Evidence Flashcards
(124 cards)
1
Q
Evidence is relevant if:
Logical Relevance
A
- It has a tendency to make a fact more or less probable than it would be without the evidence; &
- The fact is of consequence in determining the action
2
Q
Balancing Test (Legal Relevance)
A
Evidence may be excluded if its value is substantially outweighed by one or more:
a. Danger of: unfair prejudice, confusing the issues, misleading jury
b. concerns of undue delay, waste of time, needless presentation of cumulative evidence
3
Q
Evidence of Flight
A
probative value as circumstantial evidence of guilt depends on degree of confidence w/ which 4 inferences can be drawn:
- ∆ behavior –> flight
- flight –> consciousness of guilt
- consciousness of guilt –> consciousness of guilt concerning crime charged
- consciousness of guilt concerning crime charged –> actual guilt of crime charged
4
Q
Categorical Policy Exclusion
A
- subsequent remedial measures
- settlement offers
- offers to pay for med & similar expenses
- pleas
- proof of liability insurance
5
Q
Form Problems (Qs not allowed)
A
- compound
- repetitive/duplicate
- argumentative/harassing
- assuming facts not in evidence
- asking witness to speculate - estimations ok
- overly broad/confusing
- narrative - exception: client is going to lie
- leading - ok on cross or hostile or young witness
- non responsive
6
Q
Witness Competency Requirements
A
everyone presumed competent unless otherwise provided
Requirements:
1. ability to communicate in some way
2. ability to perceive events which they’re testifying about (personal knowledge)
3. ability to recollect/remember
4. honesty/understanding of obligation to tell the truth
7
Q
Dead Man’s Act/Statute
A
claiming against someone who is dead; you can’t testify because they can’t.
not around anymore/not a fed statute. wouldn’t apply unless it’s a diversity case & it’s state law
8
Q
Children as witnesses (competency requirements)
A
Whether the child can:
- Perceive & remember events accurately
- Communicate them intelligibly
- Understands the difference between truth/falsehood & obligation to tell truth; &
- Respond intelligently to Q’s on cross-exam
9
Q
What is hearsay?
A
An out-of-court statement offered to prove the truth of the matter asserted
10
Q
Out of Court Statements Not Offered for Their Truth
A
- offered as circumstantial evidence of declarant’s state of mind
- offered to show effect on listener
- legally operative stmts/verbal acts
- inconsistent stmts offered to impeach
11
Q
Statements of a Party Opponent (hearsay exemptions)
A
- party’s own words
- adoptive admissions
- stmts by agents
- co-conspirators stmts
12
Q
Past Statements of Witnesses and Past Testimony
Hearsay Exemptions
A
- prior inconsistent stmt not under oath
- prior inconsistent stmt under oath
- prior consistent stmt offered to rebut charge of recent fabrication or improper motive
- prior stmt of identification
13
Q
Hearsay Exceptions When Declarant Is Unavailble
A
- former testimony
- stmts against interest
- dying declerations
- forfeiture by wrongdoing
14
Q
Hearsay Exceptions When Declarant’s Unavailability Is Irrelevant
A
- excited utterance
- present sense impression
- present state of mind
- stmt of past or present bodily condition for diagnosis/treatment
15
Q
Documentary Exceptions
A
- past recollection recorded
- business records
- public records & reports
- records of births, marriages, death, etc.
- ancient documents
- learned treatises
16
Q
Present Recollection Revived
A
used to refresh before or after testifying; now that you remember you’re testifying like any other witness.
