Evidence Flashcards
(117 cards)
1
Q
What does a witness need when they testify?
A
Personal Knowledge
2
Q
Refreshing recollection questions
A
If a witness does not remember something.. their recollection can be refreshed by any object, sound, smell…ANYTHING
it doesn’t have to be the evidence available
One rule: Witness can not just read off the writing
The witness may BREIFLY GAZE upon the refresher … then testify from MEMORY
3
Q
Refreshing recollection: Opposing Side has the right to:
A
- Inspect our refresher;
- Use our refresher on cross examination against our witness
- Introduce it into evidence as an exhibit
HOWEVER, if a witness uses something to refresh their recollection BEFORE testifying.. the court has discretion whether to let the opposing side view it
They can literally use anything to refresh your memory. It just won’t be admitted into evidence
4
Q
Objections must be:
A
(1) Timely. At the earliest opportunity possible and
(2) specific
If the witness leaves the stand, it is not timely and TOO LATE to object
5
Q
“I forgot to object. What do I do?”
A
You just waived the issue on appeal
However, when it comes to jury instructions, you can object later on IF
plain error affecting substantial rights has occurred
Plain error: The instructions are clearly an inaccurate statement of the law that would probably lead to an incorrect verdict
This doesn’t just apply to jury instructions - applies to ANYTHIGN affecting substantial rights
6
Q
Offer of proof
A
When an oppenent at trial argues against the admission of a piece of your evidence… physical or testimonial
Telling the judge
(1) what the evidence is (describing it or showing it to the judge
(2) an explanation of how the evidence relates to the case itself, and
(3) arguments supporting admissibility of the evidence
7
Q
Motions to strike evidence at trial
A
A motion to strike happens when some evidence got in that shouldn’t have
Asking jury to disregard it and preserve the error on appeal
8
Q
Lay witness opinion will be admissible if:
A
Rationally based on the witness’s perception
- Helpful to the jury
- Not based on technical, scientific, or specialized knowledge
Can NOT be an opinion or conclusion
Remember handwriting is fine if you are familiar
9
Q
Competency of testifying
A
Comes up with kids
Basically you need to make sure the testimony is reliable
They understand the capacity to understand their obligation related to telling the truth
10
Q
Dead mans statute
A
Applies to civil cases
You are not able to give testimony that supports YOUR interest in a dead mans estate
11
Q
When can a court take judicial notice of a fact?
A
On it’s own or at the request of a party who supplies them with the necessary information
Judicial notice is a fact that is generally known from an unquestionable source
Judicial notice in civil cases = mandatory
Criminal? = not mandatory (they don’t have to accept that presumption)
12
Q
Are there mandatory presumptions in a criminal case?
A
No
Nothing is mandatory for the jury to consider VS
Civil cases where you CAN have mandatory presumptions that the jury MUST consider
13
Q
When determining admissibility of hearsay evidence and confessions, it must be:
A
outside the presence of the jury
14
Q
What does a judge actually do?
A
They determine preliminary questions of fact upon which admissibility depends
- Whether a witness is competent
- They aren’t bound by the rules of evidence
Judge can NOT testify as a witness if they are presiding over a trial
Judges determine admissibility of HEARSAY evidence and confessions
15
Q
Can a judge let in circumstantial evidence?
A
Yeah
16
Q
Role of jury: Creditability
A
(1) Judge determines admissibility - jury determines credibility and reliability of witness testimony
17
Q
Role of jury: Jury misconduct
A
Things like lying during void dire or running your own experiments or googling stuff COULD lead to a new trial
18
Q
Can jurors talk to the press?
A
NO
Only once trial is done
19
Q
Can jurors be witnesses in a trial?
A
NO
if the other side objects
20
Q
What can jurors testify about in regards to their jury experience?
A
In civil and criminal:
Jurors can NEVER testify about the deliberations that took place to get a verdict or indictment
They CAN testify about outside influence
- Someone talking about something they googled, mistaken understandings, OR outside influences
21
Q
When will juror conduct get us a new trial?
