Evidence Flashcards
(121 cards)
1
Q
The competence of a child depends on…
A
his intelligence, his ability to differentiate between truth and falsehood, and his understanding of the importance of telling the truth.
2
Q
When does best evidence rule apply?
A
The rule applies only when the contents of a document are at issue or a witness is relying on the document when testifying.
3
Q
Is evidence generated by a machine or an animal hearsay?
A
No
4
Q
Is evidence of a judgment of acquittal introduced in a subsequent legal proceeding to prove that the defendant did not commit the criminal act hearsay?
A
Yes. Although there is an exception to the hearsay rule for judgments of conviction, there is no such exception that allows for the admission of a judgment of acquittal.
5
Q
If a prior inconsistent statement is made under oath at a trial, hearing, or deposition…
A
it is admissible both to impeach the declarant’s credibility and as substantive evidence, so long as the witness testifies at the present trial or hearing and is subject to cross-examination concerning the statement. The witness need not actually be cross-examined, so long as she is subject to cross-examination at the present trial.
6
Q
Who decides if evidence admissible
A
Question of law, so judge decides.
Sometimes these will hinge on factual questions, and court decides those too. Court not bound by rules of evidence.
7
Q
When must hearings on admissibility of evidence be held outside presence of jury?
A
- When it’s on admissibility of a confession
- When D in crim case is witness and makes that request
- When interest of justice otherwise requires
8
Q
Weight and credibility of witnesses is up to…
A
the jury
9
Q
If you feel ruling on evidence erroneous, could be basis for reversal in appeal, but only if…
A
1) some sub right of party affected,
2) need to have notified the judge of the mistake and been given a chance to correct it, by…
a) Objection
b) Offer of proof. If evidence gets left out and you explain to court what it is and why it should have been admitted. Not always required if it’s straightforward and clear.
But if plain error, sometimes don’t need to notify the judge.
10
Q
Rule 105
A
Sometimes evidence admissible for one person but not for another. Upon request of objecting party, court can give limiting instruction to jury for when evidence has one legit purpose and another illegitimate one. [Pay attention to type of evidence and what it’s being used for.]
11
Q
Rule 106: the rule of completeness:
A
The rule of completeness (i.e., Federal Rule 106) permits a party to compel the introduction of a statement that in fairness should be considered at the same time as an admitted writing or recorded statement. While the rule of completeness generally is applied to the introduction of an omitted portion of an admitted writing or recorded statement, this rule can also apply to separate related writing or recorded statement.
- If adversary introduces part of a written statement, you’re allowed to intro other parts to put it in perspective
- Can do it right then, don’t have to wait until it’s your turn to present evidence
- And can intro that part even if otherwise would be inadmissible
12
Q
Judicial notice doctrine:
A
Sometimes court relieves you of resp of presenting evidence for an adjudicative fact is really not subject to reasonable dispute; if something is gen known within territorial jx, or accurately and readily determined by sources whose accuracy cannot be reasonably questioned, then court in its discretion and if requested can relieve you of resp of presenting evidence for that
Ex: July 4th was a Friday this year; NYC is north of Miami.
In civil case, judge just instructs jury you must find this fact. If crim case though, judge instructs jury they MAY find this fact.
13
Q
Adjudicative facts
A
things jury would have to decide; Not about law or facts appellate courts consider on whether a law is rational basis
14
Q
Order of a trial
A
o Usually begins with plaintiff or prosecution. D gets to cross those witnesses.
o Then D gets chance to present their case
o Sometimes goes back again to another round back and forth with P then D
- Order is within discretion of trial court.
- Court may even call and question witnesses, and everyone gets to cross them since no one’s witness. Every party has opp to object outside jury. But doesn’t usually happen.
15
Q
Leading question
A
Suggests answer within the question.
Ex: “Isn’t it true that…”
Basic rule: leading questions not permitted on direct exams.
Sometimes can use leading questions on direct:
- Preliminary background info
- Witness that has trouble communicating (Child, elderly person, super nervous person)
- Hostile witness (Other party, or closely associated with party)
16
Q
present recollection refreshed
A
- You can show them anything to remind them, then they put it aside, then they testify from present recollection
- What you show them does not become evidence
- They don’t read from it, it just reminds them and they put it aside
- Other side is allowed to look at that doc
- Past recollection recorded is diff
17
Q
Past recollection recorded
A
If still can’t remember, they can just read from their record they made when it was fresh in their memory. Can only be what they wrote.
