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155 Cards in this Set

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What is the law of evidence?
The law that governs the use of testimony and exhibits or other documentary material which is admissible (i.e. allowed to be considered by the trier of fact) in a judicial or administrative proceeding.
What the general purpose of the federal rules of evidence?
To regulate the evidence that the jury may use to reach a verdict, Rule 101 Scope and Rule 102 Purpose and Construction.
What is an objection?
A formal protest raised in court during a trial to disallow a witness's testimony or other evidence which would be in violation of the rules of evidence or other procedural law.
When should an objection be made?
It should be raised timely after the opposing party asks a question of the witness but before the witness can answer or when the opposing party is about to enter something into evidence.
Rulings on evidence and objections influence later requests for:
Mistrials, for striking from the record an introduced offending information, Rule 103 Rulings on Evidence.
What are requirements to be a witness?
Mental competence Rule 601, personal knowledge of events Rule 602, not a juror in the present case Rule 606, etc.
What does competence concern?
The mental capacity of an individual to participate in legal proceedings.
What is direct examination?
One state in the process of adducing evidence from witnesses, it's the questioning of a witness by the party who called him or her, Rule 611.
Are leading questions to witnesses allowed (You were at Duffys right?)?
Generally no, but 611c a hostile witness may be interrogated by leading questions.
The next state in the process of adducing evidence from a witness?
Cross examination which is the interrogation of a witness called by one's opponent.
May writings be used to refresh a witness' memory before or while testifying?
Yes see Rule 612, before testifying if the court in its disretion determines it is necessary in the interests of justice, and if the adverse party is entitled to cross exams, the courts to excising unrelated portions and basing mistrials on party noncompliance.
What is the common law definition of relevance?
The tendency of a given item of evidence to prove or disprove one of the legal elements of the case.
What is the federal definition of Relevant Evidence?
Rule 401, it means evidence having any tendency to make the existence of any fact (that is of consequence to the determination of the action) more probable or less probable than it would be without the evidence (both material and have probative value).
Aside from relevance, what's the next challenge to introduced evidence?
Rule 403 challenge, exclusion of relevant evidence on grounds of its probative value being substantially outweighed by the dange of unfair prejudice (an improper inference, speculation, guesswork has no probative value), confusion of the issues (emotions of the jury), or misleading the jury (pseudo science), or by waste of time (concerns of the judge).
Other ways evidence is deemed inadmissible?
Rule 402, all relevant evidence is admissible except as otherwise provided by the Constitution, Congress, these Rules, SCOTUS.
When evidence is admissible as to one but not another is admitted:
Rule 105, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly (a limiting instruction for limited admissibility of evidence).
People v Adamson 1947 stockings case:
Evidence that is not sufficient to identify the D as the criminal is admissible because although the presence of the stocking tops in the defendants room was not by itself sufficient to identify the D as the criminal, this constitutes as the logical link in the chain of evidence.
The rules are to be interpreted for:
our use as advocates for clients.
The truth is not to be divined but for:
the purpose of advocacy.
Old Chief v US 1997 prior convictions into evidence case:
The district court abused its discretion in admitting defendant's record of conviction because its discounted probative value (as D had offered to stipulate just his time in prison) was substantially outweighed by the risk of unfair prejudice (inadmissible as offered for propensity; propensity should never be a prosecutor's point).
Are subsequent remedial measures taken after an injury has allegedly occurred admissible as evidence?
No see Rule 407 but yes if offered for another purpose such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
Anderson v Malloy 1983 sexual assault at motel with bad locks case:
The evidence of subsequent remedial measures should have been allowed into evidence to rebut the inferences (the controverted feasibility of precautionary measures) created by appelle motel and its exclusion was prejudicial to the appellants.
Harrison v Sears 1992 lost fingers in jointer case:
No abuse of discretion found for excluding evidence of subsequent remedial measures to the product.
Is evidence around compromise and offers to compromise admissible?
No as in Rule 408(a) for evidence about a valuable consideration for compromising and evidence arising from compromise negotiations unless it relates to a claim by a public office; other permitted uses relate to proving a witness' bias or prejudice, negating a contention of undue delay, and proving an effort to obstruct justice.
