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37 Cards in this Set
- Front
- Back
Overview of PA Rules of Evidence
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Modeled upon and organized like FRE. Most rules are substantively identical, others preserve PA distinctions.
Sever statutes address evidentiary issues (Dead Man’s Act, Tender Years Exception) |
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When may probative evidence be excluded? (403 – Relevance)
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FRE: Unfair prejudice which substantially outweighs probative value
PaRE 403: Unfair prejudice which MERELY outweighs probative value |
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Proving D’s character to show conduct in criminal cases
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FRE: Opinion and reputation
PaRE: Reputation |
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Cross-Examining the D’s character witness
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FRE: Convictions, Arrests & Acts
PaRE: Convictions only |
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Proving Victim’s Character to show conduct in criminal cases
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FRE: Opinion and Reputation
PaRE: Reputation and Specific Acts (no opinion evidence) |
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Proving Character in Civil Cases
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FRE: Generally inadmissible
PaRE: Generally inadmissible except in civil assault and battery cases – D may offer a witness to testify that P has a reputation for violence |
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MIMIC Balancing Test
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FRE: Applies 403 Balancing Test (presumptively admissible)
PaRE: Applies a reverse 403. Other acts evidence is presumptively inadmissible unless probative value outweighs the prejudice |
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Sex Crimes (Criminal)
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FRE – D’s sex accts may be offered against the D for any relevant purpose (including propensity)
PA – PA does not have this. IN PA 404(b) – D’s sex acts may not be offered to show D”s propensity. They may be offered to show another relevant purpose, like identify, intent, etc. |
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Sex Crimes (Civil)
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FRE – D’s sex acts may be offered against D for any relevant purpose (including propensity)
PA – D’s sex acts may not be offered to show D’s propensity. They may be offered to show another relevant purpose (MIMIC) |
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Documentary Evidence
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Ancient Docs
FRE – 20 years PaRE – 30 years |
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Competency
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FRE: every person is compenet to be a witness except (jurors and judges, state grounds in civil actions governed by state law) or in statutes)
PA: 601 retains restrictions that are not expressed in FRE (communication, oath, memory, perception). A person is incompetent if because of a “mental condition of immaturity” they suffer from weakness in 1. Communication – cannot communicate adequately (unable to express himself or herself so as to be understood either directly or through an interpreter) 2. Obligation to tell the truth – does not sufficiently understand the obligation to tell the truth or appreciate the consequences of lying 3. Memory – has an impaired memory or 4. Perception – was at any relevant time, incapable of perceiving accurately |
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Dead Man’s Statute
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Arises when one party is dead and a witness to the event or transaction is called to testify
Rule: An interested survivor cannot testify for his or her own interests against the decedent or decedent’s representatives about communications or transactions with the decedent in a civil case unless there is a waiver 1. Witness must have direct stake in outcome 2. Witness must testify for his or her interest 3. Witness must testify against decedent or decedent’s representative 4. In PA, subject matter extends to all pre-death events 5. Applies only to civil cases |
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Dead Man Statute (waiver)
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1. In PA, a witness who has been deposed or subject to rog concerning occurrences involving the decedent, and even if the discovery is never filed or used in evidence
2. In PA, cross examining a witness son pre-death events is a waiver of protection of the Dead Man’s statute |
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Scope of cross examination
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In PA, doesn’t matter if you go outside scope of direct
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Expert Opinion Testimony (standard of scientific/technical acceptance)
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FRE: Daubert – reliability of principles and methodology
PaRE Frye: General acceptance of principles and methodology |
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Expert Opinion Testimony (To What kinds of cases does the standard apply?)
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FRE: Scientific, technical, or other specialized knowledge
PaRE: Novel scientific, technical or other specialized knowledge |
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Expert Opinion Testimony (When permitted)
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FRE: When it assist the trier of fact
PaRE: When it is necessary because it is beyond the ken (knowledge base) of laypersons 1. Eyewitness identifications – no 2. Revived memories – no 3. Child sex abuse/rape trauma syndrome – yes to show the psycodynamics of sexual abuse to explain complainants behavior 4. Battered Child/Spouse Syndrome – Yes 5. Professional Negligence/Malpractice – Yes 6. Product Design Defect – Yes |
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Expert Opinion Testimony (What part of Underlying basis of opinion may be disclosed on direct?