18
Q
Cross
A
- Limit scope to the subject/scope of direct. But courts can decide to expand so you don’t have to call them as witness to keep things efficient.
- allowed to use leading questions!
19
Q
Improper question formats (other than leading question on direct)
A
- Compound question
- Assuming facts not in evidence
- Argumentative (not a question just bothering witness)
- If call for inappropriate conclusion or one witness not qualified to make
- Asked and answered (repetitive). But if party has not answered your Q you can keep asking and asking.
20
Q
Witnesses may be excluded from court room upon request of either party if…
A
necessary to prevent from hearing testimony of others
Some may not be, like someone essential to presentation of case, or crime victim if by state rule. There is an exception for an officer or employee of a party who is not a natural person, and this exception has frequently been applied to the police officer in charge of investigating a criminal case.
Even spouse can be excluded. There is no exception for an eyewitness, a former co-defendant, or an officer who testifies as to chain of custody. Accordingly, these individuals must be removed from the courtroom if so requested by the defendant.
21
Q
Burden of production
A
Coming forward with evidence enough to get to jury (sufficient to support a finding)
22
Q
Burden of persuasion
A
- Convincing jury to decide case your way
- Civil: usually preponderance of the evidence
- Crim: usually BARD
23
Q
Presumption (rebuttable)
A
shifts burden of production on a particular issue, but not burden of persuasion
24
Q
Destruction of evidence presumption
A
if someone destroys evidence, presumption that it was bad for side that destroyed it
25
Conclusive/irrebuttable presumptions
diff kind of presumption; just rules of law
26
Rule on relevance
* Evidence must be relevant; Irrelevant = inadmissible
* Makes fact at issue more likely than it would be without the evidence. Doesn’t need to be sufficient.
* Relevance = material and probative
27
Direct v. circ evidence
o Direct: equivalent to what it’s offered to prove
o Circ: from which you can infer some fact
o But more important is how a certain piece of evidence makes a fact more likely
28
403
- even if relevant and no particular rule excluding it, might still exclude under 403 if certain risks sub outweigh probative value of evidence
- Risks: confusion, prejudice, waste of time (like cumulative), misleading jury
- Tilted in favor of admissibility though; must be substantial
29
104b: relevance conditioned on fact
o Sometimes relevance question hinges on some fact that is best for jury
o Court will give question to the jury
30
Character propensity evidence
* Basically prohibits argument that says someone acted in conformity with particular character trait. Not permitted to introduce evidence of a defendant’s bad character to prove that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question. Too prejudicial, low probative value.
* Even when you are allowed to intro this evidence, only can through reputation/opinion, not through specific instances
* Can’t use it for character and conformity, but can use it for other relevant uses, like when character is in issue, like in child custody case, negligent entrustment case (rare, only in civil).
31
When can you use propensity argument?
o Impeachment
o Almost never in civil cases can you use propensity argument, but FRCP and some states allow in sex crime/child abuse cases prosecutor or civil plaintiff to intro evidence of person’s prior acts
o In general pros not allowed to admit character evidence for propensity, but we do let crim D intro character evidence and open that door…a pertinent trait of character. A defendant is permitted to introduce evidence of his good character as being inconsistent with the type of crime charged. The defendant’s character evidence must be pertinent to the crime charged. Proof of good character offered by the defendant must be in the form of reputation testimony or opinion testimony.
o We also allow crim D’s to bring forward evidence about V’s character if pertinent—when homicide or violent case and purported victim started it. A criminal defendant may introduce reputation or opinion evidence of the alleged victim’s character when it is relevant to the defense asserted.
o Can sometimes introduce past crimes/wrongs also (exemptions)
o Habit evidence
32
When D brings in character evidence about himself...
In general pros not allowed to admit character evidence for propensity, but we do let crim D intro character evidence and open that door…a pertinent trait of character.
D limited to witnesses that will testify as to opinion/rep.
But if D opens door, P can then introduce evidence to rebut. P can cross-exam that witness brought by D with questions about specific instances of the past, even though D is limited to witnesses that will testify as to opinion/rep. But can’t try to prove it. If witness negates, have to just accept the answer.
