Evidence Flashcards
(133 cards)
1
Q
Relevance
A
Evidence is relevant if it tends to make the existence of any fact of consequence to the outcome of the action more probable than it would be without the evidence.
2
Q
Discretionary Exclusion of Relevant Evidence
A
A trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, or waste of time [unfair surprise is not a valid ground upon which to exclude evidence].
3
Q
Liability Insurance
A
Evidence of insurance against liability is not admissible to show negligence or ability to pay a substantial judgment. However, it may be admissible: (i) to prove ownership or control, (ii) to impeach, or (iii) as part of an admission.
4
Q
Subsequent Remedial Measures
A
Evidence of repairs or other precautionary measures made following an injury is not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for warning or instruction. However, it may be admissible to: (i) prove ownership or control, (ii) rebut a claim that the precaution was not feasible, or (iii) prove that the opposing party has destroyed evidence.
5
Q
Settlement Offers and Withdrawn Guilty Pleas
A
Evidence of compromises or offers to compromise is not admissible to prove liability for, or invalidity of, a claim that is disputed as to validity or amount. Not even direct admissions of liability during compromise negotiations are admissible. Likewise, withdrawn guilty pleas and offers to plead guilty are inadmissible. [Remember, there must be some indication that a party is going to make a claim and that claim must be in dispute as to liability or amount.]
6
Q
Offers to Pay Medical Expenses
A
Payment of or offers to pay the injured party_s medical expenses are inadmissible. However, unlike the situation with compromise negotiations, admissions of fact accompanying offers to pay medical expenses are admissible.
7
Q
Independently Relevant Specific Acts of Misconduct
A
Evidence of other crimes or misconduct is admissible if these acts are releveant to some issue other than the defendant_s character or disposition to commit the crime or act charged. MIMIC Motive Intent Mistake (absence of) Identity Common plan or scheme
8
Q
Facts Appropriate for Judicial Notice
A
Courts take judicial notice of indisputable facts that are either matters of common knowledge in the community or capable of verification by resort to easily accessible sources of unquestionable accuracy. A judicially noticed fact is conclusive in a civil case but not in a criminal case. In a criminal case, the jury is instructed that it may, but is not required to, accept as conclusive any judicially notice fact.
9
Q
Authentication
A
As a general rule, a writing or any secondary evidence of its content will not be received in evidence unless the writing is authenticated by proof that shows that the writing is what the proponent claims it is. The proof must be sufficient to support a jury finding of genuineness
10
Q
Handwriting Verifications
A
A writing may be authenticated by evidence of the genuineness of the handwriting of the maker. This evidence may be the opinion of a nonexpert with personal knowledge or an expert who has compared the writing samples. Genuineness may also be determined by the trier of fact through comparison of samples. A nonexpert cannot become familiar with the handwriting for the purposes of testifying.
11
Q
The Best Evidence Rule
A
To prove the terms of a writing, the original writing must be produced if the terms of the writing are material. Secondary evidence of the writing is admissible only if the original is unavailable. Applies to two classes of situations, namely where (i) the writing is a legally operative or dispositive instrument; or (ii) the knowledge of a witness concerning a fact results from having read it in the document.
12
Q
Parol Evidence Rule
A
If an agreement is reduced to writing with the intent that it embody the full and final expression of the bargain, that writing is the agreement and hence constitutes the only evidence of it. However, the rule does not apply in the following circumstances: (a) incomplete or ambiguous contract (b) reformation of contract (c) challenge to validity of contract
13
Q
Four Basic Testimonial Attributes
A
Witnesses must possess to some degree four basic testimonial attributes: (1) the capacity to observe (2) the capacity to recollect (3) the capacity to communicate, and (4) the capacity to appreciate the obligation to speak truthfully
14
Q
Federal Rules of Competency
A
(i) The witness must have personal knowledge of the matter about which he is to testify; and (ii) The witness must declare he will testify truthfully. If a witness requires an interpreter, the interpreter must be qualified and take an oath to make a true translation.
15
Q
Competency of an Infant
A
The competency of an infant depends on the capacity and intelligence of the particular child as determined by the trial judge.
16
Q
Competency of the Insane
A
An insane person may testify, provided he understands the obligation to speak truthfully and has the capacity to testify accurately.
17
Q
Competency of Judges and Jurors
A
The presiding judge may not testify as a witness. Likewise, jurors are incompetent to testify before the jury in which they are sitting.
