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82 Cards in this Set

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Does MA allow habit evidence?

Does it ever allow any habit evidence?
No – MA does not admit evidence of habit to show that a particular act occurred.

However, it does allow evidence of business habit; i.e. evidence of a business practice or custom is admissible if it is sufficiently uniform and regular.
Does MA exclude offers to compromise?
MA excludes settlement offers, but not the admissions of fact made during settlement negotiations.
Does MA allow evidence of benevolent gestures?
No – MA excludes statements, writings, or benevolent gestures expressing sympathy relating to pain, suffering or death, made to a person or his family as evidence of an admission of liability in a civil matter.
What is the relevance of past behavior of a rape victim in a rape case in MA?
1. General rule +
2. False accusations if corroborating evidence
3. Love Triangle

MA follows the general rule, moreover, evidence of prior subsequent false accusations of rape by the complainant/rape victim may be admissible if there is corroborating evidence that such false accusations were in fact made.

The courts have carved out a “love triangle” exception which allows the D to offer evidence of a sexual relationship b/w the complainant and a 3d party as a basis for arguing that the complainant had a motive to lie about whether incident at issue was consensual.
Is there an exception for prior acts of sexual assault or child molestation in MA?
MA does not specifically have an exception admitting evidence of prior acts of sexual assault or child molestation. This evidence may be admitted, however, if it relates to Motive, Intent, Absence of Mistake, Identity, Common Plan – MIMIC.
Can a judge take judicial notice of municipal ordinances and rules or regulations of administrative bodies in MA?
No – such things are not subject to judicial notice, but copies of such may be admitted as permitted by statute.
What happens if an opponent fails to specifically deny the genuineness of an instrument pleaded in MA?
This relieves the proponent of the burden of proving the authenticity.
What does the Best Evidence Rule apply to in MA?
It applies only to conventional writings and recordings. Not photographs, for example.
What about duplicates? What is their status in MA?
The Uniform Photographic Copies of Business and Public Records as Evidence Act provides that copies, in any form, made in the regular course of business are admissible as the equivalent of originals.
How can you prove the contents of a writing, photograph or recording in MA?
An oral admission of a party can be used to prove the contents of such things.
Is there a Dead Man’s Statute in MA? What does that mean?
No Dead Man Act.

Thus, a declaration of a deceased witness is admissible if there is proof that the declaration was made in good faith, and upon personal knowledge.
What is the proper means of examining an expert in MA:

If she has first hand knowledge?

If she doesn't have first hand knowledge?
If expert has firsthand knowledge: “On the basis of the information, what is your expert opinion?”

If no firsthand knowledge, must pose question as hypothetical.
What evidence is allowed to support expert conclusions in MA?
MA will not permit an expert to base an opinion on inadmissible facts, even if those facts are of a sort ordinarily relied on by experts in the field. In MA, expert opinion must be based on acts that are both admissible AND customarily relied on.
Can a witness offer an opinion on the ultimate issue of the case in MA?

What should I take note of in sexual abuse cases?
1. Generally no - MA follows traditional rule

2. Sometimes experts are allowed to touch on the ultimate issue if helpful to jury

3. Especially in child sexual abuse cases can't use expert testimony to bolster the credibility of a child witness
Does MA allow polygraph evidence?
MA has traditionally rejected polygraph admissibility in criminal trials based on lack of acceptance in the scientific community.

The SJC has recently suggested, however, that it might consider admitting such evidence if a party can show the test was reliable. The court would look to evidence that the test administrator was qualified and had administered a statistically valid number of independently verified and controlled tests with a high level of accuracy in his conclusions.
What’s the scope of cross in MA?
Wide open cross. A witness may be examined on any matter relevant to any issue.
Can you impeach your own witness in MA?
Yes – but your impeachment is limited to contradiction by prior inconsistent statements.
Does MA require a foundation to be laid for impeaching with prior inconsistent statements?
No – except when one is impeaching one’s own witness. Prior inconsistent statements are hearsay, and, therefore, may not be used to prove the truth of the statement unless they come within one of the hearsay exceptions.
Can I impeach using juvenile records in MA?
No – MA broadly protects the confidentiality of juvenile records and the adjudication of any child as a delinquent child is not lawful or proper evidence against that child for any purpose, including impeachment, in any proceeding in any court.
What is the effect of a pardon in MA?
MA, like federal courts, does not view a pardon as reversing a prior conviction or wiping out the underlying criminal act. The grantee of a pardon must prove the pardon was granted for rehabilitation, and the record subsequently sealed, in order for the prior conviction to remain beyond reach for impeachment purposes.
How do I impeach through conviction of a crime in MA?
1. Felony or misdemeanor
2. Court weighs probative
3. If non-defendant Witness - cannot be excluded