A
When the conduct is crazy, over acts or concealed bias
- Refusing to deliberate at all
- Intentionally agreeing to nullify the verdict
- Juror bringing their expert opinions
- Using a random ass formula to come up with the verdict
- Communications with others about the case via social media or in person
22
Q
Presumptions in trial: Mail
A
Certain things are presumed at trial
Ex —–> Gov officials are presumed to carry out duties competently
If one side shows gov mail was properly stamped and addressed —> it is then presumed to be received by the other side
You can refute this presumption BUT if you don’t —-> JURY INSTRUCTIONS CAN INCLUDE THIS PRESUMPTION
in civil cases. Not criminal
23
Q
Presumptions: What can the jury instructions not presume?
A
Prosecution must prove every element of the offense
You can not have a jury instruction that says “If 1 element is proven…then the second is proven”
VIOLATES DUE PROCESS
24
Q
The standard for overturning a judge’s evidentiary rule is:
A
Abuse of discretion
Must have acted arbitrarily or irrationally
25
Are leading questions allowed on cross?
yes
26
What is a leading question
They are questions which suggest a right or wrong answer
They are NEVER allowed on direct examination
.....unless
(1) introductory matters
(2) very young or forgetful witnesses
ONLY allowed for hostile witnesses
27
What happens if a witness YOU CALLED is being biased, evasive, argumentative, or changing their story on YOUR direct of them?
Judge will let you cross your own witness if you ask for permission
28
Scope of cross examination
You can only ask about matters within the scope of the direct examination OR
things that test the witness's credibility (bias, perception, memory)
29
when can you impeach a witness?
ANYTIME
It doesn't need to be mentioned on direct
Does not have to be within the scope of direct
30
Re direct
Can only talk about what was on CROSS
31
"Opening the door"
When a witness brings something in which is OUTSIDE the scope of the previous questioning
Other side will have a chance to response and cure the prejudice from your fuck up
32
Who can be excluded from the courtroom?
Witnesses - so they don't hear what other people are saying and tailor their testimony to that
33
Who cannot be excluded from courtrooms?
(1) People permitted by statute (like victims)
(2) A person whose presence is essential to a party presenting their case (jury expert or summary witness)
(3) parties themselves and their lawyers
34
Can you exclude a witness with a bad record?
No
35
Can the judge examine a witness?
Yes and they can call their own witnesses or experts
36
What is impeachment
Casting an adverse reflection on the veracity of a witness
37
Can you impeach your own witness?
Yes
38
Can you prove impeach through extrinisic evidence?
yes.
Call other witnesses or bring in documents to prove someone is lying
39
Limitation on impeachment?
You can't call a hostile witness solely to impeach them
40
Ways to impeach a witness:
(1) Sensory deficiencies
If the witness is deaf, blind, drunk, mentally ill, or lacking knowledge... you can come at them
You can use extrinsic evidence to prove sensory deficiencies
(2) Sounds of silence
In a civil trial, they can use your prior silence to impeach you
However, in a criminal trial. Right to remain silent and CANNOT comment on post arrest silence
(3) Convictions
41
prior convictions and impeachment:
ANY CRIME involving dishonesty or false statement IS coming in
- Forgery, false statements to IRS
What about old shit? Crimes 10+ years old?
- Does its probative value substantially outweigh its prejudicial effects?
- AND you have to give the otherside advanced notice of your intent to use this old ass crime
42
Prior convictions and impeachment:
If the conviction is over 10 years old...
>the probative value of the conviction must substantially outweigh its prejudicial effects
>& you have to give the other side ADVANCED notice of your intent to use it
If it's less than 10 years old and the defendant is NOT the witness...
>The probative value must be substantially outweighed by a 403 danger like wasting time or confusing the jury
If it's less than 10 years old and the defendant IS the witness...
> The probative value must outweigh the prejudicial RISK
YOU CAN BRING IN RECORDS OF THEIR CONVICTION WITHOUT LAYING ANY FOUNDATION
43
Can we impeach on prior bad acts? Bad stuff people weren't arrested for?