18
Q
Competency of an Interested Person (Dead Man Acts)
A
Dead Man Acts provide that a party or person interested in the event is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased. A person is interested if he stands to gain or lose by the judgment or the judgment may be used for or against him in a subsequent action.
19
Q
Leading Questions
A
Leading questions are generally improper on direct examination. However, they are permitted: (i) On cross-examination; (ii) To elicit preliminary or introductory matter; (iii) When the witness needs aid to respond because of loss of memory, immaturity, or physical or mental weakness; or (iv) When the witness is hostile.
20
Q
Improper Questions and Answers
A
Questions that are misleading, compound, argumentative, conclusionary, cumulative, unduly harassing or embarrassing, call for a narrative answer or speculation, or assume facts not in evidence are improper and are not permitted. Answers that lack foundation and answers that are nonresponsive may be stricken.
21
Q
Use of Memoranda by Witness
A
A witness cannot read her testimony from a prepared memorandum. However, a memorandum may be used in certain circumstances. [Any time you encounter an exam question in which a witness consults a writing, keep in mind the differences between refreshing and recorded recollection].
22
Q
Present Recollection Revived _ Refreshing Recollection
A
A witness may use any writing or thing for the purpose of refreshing her present recollection. She usually may not read from the writing while she actually testifies because the writing is not authenticated and not in evidence.
23
Q
Past Recollection Recorded _ Recorded Recollection
A
Where a witness states that she has insufficient recollection of an event to enable her to testify fully and accurately, even after she has consulted a writing given to her on the stand, the writing itself may be read into evidence if a proper foundation is laid. The foundation must include proof that: (1) the witness had personal knowledge, (2) the writing was made by or adopted by the witness, (3) the writing was timely made, (4) the writing is accurate, and (5) the witness has insufficient recollection to testify fully and accurately.
24
Q
Inspection and Use on Cross-Examination
A
Whenever a witness has used a writing to refresh her memory on the stand, and adverse party is entitled to have the writing produced at trial, to cross-examine the witness thereon, and to introduce portions relating to the witness_s testimony into evidence.
25
General Rule of Inadmissibility of Opinion Testimony by Lay Witnesses
Opinions by lay witnesses are generally inadmissible. However, there are many cases where no better evidence can be obtained. In most jurisdictions and under the Federal Rules, opinion testimony by a lay witness is admissible when it is: (i) rationally based on the witness_s perception, (ii) helpful to a clear understanding of his testimony or helpful to the determination of a fact in issue, and (iii) not based on scientific, technical, or other specialized knowledge.
26
Situations Where Opinions of Lay Witnesses are Admissible
An opinion of a lay witness is generally admissible with respect to: (1) the general appearance or condition of a person; (2) the state of emotion of a person; (3) matters involving sense recognition; (4) voice or handwriting identification; (5) the speed of a moving object; (6) the value of his own services; (7) the rational or irrational nature of another_s conduct; (8) intoxication of another.
27
Opinion Testimony by Expert Witnesses
An expert may state an opinion or conclusion, provided: (i) The subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact; (ii) The witness is qualified as an expert; (iii) The expert possesses reasonable probability regarding his opinion; and (iv) The opinion is supported by a proper factual basis. The expert_s opinion may be based on one or more of three possible source of information: (1) personal observation, (2) facts made known to the expert at trial, or (3) facts not known personally but supplied to him outside the court room and of a type reasonably relied upon by experts in his field.
28
Opinion on Ultimate Issues
Under the Federal Rules, an expert may render an opinion as to the ultimate issue in the case. However, in a criminal case in which the defendant_s mental state constitutes an element of the crime or defense, and expert may not, under the Federal Rules, state an opinion as to whether the accused did or did not have the mental state in issue.
29
Authoritative Texts and Treatises
An expert may be cross-examined concerning statements contained in any publication established as reliable authority either by the testimony of this expert or another expert, or by judicial notice. Under the Federal Rules, these texts and treatises can be used not only to impeach experts, but also as substantive evidence, subject to the following limitations: (1) an expert must be on the stand when an excerpt is read from a treatise; and (2) the relevant portion is read into evidence but is not received as an exhibit.
30
Restrictions on Scope of Cross-Examination
Cross-examination is generally limited to: (i) the scope of direct examination, including all reasonable inferences that may be drawn from it, and (ii) testing the credibility of the witness.