FM Pre-Noon-Menstrual Syndrome - (Felony/Misdemeanor, Probative, Non-defendant, Misdemeanor only w/ sentence)

Misdemeanor only admissible w/ sentence.
FM Pre-Noon-Menstrual Syndrome
What are the remoteness rules for impeachment with conviction in MA?
Remoteness: Felony admissible if
1) 10 years from date of conviction if no sentence imposed;
2) 10 years from date of sentence imposition if HOC, not prison;
3) 10 years from end of imprisonment if prison.

Misdemeanor = 5 years.
Traffic violation w/ only fine = never admissible
Nolo Contendre – not admissible

Felony that would be too remote is admissible if new crime committed w/in 10 years (Misdemeanor new crime = 5 years)
Can I impeach a witness with specific acts of misconduct in MA?
No – this is not allowed in MA
Can I impeach a witness using reputation testimony? What about opinion testimony?
MA allows reputation evidence, but not opinion testimony. The reputation can include his business or professional circle.

So, witness cannot say, “I believe W’s a liar.” But, can reach similar result with questions such as, “Are you aware of or familiar with X’s reputation for telling the truth?” “What is that reputation?”
Can I call another witness to rehabilitate a witness who will state that W1 has a good reputation for truthfulness?
Only when the first witness was impeached with past convictions or a bad reputation for veracity (bad character).
Opposing counsel just objected to this witness’s testimony. I want to preserve the issue for appeal, what must I do?
An offer of proof must be made subsequent to a sustained objection by opposing counsel before an error on appeal can be based on exclusion of evidence.
Do the privileges survive death in MA?
Attorney-client and patient-psychotherapist privileges survive the death of the client/patient. MA would likely hold the others to survive as well. Privilege belongs to estate (administrator/Executor) who may waive the privilege on behalf of estate. Exercise of the privilege in a manner inconsistent with decedent’s best interests can be grounds for appointment of a new administrator or executor.
Are there any limits to the attorney-client privilege in MA?
It does not apply if the services of the lawyer were sought or obtained to enable or aid anyone to commit what the client knew or reasonably should have know was a crime or fraud.
What about marital communications. What privilege do they receive in MA?
Absolute disqualification for private marital communications; spouses cannot testify about them even if they want to. Applies to oral, not written communications. Private defined by intent.
What are the exceptions to the absolute rule of disqualification for private marital communications in MA?
1. Declarations made by a deceased spouse, if court finds they were made in good faith and upon personal knowledge of declarant.
2. Proceedings involving K b/w H & W
3. Proceedings under Uniform Reciprocal Enforcement of Support Act.
4. Prosecutions for nonsupport, desertion, or neglect of parental duty
5. criminal proceedings where D is charged w/ a crime against his/her spouse
6. Criminal proceedings where D is charged w/ Violating a MA or out-state abuse prevention order.
7. Proceedings involving incest or abuse of person under 18
8. Threats made by one spouse against other.