You can bring specific bad acts which involve untruthfulness like lying and deceit
NOT prior arrests
Shots fired only -- no further inquiry
"If witness denies the cross examination by prior bad acts...you have to accept it"
44
Can you reference the consequences of the bad act when impeaching a witness with prior bad acts?
No
You can only reference the bad act itself
"Isn't it true you STOLE from your last employer?" vs "isn't it true you were FIRED for stealing from your last employer?"
45
Can you impeach a witness on collateral or irrelevant issues unrelated to truthfulness?
NO - this is not probative
"Isn't it true you were actually seen at a strip club 19 times in the month of January?"
46
Impeachment by Contradiction
If a man says "I'd never touch my wife" you can bring a witness up to say that he saw that mean beat his wife
So long as you are (1) directly impeaching them on what they said and (2) not impeaching them on some random collateral shit that doesn't relate to main facts
47
What happens if the witness has a bias or interest in the case?
They can be impacted at anytime
Most commonly tested:
(1) Financial interest at play or
(2) personal vendetta against someone they are testifying about or
(3)afraid of abuse from their husband
Bias and interest rules trump the other exclusionary rules
Ex: you usually can't bring up how much insurance paid someone
BUT you will if they are showing a financial interest to lie
We can't bring up what happened in a settlement conference BUT we can if this mf got angry in the conference and is making some shit up on the stand to get back at someone
48
Can you use religious believes to attack the creditibility of a witness?
NO (you are not credible because you are part of the church of satan)
but you can use it to show bias or motive (you attacked the Christian church because you are part of the church of satan)
49
Impeachment and prior inconsistent statements:
If we have 2 statements but he same person at different times, we can bring in the earlier statement to show the D was being untruthful in court
usually not available for substantive evidence because they are almost always out of statements and thus hearsay
50
If we want to impeach someone with extrinsic evidence of a prior inconsistent statement...
The witness has to be given the opportunity to explain or deny the statement
Example ----> otherside offers prior inconsistent of you testimony but you left the jurisdiction ...no opportunity to deny or affirm
EXCEPTIONS
(1) The legend of the hearsay declarant
You can impeach a hearsay declarant with prior inconsistent statement without giving them a chance to explain or deny
If the hearsay declarant does NOT take the stand -- can still introduce impeachment evidence. Can attack witness too
(2) If a prior inconsistent statement is from an opposing party, no opportunity to explain or deny is needed. It will get in as an opposing party admission automatically
(3) If the court finds in the interest of justice the prior inconsistent statement should get in without an opportunity to explain or deny form the witness --> it gets in
51
2 times when the prior inconsistent statement can't be brought in both to impeach and as substantive evidence:
(1) Normally the prior inconsistent statement is just allowed in for the impeachment ... however it can be allowed substantively (which means the jury can consider it for it's truth as well, not just for ability to show the witness is a liar) when it is given
UNDER OATH at a prior formal hearing, proceeding, trial, or deposition
(2) Normally as we said before, prior inconsistent statements are only brought to impeach. However, when they are from an opposing party they can also be brought in substantively and be considered for their truth
52
Can you impeach your own witness with a prior inconsistent statement?
Yes
Usually by calling another witness
53
Someone is impeached. Can we make them look better by introducing consistent statements? "Rehabilitated"
YES only when:
1. Declarant testifies and is subject to cross; AND
2. The previous statement is consistent with declarant's in court testimony; AND
3. Opposing party has attacked the witness in court testimony AND
* MBE trick: they will say someone is rehabilitated who wasn't even attacked in the first place
4. The statement has been made before the motive to fabricate could arise
54
Is the prior inconsistent statement a hearsay exception?
YES and comes in as substantive evidence
as well as to rehabilitate
55
FRE apply at all proceedings except:
- Grand jury
- When judge is determining preliminary issues of fact
-Extradition proceedings
- Preliminary hearings to determine probable cause
-Parole/probation hearings
-Hearings related to search warrants
-Bail and bond proceedings
56
What law governs issues of privilege in federal and state court?