31
Collateral Matters
The cross-examiner is generally bound by the answers of the witness to questions concerning collateral matters. Thus, the response may not be refuted by extrinsic evidence. However, certain recognized matters of impeachment, such as bias, interest, or a conviction, may be developed by extrinsic evidence because they are sufficiently important. The trial court has considerable discretion in this area.
32
Accrediting or Bolstering
Generally, a party may not bolster or accredit the testimony of his witness until the witness has been impeached. However, in certain cases, a party may prove the witness made a timely complaint or a prior statement of identification. The prior identification may also serve as substantive evidence that the identification was correct.
33
Any Party May Impeach
Under the Federal Rules, a witness may be impeached by any party, including the party calling him. [When a question involves a party impeaching his own witness, be sure to avoid the following wrong answer choices reflecting the traditional rule, which prohibits impeaching your own witness unless the witness: (i) is an adverse party or identified with an adverse party; (ii) is hostile and affirmatively uncooperative; (iii) is one whom the party is required by law to call; or (iv) gives surprise testimony that is affirmatively harmful to the party calling him.
34
Impeachment Methods
A witness may be impeached either by cross-examination or by extrinsic evidence. Certain grounds for impeachment require that a foundation be laid during cross-examination before extrinsic evidence can be introduced. Other grounds allow impeachment to be accomplished only by cross-examination and not by extrinsic evidence.
35
Prior Inconsistent Statements
A party may show, by cross-examination or extrinsic evidence, that the witness has, on another occasion, made statements inconsistent with his present testimony. To prove the statement by extrinsic evidence, a proper foundation must be laid and the statement must be relevant to some issue in the case.
36
Foundation for Extrinsic Evidence of Prior Inconsistent Statements
Extrinsic evidence can be introduced to prove a prior inconsistent statement only if the witness is, at some point, given an opportunity to explain or deny the statement. The exception to the rule is that inconsistent statements by hearsay declarants may be used to impeach despite the lack of foundation. Under the Federal Rules, foundation requirements may be dispensed with where the interests of justice require.
37
Evidentiary Effect of Prior Inconsistent Statements
Usually, prior inconsistent statements are hearsay, admissible only for impeachment purposes. If, however, the statement was made under oath at a prior proceeding, it is admissible nonhearsay and may be admitted as substantive evidence of the facts stated.
38
Bias or Interest
Evidence that a witness is biased or has an interest in the outcome of a suit tends to show that the witness has a motive to lie. Before a witness can be impeached by extrinsic evidence of bias or interest, he must first be asked about the facts that show bias or interest on cross-examination.
39
Conviction of a Crime Involving Dishonesty
A witness may be impeached by proof of a conviction for any crime, felony, or misdemeanor, requiring an act of dishonesty or false statement. A pending review or appeal does not affect the use of a conviction for impeachment. The court has no discretion to bar impeachment by these crimes.
40
Conviction of a Felony Not Involving Dishonesty
A witness may also be impeached by a felony that does not involve dishonesty, but the court has discretion to exclude it if: (1) the witness being impeached is a criminal defendant, and the prosecution has not shown that the conviction_s probative value outweighs its prejudicial effect; or (2) in the case of all other witnesses, the court determines that the conviction_s probative value is substantially outweighed by its prejudicial effect.
41
Remote, Juvenile, and Constitutionally Defective Convictions Not Admissible
Generally, if more than 10 years have elapsed since the date of conviction or the date of release from confinement (whichever is later), the conviction is inadmissible. Juvenile convictions are similarly inadmissible. A conviction obtained in violation of the defendant_s constitutional rights is invalid for all purposes, including impeachment.
42
Effect of Pardon
A conviction may not be used to impeach a witness if the witness has been pardoned and (i) the pardon is based on innocence, or (ii) the person pardoned has not been convicted of a subsequent felony.
43
No Foundation Required for Extrinsic Evidence of a Conviction
A prior conviction may be shown by either direct or cross-examination of the witness or by introducing a record of judgment. No foundation is necessary.
44
Specific Instances of Misconduct _ Bad Acts
Under the Federal Rules, subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to an act of misconduct only if the act is probative of truthfulness. However, the cross-examiner must inquire in good faith. Extrinsic evidence of _bad acts_ to prove misconduct are not permitted.
45
Opinion or Reputation Evidence for Truthfulness
A witness may be impeached by showing that he has a poor reputation for truthfulness. This may include evidence of reputation in business circles as well as in the community in which the witness resides. Under the Federal Rules, an impeaching witness may state his own opinion as to the character of a witness for truthfulness.
