Evidence - Mbe - Texas Bar Exam 2010

Front 1

Relevance

Back 1

Evidence is relevant if it has any tendency to make a fact of consequence more probable or less probable than would be the case without the evidence

Materiality - of consequence to the case

Probativeness - some tendency to make proposition more/less likely

Front 2

All relevant evidence is admissible unless

Back 2

a. some specific exclusionary rule is applicable or
b. court makes a discretionary determination that the probative value of the evidence is substantially outweighed by pragmatic considerations:
-danger of unfair prejudice
-confusion of the issues
-undue delay
-misleading the jury
-waste of time (not considered in TX)
-unduly cumulative

Front 3

Plaintiff's accident history

Back 3

Generally, it's inadmissible - shows nothing more than P is accident prone

BUT is admissible if cause of P's damages is in issue

Front 4

Similar Accidents Caused by Same Event or Condition

Back 4

Generally, other accidents involving D are inadmissible because they show nothing more than general character for carelessness

BUT other accidents involving the same instrumentality/condition, and occurring under substantially similar circumstances, may be admitted for 3 potential purposes:
1. existence of dangerous condition
2. causation
3. prior notice to D (only if other accidents occurred before P's)

Front 5

Intent in issue

Back 5

person's prior conduct may provide inference of intent on later occasion

Front 6

Comparable sales on issue of value

Back 6

selling price of other property of similar type, in same general location, and close in time to period at issue, is some evidence of value of property at issue

Front 7

Habit

Back 7

Habit of person/routine of business is admissible as circumstantial evidence of how the person or business acted on the occasion at issue

Habit has 2 defining characteristics:
1. Frequency
2. Particularity of the circumstances

Habit = is a repetitive response to a particular set of circumstances

Distinguish: character evidence refers to a particular person's general disposition or propensity; usually not admissible to prove conduct on a particular occasion

Front 8

Industrial custom as standard of care

Back 8

Evidence as to how others in same trade/industry have acted in recent past may be admitted as some evidence as to how a party in the instant litigation should have acted (appropriate standard of care)

Ex. P injured when blade spins off lawnmower; in action against manufacturer, P may show that 80% of all other lawn mower manufacturers, during relevant time period, had installed devices to prevent blade spin-off

Front 9

Liability insurance

Back 9

evidence that person has, or does not have, liability insurance is inadmissible to prove the person's fault or absence of fault (policy: avoid risk that jury will base decision on availability of insurance instead of merits of case)

But evidence of insurance may be admissible for some other relevant purpose, such as ownership/control of instrumentality/location (if controverted) or for the purpose of impeachment

Front 10

Subsequent Remedial Measure
(post-accident repairs, design changes, policy changes)

Back 10

Inadmissible for purpose of proving negligence, culpable conduct, product defect, need for warning (policy: to encourage post-accident repairs, etc. to avoid future accidents)

But such evidence may be admissible for some other relevant purpose - proof of ownership/control or feasibility of safer condition (if either is controverted)

Texas: 1 exception to fed rule - in a products liability action, evidence of written notification of a product defect sent by manufacturer to purchaser is admissible to prove defect's existence

Front 11

Settlements

Back 11

Civil: evidence of a settlement or offer to settle a DISPUTED claim (either as to validity or amount of damages) is inadmissible to prove liability or weakness of a party's case (policy: to encourage settlements)

Statements of fact made in the course of settlement discussions are inadmissible (policy: to encourage free/open discussion)

But evidence of settlement may be admissible for purpose of impeachment of a witness on the ground of bias

Front 12

Pleas (criminal)

Back 12

Inadmissible:
1. Offer to plead guilty
2. Withdrawn guilty plea
3. Plea of nolo contendere (no contest)
4. Statements of fact made during any of the above plea discussions

But, a plea of guilty (not withdrawn) is admissible in subsequent litigation based on the same facts under the rule of party admissions

Front 13

Offer to pay hospital or medical expenses

Back 13

Evidence that a party has paid or offered to pay an accident victim's hospital or medical bills is inadmissible to prove liability (policy: to encourage charity)

But statements made in connection with the offer are admissible (offer to pay bills and then keep your mouth shut)

Front 14

Character evidence

Back 14

person's general propensity or disposition (ex. honesty, fairness, peacefulness, violence)