Federal law = fed court
State law = state court
57
All relevant evidence is admissible so long as:
(1) it is not hearsay
(2) it doesn't hit a 403 danger
- Confusing or misleading the jury
- wasting time
- causing unfair prejudice
- or being needlessly cumulative
Unfair surprise is never the answer
58
Relevant evidence standard
Does the evidence have any tendency to make a fact of consequence more or less likely?
59
Is evidence of flight relevant?
Yes as circumstantial evidence of consciousness of guilt
60
What are some evidence scenarios where it could be used to show consciousness of guilt?
- D destroys evidence
- Used an alias
- Runs from law enforcement and flees the county
- Escapes jail
61
Sometimes things are too prejudicial simply because they are excessively...
emotional. shocking, or grotesque and they'd overwhelm the juries sense.
You can't show stuff like corpse pictures to enflame the juries passions
BUT you can show gruesome injury photos if the other side says oh yea the injures weren't that bad. THEY PUT THE FACT IN CONTROVERSY
You can cure the prejudice or respond to the controverted facts
62
Can demonstrations be too prejudicial?
YES and you can't have demonstrations that are not realistic
Think about the accident deconstructionist
63
Conditionally relevant evidence
Can be let in even if its relevance is based on a separate fact... provided that fact is proved first
"I am charged with trespass and you sent me a text two weeks prior which said come over whenever you want. The text would only be relevant if I read it.
The court can admit the text conditionally --- provided the lawyer claims they will establish that I actually read it at one point first.
64
Objections that can be made to keep evidence out:
(1) Lack of foundation: This is when you are saying a witness has insufficient personal knowledge, so the evidence should not come in
(2) Calls for speculation: You're supposed to testify based on personal knowledge, not guessing. Experts have a little more room to make guesses, but not lay witnesses
(3) Command: Asks 2 questions simultaneously and a yes or no answer could be either one
"Could you dance if you want to and leave your friends behind?"
(4) Argumentative: Not an actual question, you're basically just talking shit, being sarcastic, or trying to get into a fight. "Do you really think the jury will believe that"
(5) Calls for a legal conclusion: "Do you think he was negligent?" NOT ALLOWED
Witness is not qualified to make this determination
(6) Misstating the evidence: Question includes evidence that was never presented "Isn't it true John was shot 15 times?" When John was only shot once
65
Authentication: Chain of custody
Only needed for items that are not readily identifiable
Can't be changed in any meaningful way
66
How do we authenticate photos?
(1) Testimony of photographer themselves OR
(2) Testimony of someone who WITNESSED the photography OR
(3) Testimony of someone who was there at the time or who has been to the location of the photograph to testify that the photograph is a fair and accurate representation of the area
Fair and accurate are KEY words
It doesn't matter that it isn't the actual photographer who is testifying
67
Trick question: unattended camera
If a camera is unattended, like a traffic camera of some sort, you must show it was
- Properly installed;
- The film was properly removed;
& THEN show chain of custody
68
How do we authenticate x Rays and other medical renderings?
x rays can't be authenticated by the testimony of a witness that they are an accurate representation
You must show:
- The process used to create the x ray is accurate
- the machine was working properly AND
- the operator was qualified to use the machine
You also must show that it came through a proper chain of custody to ensure no one fucked with it
69
How do we authenticate documents?
(1) Party admissions: If a party says that they themselves wrote a document ...that is sufficient to authenticate it
or
(2) Personal knowledge: A witness saying they viewed someone else write a document ...that is sufficient
Ancient documents? Presumption of authentication if:
- The document is AT LEAST 20 years old;
- There is no suspicious shit on it (things crossed out)
- AND it is found in a place of natural custody (such as old book or newspaper being found in a library ..not your friend Jimmys house)
70
How do we authenticate handwriting?
(1) Handwriting expert
(2) Lay witness opinion (someone who was familiar with the authors handwriting)
(3) visual comparison (known sample of authors handwriting compared to disputed handwriting)
71
How do we authenticate phone calls?