46
Sensory Deficiencies
A witness may be impeached by showing, either on cross-examination or by extrinsic evidence, that his faculties of perception and recollection were so impaired as to make it doubtful that he could have perceived those facts. A witness may also be impeached by showing that he had no knowledge of the facts to which he testified.
47
Contradictory Facts
Extrinsic evidence of facts that contradict a witness_s testimony may sometimes be admitted to suggest that a witness_s mistake or lie on one point indicates erroneous or false testimony as to the whole. Extrinsic evidence of contradictory facts to impeach is permitted where: (i) the witness_s testimony on a particular fact is a material issue in the case, (ii) the testimony on a particular fact is significant on the issue of credibility, or (iii) the witness volunteers testimony about a subject as to which the opposing party would otherwise be precluded from offering evidence. However, extrinsic evidence is not permitted to prove contradictory facts that are collateral.
48
Impeachment on Collateral Matters
Where a witness makes a statement not directly relevant to the issue on the case, the rule against impeachment on a collateral matter applies to bar his opponent from proving the statement untrue either by extrinsic evidence or by a prior inconsistent statement.
49
Impeachment of Hearsay Declarant
Under the Federal Rules, the credibility of someone who does not testify but whose out-of-court statement is introduced at trial may be attacked by evidence that would be admissible if the declarant had testified as a witness. The declarant need not be given the opportunity to explain or deny a prior inconsistent statement. In addition, the party against whom the out-of-court statement was offered may call the declarant as a witness and cross-examine him about the statement.
50
Rehabilitation of an Impeached Witness
A witness who has been impeached may be rehabilitated by: (i) Explanation on Redirect. The witness on redirect may explain or clarify facts brought out on cross-examination. (ii) Good Reputation for Truthfulness. When the witness_s character for truth and veracity has been attacked, other witnesses may be called to testify as to a reputation or opinion of truthfulness. (iii) Prior Consistent Statement. If the testimony of a witness has been attacked by an express or implied charge that the witness is lying or exaggerating because of some motive, a previous consistent statement is admissible to rebut this evidence.
51
General Objections
A sustained general objection (one that does not state the grounds of the objection) will be upheld on appeal if there was any ground for the objection. An overruled general objection will be upheld on appeal unless the evidence was not admissible under any circumstances for any purpose.
52
Specific Objections
A sustained specific objection, which states the reason for the objection, will be upheld on appeal only if the ground stated was correct or if the evidence excluded was not competent and could not be made so.
53
_Opening the Door_
One who introduces evidence on a particular subject thereby asserts its relevance and cannot complain if his adversary thereafter offers evidence on the same subject.
54
Introducing Part of a Transaction
Where part of a conversation, act, or writing is introduced into evidence, the adverse party may require the proponent of the evidence to introduce any other part that ought in fairness to be considered.
55
Motion to Strike _ Unresponsive Answers
Examining counsel may move to strike an unresponsive answer, but opposing counsel may not.
56
Exceptions
It is not necessary for a party to _except_ from a trial ruling in order to preserve the issue for appeal in most states.
57
Offers of Proof
An offer of proof may be made, disclosing the nature, purpose, and admissibility of rejected evidence, to persuade the trial court to hear the evidence and to preserve the evidence for review on appeal. It may be made by witness testimony, a lawyer_s narration, or tangible evidence marked and offered.
58
Privileges Recognized by Federal Courts
The federal courts currently recognize the attorney-client privilege, the privilege for spousal communications, and the psychotherapist/social worker-client privilege. In diversity cases, the state law of privilege applies.
59
Waiver of Privileges
Any privilege is waived by: (i) failure to claim the privilege; (ii) voluntary disclosure of the privileged matter by the privilege holder; or (iii) a contractual provision waiving in advance the right to claim a privilege. [A privilege is not waived when someone wrongfully discloses information without the privilege holder_s consent. Similarly, a waiver by one joint holder does not affect the right of the other holder to assert the privilege].
60
Attorney-Client Privilege
Communications between an attorney and client, made during a professional consultation, are privileged from disclosure. The client holds the privilege, and she alone may waive it. The attorney_s authority to claim the privilege on behalf of the client is presumed in the absence of contrary evidence. The important elements of this privilege are: (i) Attorney-Client Relationship; and (ii) Confidential Communication.
