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59 Cards in this Set
- Front
- Back
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RELEVANCE
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Evidence is RELEVANT if it tends to make the existence of any fact or consequence to the outcome of the action more probable than it would be without the evidence.
All relevant evidence is admissible if it is offered in an unobjectionable form and manner. |
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Questions to ask regarding RELEVANCE
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What proposition is the evidence being used to prove?
Is this a material issue in the case? Is the evidence probative of that proposition? |
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RELEVANCE--General Rule
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Whenever testimony or exhibit evidence that relates to a time, event, or person other than the time, event, or person directly involved int he controversy being litigated is offered, the relevance of that evidence is suspect and should be examined more carefully.
The risk of confusion and unfair prejudice usually outweighs the helpfulness of this type of evidence. |
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RELEVANCE Exceptions -- Habit
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Habit describes one's regular response to a specific set of circumstances (e.g., "she always takes a staircase two steps at a time"). In contrast, character describes one's disposition in respect to general traits (e.g., "she's always in a hurry"). Since habits are more specific and particularized, evidence of habit is relevant and can be introduced in circumstances when it is not permissible to introduce evidence of character.
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Policy-Based Relevance -- SUBSEQUENT REMEDIAL MEASURES
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Evidence of repairs or other precautionary measures made following an injury is inadmissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. The purpose of a rule is to encourage people to make such repairs.
It may, however, be admissible: a) to prove ownership or control; b) to rebut a claim that precaution was not feasible; or c) to prove destruction of evidence. |
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Policy-Based Relevance -- SETTLEMENT OFFERS
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Evidence of compromises or offers to compromise is inadmissible to prove liability for or invalidity of a claim that is disputed as to validity or amount. Such evidence is also inadmissible to impeach through a prior inconsistent statement [FRE 408].
The FRs also exclude "conduct or statements" made in the course of negotiating a compromise, as well as the offer to compromise itself. However, "conduct or statements" made during compromise negotiations regarding a civil dispute with a governmental regulatory, investigative, or enforcement authority are not excluded when offered IN A CRIMINAL CASE. |
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Policy-Based Relevance -- WITHDRAWN GUILTY PLEAS AND OFFERS TO PLEAD NOT GUILTY
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Under the Federal Rules, neither withdrawn guilty pleas, pleas of nolo contendere, offers to plead guilty, nor evidence of statements made in negotiating such pleas are admissible in any proceeding [FRE 410]. Most jxns concur.
The evidentiary value of a withdrawn plea of guilty as an admission is deemed OFFSET BY THE PREJUDICIAL EFFECT of the evidence. However, the protection of FRE 410 for plea negotiations may be validly waived unless there is an affirmative indication that the D entered the waiver agreement unknowingly or involuntarily. |
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Policy-Based Relevance -- PAYMENT OF MEDICAL EXPENSES
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Evidence that a party paid (or offered to pay) the injured party's medical expenses is NOT ADMISSIBLE TO PROVE LIABILITY for the injury [FRE 409].
However, unlike the situation with compromise negotiation, admissions of fact accompanying offers to pay medical expenses ARE ADMISSIBLE. |
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CHARACTER EVIDENCE -- Relevance Problem.
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The rules regarding the use of character evidence are affected by 3 major concerns:
(i) the purpose for which evidence of character is offered; (ii) the method to be used to prove character; and (iii) the kind of case, civil or criminal. Purposes to offer character evidence: a) to prove character when character itself is the ultimate issue in the case; b) to serve as circumstantial evidence of how a person probably acted; or c) to impeach credibility of a witness |
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Means of proving CHARACTER
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Depending on the jxn, the purpose of the offer, and the nature of the case, the following types of evidence may be used to prove character:
i) evidence of specific acts as demonstrating character; ii) opinion testimony; iii) testimony as to a person's general reputation in the community. |
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CHARACTER EVIDENCE -- Specific Acts of Conduct Generally Inadmissible
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When a parson is charged with one crime, extrinsic evidence of her other crimes or misconduct is inadmissible if such evidence is offered solely to establish a criminal disposition.
"MIMIC": Admissible if independently relevant (e.g., to show Motive, Intent (or opportunity), absence of Mistake, Identity (or knowledge), or Common plan or scheme) |
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JUDICIAL NOTICE
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Judicial notice is the RECOGNITION OF A FACT AS TRUE WITHOUT FORMAL PRESENTATION OF EVIDENCE. Judicial notice, like the presumption, is a judicial shortcut and a substitute for proof.