Potential purposes for admissibility of character evidence:
1. person's character is a material element in the case
2. character evidence to prove conduct in conformity with character at time of the litigated event (character as circumstantial evidence of conduct on particular occasion)
3. witness's bad character for truthfulness to impeach credibility

Front 15

Criminal cases - defendant's character

Back 15

Evidence of D's character to prove conduct in conformity is not admissible during prosecution's case-in-chief

But D, during defense, may introduce evidence of a relevant character trait (by reputation or opinion testimony of a character witness) to prove conduct in conformity, thereby opening the door to rebuttal by the prosecution (rebuttal may include asking D's character witness about specific acts of the D that reflect adversely on the particular character trait that D has introduced or calling prosecution's own reputation/opinion witnesses to contradict D's witnesses)

Front 16

Victim's character - self-defense case

Back 16

Criminal D may introduce evidence of victim's violent character to prove victim's conduct in conformity (as circumstantial evidence that victim was first aggressor) - character witness may testify to victim's reputation for violence and give opinion

Prosecution rebuttal - evidence of victim's good character (reputation or opinion); under FRE, prosecution may prove D's character for violence (not in TX - limited to evidence of victim's good character)

If D, at time of alleged self-defense, was aware of victim's violent reputation or prior specific acts of violence, such awareness may be proven to show D's state of mind - fear - to help prove that he acted reasonably in responding as he did to victim's aggression

Front 17

Victim's character - sexual misconduct case

Back 17

Under federal "rape shield law," in both criminal and civil cases, where D is alleged to have engaged in sexual misconduct, the following evidence about victim is ordinarily inadmissible:
-opinion or reputation evidence about victim's sexual propensity, or
-evidence of specific sexual behavior of victim

Exceptions:
1. specific sexual behavior of victim to prove that someone other than D was source of semen or injury to victim
2. victim's sexual activity with D if defense of consent is asserted
3. where exclusion would violate D's right of due process

TX rape shield law applies only in criminal cases

Front 18

Civil cases - character evidence

Back 18

character evidence is generally inadmissible to prove conduct in conformity (in federal cases)

TX rule: civil defendant accuse of assaultive conduct may prove victim's violent character (reputation or opinion testimony) to suggest victim was first aggressor

Evidence of person's character is admissible in civil action where such character is an essential element of a claim/defense (provable by reputation/opinion or specific acts) - only 2 situations:
1. Negligent hiring/entrustment
2. Defamation - truth = defense

Front 19

D's other crimes for non-character purpose

Back 19

General rule: other crimes or specific bad acts of D are not admissible during prosecution's case-in-chief if the only purpose is to suggest that because of D's bad character he is more likely to have committed the current crime

But if D's other crimes/bad acts show something specific about the crime charged, such evidence may be admissible

Most common non-character purposes (MIMIC):
M - Motive
I - Intent
M - Mistake or accident, absence of
I - Identify (modus operandi; opportunity)
C - Common scheme/plan

Front 20

Method of proof of MIMIC-purpose crimes

Back 20

-by conviction or
-by evidence (witnesses, etc) that proves the crime occurred: conditional relevancy standard - prosecution need only produce sufficient evidence from which a reasonable juror could conclude that D committed the other crime)

Upon D's request, prosecution must give pretrial notice of intent to introduce MIMIC evidence; court must also weigh probative value vs. prejudice and give limiting instructions

Front 21

Other sexual misconduct to show propensity in sex-crime prosecution or civil action - federal rules only

Back 21

Under FRE, in case alleging sexual assault or child molestation, prior specific sexual misconduct of D is admissible as part of the case-in-chief of the prosecution (in a criminal case) or of plaintiff (in civil action) for any relevant purpose, including D's propensity for sex crimes

Front 22

Authentication of Writings

Back 22

Showing must be made that writing is authentic (genuine)

In the absence of a stipulation as to authenticity, a foundation must be made in order for the document to be admissible

Front 23

Methods of Authentication

Back 23

1. Witness's personal knowledge (ex. witness saw X sign document)
2. Proof of Handwriting
a. Lay opinion (ex. lay witness testifies to opinion that X wrote document on basis of familiarity with X's handwriting as a result of experience in normal course of affairs - was X's secretary)
b. Expert comparison opinion
c. Jury comparison (ex. jury compares document with exemplar of X's handwriting)
3. Ancient document rule - authenticity may be inferred if document is at least 20 years old, facially free of suspicion, and found in place of natural custody
4. Solicited reply doctrine - document can be authenticated by evidence that it was received in response to a prior communication to the alleged author