17
Q
Residual Exception (Hearsay)
A
elements:
- = guarantees of trustworthiness
- stmt offered as evidence of material fact
- more probative than any other evidence proponent can obtain through reasonable efforts
- admitting serves purpose of rules & interests of justice
- admissible only w/ reasonable notice to adverse party
declarant doesn’t have to be unavailable, but if they are you usually wont meet requirements
18
Q
Party’s Own Words - exemption
A
stmts of party opponent
- was made by the party in an individual or representative capacity
19
Q
Adoptive Admissions - exemption
A
stmts of party opponent
stmts party manifested that it adopted or believed (or failed to protest) to be true
admission by silence:
- heard & understood by party
- party at liberty to respond
- circumstances naturally called for response
- party failed to respond
20
Q
Statements by Agents - exemption
A
stmts of party opponent
- made by a person whom the party authorized to make a stmt on the subject
- made by party’s agent or employee on a matter w/in scope of that relationship while it existed
21
Q
Co-conspirators Statements - exemption
A
- stmt was made in course of conspiracy
- stmt was made in furtherance of conspiracy
conspiracy incl. declarant & party its being offered agaisnt
22
Q
Prior Inconsistent Statement of Witness Under Oath
A
admissible for impeachment & substantive
23
Q
Prior Inconsistent Statement of Witness Not Under Oath
A
impeachment only.
witness given chance to explain & adverse party gets chance to examine witness about it
24
Q
Prior Consistent Statement of Witness Offered to Rebut Charge of Recent Fabrication or Improper Motive
A
- can be offered for its truth
- doesn’t have to be under oath
- usually no reason to bring in unless stmt attacked
- time limit: must show stmts were made prior to improper motive/fabrication
25
Prior Statement of Identification By The Witness
admissible provided person who made identification is a witness in this proceeding & subject to cross exam
26
A declarant is considered to be unavailable as a witness if the declarant:
1. ct rules privilege applies
2. refuses to testify
3. testifies to not remembering
4. cannot be present or testify bc of death or then-existing infirmity, phys or mental illness; or
5. absent & stmts proponent hasnt been able to (& has made a reasonable effort) to procure declarant's attendance or testimony
27
Former Testimony
declarant must be unavailable.
1. must've been under oath
2. now offered against party whose predecessor in interest had chance & similar motive to develop it by direct or cross exam
crim cases: party you're offering it against must've been a party in previous prosecution & opportunity to cross examine
28
Statements Against Interest
declarant must be unavailable.
1. stmts against penal or pecuniary interest at time made
2. based on personal knowledge
3. only self incriminating portions of stmt admissible
crim: must be supported by corroborating circumstances that clearly indicate trustworthiness
29
Dying Declarations
| FRE
declarant must be unavailable.
1. in homicide prosecution or civil case
1. stmt made under fear/belief of imminent death
2. related to cause or circumstances of that death
30
Forfeiture By Wrongdoing
declarant must be unavailable.
stmt offered against a party that wrongfully caused (or acquiesced in wrongfully causing) declarant's unavailability as a witness, & did so intending that result.
wrongdoing doesn't have to be crim.
31
Excited Utterance
declarant's unavail irrelevant.
1. relates to a startling /exciting event or condition
2. while still under stress of excitement (contemporaneously w/ event)
rationale: no time to fabricate
32
Present Sense Impression
declarant's unavail irrelevant.
1. describes or explains event or condition
2. while or immediately after perceiving
33
Present State of Mind
| Then-Existing Mental, Emo, or Physical Condition
declarant's unavail irrelevant.
stmts of declarants then-existing state of mind (motive, intent, plan) or emo, sensory, or phys condition (mental feeling, pain, bodily health)
Hillmon doctrine incl intent.
not incl stmt of memory or belief. no inference drawn.
34
Statement of Past or Present Bodily Condition for Diagnosis/Treatment
declarant's unavail irrelevant.
1. made for, & reasonably pertinent to, med diagnosis or treatment; &
2. describes med history; past or present symptoms/sensations; their inception; or gen cause.