33
When D brings in character evidence about V...
We also allow crim D’s to bring forward evidence about V’s character if pertinent—when homicide or violent case and purported victim started it. Must be opinion/rep evidence, not specific acts.
Rule that prohibits that for victims of sex crimes (rape shield laws).
Then P can intro evidence that V is not violent or that D has the same trait he is accusing V of having.
34
Introducing past crimes/wrongs
Ok if not being used to make propensity argument. Ex: motive, intent, absence of mistake, MO.
35
Habit evidence
- Allowed to show conformity with it.
- More regular, automatic
- Can be habit of an org
- Specific
36
Who can be a witness?
Anyone who has personal knowledge about what they’re testifying about and is willing to swear/make oath they are telling the truth is competent to testify.
Some states have particular competency rules (like age of children). Some states have dead man’s statute: limit ability of witnesses to testify about transactions with people who are deceased. Bc of Erie doctrine, fed court in diversity case should refer to state competency rules.
Judge cannot be a witness in case where he/she sitting. Juror may also not testify in front of jury he is sitting.
After a verdict, 606b says juror may not testify as witness in inquiry into validity of a verdict or indictment, at least as to certain matters (any statement made during deliberations, incident that occurred during deliberations, or effect of anything of that on a juror’s mind). But see exceptions.
The basic rule that a juror cannot impeach his own verdict applies in this case. A juror cannot testify as to the mental processes that he or any other juror used in arriving at a verdict, even when those mental processes reflect a misunderstanding of the law. The mere fact that the verdict is based on a mistake, even one made by all of the jurors, is insufficient to permit a juror to impeach the verdict.
37
606b
After a verdict, 606b says juror may not testify as witness in inquiry into validity of a verdict or indictment, at least as to certain matters (any statement made during deliberations, incident that occurred during deliberations, or effect of anything of that on a juror’s mind). So can’t ask about what happened in jury room, what was said, what’s in their minds.
The basic rule that a juror cannot impeach his own verdict applies in this case. A juror cannot testify as to the mental processes that he or any other juror used in arriving at a verdict, even when those mental processes reflect a misunderstanding of the law. The mere fact that the verdict is based on a mistake, even one made by all of the jurors, is insufficient to permit a juror to impeach the verdict.
Exception: if some technical error on the verdict form or extraneous prejudicial info was improperly brought to bare or some outside influence improperly brought to bare.
Exception 2: if juror makes clear statement that he relied on racial stereotypes or animus in a conviction, then constitutionally required court hear evidence of that.
38
Impeachment approaches
1. Bad character for truthfulness or untruthfulness (liar)
2. Impeachment by bias (lying)
3. Impeach by sensory competence (just mistaken)
39
608/609
cannot present evidence of cases of prior dishonesty?
40
What kind of character evidence for truthfulness/untruthfulness can you intro for impeachment?
Reputation/opinion, not prior specific instances.
But can cross-exam witness about specific acts of dishonesty by inquiring into them if probative of honesty/dishonesty. But have to take whatever answer they give you. And do need a reasonable basis for asking the question in the first place.
Can introduce evidence that someone has been convicted of certain crimes to call into question their credibility of a witness. A witness’s character for truthfulness may be impeached by evidence of the witness’s conviction of the crime in this instance. The conviction may be proved by extrinsic evidence. See more details.
41
Can introduce evidence that someone has been convicted of certain crimes to call into question their credibility of a witness. Crimes allowed for this purpose:
Generally, a witness may be impeached by a conviction for a crime that requires as an element of the crime proof or admission of an act of dishonesty or false statement, such as perjury, without weighing the probative value of the conviction against its prejudicial effect, if the conviction is no more than 10 years old. In measuring the 10-year period, the later of the date of conviction or release from imprisonment is used.
A conviction may not be used for impeachment purposes if the witness has been pardoned, provided that either (i) the action was based on a finding of innocence; or (ii) the witness has not been subsequently convicted of another felony.
1) Crimes involving dishonesty and false statement (perjury, fraud, embezzlement)
2) felonies (crimes punishable by death or more than a year).
- Can do this unless risk of unfair prejudice sub outweighs probative value with most witnesses.