FRE 201(b) defines a fact that may be noticed as "one not subject to reasonable dispute in that it is either (i) generally known within the territorial jxn of the trial court" (notorious facts); or (ii) "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned (manifest facts). Judicial notice may be taken of such facts AT ANY TIME, whether or not requested, and such notice is mandatory if a party requests and supplies the court with the necessary information. |
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Requirements for Admissibility of REAL EVIDENCE
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Real evidence must be relevant, authenticated (usually by recognition testimony or by establishing a chain of custody), shown in the same/original condition at trial, and have legal relevance.
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Requirements for Admissibility of REAL EVIDENCE -- Legal Relevance
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Assuming the object has been properly identified and is probative, the discretion of the trial judge is called upon to decide whether some auxiliary policy or principle outweighs the need to admit the real evidence. Some policies limiting the use of real evidence frequently concern:
(i) PHYSICAL INCONVENIENCE of bringing the object into the courtroom; (ii) INDECENCY OR IMPROPRIETY; or (iii) UNDUE PREJUDICE where the probative value of the object or exhibit is outweighed by the danger of unfair prejudice. |
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DOCUMENTARY EVIDENCE
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Documentary evidence must be relevant in order to be admissible. In the case of writings, the authenticity of the doc is one aspect of its relevancy. Doc evidence may also be excluded, even if authenticated, if it violates a rule of competency such as the best evidence or hearsay rule.
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BEST EVIDENCE RULE (BER)
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More accurately called the "original document rule," the BER is as follows:
In proving the terms of a writing (recording, photograph, or X-ray), where the terms are material, the original writing must be produced. Secondary evidence of the writing, such as oral testimony regarding the writing's contents, is permitted only after it has been shown that the original is unavailable for some reason other than serious misconduct of the proponent. The rule applies to writings and expresses a preference for originals; exact words of a writing should be presented to the court. [FRE 1002] |
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PAROL EVIDENCE RULE (PER)
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If an agreement is reduced to a writing, that writing is the agreement and hence constitutes the only evidence of it. ALL PRIOR OR CONTEMPORANEOUS NEGOTIATIONS or agreements ARE MERGED into the written agreement. Parol (extrinsic) evidence is not admissible to add to, detract from, or alter the agreement as written.
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TESTIMONIAL EVIDENCE -- Competency of Witnesses
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Witnesses are generally presumed to be competent until the contrary is demonstrated.
There are 4 basic testimonial attributes that every witness must have to some degree: the capacity to OBSERVE, to RECOLLECT, to COMMUNICATE, and to APPRECIATE THE OBLIGATION TO SPEAK TRUTHFULLY |
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EXAMINATION OF WITNESS: Leading Questions
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A question is leading and generally objectionable on direct when it suggests to teh wtiness the fact that the examiner expects and wants to have confirmed. Questions calling for "yes" or "no" answers and questions FRAMED TO SUGGEST THE ANSWER DESIRED are usually leading.
Leading questions are permitted on CROSS. Judges will usually allow leading questions on DIRECT in noncrucial areas IF NO OBJECTION IS MADE: i) if used to elicit PRELIMINARY OR INTRODUCTORY MATTER; ii) when the witness NEEDS AID TO RESPOND because of loss of memory, immaturity, or physical or mental weakness; or iii) when the witness is HOSTILE and improperly uncooperative, and ADVERSE PARTY, or a person IDENTIFIED WITH AN ADVERSE PARTY. |
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EXAMINATION OF WITNESS: Improper Questions
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Misleading
Compound Argumentative Conclusionary Assuming Facts Not in Evidence Harassing or embarrassing Calls for a Narrative Answer Calls for Speculation Lack of Coundation Nonresponsive Answer |
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Refreshing Recollection
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A witness may use any writing or thing for the purpose of refreshing her present recollection, but usually may not read from the writing while she actually testifies, since the writing is NOT AUTHENTICATED, is NOT IN EVIDENCE, and may be used solely to refresh her recollection.