35
Past Recollection Recorded
1. re: matter witness no longer remembers
2. created while fresh in memory
3. accurately reflects knowledge
Elements:
1. first hand knowledge
2. stmt made at/near time of event while witness had clear/accurate memory of it
3. now lacks present recollection of event
4. must vouch for accuracy of written memo
36
Business Records
1. personal or transmitted knowledge
2. kept by regularly conducted bizz
3. reg practice to record
4. qualified testifying witness
5. no lack of trustworthiness
entires made in reg course of business (at/near time of event) by a person who has a business duty to accurately record the info & who has personal knowledge or receives info from someone with personal knowledge & business duty to accurately report
absence of record also admissible.
37
Public Records & Reports
A. record or stmt of public office sets out:
1. office activities;
2. matter observed while under legal duty to report, but not incl in a crim case a matter observed by law enforcement personnel; or
3. in civil case or against gov in crim case, factual findings from legally authorized investigation;
AND
B. opponent doesn't show that the source of info or other circumstances indicate lack of trustworthines
• maintained by gov entity
38
Ancient Docs
stmts made in docs more than 20 yrs ago. found in place where would likely be found if authentic
39
Subsequent Remedial Measures --
| Inadmissible/Admissible for
Inadmissible to prove:
1. negligence
2. culpable conduct
3. product defect
4. need for warning or instruction
```
Admissible for:
1. Impeachment
If, disputed--
2. ownership
3. control
4. feasibility of precautionary measures
```
Rationale: encourage remedies
40
Settlement Offers --
| Elements, Admissible, Inadmissible
Elements:
1. Claim
2. Claim disputed re: liability/amount
Inadmissible:
1. compromise/attempts to compromise a disputed claim & conduct/stmts during negotiations to prove validity/amount of disputed claim
3. impeachment by prior inconsistent stmt or a contradiction
Admissible:
1. proving witness bias/prejudice
2. negating contention of undue delay
3. proving effort to obstruct crim investigation or prosecution
41
Offers to Pay for Med & Similar Expenses
Inadmissible:
1. offers to pay/actually paying med expenses to prove liability
Admissible:
1. any other relevant purpose
doesn't cover apologies, attempts to compromise, or stmts made during negotiations
Rationale: product of human impulse; encourage assistance of others
42
Pleas
- applies in civ & crim
- always barred except where specifically permitted: by ∆ on his own behalf
Inadmissible: (against ∆)
1. guilty plea later w/drawn
2. nolo contendere plea
3. any unsuccessful guilty plea or any stmts regarding it
4. stmts in plea negotiations made w/ prosecutor (no impeachment)
43
Proof of Liability Insurance
Inadmissible:
to show liability, fault or ability to pay
Admissible, other purposes such as:
1. proof of witness bias/agency
2. ownership or control, if disputed
44
competency of a witness - religious beliefs/opinions
not admissible to attack/support credibility. ok for showing bias
45
lay opinion requirements
1. helpful to trier of fact
2. based on perception of witness
3. no specialized knowledge, training, or skill needed
46
expert opinion requirements
1. helpful to trier of fact
2. properly qualified
3. relied on materials which reasonable experts rely upon (duabert factors)
47
duabert factors
1. Whether the technique “can be (and has been) tested”
2. Whether it has been “subjected to peer review & publication”
3. The known or potential rate of error
4. The existence & maintenance of standards controlling the technique’s operations; and
5. “General acceptance” in the relevant scientific community
48
if expert is testifying regarding some novel theory...
expert’s opinion must be based on the reliable methods or processes of scientific thought; and
those methods have to be reliably applied to the facts
49
learned treatises
admissible if established as reliable & it was utilized in examining or cross-examining an expert witness OR if the expert relied on the treatise during testimony
50
Subsequent Remedial Measures - 3rd parties
not barred; but may not be relevant
probative value of most SRM is they amount to admission by ∆ that previous conduct was unsafe , which may not make it past 403
51
Settlement Offers - rationale
1. encourage parties to drop their guard & talk freely w/o fear that confession will be used at trial
2. settle out of ct & lessen cost of litigation to society
52
pleas - rationale
encourage guilty pleas
53
pleas - exceptions
Prosecution can offer:
1. perjury (stmt under oath, on record, in counsels presence)
2. complete partial account of plea discussion
54
Proof of Liability Insurance - rationale
1. unlikely insured are more careless/ or careful
2. jury might otherwise seek deep (insured) pocket or reduce recoveries to insured π
3. encourages insuring & avoids windfall for opponent of an insured party
55
definition of "statement"
a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
Did the declarant assert (communication) the facts?