Don't know Shit, Prince Sherlock, CAP-IT! (Deceased, K, Support, Prosecution for Support, Crime against spouse, Abuse Prevention order, Incest, Threats)
Don't know Shit, Prince Sherlock, CAP-IT!
What if a marital communication comes into evidence w/o objection or w/o judge excluding it in MA?
It can then be used for whatever probative value it has.
What happens if there is an inadvertent disclosure of privileged information in MA?
Court will weigh factors to determine whether it comes in:
1) Reasonableness of precautions taken to prevent inadvertent disclosure
2) Amount of time it took the producing party to recognize error
3) Scope of production
4) Extent of inadvertent disclosure
5) The overriding interest of fairness and justice

(I get) PTSD-Every Friday [Precautions, Time to recognize, Scope, Disclosure Extent, Fairness]
(I get) PTSD-Every Friday
It’s a case of bastardy in MA. I want to testify I was impotent or out of town when the conception occurred. Can I? What about for intestacy matters?
Yes – Lord Mansfield’s Rule has been abolished for paternity actions, but retained for matters of intestacy succession.
What’s it called when a spouse doesn’t want to testify against her husband in MA? Are there limits to it?
It’s called the spousal privilege.

It doesn’t apply when there are allegations of child abuse or incest.
Can a child testify against his/her parents in MA?
An unemancipated minor living with a parent is prohibited from testifying against that parent in a criminal proceeding unless the victim is a member of the parent’s family and lives in the parent’s household. If either circumstance exists, the child must testify, if called.
Are there limits to the Attorney-Client work product privilege in MA?
If work-product is used to refresh a W’s recollection, the protection is waived and the opponent’s attorney may inspect the document.
Is there a physician-patient privilege in MA?
It’s not recognized in MA. But doctors do have a statutory duty not to make out-of-court disclosures of medical information w/o patient’s consent.
Is there a psychotherapist/socialworker-client privilege in MA?
Yes – These are recognized by statute. The SW privilege also applies to unlicensed social workers employed by government agencies and acting w/in the scope of their employment.
What isn’t protected by the Shrink/Social Worker/Patient Privilege in MA?
1. Commitment hearings
2. Court-ordered examinations where patient is warned that privilege will not apply. With crim D, statements are admissible only on issue of D’s mental condition.
3. Cases where a Pt puts his mental condition in issue and court finds disclosure is in interests of justice
4. Pt is deceased and it is a proceeding in which the patient’s mental or emotional condition is at issue and court finds disclosure in interests of justice
5. Child custody or adoption proceedings after an in camera hearing
6. Actions against the shrink/SW where disclosure is necessary or relevant; note: privilege protects communications, not the diagnosis itself.

ICE-AS-DICe (Issue, Committment, Examinations, Against Shrink, Deceased & Issue, Child Custody)
What extra things does the privilege against self-incrimination cover in MA?
Breathalyzer, Blood test, or field sobriety test – refusal can’t be used against D.

But, refusal to submit to blood or genetic marker test can be used in paternity suits.
Is there an Accountant-client privilege or Professional Journalist privilege in MA?

However, courts have established qualified protection for news reporters against discovery initiatives to any person who intends, at the inception of the news gathering process, to use the fruits of his research to disseminate information to the public. In a criminal action, however, disclosure may be mandatory to protect the rights of Ds.
Is there a mediator’s privilege in MA?
Communications relating to the subject of mediation made in the presence of a mediator as well as memoranda and work product of a mediator are inadmissible.
Are there any random stupid public privileges?
State individual income tax returns are privileged, but federal returns must be disclosed upon a sufficient showing of need?
What about domestic violence counselor-victim privilege? Does it exist in MA?
A counselor may not disclose confidential communications of a victim of domestic violence except in actions for discovery of communications that may exculpate the accused.
What can a court do to protect trade secrets in MA?
A court may issue a protective order limiting the disclosure of trade secrets, but must do so in a way that doesn’t prejudice the other side.
What should a court do if a privilege interferes with an accused’s rights in MA?
MA provides criminal defendants with broad confrontation rights under Article 12 of the MA Con.

1. D shows good faith basis for believing records have exclupatory evidence.

2. Judge reviews evidence in camera to determine relevance.

3. Relevant portions turned over to each side

4. Documents may be admitted after voir dire on materiality.

GRTV - (Good faith, review, turned over, voir dire)

This issue often arises in the context of psychologist or rape counselor records in a criminal trial.
How do prior inconsistent statements work in MA?
Prior inconsistent statements are generally admissible in MA for impeachment purposes only and not as substantive evidence.