- If the witness is the crim D himself, only allowed if probative value outweighs the risk of unfair prejudice (so the reverse).
- If crime more than 10 years old since conviction or release (whichever is later), then admissible only if probative value sub outweigh prejudicial effect, and must have advanced notice that using this
- If pardon or cert of rehab, cannot be used if based on finding of innocence or have not subsequently been convicted of another felony
42
Prior inconsistent statement
o Can cross witness on prior inconsistent statement (not for the truth of matter, for impeachment)
o Can be done with any kind of statement, doesn’t need to meet hearsay rule???
o Can also prove those statements by extrinsic evidence but witness must have chance to explain her side
43
How can you impeach a hearsay declarant?
Same way you would if they were in court?
44
Rehabilitating your witness
o Most important is just giving your witness a chance to explain
o Can also use a prior consistent statement (made before alleged motive)
o If their character for truthfulness has been attacked, you can bring witnesses to bolster their character for truthfulness
45
When are opinions from lay witnesses ok?
Opinions from lay witnesses admissible wrt common sense impressions (appearance, intox, speed, other people’s emotions).
Has to be 1) based on percep of witness and 2) helpful to a clear understanding of the testimony or determination of fact in the case.
Implicit third requirement: they not be based on any purported scientific or specialized knowledge (bc wades into expert witness area with its own rules).
46
Expert witness
requires that scientific, tech or other specialized info will help trier of fact understand evidence or determine a fact in issue
47
Can an expert testify on witness cred?
No
48
What makes an expert qualified?
Qualified = by knowledge, skill, experience, training or education
Need not be a formal degree, can be practical experience/training
49
Requirements on expert testimony
Must be based on sufficient facts/data and that witness applied the principles and methods reliably to facts of the case
50
Can expert express opinion on ultimate issue?
Experts may express an opinion on ultimate issue in most cases. Ex: expert in design defect case can say I think it was defective in design.
Exception: in crim D cases, can’t do it about whether D had requisite mental state/mens rea of some crime or defense.
51
Can expert rely on hearsay info?
Can rely on info of type reasonably relied upon by experts in that particular field, even if it constitutes hearsay. Doesn’t mean everything they relied upon goes to the jury; basis, even though may be required to disclose on cross, will not necessarily be admissible unless probative value of that info in evaluating the expert’s testimony outweighs prejudice.
52
Court-appointed expert
Court has to let each party know what they found, each party can depose them, and each party can call them or cross them.
53
Tangible evidence
* documents and things
| * always come in through witness
54
authentication
All tangible evidence must be authenticated. Must show to court evidence sufficient to support finding that the thing is what you claim it is (reasonable jury must be able to find the fact either way, otherwise don’t meet burden of production). Not that court must find the thing is actually authentic. Jury will ultimately decide whether to believe you on whether the thing is authentic or not.
55
How is real evidence (ex: weapon) usually authenticated?
usually combo of personal knowledge combined with distinctive features, markings, etc.
some physical items cannot be authenticated that way, like a bag of drugs or a type of weapon. So then use chain of custody—showing each place where it was.
56
Ancient docs principle
Another way is to show its at least 20 years old, in condition unlikely to create sus, and find in place where such docs would be if authentic
57
Reply letter doctrine
Used by some courts
58
Handwriting verification
Common.
1) by expert or jury comparing it to known sample; or
2) have lay witness who knows handwriting from before recognize it
Under FRE 901(b)(2), a lay witness with personal knowledge of the claimed author’s handwriting may testify as to whether the handwriting in question is that person’s handwriting. The lay witness must not have become familiar with the handwriting for the purposes of the current litigation.
59
902 self-authenticating evidence
like public docs with gov seal, certified copies of public records, official publications, trade inscriptions, notarized or acknowledged docs, commercial papers…
NOT ancient docs
60
Authentication of statements (like phone calls or oral convos)
Can ID by voice:
- I recognize his voice is enough
- Or distinctive features like using a secret codename only he would know
61
Authenticating phone convos
- Caller can recognize speaker’s voice
- That they knew facts only someone would know
- Or where number dialed that you knew to be their number and they ID themselves upon answering
- NOT APPROPRIATE for judge to determine that the speaker is verified
62
Best evidence rule
No describing documents instead of showing them to us, at least if the matter really matters, unless you really need to; and copies/duplicates usually fine.
