Ch 13-23

Question 1

A-C privilege exception

Answer 1

• work product
• future crime or fraud
• if waived

Question 2

work product may be obtained from opposing party if;

Answer 2

• there’s a substantial need, and cannot obtain otherwise

Question 3

Exceptions to psychotherapist-patient privilege

Answer 3

result of exam ordered by the court
taken as part of a commitment proceeding

Question 4

fifth amendment against self-incrimination
exception

Answer 4

doesn’t apply to coporations
doesn’t apply if no risk of criminal trouble
only applies to current statements

Preventing to testify, not past voluntary statements

Question 5

2 types of spousal privilege

Answer 5

confidential marital communication: privilege of any conversation during marriage

spousal immunity: do not have to testify against other spouse in criminal case (only during marriage)

Exception
- when one spouse sues the other
- when one spouse is criminally charged against the other spouse of their children

Question 6

Liability Insurance

Answer 6

• evidence that someone was or was not insured cannot be used to prove negligence or wrongdoing

exception: used for another purpose other than proving negligence or wrongfdoing

Question 7

Subsequent Remedial Measures

Answer 7

evidence that someone made repairs *after the accident occurred cannot be used as evidence of negligent conduct, culpuble conduct, wrongdoing, detective product or design, or inadequate warning

exception: for another purpose (i.e. ownership, control, feasibility)

Question 8

settlement offers or negotiations

Answer 8

offer or negotiations for settlement cannot be used as evidence to prove disputed claim

can’t be waived by either party

Question 9

offer to pay medical exepsnes

Answer 9

cannot be used as evidence to prove liability for injuries

Except: conduct or statement made may be admissible

Question 10

plea negotiations

Answer 10

any efforts made within the plead negotiation is inadmissibl

Question 11

victim’s past sexual misconduct
- in CR
- in CV

Answer 11

In CR, not admissible except:

• to show that the D was or wasn’t the source of physical evidence such as semen or bruises; or
• to show the victim’s past sexual behavior or conduct with the D to show consent (-.-)
• if exclusion would to too unfair to the D

In CV, not admissible unless:
the probative value substantially outweighs the risk (reverse 403)

• evidence of reputation is only admissible if the V opens the door and brings it up

Question 12

Defendant’s sexual conduct

Answer 12

admissible to prove any relevant matter, even propensity argument

Question 13

Definition of Hearsay

Answer 13

an out-of-court statement offered to prove the truth of the matter asserted

(essentially treating the declarant as a witness)

Question 14

Hearsay Exclusion: Prior Inconsistent Statement

element?

Answer 14

Past: the witness made a statement under oath in depo, trial, etc.

Now: testifying in court that is inconsistent with the past
= can introduce prior statement

Question 15

Hearsay Exclusion: Prior Consistent Statement

Answer 15

can be used.

just like it can be used to rehabilitate a witness who’s been impeacehd

Question 16

Hearsay Exclusion: Prior Statements of ID

Answer 16

If:
past -> ID a person (like on photo array / line up)

present-> testifying in court

then prior ID can be used

Question 17

Hearsay Exclusion: Opposing party’s own statement

Answer 17

an opposing party cannot object to statements that they themselves made in the past, when we’re trying to introduce it

Question 18

Hearsay Exception: Dying Declaration

Answer 18

Unavailable +

• witness thinks they are about to die right now
• made a statement related to the cause/circumstance of the death
• if homicide (or CV case)

Question 19

Hearsay Exception: Former Testimony

Answer 19

unavailable +

• testified in the past under oath
• now trying to testify again against party to had similar opportunity and motive

Question 20

5 ways which renders a witness “unavailable”

Answer 20

• dead/very ill
• loss of memory
• privilege
• absent
• refusal

Question 21

Hearsay Exception: Statement against interest

Answer 21

Unavailable +

statement was against the declarant’s own interest, that any reasonable person would not have said it unless it’s true

Question 22

Hearsay Exception: Forfeiture of misconduct

Answer 22

Unavailable+

if you rendered the witness unavailable, all of their prior statement is admissible

Question 23

Hearsay Exception: Present Sense Impression

Answer 23

statement made while the declarant was perceiving the event, (or immediately therefore)

I.e. on the phone narrating to the witness what they’re seeing

Question 24

Hearsay Exception: Excited Utterance

Answer 24

statement about a startling event while the declarant is still under the stress of excitement due to the startling event

(I.e. after surviving a bank robbery)

Question 25

Hearsay Exception: State of Mind

Answer 25

Declarant’s statement describing what’s in their mind in real time, to prove what was in their mind at that time.
“I’m hungry, sleepy, etc.”
Includes intent, motive, plan to prove intent, motive, plan at that time they made the statement

Question 26

Hearsay Exception: statement made for medial diagnosis or treatment

Answer 26

describes declarant’s medical history, past/present symptoms, EVEN cause of injury if pertinent to treatment

does NOT have to be directly to doctor

Question 27

Hearsay Exception: Past Recollection Recorded

Answer 27

if can’t remember something in the past, may read in front of jury if:

• witness had knowledge at one point
• the record was created by the witness when the memory was still fresh
• there record is an accurate reflection of the witness’s knowledge
• the witness has already stated that even after seeing the writing at hand, he doesn’t have sufficient memory to testify fully

Question 28

Hearsay Exception: Business Records
- any Exceptions?

Answer 28

admissible if

record made in the course of regularly conducted business activity, AND the record was made:
- at/near the time the event occured
- by someone who had knowledge of the event & had a duty to record it
- making the record is part of the regular practice of the business

Exception
- if not trustworthy
- made in preparation of a trial

Question 29

Hearsay Exception: Public Records

Answer 29

ALL admissible. including activities, observation, factual findings.

Except: if police report against defendant, only activities is admissible.

Question 30

Hearsay Exception: Learned Treatises

Answer 30

admissible if established as reliable, expert relied on it or used to X-examine an expert

Question 31

Hearsay Exception: Judgment of previous conviction

Answer 31

evidence that you were convicted of a crime in the past is admissible to prove that you were convicted of that crime

Question 32

when is the D’s prior bad acts admissible?

Answer 32

when it’s not being used as propensity evidence, but for some other purpose.
“MIMIC”
- motive, intent, absence of mistake, identity, common plan

Question 33

V’s prior sexual disposition may be brought in CV case if:

Answer 33

the probative value substantially outweighs the risk