Pierce v Tripler 1992 employment termination and age discrimination case:
The job offer was found to have been made pursuant to compromise and negotiations and was not admissible because admission could inhibit settlement discussions and interfere with the effective administration of justice.
McShain v Cessna 1977 aircraft malfunction and release of liability agreement evidence case:
The agreement was admissible pursuant to Rule 408 to show bias on the part of the appellant's expert witness.
Is evidence of offering to pay medical expenses admissible to prove liability for an injury?
No see Rule 409.
What's the counterpart to Rule 408 but for criminal matters?
Rule 410 for the Inadmissiblity of Pleas, Plea Discussions, and Related Statements; however, such is admissible if it ought in fairness be considered contemporaneously with another already-admitted statement or in a criminal case for perjury or false statement made under oath.
Is there a good faith exception to the exclusionary-of-pleas Rule 410?
No unlike in other areas of law where the good faith doctrine allows for admission of evidence collected in violation of say privacy rights if the police officer acted in good faith reliance upon a defective search warrant.
Do successful pleas fall under Rule 410?
No only pleas that fall part fall under the exclusionary provisions of Rule 410; because of the D or new evidence compels a prosecutor to withdraw a plea bargain however unrealistic, but judges may change pleas, and in other pleas where rule 410 is not waived.
US v Mezzanatto 1995 drug dealer waiving rule 410 case:
SCOTUS held that a criminal D may knowingly and voluntarily waive many of the fundamental protections afforded by the Constitution.
Is evidence that a person is not insured against liability admissible upon the issue of whether the person acted negligently?
No see Rule 411 but it does not require exclusion of evidence of insurance when offered for another purpose such as proof of agency, ownership, or control, or bias or prejudice of a witness.
Charter v Chleboard 1977 medical malpractice case:
Liability insurance evidence should have been admitted as being offered for another purpose to show possible bias of the witness.
Under Rule 403, to admit evidence:
The probative value of the evidence should far outweigh any danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
What is character evidence?
Opinion and reputation testimony: 1) Testimony as to prior bad or good acts by the individual (a person reputation in the community), 2) Witnesses own opinion as to the character of the person, 3) Testimony as to the reputation of the person (a specific act which reveals that persons character trait).
When is an opposing party allowed to rebut reputation testimony?
After the proponent party brings about the reputation testimony.
3 evidentiary standards of proof:
1) Beyond a reasonable doubt (highest level and use mainly in criminal trials), 2) Clear and convincing evidence (intermediate level, used mainly in civil trials), 3) Preponderance of the evidence (lowest level used mainly in civil trials and usually means more likely than not).
Is character evidence generally admissible to prove conduct?
No, note prohibition on propensity evidence, but see Rule 404 exceptions such as 1) Character of the accused, 2) Character of alleged victim, 3) Character of witness; Other crimes are also not admissible unless for other purposes such as proof of motive, intent, plan, knowledge, etc.
Methods of Proving Character:
See Rule 405 a) Reputation or opinion testimony and b) Specific instances of conduct.
US v Calvert 1975 death insurance and mail fraud case:
The admission of evidence relating to D in past similar crime was relevant to the issue of intent and the probative value of the evidence outweighed its prejudicial effect.
Michelson v US 1948 bribing a federal officer case:
A question about past crimes was proper because if admitted would tend to weaken D's assertion that he was known as an honest citizen.
Rule 104 Preliminary Questions:
a) Questions of admissibility generally b) Relevancy conditioned on fact is dependent upon submission of evidence sufficient to support a finding as to the condition c) Hearing of jury when appropriate not for admissibility questions d) Testimony by accused is subject to cross only for that particular testimony in the case e) Weight and credibility evidence is admissible.
Huddleston v US 1988 stolen property and similar past stolen evidences case:
Similar acts involving previous sale of stolen television are admissible as it was offered for a proper purpose 404b, its probative value outweighed its potential for prejudice 403, and that it was relevant 402 as enforced through 104a and 104b bc a jury could reasonably have found by a preponderance of the evidence that the televisions were stolen (sufficing for the 104b requirement).
Rule 404 (Character Evidence Not Admissible To Prove Conduct) Exceptions:
Rule 404b Other crimes are not admissible but for other purposes such as proof of (MIAMICOP) Motive, Identity, Absence of Mistake, Accident, Intent, Common Plan or Scheme, Opportunity, Preparation.