Front 24

Self-authenticating documents

Back 24

Presumed authentic - no need for foundation testimony:
1. Official publications
2. Certified copes of public or private records on file in public office
3. Newspapers or periodicals
4. Trade inscriptions or labels
5. Acknowledged document - notary's signature
6. Commercial paper

Front 25

TX rule of self-authentication for business records

Back 25

1. Affidavit by custodian or other person capable of testifying that the record qualifies for the business records hearsay exception
2. Business records hearsay exception is satisfied
3. Original or exact duplicate of the business record is attached to the affidavit
4. Notice to other parties: affidavit and attachment are filed with court at least 14 days prior to trial and prompt notice is given to other parties

Front 26

Authentication of Photos

Back 26

Witness may testify on the basis of personal knowledge that photo is a "fair and accurate representation" of the people or objects portrayed

Front 27

Best Evidence Rule ("original writings" rule)

Back 27

To prove contents of writing/recording/photo, an original must be produced or an acceptable excuse of its absence must be provided; if court finds excuse acceptable, party may use secondary evidence - oral testimony or copy

Front 28

When Best Evidence Rule Applies

Back 28

When party is seeking to prove contents of a writing

2 Main Situations:
1. Writing is a legally operative document (deed, mortgage, contract)
2. Witness is testifying to facts that she learned solely from reading them in a writing

Not applicable when witness with personal knowledge testifies to a fact that exists independently of a writing which records the fact

Front 29

What qualifies as "original writing"

Back 29

1. writing itself; any counterpart intended to have the same effect; any negative of film; computer printout
2. duplicate - any counterpart produced by any mechanical means that accurately reproduced the original; duplicate is admissible unless it would be unfair (ex. bad copy) or genuine question is raised as to authenticity of original
3. handwritten copy is neither an original nor duplicate

Front 30

Excuses for non-production of original

Back 30

1. lost or cannot be found with due diligence
2. destroyed without bad faith
3. cannot be obtained with legal process

Court must be persuaded by preponderance of the evidence that excuse has been established; secondary evidence is then admissible (ex. testimony based on memory, handwritten copy)

Front 31

Escapes - Best Evidence Rule

Back 31

1. voluminous records can be presented through a summary/chart, provided the original records would be admissible and they are available for inspection
2. certified copies of public records
3. collateral documents

if court, in its discretion, determines writing is collateral, contents may be proven by secondary evidence

Front 32

Competency of Witnesses, in general

Back 32

Basics: personal knowledge + oath or affirmation (no magic words; just acknowledge the importance of telling the truth and that there is a penalty for lying)

Juror may not testify:
a. in same case in which sitting as juror as to any matter
b. in any other case as to statements made in deliberation or effect anything had on deliberations
c.but may testify as to any outside influence and extraneous prejudicial info (ex. bailiff)

Texas: in addition to personal knowledge and oath/affirmation, witness incompetent to testify if court finds - insane at time of events witnesses or at trial OR child or other person lacks sufficient intellect to relate events witnessed

Front 33

Dad Man's Statute (If MBE says Dead Man's Act exists, use it; otherwise, no Dead Man's Act)

Back 33

a. witness is not ordinarily incompetent merely because she has an interest - direct legal stake - in outcome of the litigation
b. But under a typical state "Dead Man's Act," in a civil action, an interested party is incompetent to testify in support of her own interest against the estate of a decent concerning communications or transactions between the interested party and the decedent

TX Dead Man's Rule (applies only to what dead man said; not what he did):
Interested witness incompetent if:
a. civil action by or against decedent's estate, or by or against decedent's heirs/legal representative
b. either party to action seeks to testify to oral statement made by decedent
BUT party may testify to decedent's oral statement if either:
-decedent's oral statement is corroborated by other evidence, or
-incompetent party is called by adverse party to testify concerning decedent's oral statement

Front 34

Leading Question

Back 34

Form of question suggests the answer

a. generally not allowed on direct examination of witness
b. generally allowed on cross-examination of witness
c. but allowed on cross exam if:
1. preliminary or introductory matters
2. youthful/forgetful witness
3. hostile witness
4. adverse party and people associated with adverse party

Front 35

Refreshing Recollection

Back 35

Basic rule: witness may not read from prepared memo; must testify on basis of current recollection