(1) outgoing phone: We called the right number and the person who we called answered and identified themselves
(2) incoming telephone call: caller needs to identify themselves and you need recognition of their voice by the witness they called
(3) call to a business? you dialed the number of the business and they answered the phone talking about business shit
Just because the SOURCE of a phone call gets in doesn't mean the WHOLE convo gets in .........hearsay
72
How can we authenticate a voice?!
Opinion testimony of any person who is familiar with the speakers voice and this familiarity may be acquired at ANY TIME
"yeah I know Kyle..that's how his voice sounded..so when he called that day I knew it was him"
73
Self authenticating documents:
Certain documents do not need a witness to testify their authenticity:
- Official publications;
- Newspapers or periodicals;
-Trade inscriptions;
-Notarized documents
-Certified copies of public records OR certified copies of business records
like a vehicle registration form
- Commpericalpaper
74
3 ways to prove character:
(1) opinion; witness testifies "I know that person personally and in my opinion he is very honest"
(2) reputation "I know goats reputation in our pasture, and he is considered to be extremely non-violent"
(3) specific act "a year ago I saw Goat save my Grandma from being attacked by a mugger"
75
Character in civil cases
Evidence of good character is not allowed in civil cases
Can ONLY be brought in where character is an essential element of the claim or defense
Ex: Negligent hiring, child custody, defamation (you can actually introduce evidence of them stealing shit), negligent entrustment
Cna prove 1 of 3 ways:
(1) opinion
(2) reputation
(3) prior bad acts
NOT admissible in ASSAULT AND BATTERY CASES
76
The prosecution cannot be the first side to bring up character evidence in a criminal case unless...
We are talking a bout rape, SA, or child molestation cases
It can be used as purely propersenity evidence
77
Who opens the door to character evidence in criminal cases?
Defendant
D may introduce evidence of a relevant character trait through reputation or opinion testimony
This opens the door for prosecution to rebut this evidence
The d can NOT introduce PRIOR ACT CHARACTER EVIDENCE
78
The defendant can only open the door with ...
a pertinent character trait to the crime at issue
ONE THAT IS RELATED TO THE CRIME WE ARE THERE FOR
A defendant can NOT bring in evidence of his honesty for a violent case
Peacefulness is not relevant to a theft case
Law abiding character trait is relevant tho
79
When the Defendant opens the door...the prosecutor can shut it in 2 ways:
After the defendant brings up his own opinion or reputation witnesses about his character ...
(1) Prosecution can bring their own reputation or opinion witnesses
(2) Ask the character witness about specific bad acts related to the defendant
80
Character evidence and self defense: is evidence of the victim's character allowed?
Yes
Example: Victim has a bad rep for violence
D is claiming self defense
D can show bad rep bc it's relevant
81
How can the prosecution challenge the reputation or opinion evidence of the victim in a self defense case?
(1) Show victims good character OR
(2) the defendant's bad character for the same trait
82
Homicide cases, self defense, and victims character rule:
If the D offers ANY evidence that the victim was the 1st aggressor...doesn't have to be opinion or rep...the prosecution can offer evidence of the victims good character
83
Habit evidence defintion:
Evidence of a habit of a person or routine practice of a business is admissible to prove that on a particular occasion, the person or business acted in conformity with their habit or routine
Need 3 things
(1) regularity
(2) specificity
(3) involuntary or semiautomatic response
You can introduce habit evidence through opinion, witness, or just talk about your own habits
Otherside can talk about your habits as well
SAME THING W A BUISNESS
84
MIMIC
Motive
Intent (burning crosses in front of black peoples houses could show targeting)
Mistake or accident
Identity (Zorro example)
and
Common scheme or plan (pattern - 1k opiate prescriptions in1 month)
NOT character evidence
These are ----- relevant prior acts which relate to aspects of the at issue, NOT to show that defendant is a bad person because of his prior bad acts
You must disclose
If it's too prejudicial or not similar to the crime at hand... not getting in
MIMIC can be proven by prior convictions or evidence that proves the act occurred
MIMIC standard - preponderance of the evidence
85
Can you introduce filing a bunch of other lawsuits as MIMIC evidence? Litigious little bitch?