Do the federal rules require a statement of permissible purpose when using 404b to admit evidence of other crimes?
No, 404b exceptions apply by a preponderance of the evidence (lowest level standard of evidentiary proof).
Does NJ require a statement of permissible purpose for employing 404b exceptions?
Yes, in NJ one needs to show that the other crime did in fact occur by clear and convincing evidence via a 404b hearing for example.
Rule 404b (evidence of other crimes based on other purposes other than character propensity) steps in arguing as a proponent or opponent of admitting other bad acts into evidence:
1) Articulation of permissible purpose (prior acts show knowledge rather than propensity) for introducing other-crimes evidence (rule 401 relevant evidence), 2) Occurrence of act by clear and convincing evidence in NJ (or preponderance of the evidence in FRE) (rule 104b relevancy conditioned on fact), 3) Rule 403 argument where the probative value is is not outweighed by potential for unfair prejudice, 4) Rule 105 limiting instruction to limit such evidence from being used to show the D's character.
Could a D who took the stand on their own behalf claim the 5th amendment privilege against self incrimination?
No see US v Hearst 1977 kidnapped criminal case because the cross examination involved matters reasonably related to the subject matter of her direct examination (the court did not abuse its disretion due to the reasonable relationship of the cross examination) (acts offered to prove intent are admissible).
US v Carroll 2000 armed robbery of federal credit union case:
Introduction of prior bank robbery was too generic and remote from the crime at issue to permit a reasonable inference of identity (404b exception not met); but given the overall evidence against the D the error was harmless and had only a slight impact on the trial.
On the final, 404b will address:
1) The four stages of a 404b argument (Articulation, Occurrence of act, Rule 403 argument, Rule 105 instruction), 2) How the prosecution uses it, 3) MIAMICOP, 4) 404a for character evidence of accused or the alleged victim.
404(a)(1) Use, Form, and Response by defendant:
Use may be by a D to offer his good character to rebut the implication of the indictment, Form of the evidence is by reputation and opinion, Response can be a cross exam of the reputation given and opinion of the witnesses and adducing specific bad acts relating to D's character.
404(a)(1) Use, Form, and Response by prosecution:
Use may be by a P after D attacked the Victim's character under 404(a)(2) to show bad character, Form by reputation and opinion, Response can be by cross exam of the r given and o of the witnesses and adducing the good acts relating to D's character (D can also introduce own r and o witnesses).
404(a)(2) Use, Form, and Response by D:
Use by the D to show bad character of the victim (eg initial aggresor) of the crime, Form in r and o testimony, Response by cross exam of the r and o and adducing the victim's good acts relating to victim's good character.
What is a specific response to a repeated situation (also on exam)?
A habit or routine practice as per Rule 406 is relevant (regardless of corroboration or witnesses) to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routing practice.
Loughan v Firestone 1985 injured employee with bad habits on the job case:
The court held that proof of habit through indirect evidence (drinking while on duty habit) to prove that appellant conformed to his routine practice was admissible when there was adequate evidence that the habit was long-standing and not a series of unrelated remote instances.
Other definitions for a Rule 406 habit:
1) A regular response to a repeated specific situation, 2) An automatic response to regular events (semi-autoamtic in nature, wo thought, frequent, common), 3) No proof requirement in the showing a habit not even by preponderance of the evidence or CC or BRD.
A term used to describe what one person hears another person say?
See Rules 801 - 807, hearsay is, legally, an out of court statement offered for its truth, by someone not under oath, or recalling statements that were made out of court (hearsay declarant).
Risks associated with hearsay:
1) Perception (or misperception), 2) Recollection (or faulty memory), 3) Narration (or ambiguity in the statements), 4) Sincerity (or insincerity on the part of the speaker).
For hearsay evidence to be admitted:
It must meet an exception or exemption.
Sir Walter Raleigh trial significance:
Shows the importance of the hearsay rule, without them, Raleigh was executed on the out of court testimony of a witness.
Benefits associated with excluding hearsay evidence:
1) Fair trials, 2) Cross examination of witness testimony, 3) To distrust statements made out of court, 4) Judge or jury cannot assess accuracy of out of court statements, 5) To provide an adequate basis for the jury to evaluate the declarant's credibility due to the cross examination of the opposing party.