But if witness's memory fails him, he may be shown a memo (or any other tangible item) to jog his memory

Safeguards against abuse - adversary has right:
1. to inspect the memory-refresher
2. to use it on cross-examination
3. to introduce into evidence

Front 36

Past Recollection Recorded (Hearsay Exception)

Back 36

Foundation for admissibility of contents of writing:
1. showing writing to witness fails to jog memory
2. witness had personal knowledge at former time
3. writing was either made by witness or adopted by witness
4. making or adoption occurred when event was fresh in witness's memory
5. witness can vouch for accuracy of writing when made/adopted

Then, you can read it to jury

Front 37

Opinion Testimony - Lay Witnesses

Back 37

Lay opinion admissible if:
1. rationally based on witness's perception (personal knowledge) and
2. helpful to jury in deciding a fact

Examples: drunk/sober; speed of vehicle; sane/insane; emotions of another person; handwriting

Front 38

Opinion Testimony - Expert Witnesses

Back 38

a. Qualifications (SKEET) - skill, knowledge, education, experience, training
-TX rule on expert qualifications in cases based on "health care liability claims" (medical malpractice): expert must be actually practicing same type of health care as that of D, either at time of testimony or at time claim arose (ex. podiatrist D and podiatrist expert, not oncologist)
b. Proper subject matter - scientific, technical or other specialized knowledge that will be helpful to jury in deciding a fact

Front 39

Expert Witnesses - Basis of knowledge

Back 39

Experts must have opinion based on "reasonable degree of probability or reasonable certainty"
AND 3 permissible data sources:
1. personal knowledge (ex. treating physician)
2. other evidence in the trial record (testimony by other witnesses, exhibits) - made known to expert by hypothetical question
3. facts outside the record if of a type reasonably relied upon by experts in the particular field in forming opinions

Front 40

Expert Witnesses - Reliability

Back 40

To be admissible expert opinion must be sufficiently reliable

Federal: court serves as "gatekeeper" and will use 4 principal factors to determine reliability of principles and methodology used by expert to reach opinion - TRAP:
T - testing or principles/method
R - rate of error
A - acceptance by other experts
P - peer review/publication

Texas has 2 more factors - ON:
O - objective vs. subjective interpretation of data
N - nonjudicial use of principle or methodology

Front 41

Learned Treatise in Aid of Expert Testimony (Hearsay Exception) - may be read aloud as substantive evidence but may not be introduced as exhibit

Back 41

1. on direct examination, party's own expert: relevant portions of treatise, periodical, or pamphlet may be read into evidence as substantive evidence (to prove truth of matter asserted) if established as reliable authority
2. on cross-exam of opponent's expert: read into evidence to impeach and contradict opponent's expert; comes in as substantive evidence
3. but learned treatise may not be introduced as exhibit

Front 42

Ultimate Issues

Back 42

opinion testimony (lay or expert) is permissible even if it addresses an "ultimate issue" in the case BUT

TX Rule: expert witness may testify in terms of negligence, proximate cause, or lack of testamentary capacity if proper legal standard is used

Criminal cases (FRE only): ultimate issue is still proper objection if expert seeks to give direct opinion that D did or did not have relevant mental state

Front 43

Cross-Examination

Back 43

1. party has right to cross-examine any opposing witness who testifies at trial; significant impairment of this right will result in striking of witness's testimony
2. proper subject matter:
a. matters within scope of direct examination and
b. matters that test the witness's credibility
3. TX distinction: not limited to scope of direct exam; may question witness on anything relevant to case

Front 44

Impeachment - involving your own witness

Back 44

bolstering: generally, not allowed to bolster own witness until after witness's credibility has been attacked

impeachment of your own witness is permitted without limitation

Front 45

Impeachment Methods - Overview

Back 45

1. Prior inconsistent statement
2. Bias, interest or motive to misrepresent
3. Sensory deficiencies

Bad Character for Truthfulness:
4. Bad reputation or opinion about witness's character for truthfulness
5. Criminal convictions
6. Bad acts (without conviction) that reflect adversely on witness's character for truthfulness

7. Contradiction

Front 46

Impeachment Issues - Procedural Issues

Back 46

With respect to each impeachment method, consider 2 procedural issues:
1. Can impeaching fact be proven by extrinsic evidence (documentary evidence or testimony from other witnesses), or is party bound by witness's answers to impeaching questions?
2. Assuming extrinsic evidence is permissible, must witness first be confronted with impeaching fact as a prerequisite to introduction of extrinsic evidence?