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Recorded Recollection
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Where a witness has insufficient recolleciton of an event to enable her to testify fully and accurately, even after she has consulted a writing given to her on the stand, the WRITING ITSELF MAY BE READ INTO EVIDENCE if a proper foundation is laid for its admissibility (this is an exception to the hearsay rule).
The foundation for receipt of the writing into evidence must include proof that: 1) The witness at one time had PERSONAL KNOWLEDGE of the facts recited in the writing; 2) The writing was MADE BY THE WITNESS or made UNDER HER DIRECTION or that it was ADOPTED BY THE WITNESS; 3) The writing was TIMELY MADE when the matter was fresh in the mind of the witness; 4) The writing is ACCURATE (witness must vouch for its accuracy); 5) The witness has INSUFFICIENT RECOLLECTION to testify fully and accurately. |
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Opinion Testimony by Lay Witnesses
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Opinions by lay witnesses are generally inadmissible. However, in cases where, from the nature of the subject matter, no better evidence can be obtained, such opinions may be admitted.
Opinions by lay witnesses can be admitted when: 1) It is rationally BASED ON THE PERCEPTION OF THE WITNESS; 2) it is HELPFUL TO A CLEAR UNDERSTANDING of her testimony or to the determination of a fact in issue; and 3) it is NOT BASED ON SCIENTIFIC, TECHNICAL, OR OTHER SPECIALIZED KNOWLEDGE (if so, the witness' testimony would need to meet the requirements for expert testimony under Rule 702). Situations where admissible: --general appearance or condition of person (i.e., "about 50 yrs old) --state of emotion (i.e, appeared "angry") --matters involving sense recognition (i.e., object was "heavy") --voice or handwriting identification --speed of moving object --value of her own services --rational or irrational nature of another's conduct (sanity) --intoxication Not admissible: --agency or authorization (witness generally may not state a conclusion as to her authorization). --contract or agreement (no opinions about whether an agreement was made). |
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Opinion Testimony by Expert Witness
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1) Under FRE 702, expert opinion testimony is admissible if the subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact in understanding the evidence or determining a fact in issue.
TEST for subject matter: i) The opinion must be RELEVANT (i.e., it must "fit" the facts of the case); and ii) The methodology underlying the opinion must be reliable (i.e., the proponent of the expert testimony must satisfy the trial judge by a preponderance of the evidence that (a) the opinion is based on sufficient facts or data; (b) the opinion is the product of reliable principles and methods; and (c) the expert has reliably applied the principles and methods to the facts of the case). 2) Witness must be qualified as an expert 3) Expert must possess reasonable probability regarding his opinion 4) Opinion must be supported by proper factual basis |
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Qualification of Expert Witness
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To testify as an expert, a person must have special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his training relates [FRE 702].
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Expert Testimony: Proper Factual Basis
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Expert's opinion may be based one or more of these 3 possible sources of information:
1) facts that the expert knows from his own personal observation; 2) facts presented in evidence at trial and submitted to the expert, usually by hypothetical question; OR 3) facts not in evidence that were supplied to the expert out of court, and which are of a type reasonably relied upon by experts in the particular field in forming opinions on the subject. |
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IMPEACHMENT
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Impeachment means the casting of an adverse reflection on the veracity of the witness. Primary method of impeachment is by cross-examination of the witness under attack, though witness are often impeached by extrinsic proof that casts doubt on credibility. In terms of relevance, any matter that tends to prove or disprove the credibility of the witness should be admitted here.
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TESTIMONIAL PRIVILEGES
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Testimonial privileges, which permit one to refuse to disclose and prohibit others from disclosing certain sorts of confidential information in judicial proceedings, have 2 basic reasons fro their existence: (i) PRACTICALITY, and (ii) society's desire to ENCOURAGE CERTAIN RELATIONSHIPS by ensuring their confidentiality, even at the high price of losing valuable information.
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HEARSAY
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Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
If a statement is hearsay, and no exception is applicable, the evidence must be excluded upon appropriate objection to its admission. |
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"Hearsay within Hearsay"
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An out-of-court statement that incorporates other hearsay within it is known as "hearsay within hearsay" and is admissible only if both the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule.
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HEARSAY: "Statement"
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For the purposes of the hearsay rule, a "statement" is: (i) an ORAL or WRITTEN ASSERTION; or (ii) NON-VERBAL CONDUCT INTENDED AS AN ASSERTION.