Limits your ability to present other evidence of contents of docs (or recording or film or xray) when contents are in issue. Other evidence = testimony about what a doc says or picture showed or film showed. Limits that.
Basically any time a witness is describing a doc. But diff from when incidentally recorded: when there is also a document and the witness saw it too…not a best evidence problem bc also personal knowledge.
63
Duplicates wrt best evidence rule
Duplicates fine unless genuine question about authenticity of the original, or in fairness we should require the original.
64
If witness testifying based on facts only learned through doc or writing, what kind of problem could we have?
Best evidence rule problem
65
When can you get around best evidence rule?
Bc you really need to:
- Like original lost or destroyed (unless you did that)
- If original cannot be obtained through judicial process
- If you can show other party had control of original and knew would be in issue in trial
66
Public records
You can use certified copies instead of original. But now any kind of copy is fine usually. So actually imposes a burden now kind of, have to try to find certified copy before using any kind of copy.
67
Summaries admissibility
Summaries admissible if too bulky to be examined in court. Must be available for other side to inspect.
68
Is adversary's testimony/written statement subject to best evidence rule?
No, admissible. So like email describing contents of lease by landlord, your adversary.
69
Parol evidence rule
Excludes evidence that if introduced would change terms of a written contract.
Complete integration: contains all terms of agreement. If so, parole evidence in effect and no extrinsic evidence of docs that would change its terms can be admitted.
Partial integration: PER excludes evidence that would contradict the terms of agreement, but remains open to evidence that might add to terms of agreement.
Exceptions/clarifications:
- Evidence that would clarify an ambiguity
- Prove a custom of trade or course of dealing
- Fraud, mistake or illegal purpose
- Whether consideration has been paid
70
What privilege law does fed court use?
Fed courts defer to fed CL on privileges issues, or when sitting in diversity, use state law privilege law.
71
A/C privilege
Protects confidential comm between client and lawyer if it was for purposes of securing legal advice. Neither lawyer nor client can be forced to testify about it. It’s the client’s privilege to waive; attorney must assume the client wants the privilege protected.
72
Confidentiality requirement for a/c privilege
Client must have made reasonable efforts to keep it confidential. So in front of 3rd parties doesn’t count, unless they were necessary like agent or translator or accountant. Unknown secret eavesdropper will not destroy privilege, unless you fail to take precautions to protect the confidentiality.
While the presence of a third party can destroy privilege, a communication to a representative of the attorney is also privileged. A representative of an attorney is a person who is employed to assist the attorney in providing legal services (like a physician who was helping with the case).
73
Communication requirement for a/c privilege
Not underlying facts or evidence client happens to have or know. Ex: if client subpoenaed to testify about what he did and he happened to tell lawyer that, not protected because not asking about what said to lawyer, asking about what he did.
Nor does it protect pre-existing docs.
74
For purposes of securing legal advice requirement for a/c privilege
Just bc talking to lawyer doesn’t mean you are talking to them for that purpose
75
Waiving a/c privilege
- Failure to assert in timely manner
- Voluntary disclosure of the info/failure to keep it confidential
- Expressly waive it, even by contract
- If client tells lawyer don’t tell anyone and lawyer tells someone on purpose, NOT waiver
- BUT careless disclosure by lawyer may actually waive the privilege
- Involuntary disclosure will not waive it
76
a/c privilege wrt a corp or other entity
Control group approach (some states): applies to person with sufficient power to control conduct of corp
Upjohn approach (fed court/many states): Should focus on the nature of the comms. Comm made by employee about matters within scope of employment for purposes of seeking legal advice = privileged, even if employee is not in control group.
77
Exceptions to a/c privilege
Future crime or fraud: if client comm with lawyer is for purpose of getting help with what client knows or should know is a crime/fraud, not privileged. So subjective test for client point of view,
In disputes between lawyer and client, if necessary.
78
Work product doctrine
Docs prepped by lawyer in anticipation of litigation are protected under this doctrine. Not necessarily covered by a/c privilege.
Exceptions:
- Sub need for info and can’t get it otherwise without undue hardship
BUT mental impression/core work product are NEVER shown to other side. Ex: notes on legal theories for the case, etc.