56
when is the confrontation clause triggered?
must be criminal case.
1. someone gives testimony in court against ∆
2. testimonial out of court hearsay stmt is offered against ∆
stmt inadmissible unless ∆ has chance to cross-exam
57
confrontation clause - exceptions
1. dying declaration
2. there has been a prior opportunity & declarant is unavailable
3. forfeiture by wrongdoing
4. declarant is a witness
58
confrontation clause - forefeiture by wrongdoing exceptions
1. HOMICIDE: only when ∆ has killed victim w/ intention of making them unavailable as a witness in a proceeding against them
2. DOMESTIC VIOLENCE: may come in where there's reputation/prior instances; safe assumption ∆ purposely made them unavailable
59
factors in determining if a stmt is testimonial / non-testimonial
1. formal or informal setting?
2. custody?
3. formal interrogation?
4. PURPOSE: was it a reaction/response to an ongoing emergency (non) OR to gather/give evidence (testimonial)
60
911 calls & reports re: confrontation caluse
Reports considered testimonial bc they’re prepared solely for purpose of evidence against ∆ at trial (except when they are a basis for expert opinion)
Stmts made to police or 911 operators for purposes of responding to emergency are not testimonial
61
Bruton Doctrine (confrontation clause)
concerns out of ct admission made by an accomplice tried jointly w/ ∆
words are admissible against accomplice, but most likely will fail confrontation clause against ∆
violates ∆'s rights when co∆'s confession admitted - even w/ limiting instructions
62
approaches to dealing with co-∆'s (bruton doctrine)
1. Separate trials
2. Separate juries
3. ∆1 agrees to testify
4. Redaction: (not ok to replace name w/ “deleted” or the like. If we want them tried jointly we can be vague about other participants (otherwise it is too obvious & just like leaving the name in)
5. Bench trial (but ∆’s have right to jury trial)
63
A lay witness is generally allowed to give an opinion on an area which is in the ordinary understanding of a lay person:
i. Weather
ii. Speed
iii. Intoxication
iv. Sanity
v. Handwriting
vi. Distance
64
what is judicial notice?
asking a court to accept a fact as true w/o needing to introduce evidence
65
kinds of judicially noticeable facts
1. facts of common knowledge
| 2. facts capable of verification by reference to a source of unquestioned authority
66
Consequences of Judicially Noticed Fact
civil cases:
- fact is conclusive
- ct will instruct juror that fact is est for purpose of this trial & you must accept it as true
crim cases:
- fact not conclusive
- fact considered evidence that juror can give as much weight as they think is warranted & may disregard
67
marital communications priv (general rule)
1. protects confidential comm made between spouses during marriage
2. priv belongs to both
3. only applies to what is said, written, or actions intended to be communications (not underlying facts)
68
spousal testimonial priv
* rule: cannot force one spouse to testify against other in crim case. priv belongs to witness-spouse
* applies in crim cases
* if spouse chooses to testify, still cant waive marital priv
69
marital communications priv exceptions
1. ∆ on trial for domestic violence, threats to minor children or spouse. spouse may testify re: comms re: that crime
2. crime-fraud: enlisting spouse in crim scheme you're later prosecuted for. comms (after spouse joins) not protects
70
attorney-client priv - scope
1. priv is client's
2. protects confidential comms made to facilitate professional services
3. protects only confidential comms (clients intent, precautions taken, waived when disclosed to others)
71
attorney-client priv - inadvertent disclosure
When made in a fed proceeding or to a fed office or agency, disclosure does not operate as a waiver in a fed or state proceeding if:
1. Disclosure is inadvertent;
2. Holder of priv took reasonable steps to prevent disclosure; &
3. Holder promptly took reasonable steps to rectify the error
72
attorney-client priv - work product protection
tangible material (or its tangible equivalent) prepared in anticipation of litigation or for trial
when lawyer receives info inadvertently - only ethical obligation is to inform sender
73
attorney-client priv - source of fees & client's identity
gen not regarded communications bc preliminary to relationship
exception: identity in some circumstances (police don't know identity of who they're looking for)
74
attorney-client priv - gov lawyer
same protection
| rationale: gov officials need legal advice to perform & its a public interest
75
attorney-client priv - crime-fraud exception
seeking attorneys advice on how to perpetuate a fraud or crim conduct (no protection or priv)
comm itself can reveal crime or fraud; external evidence not needed
existence of priv is prelim Q of fact. trial judge can listen in camera review when based on good-faith assertion.