Front 47

Prior Inconsistent Statements

Back 47

Any witness may be impeached by showing that on some prior occasion, she made a material statement (orally or in writing) that is inconsistent with her trial testimony (purpose: suggests trial testimony is false or mistaken)

But certain prior inconsistent statements may be admitted both for impeachment and as substantive evidence: prior inconsistent statement given orally under oath and as part of a formal hearing, proceeding, deposition (policy: reliable because of oath and witness is now subject to cross-ex about statement)

Front 48

Confrontation/Extrinsic Evidence Issue: Must witness be confronted with her prior inconsistent statement while still on the stand, or may it be proven later by extrinsic evidence without such confrontation? (at next opportunity for presenting affirmative evidence, call the person to whom she made the statement (if oral), or (if in writing) lay foundation to introduce writing into evidence

Back 48

Texas rule: confrontation on stand required - witness must be told the contents of the prior inconsistent statement, time and place, and person to whom made; and must be given an immediate opportunity to explain or deny the statement

FRE: confrontation timing is flexible - not required to immediately confront witness; but after proof by extrinsic evidence, witness must be given an opportunity at some point to return to stand to explain/deny prior inconsistent statement

Exception: no confrontation required and no opportunity to explain need be given if witness is the opposing party

Front 49

Bias, Interest, or Motive to Misrepresent

Back 49

Examples: witness is party; friend or employee of party; expert being paid by party

Purpose: suggests testimony is false, slanted, or mistaken in party's favor

Confrontation:
a. TX Rule: witness must be told of circumstances/statements that allegedly show bias and given immediate opportunity to explain or deny
b. FRE: court's discretion

Extrinsic Evidence:
a. TX rule: bias may be proven by extrinsic evidence if witness denies bias or fails to admit bias unequivocally
b. FRE: court has discretion to permit extrinsic evidence even if witness admits bias

Front 50

Sensory Deficiencies

Back 50

anything that could affect witness's perception or memory (ex. bad eyesight, bad hearing, drunk)

purpose: suggests mistake

confrontation not required

extrinsic evidence is admissible to show sensory deficiencies

Front 51

Bad Reputation or Opinion about Witness's Character for Truthfulness

Back 51

Any witness is subject to impeachment by this method

Confrontation not required; Extrinsic evidence is allowed

Call character witness to testify that Target Witness had bad reputation for truthfulness, or that character witness has low opinion of Target Witness's character for truthfulness (purpose: suggests that Target Witness is not telling the truth on the witness stand)

Front 52

Criminal Convictions - FRE

Back 52

Federal Rule:
1. Conviction of any crime involving dishonesty or false statement may be used to impeach any witness
2. If conviction does not involve dishonest/false statement, it must be a felony, and court may exclude, in its discretion, if probative value on issue of witness credibility is outweighed by danger of unfair prejudice to a party
3. Conviction, or release from prison, whichever is later, generally must be within 10 years of trial
4. Method of proof: ask witness to admit prior conviction or introduce record of conviction (extrinsic); not required to confront witness prior to introduction of record of conviction

Front 53

Criminal Convictions - TX Rule

Back 53

Same as Federal, with 3 distinctions:
1. Types of conviction that can be used to impeach: felonies of any type and crimes of moral turpitude (broader than federal rule)
2. Balancing of impeachment value against potential for prejudice applies to all convictions
3. Cannot use conviction to impeach if an appeal of conviction pending

Front 54

Rehabilitation, Innocence, and Probation

Back 54

Conviction is not admissible if:
1. Conviction was subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on rehabilitation, UNLESS
a. FRE: subsequently convicted of crime punishable by death or imprisonment in excess of 1 year (felony)
b. TX Rule: subsequently convicted of felony or crime of moral turpitude
2. Was subject of pardon, annulment, or other equivalent procedure based on finding of innocence
3. Texas Only: successful completion of probation

Front 55

Inquiry about Bad Acts (without conviction if they reflect adversely on witness's character for truthfulness)

Back 55

Federal Rules only

Confrontation on cross-examination is the ONLY permissible means - no extrinsic evidence is permitted; cross-examiner must have good-faith basis, and ability to inquire lies in court's discretion

