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Flashcards in Evidence Deck (149):
1

FRE Application

Civil, Criminal, District Court, Appeals, Bankruptcy cases, etc.

NOT grand jury proceedings, criminal procedures re search warrants, preliminary examinations, rendition, extradition, bail, sentencing, probation

2

Role of Jury

Trier of fact

Determines the weight and credibility assigned to evidence (FRE 104)

3

Role of Judge

Trier of law

Determines what evidence the jury can weigh and evaluate; the admissibility of a witness or evidence; whether a witness is competent and if any privileges apply

4

Challenging Evidentiary Ruling

A party may challenge an evidentiary ruling as erroneous if:
- The error affects a substantial right of a party; and
- The party notifies the judge of the error

5

Calling Court's Attention to an Error

1. Objection or Motion to Strike
- preventative measure
- counsel must provide specific ground for objection

2. Offer of Proof
- if evidence is excluded, counsel must preserve the potential evidence for the appellate court
- must explain the relevance and admissibility of the testimony

6

Definitive Ruling

Once the judge has made a definitive ruling, there is no need to renew the objection

7

Plain Error Rule

When a substantial right is affected because of an obvious error, an objection is not necessary

8

Rule of Completeness

When a party introduces a writing or recorded statement in part, an adverse party may compel the introduction of an omitted portion of the writing or statement if fairness dictates.

9

Judicial Notice

The court's acceptance of a fact as true without requiring formal proof

- adjudicative, not legislative facts
- cannot be subject to reasonable dispute
- must be generally known, although not by everyone. Accurately and readily determinable from a source that cannot be reasonably questioned
- judge cannot take judicial notice based solely on his personal knowledge

10

Judicial Notice Procedure

A party can ask a court to judicially notice a fact any time during the trial or on appeal.

Court can take judicial notice on own initiative, unless against a criminal defendant for the first time on appeal

Must take judicial notice if requested or necessary information is given to the court

11

Effect of Judicial Notice

Civil: Juris must accept the fact as true

Criminal: Juries may or may not accept that fact as true

12

Scope of Cross-Examination

Limited to:
1. The scope of direct; and
2. Credibility (always at issue)

13

5th Amendment and Preliminary Questions

The defendant does not waive his 5th Amendment privilege by answering preliminary questions

14

Leading Questions

Suggest the answer in the question.

Not allowed on direct, unless
- Foundational questions
- A witness has trouble communicating
- Adverse or hostile witness

No restrictions on the use of leading questions on cross-examination

15

Improper Questions

1. Compound Questions
2. Questions that Assume Facts Not in Evidence
3. Argumentative Questions
4. Questions that call for a conclusion or opinion that the witness is not qualified to give
5. Repetitive Questions (asked and answers)

16

Exclusion of Witnesses

Witnesses shall be excluded or sequestered:
- Upon the motion of a party; or
- Upon the court's own motion

Exceptions:
- A party (only one party in a criminal case: the defendant)
- An officer or employee who is the representative of a corporation
- Advisory or Expert witnesses
- Victims

17

Burdens of Proof

1. Burden of Production: the party with this burden must present enough evidence that the trier of fact could infer that each alleged fact had not been proved.

2. Burden of Persuasion: Degree to which legally sufficient evidence must be presented (does not shift)

Civil: Preponderance (CCE in fraud claim)
Criminal: Beyond a Reasonable Doubt

18

Presumptions

A conclusion that the trier must draw regarding an underlying fact

1. Rebuttable: may be overcome if contrary evidence is presented
- judge must instruct the jury to accept if no contrary evidence
-shifts the burden of production to the other side

2. Conclusive (irrebuttable): may not be challenged. Treated like a rule of substantive law

19

Relevance

All relevant evidence is admissible unless it is excluded by Rule, Law, or Constitutional provision.

Evidence is relevant if it is bot probative and material.

When the relevance of evidence depends on the existence of another fact, it is admissible if sufficient proof of the other fact is introduced.