79
Doctor-patient privilege
Statements made by patient to doc for purpose of obtaining medical treatment. Many states recognize, but not fed law (but they do apply in diversity cases).
Doesn’t just apply to physical conditions of patient.
Usual exceptions:
- For reasons other than treatment
- If made for some illegal purpose
- To disputes between doc and patient
- Nor if patient agrees to waive it
80
Psychotherapist-patient privilege
Confidential comms between them. Fed courts do recognize this. Applies to psychologists and social workers too. Patient holds the privilege.
Exceptions:
- Waiver
- Dispute between them
- Illegal
- For some other purpose
- Also where there is a court-order exam
- Also in a commitment proceeding
81
5A priv against giving testimony against yourself
- Constitutional privilege!
- Applies only to people, not corps
- Only covers current statements (testify); does not allow people to exclude things they said in the past
- Only protects testimony, not things like blood samples, voice samples, walk in a certain way, breathalyzer (non-testimonial stuff)
- Only applies to stuff that has risk that it might incriminate you. If no risk (like via immunity), no priv.
82
Spousal privileges
1. Confidential marital comms privilege
| 2. Spousal immunity privilege
83
Exceptions for both spousal privileges
* when one spouse is suing the other
| * when one spouse charged with crime against other spouse or children
84
Confidential marital comms privilege
- (like the other privs we have discussed)
- Comms made between people in confidence in marriage
- Held by both of them, so must be waived by both (not just one)
- Survives after marriage
- Comms must have been made while marriage though
85
Spousal immunity privilege
- (More like 5A)
- Gives you right to refuse to testify in crim case against your spouse
- Must be currently married to them (can be forced to testify against ex)
- Refers to testimony about anything
- Witness spouse is the one who hold the immunity
86
liability insurance (411)
- evidence that a person was or wasn’t insured against liability not admissible to prove neg or wrongdoing
- but if it’s relevant for another purpose, then can use it (ex: control)
87
subsequent remedial measures
- repairs/changes made after accident not admissible to prove neg, culpable conduct, or defective product
- but can use it for another purpose (ex: control, feasibility); can then request limiting jury instructions
88
rule against settlement offers/negotiations
- settlement offer not admissible to show liability for or invalidity of the amount of a disputed claim
- but maybe admissible for other purpose (ex: to prove bias)
- CANNOT be waived by either party
- Withdrawn guilty plea not admissible
- Settlement offers are not admissible as a prior inconsistent statement to impeach.
- Pleas of nolo contendre are not admissible in criminal court or in a subsequent civil proceeding
Under FRE 408, a settlement offer made by any party is not admissible to prove liability for, invalidity of, or the amount of a disputed claim. Any conduct or statements made in the course of negotiating a compromise are also generally excluded.
89
Offers to pay med expenses
- Not admissible to prove liability for injuries
- For other uses may be admissible
- Conduct in the context of paying med expenses may be admissible
90
Plea negotiations (crim)
- Things said in effort to get a plea in crim case not admissible against you
- If you end up pleading guilty, that statement is admissible though
- Withdrawn guilty plea not admissible
- Pleas of nolo contendre are not admissible in criminal court or in a subsequent civil proceeding
91
Past sexual conduct of a V (rape shield statutes)
- Fed rules have one
- In general, evidence of V’s past sexual behavior or predispositions is not admissible in a crim proceeding involving sexual misconduct
- Narrow circs in which it can come in (see details)
- And no circs under which “disposition” of rape victim is admissible
- In civil case, admissible only if its probative value sub outweighs harm to V and unfair prejudice to any part. Reputation only admissible if V brings it up (like if V says I have rep for being chaste and pure then D can counter.
92
Narrow circs in which V's past sexual conduct can come in despite rape shield statutes
- To show D was or was not the source of physical evidence (like semen or bruises). Not generally, just specific past conduct.
- Evidence of D’s past sex conduct with the D to show consent
- Other circs where it would be super unfair/unconstitutional (DP) for D. Ex: like V was cheating on her partner with someone else and to defend her relationship she alleged rape with the cheater. Ex: like if V says “I would never have sex with someone I just met”…they open the door and it would be super unfair for D not to be able to bring forward evidence otherwise.
