonable person would have responded, and a party remains silent in the face of accusatory statements, his silence may be considered an implied admission

silence is treated as an admission only if

- the party heard and understood the statement

-the party was physically and mentally capable of denying the statement and

- a reasonable person would have denied the accusation

statements of co-parties

statements of a party are not receivable against her co-parties merely because they happen to be joined as parties

authorized spokes person

the statement of a person authorized by a party to speak on its behalf can be admitted against the party as an admission

principal agent

statements by an agent or employee concerning any matter within the scope of her agency or employment, made while the agency or employment relationship exists, are not hearsay and are admissible against the principal


admissions of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or civil wrong at a tie when the declarant was participating in the conspiracy, are admissible against co-conspirators

Privies in title and joint tenants

in most state courts, admissions of each joint tenant are admissible against the other and admissions of a former owner of real property made at the time she held the title are admissible against those claiming under her

Preliminary determinations

must consider the contents of the statement, but the statement alone is not sufficient to establish the required relationship

hearsay exception: declarant is unavailable if:

- is exempt from testifying because of privilege

- refuses to testify

- testifies that he does not remember

- is unable to testify due to death or physical or mental illness

- is absent

Former testimony

testimony of a now unavailable witness, given at trial or hearing, or in a deposition, is admissible if:

- the party against whom the testimony is offered or the party's predecessor in interest was a party in the former action

- the former action involved the same subject matter

- the testimony was under oath and

- the party against whom the testimony is offered had an opportunity at the prior proceeding to develop the declarant's testimony.

statements against interest

a statement of a person, now unavailable as a witness may be admissible if it was against that persons pecuniary, proprietary, or penal interest when made, such that a reasonable person in the declarants position would have made it only if she believed it to be true. The declarant must also have had personal knowledge of the facts, and must have been aware the statement was against her interest when she made it

Risk of criminal liability

in criminal cases, the federal rules require corroborating circumstances indicating the trustworthiness of the statements

Statement means single remark

if a person makes a declaration containing statements that are against his interest and statements that are not, the exception only covers those remarks that inculpate the declarant, not the entire extended declaration

Dying declarations-

in a homicide prosecution or a civil action, a statement made by the now-unavailable declarant is admissible if:

- the declarant believed his death was imminent

- the statement concerned the cause or circumstances of what he believed to be his impending death

Statements of personal or family history

statements by now-unavailable declarant concerning births, marriages, divorces, relationship, genealogical status etc are admissible provided that:

- the declarant is a member of the family in question or immediately associated with it and

- the statements are based on the declarants personal knowledge of the facts or his knowledge of family reputation

statements offered against a party procuring declarant's unavailability

statement of a person (now unavailable as a witness) is admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarants unavailability

Present state of mind

usually offered to establish a person's intent or as circumstantial evidence that the intent was carried out. Except as to certain facts concerning the declarant's will, a statement of memory or belief is not admissible to prove the truth of the fact remembered or believed

Excited utterances

an out of court statement relating to a startling event, made while under the stress of the excitement of the event (before the declarant had time to reflect upon it) is admissible

present sense impressions

comments made concurrently with the sense impression of an event that is not necessarily exciting may be admissible. There is little time for a calculated misstatement and the contemporaneous nature of the statement makes it reliable

Declarations of physical condition: present bodily condition

admissible, as an exception to the hearsay rule even though not made to a physician

past bodily condition

admissible if to assist diagnosis or treatment:

Records of a regularly conducted activity- business records

any writing or record made as any act or transaction is admissible in evidence as proof of that act or transaction.


includes every business, organization, occupation, or calling, whether or not for profit

entry made in regular course of business

to be admissible, must appear that the record was made in the course of a regularly conducted business activity, and that it was customary to make the type of entry involved. Self-Serving accident reports prepared primarily for litigation usually are inadmissible

Personal knowledge

the business record must consist of matters within the personal knowledge of the entrant or within the knowledge of someone with a duty to transmit such matters to the entrant

Entry made near the time of an event

business records entry must be made at or near the time of the transaction


the authenticity of the record must be established. This can e accomplished by the custodian (i) testifying that the record is a business record (ii) certifying in writing that the record is a business record

Prior criminal conviction- felony conviction admissible

a judgment of a felony conviction is admissible in criminal and civil actions as an exception to the hearsay rule to prove any fact essential to the judgment. In a criminal case, however, the government may use the judgment for this purpose only against the accused; it may be used only for impeachment purposes against others

prior criminal acquittal- excluded

exclusionary rule still applied to records of prior acquittals

Judgment in a former civil case

inadmissible in criminal proceeds and generally inadmissible in subsequent civil proceedings

Ancient documents and documents affecting property interests

statements in any authenticated document 20 years old or more are admissible, as are statements in any document affecting an interest in property, regardless of age

learned treatises

treatises are admissible as substantive proof under the federal rules if:

- called to the attention of, or relied upon, an expert witness and

- established as reliable authority by the testimony of that witness, other expert testimony or judicial notice


is admissible under several exceptions to the hearsay rule, as evidence of the following: i) character ii) personal or family history iii) land boundaries and iv) a community's general history

Family records

statements of fact concerning personal or family history contained in family bibles, jewelry, engravings, genealogies, tombstone engravings etc are admissible

Catch all exceptions of federal rules: for hearsay, requires that

1. the hearsay statement possess circumstantial guarantees of trustworthiness

2. that the statement be strictly necessary and

3. that notice be given to the adversary as to the nature of the statement

Confrontation clause

hearsay statement will not be admitted when (i) the statement is offered against the accused in a criminal case (ii) the declarant is unavailable (iii) the statement was testimonial in nature and (iv) the accused had no opportunity to cross examine the declarant's testimonial statement prior to trial

Testimonial statement: statements made in the course of police interrogation

if the primary purpose of police interrogation is to enable the police to help an ongoing emergency, they are non testimonial. When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal investigation statements are testimonial

testimonial statements: affidavits or written reports of forensic analysis

have the effect of accusing a targeted individual of criminal conduct are testimonial and may not be admitted unless the defendant previously had an opportunity to cross examine the author of the report. The testimony of the analyst's supervisor who was not involved in the testing is not sufficient to admit the results. However, such reports may be used for non hearsay purpose. Specifically, no confrontation violation occurs if a forensic report, while testifying as to her independent analysis of data, makes only a general reference to a non testifying analyze report

due process rights

hearsay rules and other exclusionary rules cannot be applied where such application would deprive the accused of her right to fair trial or deny her right to compulsory process


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