76
privs recognized in fed ct
1. attorney-client
2. clergy-penitent
3. psychotherapist-patient
4. marital comm
5. spousal incapacity
6. 5th A right against self-incrim
77
character evidence - crim case
| general rule
not admissible to show propensity
78
character evidence - crim case
| exceptions
1. ∆ opens door by putting on evidence of his good character by opinion/rep testimony
• testimony must be relevant to pertinent character trait
• prosecution can respond by putting on its own rep/opinion witnesses & cross examining ∆'s witnesses re: specific acts of misconduct
2. In prosecutions case in chief, it's offered for some purpose other than to show propensity (MIMICK)
79
character evidence - MIMICK
```
Motive
Intent
Mistake/absence of (doctrine of chances)
Identity (M.O., reverse 404)
Common scheme/plan
Knowledge
```
80
Character of Victim
| character evidence - crim case
* ∆ can offer evidence of victim's character for pertinent trait via opinion/rep testimony
* ∆ offers evidence of his good character -> prosecution can put on evidence of victim's good character via opinion/rep & ∆'s bad character for relevant trait
* Homicide case: if ∆ asserts self defense or victim was 1st aggressor, prosecution can put on evidence of victim's good character via opinion/rep (but not ∆'s bad character since ∆ hasn't made it about that)
81
Sexual Assault Cases
| character evidence - crim case
evidence of victim's prior sexual history admissible:
1. prior acts w/ ∆ to show consent on this occasion
2. other acts close in time to alleged assault to show someone other than ∆ is source of phys evidence; or
3. necessary to safeguard ∆;s constitutional right to fair trial
82
General Rule
| character evidence - civil case
not admissible, even if ∆ opens door
83
Exceptions
| character evidence - civil case
1. character is an issue (defamation, child custody, negligent entrustment, damages in loss of consortium, or wrongful death)
2. MIMICK + notice
84
Sexual Assault
| character evidence - civil case
evidence of ∆'s prior acts of molestation or sexual assault are admissible for any relevant purpose in civil cases involving molestation/sexual assault
85
Evidence of Habit
| character evidence - civil case
evidence of someone's habit or an orgs routine practice may be admitted to prove that on a particular occasion the person or org acted in accordance with the habit or routine practice.
ct may admit evidence regardless of whether it was corroborated or there was an eye witness
86
modes of impeachment - mistaken
lawyer calls a witness mistaken by casting doubt on her powers of perception, memory, or narrative accuracy
- no limit on this
87
modes of impeachment - non character based
1. conflicting evidence
2. past inconsistent stmt
3. evidence of bias & prejudice (extrinsic evidence admissible to show)
88
modes of impeachment - character based
1. opinion or reputation testimony
2. evidence of past convictions
3. evidence of specific acts (on cross exam only)
89
who may impeach?