Prior inconsistent Grand Jury testimony can be substantively admissible
How are admissions by a party opponent treated in MA?
Hearsay, within an exception.
How are admissions by co-conspirators and joint venturers handled in MA?
There must be sufficient non-hearsay evidence to establish an adequate probability that the declarant and defendant were engaged in the criminal enterprise.

This foundation must be established as a preliminary matter before the hearsay statement can be admitted.
How are dying declarations different in MA?
1. Only for homicide
2. Actually dead
3. Fixed sense of impending death
Does MA allow declarations of a deceased person?
1. Good Faith
2. Personal Knowledge
3. Dead
4. Civil

Declarations may include writings and need not be produced in the exact words used by the declarant.
Define forfeiture by wrongdoing in MA?
You break it, you bought it.

If you cause the hearsay declarant's unavailability, his statements can be used against you.
Is present sense impression recognized in MA?
How are statements about bodily condition handled in MA?
A statement made of then-existing bodily condition is admissible.

If the statement is made to a physician for the purpose of diagnosis or treatment, statements of past or present conditions are admissible.
How are business records handled in MA?
Business records are admissible if:
1) Made in good faith
2) Made in regular course of business
3) Made before litigation
4) Was the regular course of business to make such a record

GeRBeR - (Good Faith, Regular course, Before litigation, Regular pratice)

Someone must testify to these facts but need not have personal knowledge of the facts contained.
How are Hospital records handled in MA?
Separate statute for hospital/clinical records are admissible at the discretion of court if records are:
1) Made by a person with an obligation to report
2) Certified to be true and complete by the person with custody
3) Relate to treatment and medical history.

OCR - (Obligation, Certified, Relate)

Nothing referring to liability is admissible.
Can I use a medical bill in MA?
1. Tort or K for PI
2. Bill for services
3. Date/Place only
4. No reference to injury
5. Written notice to opposing party
6. 10 days before trial

To Be Determined, Please Inspect With 10-blade (Tort [or K], Bill, Date/Place, no Injury, Written notice, 10 days
To Be Determined, Please Inspect With 10-blade
Does MA allow statements made by hospital patients?
MA does not allow direct evidence in the form of settlements, general releases, or other written statements made by a hospital patient w/in 15 days from the date the injuries were sustained.

SRW-15 - Settlements, Releases, Written Statements w/in 15 days

(Doesn't apply to: COP, MVFA - Tape)

This rule does not apply to statements or releases obtained by police officers, motor vehicle inspectors, family members or attorneys.

Tape recorded statements are admissible as are statements given outside the hospital.
What is the ancient document rule in MA?
Must be older than 30 years to qualify.
Does MA have a catch-all exception to hearsay?
No, but courts can create new exceptions.
Can I use reputation evidence in nuisance cases?
Yes – you can use general reputation to prove the existence of a nuisance.
Are there special hearsay exceptions for children in MA?
Yes – Care and custody cases and other criminal/civil cases alleging abuse.
I want to introduce hearsay of a child in a care and custody cases in MA. What do I need to do?
In cases of care, custody, welfare of a child, including foster care (but not divorce), a 3d party’s report of a child’s statements will be substantively admissible if:
1) Child under 10
2) Statements concern sexual contact
3) 3d person testifies in court
4) statement is evidence of a material fact.

10-STM (10, Sexual, Third Party, Material)
What about other civil/criminal cases alleging abuse, what must I do to admit a child's hearsay testimony?
Must have:
1) Child under 10
2) Statements concern sexual contact
3) 3d person testifies in court
4) statement is evidence of a material fact.
5) Child is unavailable
6) Statement more probative on point than any other evidence proponent can obtain through reasonable efforts
7) Statement is sufficiently reliable

Unavailability can be through lack of memory or intense trauma of testifying in court. Judge may interview child to determine reliability.

UPS 10-STM (Unavailable, more Probative, Statement reliable, Under 10, Sexual Contact, Third Party, Material fact)
What special things do I need to do to get a child’s hearsay in a criminal trial (other than an abuse case) in MA?
To use child hearsay in a criminal trial in MA, the state must:

1) Give prior notice to the D
2) Show a compelling need to use it by more than a preponderance of the evidence
3) Produce independent corroboration of the out-of-court statement.