Definition of Rule 801(a) Statement:
1) An oral or written assertion or 2) nonverbal conduct of a person if it is intended by the person as an assertion.
Definition of Rule 801(b) Declarant:
A person who makes a statement.
Definition of Rule 801(c) Hearsay:
A statement, other than the one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.
Rule 801(d) Statements which are not hearsay:
1) Prior statement by witness, 2) Admission by party opponent and is own statement, an adopted statement, an agent's statement, a coconspirator's statement.
Hearsay 3 step analysis:
1) An assertive statement, 2) Made by an out of court declarant, 3) Is being offered to prove the truth of the matter asserted therein.
McClure v State 1978 cheating wife murder case:
The trial court erred in excluding the testimony of a court appointed psychiatrist and in exluding testimony as to the wife's infidelity because it was relevant to show D's state of mind at the time of the offense in consideration of lesser voluntary manslaughter charges.
An approach to deal with hearsay problems with the evidence one is trying to have admitted:
1) Attempt to enter it for its truth, 2) Last attempt is to offer it for something other than for its truth.
Hanson v Johnson 1924 property owner (suing bank) as supposed to have been paid by tenant's corn case:
There was no error in permitting the property owner to testify as to his conversation with the tenant regarding the division of the corn as it was related to the very fact that established the identity of the property owner's corn (it would have been admissible if the case was bw owner and tenant btw).
Rule 801(d) Statements which are not hearsay:
1) Prior statement by witness, 2) Admission by party opponent and is own statement, an adopted statement, an agent's statement, a coconspirator's statement.
Rule 801(d)(2)(e) Coconspirator nonhearsay statement case:
US v Barrentt 1976 stolen collection stamps camps case, where a declarant was unavailable as a witness, a statement made by him that exposed him to criminal liability and offered to exculpate the accused was admissible provided that the statement was proven to be trustworthy by corroborating circumstances.
Is it hearsay when prior inconsistent statements are offered for the truth of the direct assertions in the prior statements?
Yes because they are out of court statements offered for its truth and made out of court.
Is it hearsay when prior inconsistent statements are offered for to impeach an inconsistency with the witness's in court testimony?
No because of Rule 801(d)(1)(A) prior statement by witness exception.
Is it hearsay when prior inconsistent statements are offered for the truth of the direct assertion in prior under-oath statements?
No because of Rule 801(d)(1)(A) prior statement by witness exception.
Rule 801(d)(1)(A):
A prior statement by witness is not hearsay if its subject to cross examination and is inconsistent with the declarant's testimony as is given under oath.
Rule 801(d)(1)(B):
A prior statement by witness is not hearsay if its subject to cross examination and is consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.
Rule 801(d)(1)(C):
A prior statement by witness is not hearsay if its subject to cross examination and is one of identification of a person made after perceiving the person.
Tome v US 1995 sexual child abuse of daughter case:
Consistent witness statements made after charges of recent fabrication had been made are inadmissible according to 801(d)(1)(B); the rules only permit introduction of consistent out of court statements to rebut recent fabrication, improper influence, or motive charges when those statements were made prior to charge of recent fabrication, improper influence, or motive.
US v Lewis 1977 id by photograph at trial case:
Rule 801(d)(1)(C) case that a prior statement is not hearsay when it is one of identification of a person made after perceiving the person (witness had perceived the D earlier during suspect identification).
Rule 801(d)(2)(A) admission by party opponent via own statement is not hearsay case:
Jewell v CSX 1998 hazardous train crossing accident case that held a brain damaged daughter's testimony about a distracting argument while crossing the railroad was admissible because it was the party's own statement and because the rule doesn't also require trustworthiness.
US v Morgan 1978 is affidavit evidence pointing to another criminal hearsay in drug home case?
No the statements in the affidavit were not hearsay as per Rule 801(d)(2)(B) because it is a statement of which the party (the government) has manifested an adoption or belief in its truth (they used that information to raid the house) and was relevant to the D's intent to distribute.