NO
Must show those are scams or false lawsuits
86
To be an expert witness you must:
- Be qualified
You don't need a formal education
- A police officer could be an expert on certain GANG signs
Testimony must be based on sufficient facts or data AND be the product of reliable principles and methods AND the expert actually must have used those principles and methods
Expert witness can not look at principles and methods but use the science fair volcano and tested it himself in his moms basement
Offering party must show by a preponderance of the evidence that he is qualified and the judge has huge discretion to not let someone in
decision will be reviewed under the abuse of discretion standard
87
An expert can testify based on:
Personal Knowledge
Evidence presented at trial and witnesses he has heard
Use of a hypothetical
Facts outside the record IF those facts are typically relied on by experts in the field
88
Can an expert give an opinion on an ultimate issue in the trial like liability or negligence?
In a civil case , an expert can give an opinion on an ultimate issue (cause of accident, whether a product is defective)
NOT a legal conclusion "yes the d was contributorily negligent"
89
Expert witnesses and criminal cases: MBE likes to test a few things:
(1) The expert cannot say directly that the D is guilty or not guilty
(2) An expert cannot say that the D was legally sane or legally insane but they can testify as to the fact the D has a disorder and talk about what the disorder is
(3) Can't talk about whether someone had intent or not...but they can talk about issues surrounding intent which could be relvenat (marijuana example)
(4) Can testify to ultimate factual issues like whether a defendant had schizo or was packing up drugs like a drug dealer BUT they cannot testify to whether someone is legally insane or had intent to commit the crime or is guilty
90
Can you cross examine an expert?
yes
You can also attack their creditability, education, credentials, bia, impeach them with prior inconsistent statements
91
Scientific Evidence from Experts
Must be the TRAP factors
T: tested principles and methodology
R: rate of error must be low
A: Acceptance by other experts in the field
P: peer reviewed
92
Can experts use learned treatises to aid their testimony?
Yes
Can be treated as substantive evidence when an expert is on the stand explaining it
Can also be used to impeach the other sides expert
Relevant portions can be read to the jury but the jury cannot take the treatise back with them
93
Defendants who are represented by public defenders...can the state remove the ability to pay for the expert?
No - could be a due process issue
94
Can the trial court appoint experts?
Yes
95
Key words that might be the right answer for expert witnesses:
"it would be helpful to the jury" or
"it would assist the trier of fact"
96
Are charts allowed in the court room?
yes as long as they are authenticated by the person that made them and the real evidence behind them is available
97
Are experiments allowed in the courtroom?
Yes - subject judges discretion
AND they are done in the same or substantially same condition
Judge an actually allow the jury to take a trip to view places
98
3 responses to a hearsay objection
(1) not offered for the truth
(2) exclusion/exemption
(3) exception
99
What is a hearsay statement?
Oral assertions, conduct, written
In court
100
Can a hearsay declarant be machine?
No
101
Are emotional reactions hearsay?
No because they are not assertions
102
Are nicknames hearsay?
No
103
Is impeachment hearsay?