61
Attorney-Client Relationship
The client must be seeking the professional services of the attorney at the time of the communication. Disclosures made before the attorney accepts or declines the case are covered by the privilege. Corporations are _clients_ within the meaning of the privilege, and statements made by corporate officials or employees to an attorney are protected if the employees were authorized by the corporation to make such statements.
62
Confidential Communication
To be protected, the communication must be such that it is not intended to be disclosed to third parties. Communications made through agents (third persons, e.g. secretaries or accountants) are confidential if necessary to transmit information between the attorney and client. However, where an attorney acts for both parties to a transaction, no privilege can be invoked in a lawsuit between the two parties, but the privilege can be claimed in a suit between either or both of the two parties and third persons.
63
Scope of Privilege
The attorney-client privilege applies indefinitely. The privilege even continues to apply after the client_s death. However, there are three significant exceptions to the attorney client privilege. There is no privilege: (1) If the attorney_s services were sought to aid in the planning or commission of something the client should have known was a crime or fraud; (2) Regarding a communication relevant to an issue between parties claiming through the same deceased client; and (3) For a communication relevant to an issue of breach of duty in a dispute between the attorney and client.
64
Attorney_s Work Product
Although documents prepared by an attorney for his own use in a case are not protected by the privilege, they are not subject to discovery except in cases of necessity.
65
Limitations on Waiver of Attorney-Client Privilege and Work Product Rule
A voluntary disclosure of privileged material operates as a waiver of the attorney-client privilege or work product protection only with respect to the disclosed material. Undisclosed privileged material is subject to the waiver only if the waiver is intentional, the disclosed and undisclosed material concern the same subject matter, and the material should be considered together to avoid unfairness. There is no waiver if the disclosure was inadvertent and the holder took reasonable steps to prevent disclosure and rectify the error.
66
Physician-Patient Privilege
The physician-patient privilege belongs to the patient, and he may decide to claim or waive it. Confidential communications between a patient and his physician are privileged, provided that: (i) A professional relationship exists; (ii) The information is acquired while attending the patient in the course of treatment; and (iii) The information is necessary for treatment.
67
Scope of Physician-Patient Privilege
The physician-patient privilege does not apply (or is impliedly waived) if: (1) The patient puts his physical condition in issue; (2) The physician_s assistance was sought to aid wrongdoing; (3) The communication is relevant to an issue of breach of duty in a dispute between the physician and patient; (4) The patient agreed by contract to waive the privilege; or (5) It is a federal case applying the federal law of privilege. [i.e. no federal privilege for physician-patient relationship].
68
Psychotherapist/Social Worker _ Client Privilege
The United States Supreme Court recognizes a federal privilege for communications between a psychotherapist or license social worker and his client. This privilege operates in the same manner as the attorney-client privilege.
69
Spousal Immunity
When the privilege of spousal immunity is invoked, a married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution. Moreover, a married person may not be compelled to testify against his spouse in any criminal proceeding, regardless of whether the spouse is the defendant. There must be a valid marriage for the privilege to apply, and the privilege lasts only during the marriage. In federal court, the privilege belongs to the witness-spouse. In some state courts, the privilege belongs to the party-spouse. Does not apply to actions between spouses or in cases involving crimes against the testifying spouse or either spouse_s children.
70
Privilege for Confidential Marital Communications
In any civil or criminal case, confidential communications between a husband and wife during a valid marriage are privileged. For this privilege to apply, the marital relationship must exist when the communication is made. Divorce will not terminate the privilege, but communications after the divorce are not privileged. In addition, the communication must be made in reliance upon the intimacy of the marital relationship. Does not apply to actions between spouses or in cases involving crimes against the testifying spouse or either spouse_s children.
71
Privilege Against Self-Incrimination
Under the Fifth Amendment to the Constitution, a witness cannot be compelled to testify against himself. Any witness compelled to appear in a civil or criminal proceeding may refuse to give an answer that ties the witness to the commission of a crime.
72
Clergy or Accountant Privilege
A privilege exists for statements made to a member of the clergy or an accountant, the elements of which are very similar to the attorney-client privilege.
73
Professional Journalist Privilege
There is no constitutional right for a professional journalist to protect his source of information, so any privilege in this area is limited to individual state statutes on the subject.
74
Governmental Privileges
Official information not otherwise open to the public or the identity of an informer may be protected by a privilege for the government. No privilege exists if the identity of the informer is voluntarily disclosed by a holder of the privilege.