Kirk v Raymark 1995 wrongful death suit due to asbestos case:
It was reversible error to admit the prior testimony of a witness in an unrelated trial because none of the exceptions applied including 801(d)(2)(C) where the witness was a person authorized by the party.
Rule 801(d)(2)(D) wolf attack on a child case:
A statement by the party's agent or servant (employee) concerning a matter wi thin the scope of the employment made during the existing of the relationship is not hearsay.
Bourjaily v US 1987 drug dealer and coconspirator statements case:
Rule 801(d)(2)(E) allows for coconspirator statements made during the course of the conspiracy to be admitted as non-hearsay and because the rules contain the identical requirements as the Confrontation Clause, the trial court did not need to embark on an independent inquiry into the reliability of the statements.
Requirements to admit coconspirator evidence prior to Bourjaily:
1) Conspiracy in fact exists, 2) Declarant was a member of the conspiracy, 3) Nondeclarant was also a conspirator, 4) Statement was made in the course (Bourjaily uses this statement to prove requirement 1), and 5) Made in furtherance of the conspiracy.
Hearsay included within hearsay is not exluded under the hearsay rule if:
As per Rule 805, if each part of the combined statements conforms with an exception to the hearsay rule provided in the rules.
Rule 803(1) exception regardless if the declarant is available as a witness:
1) Present sense impression statement which describes an event made while the declarant was under the stress of excitement caused by the event or condition.
Is Rule 803(1) applicable in a case where a doctor alleges a third party heard the D defame him?
No the third party's statement doesn't meet any of the 803 exceptions, see Schindler v Seiler 2007 defamation of doctor case.
Dallas v Donovan 1989 excited utterance of a woman who notified the respondent city of missing stop sign prior to injured children case:
Rule 803(2) excited utterance exception applied in this case because it was probative of actual notice to the city, explained the incident, and related to the cause at issue; It met the requirements: 1) a startling occasion, 2) a statement made prior to time to fabricate, and 3) a statement relating to the circumstances of the occurrence.
803(1) requirements:
Present Sense Impressions are admissible if 1) First hand knowlege, 2) No need to show any particular effect, 3) Description or explanation the event, 4) Made while perceiving the event or immediately thereafter, 5) Policy justifies its exception bc of No time to elaborate.
803(2) requirements:
Excited utterances are admissible if 1) first hand knowlege, 2) event is startling and cause for stress of excitement, 3) only relates to the event, 4) made uner stress or excitement caused by the event or condition, 5) policy justifies its exception bc startling events make some blurt out the truth about the event.
Hearsay included within hearsay is not exluded under the hearsay rule if:
As per Rule 805, if each part of the combined statements conforms with an exception to the hearsay rule provided in the rules.
US v Mornan 2005 fraud from an alleged telemarketing scheme case:
The admission of Rule 803(5) recorded recollection is admissible since witness once had knowledge but now has insufficient recollection, was shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly.
Another hearsay exception for a statement of the declarant's then existing mental, emotional, or physical condition (such as intent, plan, motive, mental feeling, pain, bodily health) but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to a declarant's will.
Mutual Life v Hillmon 1892 case around a will and letters showing state of mind:
It was error to exclude decedent's letters as evidence of then existing state of mind; note common law basis for 803(3).
Casualty v Salina 1960 case about a job site injury and subsequent complaints about pain to fellow workers case:
The law supports the position that the employee's witnesses should have been permitted to testify as to his complaints of presently existing pain; note common law basis for 803(3) (the FRE were not enacted until 1975).
May a declarant admit own statement as a party statement?
No but a declarant may use 803(3) to try to admit statements made to colleagues, doctors, etc.
Is an opponent's argument that evidence doesn't have weight dispositive?
No the question of weight of certain evidence belongs to the jury's hands.
State v Moen 1990 aggravated murder case:
803(4) allowed for admission of statements for purposes of medical diagnosis or treament to be admitted in regard to a victim of the crimes.
How may one keep out statements from treating doctors?
1) Rule 403 on grounds of unfair prejudice outweighing the statements' probative value, 2) Time to fabricate is an issue in the case, 3) The underlying rationale is not sound (not pertaining to treatment or diagnosis), 4) Arguing for the evidence as directly related to the case (rule 401), 5) Arguing that statements not made to doctor, a stretch but arguable.