* either party can attack a witness's credibility
| * cannot put on evidence of good character if you haven't been attacked
90
impeachment - character based - opinion or reputation testimony
Either party may offer evidence of a witness’s character for untruthfulness. Opponent may then rebut with the witness’s character for truthfulness.
91
impeachment - crimes involving false stmts
• can be misdemeanor or felony
• admissible w/o 403
• ct has no discretion to exclude but cannot be too remote (10 yr rule: gen not admissible unless especially relevant)
ex: perjury, fraud, emebezzlement
92
Bias
describes relationship between a party and a witness, which might lead the witness to slant his testimony in favor of or against a party
93
Evidence of Bias & Prejudice - Impeachment
* always admissible for impeachment purposes.
| * Extrinsic evidence is admissible to show that a witness suffers from prejudice or bias
94
Felonies Not Involving Dishonesty/False Stmt
| Impeachment - Evidence of Past Conviction
* crimes punishable for 1yr+
* 403 applies if ∆ not witness
* when witness is ∆: can only come in if prosecution can show old crimes more probative than prejudicial. prosecution has burden
* 10 yr rule
* can be proved by: cross or direct exam or record of conviction introduced
95
Felonies Not Involving Dishonesty/False Stmt - special balancing test if ∆ is witness
factors:
1. nature of the crime (relevant to trait?)
2. time of conviction & witness' subsequent history (rehab?)
3. similarity between past & charged crime ( - )
4. importance of ∆'s testimony
5. centrality of cred issue
(4 & 5 usually balance out)
96
Prior Bad Acts Involving Dishonesty - impeachment
* not conviction; significant lie
* extrinsic evidence not admissible. if witness denies, that's it.
* convictions 10+ yrs cannot be snuck in here
* Q must be conducted in good faith
97
juvie records - impeachment
we make it hard to get in.
admissible only if:
1. crim case;
2. ∆ not witness/juvie;
3. adult's conviction for that offense would be admissible to attack his cred; &
4. admitting is necessary to fairly determine guilt or innocence
98
rape shield law - prohibits...
1. evidence offered to prove victim engaged in other sexual behavior; or
2. evidence offered to prove a victim's sexual predisposition
not admissible in civil or crim proceedings involving alleged sexual misconduct
99
rape shield law - exceptions for crim cases
1. prove someone other than ∆ was source of semen, injury, other phys evidence;
2. offered by ∆ to prove consent or if offered by prosecutor; &
3. evidence whose exclusion would violate ∆'s constitutional right
100
rape shield law - exceptions for civil cases
ct may admit to prove victim's sexual behavior/predisposition if its probative value substantially outweighs the danger of harm to any victim & unfair prejudice to any party
101
rape shield law - complainant as witness
can be attacked like any other witness (just not allowed to put on evidence of sexual history)
102
rape shield law - past allegedly false accusation
past sexual history being used as impeachment evidence to attack victims cred is not barred
103
rape shield law - ∆'s state of mind
* victim's prior sexual history is not admissible to show ∆'s state of mind when it is not an issue
* more likely to come in when there is ambiguity
104
rape shield law - narrative integrity
* concept doesn't have constitutional significance so ct will interpret narrowly
* ct will try to find way around it & still have fair trial since point is to protect victim
* stephens v miller case: "I heard you like it like that"
105
Authentication
proponent must produce evidence sufficient to support a finding that the item is what he claims it is
standard: reasonable trier of fact would find that it is what you're saying it is
106
Authentication Examples
1. testimony of a witness w/ knowledge
2. non-expert opinion about handwriting (cannot be acquired for current litigation)
3. comparison by an expert witness or trier of fact
4. distinctive characteristics & the like
5. opinion identifying a voice
6. evidence about a phone convo
7. evidence about public records
8. evidence about ancient docs or data compilation
9. evidence about a process or system
10. methods provided by a satute or rule (fed/supreme ct)
107
authentication - opinion identifying a voice
Can be heard firsthand, recording, electronic transmission. Based on hearing voice at any time under circumstances that connect it w/ alleged speaker
108
authentication - evidence about a phone convo
that a call was made to # assigned at the time to:
1. particular person, if circumstances, incl self-identification, show that the person answering was the one tht called; or
2. particular bizz, if call was made to a bizz & call related to bizz reasonably transacted over the phone
109
authentication - evidence about public records
* doc was recorded or filed in a public office as authorized by law; or
* a purported public record or stmt is from the officer where items of its kind are kept
110
authentication - evidence about ancients docs or data compilations
1. is in condition that creates no suspicion about its authenticity;
2. was in place where likely to be found; and
3. at least 20 years old when offered
111
authentication - evidence of a process or system
evidence describing a process or system & showing it produces an accurate result
112
Self-Authenticating
requires no evidence in order to be admitted.