93
413, 414, 415
o Open door for D’s past sexual misconduct in crim or civil cases involving rape or child abuse.
o For any purpose for which it is relevant (even propensity)
94
Hearsay def
o Out of court statement offered to prove truth of matter asserted
o Out of court statement: usually spoken or written, but can be assertive non-verbal conduct (like pointing)
o To prove truth of matter asserted: when it’s being used like testimony, when the declarant is acting like a witness. Does the statement need to be true to be useful?
95
Declarant v. witness
o Declarant: person who made the out-of-court statement
| o Witness: person telling us about it
96
Common non-hearsay usage
Verbal acts/verbal conduct:
o Perjury
o Threat in a trial about extortion
o Making a contract
To show effect on listener or hearer
o Notice
o Duress
Legally operative facts??
State of mind exception
o Circ evidence of mental state, like to show someone insane by admitting statement by guy saying he is henry VIII; or knowledge—evidence that someone spoke french by admitting long speech in french
97
Still hearsay if declarant and witness same person?
Yes
98
When you have nested hearsay...
Need exception for each layer
99
prior inconsistent statements
- made by testifying witness, under oath at a trial, hearing or depo
- declarant-witness must testify and be subject to cross, so must be available
- defined as not hearsay, can be used for truth of matter
- If being used for impeaching, doesn’t need to meet these requirements; this is for if you want to use the statement for the truth of the matter
100
prior consistent statements
- declarant-witness must testify and be subject to cross, so must be available
- if being offered to rebut express or implied charge of recent fabrication or motive…can then also use it for truth of matter
- defined as not hearsay
(under oath or no??)
101
prior statements of identification
- declarant-witness must testify and be subject to cross, so must be available
- defined as not hearsay
- need not be under oath
102
Admissions of a prior opponent/prior statements of a party opponent
- defined as not hearsay
- Apply to anything you say. Doesn’t have to be against interest, formal, or anything like that.
- Adopted admissions count too: “yes I did” in response to “did you rob a bank”…include both as statements you adopted. Can sometimes adopt by silence--If party heard and understood it, had ability to respond, and reasonable person in that position would have responded, silence can be adoption. But rare.
- Speaking agents also count as yours. Like your lawyer’s.
- Also statements made by employee/agent in scope of employment also count as yours.
- Co-conspirator exception: these statements made during and in furtherance of a conspiracy are admissible against you.
- In deciding predicate questions (like was someone your agent, or was there a conspiracy), court can look to statement itself but cannot be the sole proof.
103
Definition of unavailability under 804
* Exempt from testifying on grounds of privilege
* Refuses to testify
* Lacks memory
* Absent and can’t be subpoenaed or otherwise made available
* Deceased or too ill to testify
* But can’t argue unavailable bc you made them unavailable
104
Former testimony exception
Former testimony of UNAVAILABLE witness given under oath at hearing or depo admissible at sub trial if party against whom its being offered had opp and similar motive to develop testimony by direct or cross at prior trial/depo/hearing.
105
Dying declaration
- Declarant unavailable
- Individual believed dying and that it was imminent and relates to cause/circs of their death
- But only in a homicide or civil case, not other kinds of crim cases
- Does not require declarant actually die
106
Statement against interest
- Declarant unavailable
- if at time it was made so far against declarant’s pecuniary, proprietary, civil or penal interest, such that a reasonable person would not have made the statement unless they believed it to be true
- -> If it would subject declarant to crim liability, must be corroborating evidence
- But when witness tries to say one guy (declarant) is guilty to say that another guy is not guilty, sus…so only allowed when circs indicate trustworthiness of the statement
107
Statement of personal or fam history
- Declarant unavailable
- adoption, birth, marriage, divorce, legitimacy, etc.
- -> Like who is your mom
- -> If really in dispute though, have to show person who told you that is really unavailable
108
Forfeiture by misconduct/wrongdoing exception
Statement against party that caused declarant’s unavailability.
1) can’t claim they are unavailable
2) opens door against you of what that person said
But only if you render them unavailable for purposes of preventing them from testifying. So doesn’t count if you shot them out of random anger.
Pursuant to FRE 804(b)(6), a party who engages in wrongdoing intended to procure the unavailability of a declarant that does cause the declarant to be unavailable forfeits any right to object to the admissibility of hearsay evidence of the declarant’s statements.