803(6) definition and case:
A hearsay exception for records of regularly conducted activity, see Keogh v Commissioner 1983 undereported tip income case that held a coworker's work diary as admissible as a business record exception to the hearsay rule under 803(6) bc even though it was personal, it was regularly and continually maintained by the author as part of his own business activity.
Beech Aircraft v Rainer 1988 surviving spouses case against plane mft for damages from an aircraft crash case:
Rule 803(8)(C) excepts public records and reports from the hearsay rule and may encompass evaluative conclusions or opinions as part of the factual findings required in the rule unless there is indication of lack of trustworthiness.
Rule 803 concerns hearsay exceptions while declarant's availability is immaterial but Rule 804 concerns:
Hearsay exceptions while declarant is unavailable.
Rule 804 unavailability includes:
1) Exemption by the courts on the ground of privilege (5th amendment protections), 2) Persistent refusal to testify, 3) Lack of memory, 4) Unable to be present due to death or other ailment, 5) Absence.
Rule 804 hearsay exceptions (declarant unavailable):
1) Former testimony (same but given in a prior proceeding and opporunity given for direct, cross, redir exams), 2) Statement under belief of impending death, 3) Statement against interest, 4) Statement of personal or family history, 5) Other see Rule 807 residual exception, 6) Forefeiture by wrongdoing.
Rule 804(b)(6) standards of proof (NJ and Fed courts):
NJ has a current conflict bw preponderance of the evidence and clearn and convincing standards but the Federal courts use lowest standard (PE).
US v Gray 2005 black widow case:
The district court did not abuse its discretion in admitting certain hearsay testimony from the first dead husband because rule 804(b)(6) forefeits the hearsay exception when the opposing party is somehow responsible for the unavailability.
Are there constitutional concerns regarding 804(b)(6) forefeiture of hearsay exceptions by wrongdoing?
Yes see the Confrontation Clause which says that an accussed shall enjoy the right to be confronted with the witnesses against him; but 804(b)(6) seems to throw away the confrontation clause if the party is responsible for the unavailability; See Giles v CA 2008 dead girlfriend testimony case.
Is acquiescing in wrongdoing enough for 804(b)(6) to apply?
Yes see US v Cherry 2000 case that imputed the 804(b)(6) waiver under an agency theory of responsbility if the result was in furtherance of and reasonably foreseeable as a necessary or natural consequence of an ongoing conspiracy.
If a predecessor in interest (against the former testimony that is now offered and the declarant is unavailable) had an opportunity or similar motive to develop the testimony, does 804(b)(1) apply?
Yes see US v DiNapoli 1993 because there was no substantially similar intensity to prove or disprove the same side of the substantially similar issue.
Is 804(b)(1) applied differently in civil and criminal cases?
Yes in a criminal case the party against whom the testimony is offered must be the one who had the opportunity and motive to cross-examine; in a civil case the person may be what the rule designates as a predecessor in interest.
How is 804(b)(2) applied differently by federal law versus NJ law?
Under federal law, statements under belief of impending death, are excepted from the hearsay rule only in homicide or civil cases but NJ law allow them in other criminal cases as well.
Why does 804(b)(3) make sense?
Because a reasonable person does not normally make a statement against their own interest and because it requires corroborating circumstances to weed out cases when the persons have nothing to lose and, for example, choose to usurp the crime for the defendant.
Is a statement of personal or family history excepted from the hearsay rule?
Yes see rule 804(b)(4).
With what rule was 804(b)(5) replaced?
Rule 807 residual exception which excepts from the hearsay rule a statement having equivalent cicumstantial guarantees of trustworthiness and is a) offered as evidence of a material fact, b) more probative on the point for which it is offered than other evidence, and c) the interests of justice will best be served and the adverse party was given a fair opportunity to prepare.
Do hearsay statements by nontestifying defendants offend the confrontation clause?
Yes but see OH v Roberts 1980 because the D's counsel questioned the witness at a preliminary hearing and it was replete with leading questions so the testimony bore sufficient indicia of reliability so as not to offend the Confrontation clause.
What is OH v Roberts two pronged approach to hearsay and confrontation clause analysis?