75
Exclusion and Sequestration of Witnesses
Upon a party_s request, the trial judge will order witnesses excluded from the courtroom. The judge may also do this on his own motion. The judge, however, may not exclude (i) a party or a designated officer or employee of a party, (ii) a person whose presence is essential to the presentation of a party_s case, or (iii) a person statutorily authorized to be present.
76
The Rule Against Hearsay
The Federal Rules define hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. If a statement is hearsay, and no exception to the rule applies, the evidence must be excluded upon appropriate objection. The reason for excluding hearsay is that the adverse party was denied the opportunity to cross-examine the declarant.
77
Statement
A statement is: (i) an oral or written assertion, or (ii) nonverbal conduct intended as an assertion.
78
Offered to Prove the Truth of the Matter Asserted
If the out-of-court statement is introduced for any purpose other than to prove the truth of the matter asserted, there is no need to cross-examine the declarant; so the statement is not hearsay. The following out-of-court statements are not hearsay: (i) Verbal acts or legally operative facts; (ii) Statements offered to show their effect on the hearer or reader; (iii) Statements offered as circumstantial evidence of declarant_s state of mind.
79
Nonhuman Declarations
There is no such thing as animal or machine hearsay; there must be an out-of-court statement by a person. Thus, testimony about what a radar gun _said: or what a drug-sniffing dog did is not hearsay (but still must be relevant and authenticated to be admitted).
80
Prior Statements by Witness
Under the Federal Rules, a prior statement by a witness is not hearsay if: (i) The prior statement is inconsistent with the declarant_s in-court testimony and was given under oath at prior proceeding; (ii) The prior statement is consistent with the declarant_s in-court testimony and is offered to rebut a charge that the witness is lying or exaggerating because of some motive; or (iii) The prior statement is one of identification of a person made after perceiving him.
81
Admissions by Party-Opponent (Statements by an Opposing Party)
An opposing party_s statement is not hearsay under the Federal Rules. To be an admission, the statement need not have been against the declarant_s interest when made, and may even be in the form of an opinion. Personal knowledge is not required; the admission may be predicated on hearsay.
82
Judicial and Extrajudicial Admissions
Formal judicial admissions are conclusive. Informal judicial admissions made during testimony and extrajudicial admissions are not conclusive and can be explained.
83
Adoptive Admissions
A party may make an admission by expressly or impliedly adopting or acquiescing in the statement of another. Silence may also be considered as an admission when: (i) the party heard and understood the statement; (ii) the party was physically and mentally capable of denying the statement; and (iii) a reasonable person would have denied the accusation. Note that silence in the face of accusations by police in a criminal case is almost never considered an admission of a crime.
84
Co-Parties
Admissions of a party are not receivable against her co-parties merely because they happen to be joined as parties.
85
Authorized Spokesperson
The statement of a person authorized by a party to speak on its behalf can be admitted against the party as an admission.
86
Principal-Agent
Statements by an agent concerning any matter within the scope of her agency, made while the employment relationship exists, are not hearsay and are admissible against the principal.
87
Partners
After a partnership is shown to exist, an admission of one partner relating to matters within the scope of the partnership business is binding upon her co-partners.
88
Co-Conspirators
Admissions of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or civil wrong at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators. Under the Federal Rules, the court may use the co-conspirator_s statement itself, together with other evidence, to determine whether the statement is admissible.
89
Privies in Title and Joint Tenants _ State Courts Only
In most state courts, admissions of each joint owner are admissible against the other, and admissions of a former owner of real property made at the time she held title are admissible against those claiming under her. These statements are not considered admissions under the Federal Rules, but may e admissible under one of the hearsay exceptions.
90
Preliminary Determinations
Before admitting a hearsay statement as a vicarious admission, the court must make a preliminary determination of the declarant_s relationship with the party against whom the statement is offered. In making such a determination, the court must consider the contents of the statement, but the statement alone is not sufficient to establish the required relationship.
91
Unavailability defined
A declarant is unavailable if he: (a) is exempt from testifying because of privilege; (b) refuses to testify concerning the statement despite a court order; (c) testifies to lack of memory of the subject matter of the statement; (d) is unable to testify due to death or physical or mental illness; or (e) is absent (beyond the reach of the court_s subpoena), and the proponent is unable to procure his attendance by reasonable means.