No because you aren't offering it for the truth of the matter asserted
you are using it to say someone isling
104
Non hearsay examples:
(1) Words of independent legal significance
- Words of a K between two consenting adults
- Words of K because they are legal obligations, regardless of truth
(2) Statements manifesting awareness
Offered to show the EFFECT ON THE LISTENER ...essentially that the listener had either NOTICE or KNOWLEDGE and therefore not hearsay
"Goat are you paying attention? These brakes are broken" Putting mechanic on notice
Defective toasters - 50 emails prior --- admissible as notice
Statements showing an effect on listener can also be to show why someone took a particular action or why they DIDNT
Essentially if you are asking someone why they acted a certain why or whether someone had notice, you can bring in a statement to show effect on the listner
IF IT ANSWER CHOICE SAYS NOTICE...PICK IT
A lot of times these statements get in when people talk about how they felt threatened by someone else
^ because being threatened requires you to show hwy you took certain actions
(3) circumstantial evidence of a speakers state of mind
If someone brings in words spoken by someone else and YOU make an INFERENCE about that persons state of mind..non hearsay
"Goat is lord baby Jesus" -----> Goat is crazy
(4) Impeachment
105
This group of hearsay exceptions are not hearsay because they do not fall within the definition:
(1) Impeachment
(2) Effect on listener
(3) Circumstantial Evidence of Speakers State of Mind
(4) Words of Independent Legal Significance
(5) Noice/knowledge
106
HEARSAY EXCLUSIONS: Rule 801 says its not hearsay
(1) Prior inconsistent statement under oath
(2) prior consistent statement
(3) prior statement of identification
107
Prior inconsistent statement under oath
HEARSAY EXCLUSION
Gets in for both impeachment and substantive truth if the person who said it testifies at trial and is aviable for cross examination
If it's not made under oath, it's just a prior inconsistent statement that is only admissible for impeachment
108
Prior consistent statements
HEARSAY exclusion
GOAT ROBBERY EXAMPLE
GOAT ACCUSES RAINBOW BROWN OF STEALING
HIDE YO KIDS
109
Prior statement identification
Hearsay exclusion
The court doesn't like it when people identify someone...then change their story at trial
So if the witness is
(1) subject to cross examination and
(2) the statement they made earlier is about identification
The first statement gets in
Its more reliable
Even if the earlier statement the witness gave was just to draw a damn sketch ...that is an earlier statement of identification
But remember...if the witness refuses to testify at trial ...the prior identification is NOT getting in
110
Prior statement identification summarized
Earlier identification OUT OF COURT + available for cross IN COURT and can't remember = admissible as NON hearsay
111
Opposing party admissions
Absolutely any fucking statement another party makes at any place at any time, and under ANY circumstance is admissible against the party who made the statement
Must be relevant --- this is it
Example "In a medical malpractice case against Dr. Goat, Dr.Goat expresses to his colleague Keven "I maybe could have done a better job on that surgery..."
ADMISSABLE
In a civil case
Can also be HEARSAY --- "Dispute about rainbow brown agreeing to a K. goat brings in witness who says Rainbow brown said "yea Goat...I agree to these terms"
It can even be based on silence --- ADOPTIVE ADMISSION BY SILENCE!!!
If someone says something that a reasonable person would have denied or responded to..
Their silence can be deemed an admission
If a normal person wouldn't have responded...don't worry about it
Post miranda silence can never be commented on in a criminal case
112
Hearsay exclusions: Adoptive admissions by signature
Signing something - you adopted that statement
113
Statements by authorized persons
If a party is authorized to speak on your behalf... your lawyer ....and they said some wild shit....it's as if you said it
114
Vicariosu admissions by employees concerning matters within the scope of their employment
They must be made during employment relationship to get in
Anything you say at work or after work will be admissible against your employer
However, it won't be admissible if you quit, fired, or have retired
2 partners who are running a business together will also have their statements admitted against each other as vicarious admissions
115
Co conspirator admissions
Non hearsay and admissible for their truth
You need
(1) 2 co conspirators
(2) The statement must take place during the conspiracy itself
(3) it must be in furtherance of the conspiracy
Literally thousands of statements of you and your co conspirators can come in
Statements made by co conspirators before the D actually joined the conspiracy can be used against them
----2008 to 2020
AND statements made by co conspirators after you get arrested can be used against you
116
Are the government and the victim opposing parties to the D? for opposing party statement admission?
NO
117
Hearsay within hearsay
We have a document with quotes in it
Hostipal records
Police records
SOVLE BOTH HEARSAY
- Report --- can it get it under public record or business exception?
- Statement -- excited utterance?
When we can't get the hearsay statement in...that part cannot be read to the jury or judge