1) The declarant generally must be show to be unavailable; and 2) the statement must have been made under circumstances providing sufficient indicia of reliability so as not to offend the CC.
Do a wife's hearsay testimony to a police officer offend the CC?
Yes see Crawford v Washington 2004 case because the interrogation was testimonial in nature rather than nontestimonial hearsay the D's right to confront the wife thus clearly included the right to cross examine the statement especially in view of the ambiguity in the statement.
Does the right to confront a declarant a substantive guarantee that evidence be reliable?
No, rather, the CC is a procedural guarantee that the reliability of the wife's statement be tested by cross examination.
Is testimony from a police 911 call inherently testimonial?
No, see Davis v Washington 2006 911 case, where the court allowed the 911 call transcripts to be used agains the defendant.
Michigan v Bryant 2011 CC and hearsay case:
Held that the ongoing-emergency statement was not testimonial and thus its admission did not violate the CC and did not need to be cross-examined as per Crawford.
Standard of proof for hearsay exception under federal law, NJ law:
Preponderance of the evidence while NJ law demands more via clear and convincing evidence; but perhaps the jury should be the determinant.
May one waive CC rights by wrongdoing?
Yes as per 804(b)(6) and see US v Scott 2002 case where the judge properly found D's wrongdoing was intended to procure the neighbor's unavailability.
What's the difference between lay person opinions and expert testimony?
Opinions are guesses as to descriptors of people, things and within the ken (common knowlegdge) of the average juror; but testimony that is beyond the consideration of the average juror is expert testimony.
Rule that governs testimony by experts:
702 where a qualified expert may testify as long as the testimony is 1) based upon sufficient facts or data, 2) the product of reliable methods in the expert's field, and 3) the witness has applied the methods reliably to the facts of the case.
Prior to 702, what was the standard to determine the admissibility of scientific evidence?
The Frye test where expert opinion based on a scientific technique is admissible only where the technique is generally accepted as reliable in the relevant scientific community; federal courts rely on 702 while NJ still adheres to Frye unless the case is about products liability where the Daubert rule holds.
What is the Daubert rule?
See 702 as amended in 2000 in an attempt to codify the Daubert trilogy of 1) Judge is gatekeeper of whether the testimony proceeds from scientific knowledge, 2) Judge is required to ensure that the ET is relevant to the task at hand and that it rests on a reliable foundation, 3) That the scientific knowledge is the product of sound scientific methodology.
What is a Rule 104 Daubert hearing?
A hearing outside the presence of the jury to discuss 5 nonexclusive factors to establish the validity of the expert's scientific knowledge; 1) The theory must be testable, 2) Subjected to peer review, 3) Known or potential error rate, 4) Existence of standards and controls, and 5) Degree to which the theory is generally accepted by a relevant scientific community.
Does the Daubert standard also govern expert testimony by nonscientists?
Yes see Kumho Tire v Carmichael 1999 that held that some of Daubert's questions were helpful in evaluating the reliability even of experience based testimony.
Other factors as of Daubert in determining whether ET is sufficiently reliable:
1) Whether ET grew naturally and directly out of research independent of litigation, 2) Whether ET was unjustifiably extrapolated from an accepted premise to an unfounded conclusion, 3) Whether ET accounts for obvious alternatives, 4) Whether ET was carefully reached in regular professional work outside of paid litigation work, 5) Whether ET claimed has reached reliable results for the type of opinion given.
Are ET requirements relaxed for criminal cases as compared to civil cases?
Yes see US v Freeman 2007 drug case where admissibility of police officer's interpretation of ambiguous and clear gang language was impermissible but harmless.
What are bases of opinion testimony by experts?
See Rule 703 where bases may be those 1) perceived or made known to the expert at or before the hearing, 2) reasonably relied upon by experts in the particular field, 3) inadmissible bases (facts or data) may be admitted if the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
Are opinions on the ultimate issue of a case admissible?
See Rule 704 where admissible testimony is not objectionable just because it embraces an ultimate issue for the jury but no expert testimony testifying with respect to mental state or condition may state an opinion or inference as to an element of the crime charged; such ultimate issues are matters for the trier of fact alone.
Must facts or data (bases) underlying expert opinions be disclosed?