NCC - Notice, Compelling, Corroboration
What is the first complaint of sexual assault used for in MA?
The evidence is only admissible to corroborate the complainant’s testimony, not as substantive evidence.
When is first complaint testimony not admissible?
When sexual assault and consent aren't at issue.

Where neither the occurrence of a sexual assault nor the complainant’s consent is at issue, the evidence will serve no corroborative purpose and will be inadmissible under the first complaint doctrine.
When are the results of a blood alcohol test admissible?
In any criminal or civil proceeding if:
1) D consents to test
2) results were made available to D
3) D had a reasonable opportunity to have another test done by a doctor he selected.

Cool, RAD RuDe - (Consent, Results Available to D, Reasonable opp for other Doc)
When is a defendant allowed to present evidence of prior abuse in MA?
In crim trials alleging violence, D can present evidence of physical, sexual or psychological abuse to show reasonableness of:

1. Apprehension of death or bodily harm

2. Belief exhausted non-violent means

3. Belief about amount of force needed

Very Angry Nerf Followers (Violent crime, Apprehension, Non-violent means, Force)
Can a court in MA allow alternative means of testifying to a witness who suffers from mental retardation.
1. If severe emotional trauma
2. mentally retarded witness
3. Can have alternative method of testifying.

SET-Ret-Alt - (Severe Emotional Trauma, Retarded, Alternative)

Friend near, off-witness stand, video
What rules about Dr's rendering medical opinions in court?
1. Can state an opinion w/o examining (must state basis of knowledge - X-rays, etc.)

2. Can state opinion about proximate cause (what, not who) of injury
When are duplicatesof computer data admissible?
Duplicates of computer data or program files are admissible unless:

1. Question raised as to authenticity of original
2. It would be unfair to admit the duplicate instead of original

Any printout or other output shown to reflect data accurately is considered an original.
What rules for certified records?
Certified copies/photo reproductions of records of:

Hospital, Banks, Ins, other businesses, and Newspapers

Always admissible - trumps hearsay & business entry exception
How does the court determine relevance if it's looking through confidential files in camera?
Bias, Motive to lie, Inconsistent ID.

malcolm's BM is Inconsistent (Bias, Motive, Inconsistent ID)

The information is relevant if it reveals bias, motive to lie, or any inconsistencies in the victim’s identification of the assailant.
malcolm's BM is Inconsistent
I'm being sued in a bastardy action, can the fact that I refused to submit to a blood test be used against me?
Refusal to submit to blood or genetic marker test can be used in paternity suits.
The spouse is claiming testimonial privilege, is there a way to get what was said in?
Excited utterances can be used when a spouse refuses to testify against his/her spouse claiming testimonial privilege.
When can the prosecution introduce first complaint of a sexual assault evidence/
The first out of court complaint made by the complainant after a sexual assault is admissible as part of the prosecution’s case in chief.
The victim made several reports of her sexual assault, can I use them all?
For cases tried after 10/29/05, CW is no longer allowed to admit more than one such complaint.
The victim waited several weeks before reporting her sexual assault, will that affect admissibility?
Under modified rules, freshness has no bearing on the complainant’s admissibility.
What can the first report witness actually testify to?

Can anyone other than the recipient testify about the first report?
1. Details of the complaint

2. Relevant conditions that might help jury assess the complainant's veracity.

The complainant can testify about the complaint and why it was made at that time.
When is grand jury testimony admissible substantively in MA?
1) The testifying witness is available at trial for cross;

2) the statement was not coerced;

3) Statement was clearly that of the witness and not simply confirmation of a statement by an interrogator; and

4) there is adequate corroboration of the testimony if the testimony concerns an essential element of the crime.

Ann Coulter, Conventional Wisdom = Cow (Available, not Coerced, Clearly Witness, Corroboration)
When is evidence that a defendant refused a BAC test admissible?
Evidence that D refused to consent to any BAC is not admissible in any criminal proceeding except an action by the registrar of motor vehicles relating to the suspension of a license.