However, non-assertive conduct--conduct that the declarant DID NOT INTEND AS AN ASSERTION, but which is being offered as an assertion--is not hearsay under most modern codes and the FRE. |
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Statements that are NON-HEARSAY under the FRE
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FRE 801(d) provides that certain statements, when relevant, are not hearsay:
1) Prior Statements by a Witness 2) Admissions by Party-Opponent |
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NON-HEARSAY: Prior Statements by a Witness
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Certain statements by a person who testifies at the trial or hearing, and is subject to cross-examination about the statements, are not hearsay.
A witness' PRIOR INCONSISTENT STATEMENT is not hearsay if it was made UNDER OATH at a prior proceeding or deposition. A PRIOR CONSISTENT STATEMENT, regardless of whether made under oath, is not hearsay if it is offered to rebut an express or implied charge that the witness is lying or exaggerating because of some motive. A witness' PRIOR STATEMENT OF IDENTIFICATION after perceiving him is not hearsay. |
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NON-HEARSAY: Admissions by Party Opponent
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An admission by a party-opponent is not hearsay at all under FRE. An admission is a statement made or act done that amounts to a PRIOR ACKNOWLEDGMENT by one of the parties to an action of one of the relevant facts.
To be an admission, the statement need not have been against interest at the time it was made. Statement may even be in the form of an opinion. Personal knowledge is not required. A party may expressly or impliedly adopt someone else's statement as his own, thus giving rise to an "adoptive admission" Judicial and Extrajudicial Admissions |
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NON-HEARSAY: Admissions by Party Opponent -- Judicial and Extrajudicial Admissions
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Formal judicial admissions (in pleadings, responses to RFAs, stipulations) are CONCLUSIVE; informal judicial admissions made during testimony CAN BE EXPLAINED; extrajudicial (evidentiary) admissions ARE NOT CONCLUSIVE AND CAN BE EXPLAINED.
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NON-HEARSAY: Admissions by Party Opponent -- Adoptive Admissions -- Silence
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If a party fails to respond to accusatory statements where a reasonable person would have spoken up, his silence may be considered an implied admission.
ELEMENTS: 1) The party must have HEARD AND UNDERSTOOD the statement; 2) The party must have been PHYSICALLY AND MENTALLY CAPABLE OF DENYING the statement; and 3) A REASONABLE PERSON WOULD HAVE DENIED the accusation under the same circumstances. Note: failure to reply to an accusation or statement made by police in a criminal case can almost NEVER be used as an implied admission of a criminal act. |
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NON-HEARSAY: Admissions by Party Opponent -- Vicarious Admissions
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An admission is frequently not the statement or act of the party against whom the admission is offered at trial. So, the question is: what relationship must exist between the declarant and the party to make the former's statement admissible against the latter?
1) CO-PARTIES -- Admissions of a party are not receivable against her co-Ps or co-Ds merely because they happen to be joined as parties to the action. 2) AUTHORIZED SPOKESPERSON -- The statement of a person authorized by a party to speak on its behalf can be admitted against the party as an admission. 3) PRINCIPAL-AGENT -- Statements made by an agent concerning any matter within the scope of her agency, made during the existence of the employment relationship, are admissible against the principal. 4) PARTNERS -- In a partnership, an admission of one partner, relating to matters within the scope of the partnership business, is binding upon her co-partners. 5) CO-CONSPIRATORS -- Admissions of one conspirator, made to a 3rd party in furtherance of a conspiracy to commit a crime or a civil wrong, at a time when the declarant was participating in the conspiracy, are ADMISSIBLE against co-conspirators. 6) PRIVIES IN TITLE & JOINT TENANTS (State Cts Only) -- admissions of each joint owner are admissible against the other, and admissions of a former owner of real property made at the time she held title are admissible against those claiming under her. 7) PRELIM DETERMINATION OF AGENCY OR CONSPIRACY -- before a ct may consider a hearsay statement admissible as a vicarious admission, they must make a preliminary determination of the declarant's relationship with the party against whom the statement is being offered. |
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NON-HEARSAY: Admissions by Party Opponent -- Vicarious Admissions -- Prelim Determination of Agency or Conspiracy
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PRELIM DETERMINATION OF AGENCY OR CONSPIRACY -- before a ct may consider a hearsay statement admissible as a vicarious admission, they must make a preliminary determination of the declarant's relationship with the party against whom the statement is being offered.