No see Marsee v US Tobacco 1989 oral cancer case where the court properly excluded appellant's expert from testifying in detail about the facts that helped form the opinions; the opinions themselves were not excluded and the facts at issue amounted to hearsay.
May courts appoint experts of their own selection?
Yes see Rule 706 which allows for appointments, compensation, disclosure of appointments, and allows for parties to select their own experts.
Is ET based on hard sciences always admissible?
No see Head v Lithonia 1989 head injury case that held the information offered by injured party expert was insufficient for the trier of fact to understand the reliability of the test; the record did not sufficiently establish the trustworthiness of the topographical brain mapping relied upon by the injured party expert or its acceptance in the relevant scientific community.
May ET based on soft sciences be admitted?
Yes if they meet the Daubert standard see US v Powers 1995 sexual abuse case that found evidence of victim sexual behavior was irrelevant because it could not provide a reasonable alternative explanation to appellant's guilt.
May a witness be impeached through introduced evidence, if so what types of evidence?
Yes via BICCC types of evidence; 1) Bias, 2) Inconsistent Statement, 3) Character, 4) Competency, 5) Contradiction.
Who may impeach a witness?
Rule 607 statest that the credibility of a witness may be attacked by any party, including the party calling the witness, unlike the common law.
What's the statute of limitations for introducing past crimes for impeaching a witness?
10 years where if its within that time, then its admissible.
Other rules that limit the impeachment of a witness:
Rule 403 (Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time), Rule 404 (Character evidence not admissible to prove conduct; exceptions), Rule 608 (Evidence of character and conduct of witness), Rule 609 (Impeachment by evidence of conviction of crime).
Rule 609 impeachment by evidence of conviction of crime guidelines:
a) For the purpose of attacking the character for truthfulness of a witness if crime punishable in excess of one year and required to prove dishonesty or false statement by the witness, b) 10 year time limit, c) Not if crime is pardoned, d) Not from a juvenile adjudication, and e) admissible even if appeal is pending.
Outline for impeaching a witness:
1) What crime are we talking about, 2) Are we impeaching a D in a criminal case versus other parties, 3) When did the crime occur, 4) 10 year limit for all crimes.
Aricle 5 rules (500s) govern:
Privileges which is a special entitlement to immunity granted by the state or another authority to a restricted group, either by birth or on a conditional basis.
How do FRE over privileges differ from NJ rules of evidence?
FRE doesn't cover specific privileges just 501 (general rule) and 502 (attorney-client privilege and work product; limitations on waiver).
Are witnesses required to provide a response to an objected question?
Yes but objections as to privilege are respected in a deposition and answers cannot be given.
Privileges are based on:
Protecting information where its disclosure may cause harm.
May one claim privileg in areas that are not explicitly protected by state law?
Yes there have been arguments of privilege in parent child relationships and same sex marriages.
What are the Wigmore principles?
Principles that suffice for raising an argument of privilege; 1) Communications must originate in confidence, 2) Confidentiality must be essential in the relationship, 3) Relationship is one that the community opines should be diligently fostered, 4) The injury arising from disclosure is greater than the benefit gained from disclosure.
Are communications between corporate general counsel and corporate employees protected by attorney-client privilege; work product doctrine?
Yes see Upjohn v US 1981 as the data gathering process for providing legal advice is within the scope of an attorney's duties and it includes notes and memos based on oral statements of employees.
Is the attorney client privilege destroyed when a story is related in the presence of another?
No see US v Kovel 1961 as the communication was made in confidence for the purpose of obtaining legal advice.
In regard to spousal privileges to whom does the privilege vest?
The witness spouse, see Trammel v US 1980 allowed spousal testimony case, and they may neither be compelled to testify nor foreclosed from testifying.
Does a partnership in crime destory marital communication privilege?
Yes see US v Marashi 1990 tax evasion case where testimony by D's exwife as to statements made by D during the marriage was admissible under the partnership in crime exception to the marital communications privilege.
Do patients and their psychotherapists or social worker enjoy communication privilege?
Yes see Jaffee v Redmond 1996 case where their confidential communications held privileged from compelled disclosure under FRE 501.
Is there a clergy-penitent privilege and, if so, who holds it?
Under federal law only the penitent is the holder of the privilege but NJ law hold both clergy and penitent to the privilege.