Front 56

Contradiction

Back 56

Concept: cross-examiner, through confrontation of witness, may try to obtain admission that she made a mistake or lied about any fact she testified to during direct examination; if the witness admits the mistake or lie, she has been impeached by contradiction; however, if she sticks to her story, issue becomes whether extrinsic evidence may be introduced to prove the contradictory fact

Rule: extrinsic evidence not allowed for the purpose of contradiction if the fact at issue is collateral (a fact is collateral if it has no significant relevance to the case or to the witness's credibility)

Front 57

Rehabilitation of Witness

Back 57

1. Showing witness's good character for truthfulness:
a. When? It has been attacked by bad reputation/opinion testimony, criminal convictions, or inquiry about bad acts
b. How? Call favorable character witness about 1st witness's character for truthfulness
2. Prior consistent statement to rebut a charge of recent fabrication - if witness's trial testimony is charged as a recent fabrication, or as a product of improper influence, a prior statement by the witness that is consistent with her testimony will be admissible to rebut the charge if the statement was made before the motive to fabricate arose

Front 58

Attorney-Client Privilege

Back 58

Encourages client to speak openly to counsel

Privilege applies to confidential communication between attorney and client (or representative of either) made during professional, legal consultation unless privilege is waived or an exception is applicable

Front 59

Physician-Patient Privilege

Back 59

Privilege applies to confidential communication or info acquired by physician from patient for purposes of diagnosis/treatment of medical condition; applicable to therapists

Federal distinction: privilege exists for therapists, but not for usual physician-patient confidences

General exception: if patient puts physical/mental condition in issue

TX exceptions: no doctor-patient privilege in criminal cases; however a communication to a person who is examining or treating another for drug/alcohol abuse is not admissible in a criminal proceeding; no privilege if any party relies on patient's physical/mental condition as part of party's claim or defense

Front 60

Husband-Wife Privileges

Back 60

1. Spousal immunity: in criminal cases only, a spouse cannot be compelled to testify against the defendant spouse; witness-spouse, not D, is holder of privilege

2. Confidential communications between spouses: in any case, spouse is not allowed in the absence of consent by other spouse, to disclose a confidential communication made by one to the other during marriage (both spouses hold this privilege)

Exceptions: communications or acts in furtherance of future crime or fraud; communications or acts destructive of family unit (abuse)

TX exception: all types of disputes between spouses (breach of K) and incompetency/commitment proceedings

Front 61

Hearsay - definition

Back 61

1. Out of court statement of a person (oral or written) and
2. Offered to prove the truth of the matter asserted in the statement

Rule: hearsay is inadmissible unless an exception or exclusion applies

Front 62

Principal Categories of Non-hearsay Statements

Back 62

1. Verbal act (legally operative words)
2. To show effect on person who heard or read the statement (ex. notice)
3.Circumstantial evidence of speaker's state of mind (ex. insanity)
4. Prior statements of trial witness
5. Party admissions

Front 63

Prior Statements of Trial Witness

Back 63

General rule: a witness's own prior statement, if offered to prove the truth of the matter asserted in the statement, is hearsay and is inadmissible unless an exception or an exclusion applies

3 witness-statement exclusions from hearsay:
1. Witness's prior statement of identification
2. Witness's prior inconsistent statement if prior statement was under oath and made during formal trial, hearing, proceeding, or deposition
3. Prior consistent statement used to rebut charge of recent fabrication or improper motive or influence

Front 64

Party Admissions

Back 64

1. Any statement made by a party (P or D) is admissible against the party
2. Called "non-hearsay)
3. Theory: party ought to bear the consequences of what she says (can explain to jury, and cannot complain about inability to cross-examine self)

Front 65

Vicarious Admissions

Back 65

Statement by agent/employee is admissible against principal or employer is statement concerns matter within scope of agency or employment and is made during agency/employment

Front 66

Hearsay Exceptions (justified by reliability factors or other good reasons sufficient to excuse inability to cross-examine declarant)

Back 66

1. Former testimony
2. Statement against interest
3. Dying declaration
4. Excited utterance
5. Present sense impression
6. Present state of mind
7. Declaration of intent
8. Present physical condition
9. Statement for purpose of medical treatment
10. Business records
11. Public records

Front 67

Criminal D's Right of Confrontation - Testimonial Statements

Back 67

Regardless of whether a hearsay exception is satisfied, 6th A right of confrontation prohibits the use of "testimonial" hearsay statements against a criminal D if the declarant is unavailable and D has had no opportunity for cross-examination