92
Five Primary Exceptions for Unavailable Declarant Testimony
(1) Former Testimony (2) Statements Against Interest (3) Dying Declarations (4) Statements of Personal or Family History (5) Statements Offered Against the Party Procuring Declarant_s Unavailability
93
Former Testimony
The testimony of a now unavailable witness, given at another hearing or deposition, is admissible if: (i) the party against whom the testimony is offered or (in a civil case) the party_s predecessor in interest was a party in the former action; (ii) the former action involved the same subject matter; (iii) the testimony was given under oath; and (iv) the party against whom the testimony is offered had an opportunity at the prior proceeding to develop the declarant_s testimony.
94
Statements Against Interest
The statement of a person, now unavailable as a witness, against that person_s pecuniary, proprietary, or penal interest when made, is admissible under the statement against interest exception to the hearsay rule. The declarant must also have had personal knowledge of the facts, and must have been aware that the statement was against her interest when she made it. In criminal cases, the Federal Rules require corroborating circumstances indicating the trustworthiness of the statements. The exception covers only those remarks that inculpate the declarant, not the entire declaration.
95
Dying Declarations
In a homicide prosecution or a civil action, a statement made by a now unavailable declarant is admissible if: (i) the declarant believed his death was imminent; and (ii) the statement concerned the cause or circumstances of what he believed to be his impending death.
96
Statements of Personal or Family History
Statements by a now unavailable declarant concerning births, marriages, divorces, relationship, genealogical status, etc. are admissible provided that: (i) the declarant is a member of the family in question or intimately associated with it; and (ii) the statements are based on the declarant_s personal knowledge of the facts or her knowledge of family reputation.
97
Statements Offered Against Party Procuring Declarant_s Unavailability
The statement of a person (now unavailable as a witness) is admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant_s unavailability.
98
Present State of Mind
A statement of declarant_s then-existing state of mind, emotion, sensation, or physical condition is admissible. It is usually offered to establish a person_s intent or as circumstantial evidence that the intent was carried out.
99
Excited Utterances
An out-of-court statement relating to a startling event, made while under the stress of the excitement from the event, (i.e. before the declarant had time to reflect upon it), is admissible.
100
Present Sense Impressions
Comments made concurrently with the sense impression of an event that is not necessarily exciting may be admissible. There is little time for a calculated misstatement, and the contemporaneous nature of the statement make it reliable.
101
Declarations of Physical Condition
Present Bodily Condition _ Admissible. A spontaneous declaration of present bodily condition is admissible as an exception to the hearsay rule even though not made to a physician. Past Bodily Condition _ Admissible if to Assist Diagnosis or Treatment. Generally, declarations of past physical condition are inadmissible hearsay. Under the Federal Rules, however, these declarations are admissible if made to assist in diagnosing or treating the condition. Even declarations about the cause or source of the condition are admissible if pertinent to diagnosis or treatment.
102
Business Records
Any writing or record made as a memorandum of any act or transaction is admissible in evidence as proof of that act or transaction. The main requirements are as follows: (i) Business. Business includes every association, profession, occupation, whether or not conducted for profit. (ii) Entry made in regular course. To be admissible, it must appear that the record was made in the course of a regularly conducted business activity, Self-serving accident reports prepared primarily for litigation usually are inadmissible. (iii) Personal Knowledge. Must be in personal knowledge or within knowledge of someone with a duty to transmit such matters. (iv) Entry Made Near Time of Event (v) Authentication
103
Past Recollection Recorded
If the witness_s memory cannot be revived, a party may introduce a memorandum that the witness made at or near the time of the event. The writing itself is not admissible; it must be read to the jury.
104
Public Records and Reports
The following are admissible: records setting forth the activities of the office or agency; recordings of matters observed pursuant to a duty imposed by law; or in civil actions and against the government in criminal cases, records of factual findings resulting from an investigation authorized by law. The writing must have been made by and within the scope of the duty of the public employee, and it must have been made at or near the time of the event.
105
Records of Vital Statistics
Records of vital statistics are admissible if the report was made to a public officer pursuant to requirements of law.
106
Statement of Absence of Public Record
Evidence in the form of a certification or testimony from the custodian of public records that she has diligently searched and failed to find a record is admissible to prove that the matter was not recorded, or inferentially that the matter did not occur.
107
Judgments
A certified copy of a judgment is always admissible proof that such judgment has been entered.
108
Prior Criminal Conviction _ Felony Conviction Admissible
Under the Federal Rules, a judgment of a felony conviction is admissible in criminal and civil actions as an exception to the hearsay rule to prove any fact essential to the judgment. In a criminal case, however, the government may use the judgment for this purpose only against the accused; it may be used only for impeachment purposes against others.
