5/24 Flashcards
(22 cards)
Fruit of an Unconstitutional Arest
As a general rule, the police must have an arrest warrant to effect an arrest of an individual in his own home. There is no general “emergency” exception to the warrant requirement.
Evidence that is the fruit of the unconstitutional arrest may not be used against the defendant at trial.
Double Jeopardy Blockburger Exception
Double jeopardy does not prohibit the imposition of cumulative sentences for two or more statutorily defined offenses specifically intended by the legislature to carry separate punishments, even though constituting the “same” crime under the Blockburger test (i.e., each offense does not require proof of some additional fact that the other does not) when the punishments are imposed at a single trial.
Volitional Conversion/Trespass to Chattel
Even if the conduct is wholly innocent, a defendant will be liable if they volitionally take/substantially harm something that belongs to the plaintiff.
Hearsay
(Definition & General Rule)
An out-of-court statement offered to prove the truth of the matter asserted is generally inadmissible; subject to certain exceptions (hearsay but admissible) and exemptions (non-hearsay).
Hearsay Exemptions/”Non-Hearsay”
(1) Prior statements of testifying witness if:
- identifying someone
- inconsistent w/ previous statements under oath (as long as the declarant is not testifying & subject to cross examination)
- consistent statement offered to rebut charge of lying, improper motive, or rehabilitate credibility
(2) Statements by an opposing party
Admissible as substantive evidence of the facts asserted.
Hearsay Exception—Declarant Unavailable
“Unavailable” means dead/sick; privileged; refused to testify; can’t remember; absent/lost.
Not considered unavailable if if proponent wrongfully caused their unavailability to prevent them from testifying.
(1) Former testimony (if subject to cross/ in a civil case someone w/ similar position could cross)
(2) Statement against (money/property/criminal) interest (in criminal cases, statements against criminal interest must be corroborated)
(3) Dying declarations (available in homicide & civil cases only; don’t have to die)
(4) Statements of personal/family history
(5) Statements of party procuring declarant’s unavailability
Hearsay Exceptions—Declarant Unavailability Immaterial
(1) Excited utterance
(2) Present sense impressions
(3) Present state of mind (includes statement of intent)
(4) Statements made for medical diagnosis/treatment
(5) Business records
(6) Official records/writings
(7) Recorded recollection
(8) Learned treatise
(9) Ancient documents
(10) Residual catchall
Hearsay Exceptions—Declarant Unavailability Immaterial
Excited Utterances
(1) Relates to a startling or exciting event or condition; and (2) was made while the declarant was under the stress or excitement of the event.
Declarant’s emotional state is key.
Hearsay Exceptions—Declarant Unavailability Immaterial
Present Sense Impressions
(1) Describes or explains an event or condition; and (2) is made during or immediately after the event.
Timing is key.
Hearsay Exceptions—Declarant Unavailability Immaterial
Business Records
(1) Entry made in regular course of business (2) at or near time of event (3) made by a person with personal knowledge
Custodian of records/other qualified witness must provide either in-court testimony or written certification that the business record is legitimate.
Hearsay Exceptions—Declarant Unavailability Immaterial
Residual Catchall
Hearsay admissible if (1) it has sufficient guarantees of trustworthiness, (2) statement is strictly necessary; and (3) notice is given to the opposing party
Hearsay & the Confrontation Clause
Hearsay will not be admitted where:
(1) Statement being offered against criminal defendant;
(2) Declarant unavailable;
(3) Statement was testimonial (sworn testimony/statements to cops in furtherance of a police investigation); AND
(4) Accused has no opportunity to cross examine
Common Statements Not Offered to Prove the Truth of the Matter Asserted (i.e., not Hearsay)
- Verbal acts (such as words of contract or defamatory words)
- Statements offered to show their effect on the listener or reader (for example, to prove notice in a negligence case)
-Statements offered as circumstantial evidence of declarant’s state of mind (for example, when a party is trying to prove someone’s insanity—”I’m Elvis”)
Federal Testimonial Privileges & Erie
FQJ only=
(1) The attorney-client privilege;
(2) Spousal immunity;
(3) The privilege for confidential marital communications;
(4) The psychotherapist/social worker-client privilege;
(5) The clergy-penitent privilege; and
(6) Governmental privileges
Diversity= Six above + other privileges not listed above (such as physician-patient, accountant-client, professional journalist); only recognized by certain states.
Doctor-Patient Privilege
STATE PRIVILEGE ONLY
To be protected, the communication must be (1) made for purposes of obtaining diagnosis or treatment; (2) pertinent to diagnosis or treatment; and (3) intended by the patient to be confidential.
The privilege does not apply where patient’s condition is a legal issue (e.g., personal injury); the services were sought to aid in a crime, tort, or escape capture; or dispute between doctor and patient (e.g., malpractice).
Spousal Testimony Privileges
Applies in criminal cases only.
The defendant’s spouse cannot be compelled to testify against their spouse in a criminal proceeding. Privilege can be asserted even as to matters that took place before the marriage.
Only the witness spouse may invoke the privilege (i.e., defendant cannot prevent a willing spouse from testifying against her).
Privilege can only be invoked if married at the time of trial.
Marital Communications Privilege
Applies in all cases.
Confidential communications made during marriage are privileged in any later proceeding.
Applies even if spouses divorce after confidential communication was made.
Either spouse may invoke the privilege. A spouse can lose the privilege if they break confidentiality (i.e., relays a marital communication to a third party).
Privilege does not apply in suits between spouses, ones in which one spouse is charged with a crime or tort against children, and suits in which spouses are co-defendants.
When Neither Spousal / Marital Communication Privilege Applies
(1) Communications/acts in furtherance of joint crime or fraud;
(2) Legal actions between spouses
(3) Where a spouse is charged with a crime against a testifying spouse/their children
Nonhearsay Statement by Opposing Party—Silence as Admission
(i) the party must have heard and understood the statement;
(ii) the party must have been physically and mentally capable of denying the statement; and
(iii) a reasonable person would have denied the accusation under the same circumstances.
Nonhearsay Statement by Opposing Party—Vicarious Liability
- Authorized spokesperson
- Business partner
- Co-conspirator
- Principal-agent
- Predecessors in interest
Foundational Requirements for Prior Inconsistent Statements by Extrinsic Evidence
The statement must be relevant (i.e., not a collateral matter).
The witness must generally be given an opportunity to explain or deny the statement.
The adverse party must have an opportunity to examine the witness about it.
Exceptions:
No foundation is required if the statement was made by a hearsay declarant.
No foundation is required if the statement qualifies as an opposing party’s statement.
Impeaching Unavailable Hearsay Declarants
Credibility may be attacked by evidence that would be admissible if the declarant had testified as a witness.