109
Present sense impression
- Availability immaterial
| - Contemp statement, made while declarant perceived event or immediately after
110
Excited utterance exception
- Availability immaterial
- When declarant really worked up
- Relating to startling event or condition while still under stress/excitement of condition
111
State of mind excpetion
- Availability immaterial
- Statement of then-existing mental, emotional or physical condition
- -> Ex: “I am in pain”
- -> Ex: “I hate my boss” (but not I used to hate my boss)
- person describing what’s going on inside of them right then
- The statement cannot be used to prove the cause of a declarant’s physical condition.
- Basically an inward looking present sense impression
- Intent/motive/plan: can be used to prove their mental state but also action in conformity with that intent
- -> Ex: I intend to go to Cleveland tomorrow
112
Statements made for purpose of medical diagnosis or treatment; statement that describes declarant’s medical history, past or present symptoms or pain, or even cause of injury if pertinent to treatment or diagnosis
- Availability immaterial
- Need not have been made directly to doctor
- The statement CANNOT identify the person who caused the symptoms.
- Can describe both past and present symptoms
113
Past recollection recorded
- Availability immaterial
- Can have witness read it to jury
- If you can show record concerns matter witness once had knowledge, prepped or adopted by witness when matter was fresh, accurately reflects his knowledge, and insufficient memory to testify fully and accurately
- Don’t physically give it to jury though
- Happens after refreshing fails
- But adversary may introduce it to the jury
114
Business records exception
Any record, recording, or writing of any act made in course of a regularly conducted business activity.
- Includes nonprofits too, med records
- Must have been made at or near time event it records (not necessarily immediately after)
- Must have been made by someone with knowledge and duty to record or from info transmitted by this person
- Must have been part of their regular practice to make that kind of record
- But records prepared in anticipation of litigation not admissible under this exception
- Courts can also exclude if they have reason to think not trustworthy
115
Public records exception
Activities – what the office did
Observations – what they saw
Factual findings
- Conclusions too?
Usually all admissible, BUT with law enforcement, observations/factual findings inadmissible against crim Ds. So if police report against crim D, can only include what they did, not what observed or concluded. Could still use the report under another rule maybe.
116
803 exceptions
- business records
- public records
- Learned treatises: Once used to impeach an expert or expert has relied on it, can also be used substantively
- Judgment of previous condition: Evidence that someone convicted of a thing is admissible as proof they did the thing
- Records of vital stats
- Records of religious orgs
- Marriage and baptism records
- Ancient docs
- Certain market reports and commercial publication
- Reputation: But just bc it meets this hearsay exception doesn’t mean there wouldn’t be another objection for it
117
Confrontation clause (6A)
D has right to confront witnesses against him. Face to face. Absent special circs like very vulnerable witnesses.
Crawford: out of court statements that are testimonial give rise to confrontation clause problems; other out of court statements are fine. In determining whether a statement is testimonial, an objective analysis of the circumstances, rather than the subjective purpose of the participants, is key. A statement that has the primary purpose of ascertaining past criminal conduct is testimonial while a statement with the primary purpose of enabling police to provide assistance to meet an ongoing emergency is not testimonial.
2 requirements to admit anyways:
o Declarer now unavailable
o And D had prior opp to cross declarant
118
Constitutional limitation wrt evidence
- Confrontation clause (6A)
| - 14A DPC (like voucher rule no longer ok)
119
In a diversity action, when state sub law determines existence of a claim or defense, which law (state or fed) governs effect of presumptions related to that claim or defense?
State law
120
How are reproductions (e.g., photos, diagrams, maps, movies) authenticated?
When reproductions (e.g., photographs, diagrams, maps, movies) are introduced into evidence, they may be authenticated by the testimony of a witness with personal knowledge that the object accurately depicts what its proponent claims it does.
121
In a federal proceeding, the disclosure of a protected communication does not operate as a waiver if...
(i) the disclosure was inadvertent,
(ii) the holder of the privilege took reasonable steps to prevent disclosure, and
(iii) the holder promptly took reasonable steps to rectify the error, including contacting the party to whom the communication was disclosed and requesting that they return, sequester, or destroy the information.