109
Prior Criminal Acquittal _ Excluded
The exclusionary rule is still applied to records of prior acquittals
110
Judgment in Former Civil Case
A civil judgment is clearly inadmissible in a subsequent criminal proceeding and generally inadmissible in subsequent civil proceedings.
111
Ancient Documents and Documents Affecting Property Interests
Statements in any authenticated document 20 years old or more are admissible, as are statements in any document affecting an interest in property, regardless of age.
112
Learned Treatises
Treatises are admissible as substantive proof under the Federal Rules if: (a) called to the attention of, or relied upon by, an expert witness; and (b) established as reliable authority by the testimony of that witness, other expert testimony, or judicial notice.
113
Reputation
Reputation evidence is admissible under several exceptions to the hearsay rule, as evidence of the following: (i) character; (ii) personal or family history; (iii) land boundaries; and (iv) a community_s general history.
114
Family Records
Statements of fact concerning personal or family history contained in family Bibles, jewelry engravings, genealogies, tombstone engravings, etc., are admissible.
115
Market Reports
Market reports and other published compilations are admissible if generally used and relied upon by the public or by persons in a particular occupation.
116
Catch-all Exception
The catch-all exception requires: (i) that the hearsay statement possess circumstantial guarantees of trustworthiness; (ii) that the statement be strictly necessary, and (iii) that notice be given to the adversary as to the nature of the statement.
117
Constitutional Issues
Under the Confrontation Clause, a hearsay statement will not be admitted when: (i) the statement is offered against the accused in a criminal case; (ii) the declarant is unavailable; (iii) the statement was testimonial in nature; and (iv) the accused had no opportunity to cross-examine the declarant_s testimonial statement prior to trial. However, the defendant forfeits his right of confrontation if he committed a wrongful act that was intended to keep the witness from testifying.
118
Testimonial Statement
If the primary purpose of police interrogation is to enable the police to help in an ongoing emergency, statements made in the course of the negotiation are nontestimonial. When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal investigation, statements are testimonial. Affidavits, certificates, or other written reports that summarize the findings of forensic analysis are testimonial and may not be admitted unless the analyst is unavailable and the defendant previously had an opportunity to cross-examine.
119
Burden of Producing Evidence
The party who has the burden of pleading usually has the burden of producing or going forward with evidence sufficient to make out a prima facie case. Once the party has satisfied the burden of going forward with evidence, it is incumbent upon the other side to come forward with evidence to rebut the accepted evidence.
120
Burden of Persuasion (Proof)
After the parties have sustained their burden of production of evidence, the question is whether the party with the burden of persuasion has satisfied it. The burden of persuasion for civil cases is usually by a preponderance of evidence (more probably true than not true) although some civil cases require proof of clear and convincing evidence (high probability). The burden of persuasion for criminal cases is beyond a reasonable doubt.
121
Legitimacy
Every person is presumed to be legitimate.
122
Against Suicide
When cause of death is in dispute, there is a presumption in civil cases that it was not suicide.
123
Sanity
Every person is presumed sane in civil and criminal cases until the contrary is shown.
124
Death from Absence
If a person is unexplainably absent for a continuous period of seven years and he has not been heard from, he is presumed dead.
125
Ownership of Car _ Agent Driver
Proof of ownership of a motor vehicle creates the presumption that the owner was the driver or that the driver was the owner_s agent.
126
Chastity
Every person is presumed chaste and virtuous.
127
Regularity
It is presumed that persons acting in an official office are properly performing their duties.
128
Continuance
Proof that the existence of a person or condition at a given time raises a presumption that it continued for as long as it is usual with things of that nature.
129
Mail Delivery
A letter, properly addressed, stamped, and mailed, is presumed to have been delivered.
130
Solvency
A person is presumed solvent, and every debt is presumed collectible.
131
Bailee_s Negligence
Proof of delivery of goods in good condition to a bailee and failure of the bailee to return the goods in the same condition create the presumption that the bailee was negligent.
132
Marriage
Upon proof of a marriage ceremony, a marriage is presumed valid.
133
Choice of Law Regarding Presumptions in Civil Actions
Under the Federal Rules, state law governs the effect of a presumption concerning a fact that is an element of a claim or defense to which, under the Erie doctrine, the rule of decision is supplied by state law.