When making a determination of (i) the declarant's authority to make the statement; (ii) the existence and scope of an agency relationship; or (iii) the existence of a conspiracy and participation by the declarant and 3rd party, the COURT MUST CONSIDER THE CONTENTS OF THE OFFERED STATEMENT, but the statement alone is insufficient to establish the required relationship or authority. |
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HEARSAY EXCEPTIONS -- Declarant Unavailable
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A declarant is unavailable if:
(i) He is exempted from testifying by court ruling on the ground of PRIVILEGE; (ii) He persists, despite a court order, in REFUSING TO TESTIFY concerning the statement; (iii) He testifies to LACK OF MEMORY of the subject matter of the statement; (iv) He is unable to be present or testify because of DEATH OR PHYSICAL MENTAL ILLNESS; or (v) He is absent (e.g., beyond the reach of the trial court's subpoena) and the statement's PROPONENT has been UNABLE TO PROCURE his ATTENDANCE OR TESTIMONY by process or other reasonable means. |
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HEARSAY EXCEPTIONS (DECLARANT UNAVAILABLE) -- Former Testimony of Unavailable Declarant
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The testimony of a now unavailable witness given at another hearing or in a deposition taken in accordance with law is admissible in a subsequent trial as long as there is a sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examine at the prior hearing was meaningful.
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HEARSAY EXCEPTIONS (DECLARANT UNAVAILABLE) -- Statements Against Interest
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A statement of a person, now unavailable as a witness, against his pecuniary, proprietary, or penal interest when made, as well as collateral facts contained in the statement, is ADMISSIBLE under the statement against interest exception to the hearsay rule.
REQUIREMENTS: 1) The statement must have been AGAINST PECUNIARY, PROPRIETARY, OR PENAL INTEREST WHEN MADE; 2) Declarant must have had PERSONAL KNOWLEDGE OF THE FACTS; 3) Declarant must have been AWARE THAT THE STATEMENT IS AGAINST HER INTEREST and she must have had NO MOTIVE TO MISREPRESENT when she made the statement; and 4) Declarant must be UNAVAILABLE AS A WITNESS. |
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HEARSAY EXCEPTIONS (DECLARANT UNAVAILABLE) -- Dying Declarations (Statements Under Belief of Impending Death)
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In a prosecution for HOMICIDE OR CIVIL ACTION, a declaration made by the now unavailable declarant while BELIEVING HIS DEATH WAS IMMINENT that concerns THE CAUSE OR CIRCUMSTANCES of what he believed to be his impending death is ADMISSIBLE. The declarant need not actually die, but he must be unavailable.
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HEARSAY EXCEPTIONS (DECLARANT UNAVAILABLE) -- Statements of Personal or Family History
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Statements concerning birth, marriage, death, relationship etc., are admissible under an exception to the hearsay rule.
Statement need not have been made before the controversy. Usually, the declarant must be a family member of the family in question. Personal knowledge is required. But, there are other ways to prove pedigree (e.g., vital statistics, marriage certificates, family records, death certificates, etc.) |
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HEARSAY EXCEPTIONS (DECLARANT UNAVAILABLE) -- Statements Offered Against Party Procuring Declarant's Unavailability
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The statements of a person (now unavailable as a witness) are admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant's unavailability.
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HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Present State of Mind
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A statement of a declarant's then-existing state of mind, emotion, sensation, or physical condition is admissible. The exception is based on teh need to obtain evidence as to the declarant's internal state of mind or emotion. It must usually be made under circumstances of apparent sincerity. The statement is offered to establish the INTENT of a person.
Admissible when the declarant's state of mind is directly at issue. Admissible when the declarant's state of mind is not directly at issue--if they are declaration so f intent offered to show subsequent acts of the declarant. BUT, the hearsay statement is NOT ADMISSIBLE if it expresses a memory or belief of the declarant, and the statement is offered for the purpose of proving the TRUTH OF THE FACT REMEMBERED OR BELIEVED. |
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HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Excited Utterances
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A declaration made by a declarant during or soon after a startling event is admissible. The declaration must be made under the stress of excitement produced by the startling event, and must concern the immediate facts of the startling occurrence.
Must have been made before the declarant had time to reflect upon it. |
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HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Present Sense Impressions
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A present sense impression is an admissible exception to the hearsay rule.