"Testimonial" statements include sworn testimony:
1. at grand jury
2. prior trial
3. preliminary hearing
4. responses made during police questioning, whether sworn or unsworn

Front 68

Former Testimony

Back 68

The former testimony of a now-unavailable witness, if given at a former proceeding or in a deposition, is admissible against a party who, on the prior occasion, had an opportunity and motive to cross-examine or develop the testimony of the witness (issue in both proceedings must be essentially the same)

Theory: reliability assured by cross-examination on prior occasion; however, we prefer live testimony, so witness must now be unavailable

Front 69

Grounds of Unavailability

Back 69

1. Death or serious illness
2. Absence from jurisdiction
3. Privilege
4. Stubborn refusal to testify
5. Lack of memory
Note: same grounds of unavailability apply to all exceptions where unavailability is a requirement - former testimony, statement against interest, dying declaration

TX distinction: in civil actions, deposition of witness taken in same proceeding is admissible without need to show that witness has become unavailable (non-hearsay under TX rules of evidence)

Front 70

Statement against Interest

Back 70

a. An unavailable declarant's statement against his or her pecuniary (financial), proprietary (civil liability), or penal (criminal) interest - theory: not likely to lie when making a personally damaging statement
b. Statement against interest differs from party admission: must be against interest when made; any person can make statement against interest; personal knowledge is required; declarant must be unavailable

Front 71

Statements Against Interest - Qualifications and Distinctions

Back 71

Qualification in criminal cases: statement against penal interest, when offered to exculpate defendant, must be corroborated

TX distinctions for statement against interest:
1. unavailability not required
2. self-damaging statement includes one that makes declarant an object of hatred, ridicule or disgrace (ex. against social interest)

Front 72

Dying Declaration

Back 72

Statement made under a belief of impending and certain death by a now-unavailable declarant concerning the cause or surrounding circumstances of the declarant's death (no one wants to die with a lie on his lips)

Federal: criminal - homicide only; civil - all types

TX: criminal and civil - all cases

Front 73

Excited Utterance

Back 73

a. statement concerning a startling event and made while declarant is still under stress of excitement caused by the event
b. theory: excitement suspends one's capacity to fabricate

Front 74

Present Sense Impression

Back 74

a. description of an event made while the event is occurring or immediately thereafter
b. theory: declarant has no time to fabricate

Front 75

Present State of Mind

Back 75

a. contemporaneous statement concerning declarant's present state of mind, feelings, emotions
b. theory: contemporaneous statement about matter as to which declarant has unique knowledge

Front 76

Declaration of Intent (Hearsay Exception)

Back 76

a. statement of declarant's intent to do something in the future, including the intent to engage in conduct with another person
b. theory: contemporaneous statement about matter as to which declarant has unique knowledge

Front 77

Present Physical Condition

Back 77

a. statement made to anyone about declarant's current physical condition
b. theory: contemporaneous statement about matter as to which declarant has unique knowledge

Front 78

Statement for Purpose of Medical Treatment or Diagnosis

Back 78

a. statement made to anyone (but usually involves medical personnel) concerning past or present symptoms or general cause of condition for the purpose of treatment or diagnosis
b. theory: motive to be honest and accurate to get good medical assessment

Front 79

Business Record

Back 79

Elements:
1. records of any type of business
2. made in the regular course of the business
3. business regularly keeps such records
4. made at or about the time of the event recorded
5. contests consist of - info observed by employees of the business, or - a statement that falls within an independent hearsay exception

Theory: businesses depend on accurate record-keeping

Front 80

Proving Business Records Foundation

Back 80

1. Call sponsoring witness to testify to the 5 elements of business records hearsay exception; witness need not be author of report - can be records custodian or nay other knowledge person within business or
2. written certification under oath attesting to elements of business records hearsay exception
3. Texas: call sponsoring witness or use "self-authentication" affidavit procedure

Front 81

Public Records

Back 81

a. records of a public office or agency setting forth:
1. the activities of the office or agency or
2. matters observed pursuant to a duty imposed by law or
3. findings of fact or opinion resulting from an investigation authorized by law
b. exception: police reports and investigatory findings are not admissible against the D in a criminal case

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Impeachment of Hearsay Declarants

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Opponent may use any of the impeachment methods to attack the credibility of a hearsay declarant