1. domestic public docs that are signed & sealed
2. docs w/ certification
3. official publications (issued by public authority)
4. newspaper & periodicals
5. trade inscription & the like
6. commercial paper & related docs
7. presumptions under fed statute
113
chain of custody
* may have to prove, in addition to authentication (if other side brings up; judge decided on case by case basis)
* normally good enough if it supports a finding that item in question is the same item & is in substantially the same condition
114
silent witness theory (authentication)
* photographer not necessary to lay proper foundation for admissibility of proffered photos
* test: whether photos accurately represent the facts allegedly portrayed in them
* ability to show process of how photo/video was taken
115
best evidence rule
an ORIGINAL writing, recording, or photo is required in order to prove its CONTENTS unless:
1. all originals lost/destroyed, not in bad faith
2. original cannot be obtained by any available judicial process
3. party against whom the original would be offered had control of orig; was put on notice that it'd be subject of proof @ trial/hearing; & fails to produce it; or
4. it's not closely related to controlling issue
116
a duplicate is admissible to the same extent as the original unless
(best evidence rule)
1. genuine Q raised about originals authenticity; or
| 2. circumstances make it unfair to admit the duplicate
117
definition of "original" and "writing" (best evidence rule)
* original: writing/recording itself or any counterpart intended to have the same effect by the person who executed/issued it. for e-stored info: printout or other output readable by sight if it accurately reflects info (no copy & paste)
* writings: letters, words, numbers, drawings
118
Absence of a Public Record
1. Diligent search failed to disclose a public record or stmt
2. Testimony admitted to prove
• Record doesn’t exist; or
• A matter did not occur/exist, if a public office regularly kept a record or stmt for a matter of that kind; &
3. In a crim case, prosecutor who intends to offer a certification provides written notice before trial and ∆ does not object
119
compulsory process
Provides crim ∆’s w/ meaningful opportunity to present a complete defense. Prosecutor has power to compel witnesses to attend, & 6th A levels playing field for ∆’s
120
compulsory process - 2 factor analysis by court
1. ∆'s critical need for evidence; and
| 2. existence of "persuasive assurances of trustworthiness"
121
Interlocking confessions
* separate confessions by ∆'s that "interlock"
* still have right to confront & cross-exam
* incriminating stmt made by non-testifying co∆ is not admissible at joint trial even where ∆'s own incriminating stmt is admitted
* rationale: consistency between 2 stmts more harmful to ∆ than inconsistency
122
proper bases of expert opinion testimony
an expert may base an opinion on facts or data that she has
1. been made aware of (before or at hearing); or
2. personally observed
123
narrative integrity - character evidence crim cases
* not part of MIMICK
* Evidence of other acts admissible when the evidence is “inextricably intertwined” w/ facts giving rise to charges against ∆. Evidence is necessary for prosecution to offer a coherent narrative re: commission of the crime
124
psychotherapist-patient privilege
The psychotherapist-patient privilege protects confidential communications between a patient and a psychotherapist, such as a licensed psychologist, if the communications were made for the purpose of diagnosing or treating the patient’s mental or emotional condition