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FRE 703 – only evidence which is otherwise admissible unless Court finds that probative value outweighs danger of unfair prejudice
PaRE – It’s all coming in if an expert legitimately relies on it |
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Expert Opinion Testimony (When and How much of underlying basis must be disclosed?)
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FRE: At any time and as much as counsel chooses or the court directs of what is otherwise admissible evidence
PaRE - It’s all coming in, must be disclosed on direct |
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Expert Opinion Testimony (Opinion of the Accused’s Sanity)
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FRE: No testimony that D was “insane,” did not know the difference between right and wrong,” or understood the nature and qualify of his actions
This rule does not exist under PaRE 704(b) |
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Learned Treatise
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FRE 803(18) – HS Exception = substantive evidence
PA – Not admissible substantively – can only be used to challenge opinion |
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Disclosure of prior inconsistent statement before prove-up witness testifies
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FRE: As long as witness is given an opportunity to explain or deny the inconsistent statement, an extrinsic or prove-up witness may be called. The statement need not be shown to the witness
PA: Before a prove-up witness may testify to the statement, a written statement must be shown to the witness |
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When is Prior Inconsistent Statement admissible as substantive evidence
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FRE – statement given under oath and subject to perjury
Three ways under PA law 1. federal way 2. Witness signed and adopted statement 3. Statement was recorded |
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Prior Convictions
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What types admissible to impeach? FRE – crimes punishable over 1 year and crimes of dishonesty and false statement
PA – Only crimes of dishonesty or false statement |
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Juvenile Adjudications
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FRE: inadmissible against accused
PaRE: Presumptively admissible against accused & all witnesses |
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Prior acts of untruthfulness
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FRE – any act that can indicate untruthfulness
PA – Any act that witness has been convicted of |
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Prior Identification
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FRE – witness must be subject to cross but need not testify to making the identification
PA – Witness must be subject to cross and testify to making the ID |
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Plain error rule in PA
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Does not exist. If you don’t object, you waive
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Dying Declarations
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FRE – applies only in civil cases & homicide
PA – Applies in all cases |
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Business records
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FRE – opinions and diagnoses are admissible
PA – Opinions and diagnoses are not admissible without an opportunity to cross examine (we’ll take facts not opinions) |
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Statements Made for Purposes of Medical Diagnosis/Treatment
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FRE – statements admissible if pertinent to treatment
PA – statements are admissible if made in contemplation of treatment (doesn’t apply if you’ve been ordered to be examined) |
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PA Tender Years Exception
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Hearsay exception good for civil & criminal cases of sexual assault
Sex crimes on children under 12 1. Judge must find statement reliable 2. Child must testify or judge must find child psychologically unavailable in adversarial hearing at which defendant may not be present when child testifies 3. Proponent must give notice of intent to use statement |
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Catch All Exception in PA
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Doesn’t exist dude
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A-C Priv
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Not privileged: observations, identity, attorney, fee arrangements, pre-relationship physical or documentary evidence. Statements made to or in the presence of 3rd party who is not an agent of attorney
Privilege survives death Exceptions: Where the purpose of the communication is to elicit fraud or illegality and malpractice actions |
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Physician-Patient
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Applies only in civil cases and only to communications which would “tend to blacken the character of the patient. This phrase is narrowly read. Communications about alcoholism or mental illness are not protected, while statements about HIV are privileged
Not privileged: a doctor’s observations and opinions not based on communications, court-ordered examinations, where patient is litigant |
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Spousal Communications Privilege
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1. Each spouse may invoke a privilege not to divulge confidential marital communications unless made in presence of or disclosed to 3rd party. priv must be waived by both parties
2. Priv applies to both civil and criminal cases and surivies death and divorce 3. Priv does not apply in cases of spousal or child abuse or in communications made in furtherance of a criminal activity or fraud |
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Spousal Immunity or Competency
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Civil Cases: Spouses, at time of trial, are incompetent to testify against each other. Incompetency may not be waived/ Exceptions: proceedings involving divorce, support custody and abuse. Remember there is no federal spousal immunity.
Criminal Cases: Competency may be waived by the testifying spouse. Exceptions: proceedings involving spousal or child abuse, rape, murder, involuntary deviate sexual intercourse |