This is because statements of present sense are usually safe from defects in memory. There is usually little or no time for calculated misstatement. |
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HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Declarations of Physical Condition
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Declarations of present bodily condition are admissible as an exception to the hearsay rule, even though they are not made to a physician. Such declarations relate to symptoms, including the existence of pain.
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HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Past Bodily Condition
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Admissible if to assist diagnosis or treatment.
Declarations of past physical condition are generally excluded. However, recognizing that a patient has a strong motive to tell the truth when seeking medical treatment, the FRE admit declarations of past physical condition IF MADE TO MEDICAL PERSONNEL TO ASSIST IN DIAGNOSING OR TREATING THE CONDITION. |
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HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Business Records
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Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event is admissible in evidence as proof of that act, transaction, occurrence, or event, if made int he regular course of any business, and if it was the regular course of such business to make it at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.
Hospital records generally admissible to the extent that they are related to the medical diagnosis or treatment. Police reports generally qualify as business records in civil cases, but are generally not admissible against a criminal D under the business records exception. Personal knowledge required of entrant. BUT, business records prepared for litigation (i.e., an accident report of an employee, which is regular practice) are generally INADMISSIBLE. |
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HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Past Recollection Recorded
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Witnesses are permitted to refresh their memories by looking at almost anything--either before or while testifying. This is called present recollection revived. However, if the party's recollection cannot be revived, a party can introduce a memorandum that the witness made at or near the time of the event. As long as proper foundation is laid, the contents of the memo can be introduced into evidence under the past recollection recorded exception.
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HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Public Records and Reports
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Created so that public officials do not have to constantly leave their jobs to testify, public records are admissible. Also, they are presumed trustworthy because officials are under a duty to record properly.
What can be admitted--Records, reports, statements, or data compilations, in any form, of a public office or agency are admissible to the extent that they set forth: (i) The activities of the office or agency; (ii) Matters observed pursuant to a duty imposed by law (excluding police observations in criminal cases); or (iii) In civil actions or proceedings and against gov't in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. |
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HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Ancient Documents
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Statements in ANY authenticated document 20 YRS OLD OR MORE are admissible.
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HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Learned Treatises
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Most standard scientific treatises or authoritative works are INADMISSIBLE. However, FRE 803 provides for the admissibility of a learned treatise if the treatise is:
(i) called to the attention of the expert witness upon cross-examination or relied upon by her during direct; and (ii) established as reliable authority by the testimony or admission of the witness, by other expert testimony, or by judicial notice. |
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HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Reputation
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In addition to reputation testimony concerning someone's character, reputation evidence concerning someone's personal or family history, or concerning land boundaries or the community's general history, are admissible.
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HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Family Records
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Statements of fact concerning personal or family history contained in family Bibles, genealogies, jewelery engravings, engravings on urns, crypts, or tombstones, or the like are admissible hearsay.
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HEARSAY EXCEPTIONS (DECLARANT'S AVAILABILITY IMMATERIAL) -- Market Reports
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Market reports or published compilations are admissible if generally used and relied upon by the public or by persons in a particular occupation.
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HEARSAY EXCEPTIONS -- Residual "Catch All" Exception
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The FRE provides a general catch-all exception of hearsay statements not covered by specific exceptions.
There are 3 requirements: 1) "TRUSTWORTHINESS" -- Statement must have "circumstantial guarantees of trustworthiness'" that are equivalent to those of statements admitted under other hearsay exceptions. 2) "NECESSITY" -- The statement must be offered on a MATERIAL FACT, and must be MORE PROBATIVE as to that fact than any other evidence which the proponent can reasonably produce so that the "INTERESTS OF JUSTICE" will be served by its admission. 3) NOTICE TO ADVERSARY -- the proponent must give notice in advance of trial to the adverse party as to the nature of the statement so that the adversary has an opportunity to prepare to meet it. |
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Confrontation Clause Issue
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Because of the use of hearsay evidence in a criminal case may violate the Confrontation Clause, prior testimonial evidence is INADMISSIBLE against a criminal D unless the hearsay declarant is unavailable, and the D had an opportunity to cross-examine the hearsay declarant at the time the statement was made.
NOTE: D will have forfeited his right of confrontation if he committed a wrongful act that intended to keep the witness from testifying. |