20

Probative and Material

Probative: Evidence has a tendency to make a fact more or less probable than it would be without that evidence

Material: It is a fact of consequence in determining the action

21

Direct Evidence

Evidence that is identical to the factual proposition it is offered to prove

22

Circumstantial Evidence

Evidence that indirectly proves a factual proposition through inference

23

403 Exclusion of Relevant Evidence

Relevant Evidence may be excluded if its probative value is substantially outweighed by the danger of:
- unfair prejudice;
- confusing the issues;
- misleading the jury;
- undue delay, waste of time; or
- needless presentation of cumulative evidence

24

Curative Admission

The court may allow additional irrelevant evidence in to rebut the irrelevant evidence

25

Foundation

A foundation must be laid for relevant evidence. Failure to lay a foundation may be challenged by an objection for lack of proper foundation

26

Character Evidence

General information about a person's behavior.

Generally not admissible to prove conduct in conformity.

27

Defendant's Character in Civil Cases

Inadmissible to prove conforming conduct UNLESS character is an essential element of a claim or defense

28

Defendant's Character in Criminal Cases

The prosecution cannot introduce evidence of a defendant's bad character to prove that the defendant has a propensity to have committed the crime in question.

Exception: The defendant may present positive character evidence that is inconsistent with the type of crime being charged, either through reputation or opinion testimony. The prosecution may then introduce negative character evidence to rebut the defendant's evidence.

29

Evidence of Victim's Character

A criminal defendant may introduce evidence of the victim's character that is relevant to one of the defenses asserted, either by opinion testimony or reputation evidence.

Ty prosecution can then offer victim's good character evidence.

30

Prior Bad Acts

Not admissible to prove conforming conduct.

May use for MIMIC purposes (other than to show propensity)
- Motive
- Intent
- absence of Mistake
- Identity
- Common plan

Prosecution must give the defense reasonable notice if its intent to use at trial

31

Prior Bad Acts: Civil Cases

When character evidence is admissible (an element of a claim or defense), it may be proved by reputation, opinion, or specific instances of conduct

32

Prior Bad Acts: Criminal Cases

When character evidence is admissible, it may be proved by reputation or opinion.

Specific instances of conduct are not admissible unless to prove something other than propensity (MIMIC), or to cross-examine a character witness.

33

Habit and Routine Practice Evidence

Habit refers to the act of a person.
Routine practice refers to the acts of an organization.

Evidence of a person's habit or the routine practice of an organization is admissible to prove conduct in conformity on a particular occasion (propensity).

May be admitted without corroboration or an eyewitness

34

Competence

Every witness is presumed competent unless proven otherwise

35

Oath

All witnesses and interpreters must take an oath or affirmation.

36

Lay Witnesses

Lay witnesses must have personal knowledge

37

Judges as Witnesses

Judges may not testify in a trial over which they preside.

No objection is required under the Plain Error Rule.

38

Jurors As Witnesses

At Trial: May not testify as witness at trial in front of their co-jurors

After the Trial -
May not testify about:
- Statements made during the deliberation;
- The effect of anything on a particular juror's vote; or
- Any juror's mental processes

May testify about:
- Extraneous prejudicial information brought in;
- Outside improper influences;
- Mistakes made in entering the verdict on the form

39

Child Witnessess

The court decides competency (no bright-line rule)

Factors:
- Intelligence
- Ability to distinguish between truth and falsehood
- Understanding the importance of telling the truth

40

Dead Man Statutes

Common law only (Not criminal. Not federal)

A party that has a financial interest in a civil case is prohibited from testifying about a communication or transaction with a dead person whose estate is a party to that suit, and the alleged communication is adverse to the estate.

41

Impeachment

A witness may be impeached by calling witness's credibility into question.

Bases:
- Bias
- Character for untruthfulness
- Inability to perceive what they are testifying about
- Prior inconsistent statements
- Another contradictory witness or evidence

42

How to Impeach a Witness's Character for Truthfulness

Reputation;
Opinion;
Specific Instances

Credibility cannot be discussed until it has been attacked.

Extrinsic evidence of untruthful conduct generally not admissible. Can ask of specific instance on cross if have a good-faith belief in prior misconduct and questioning is not about an arrest.

43

Criminal Convictions

Crimes Involving Dishonesty: admissible subject to 10 year restriction

Crimes Not Involving Dishonestly: admissible if punishable by death or imprisonment for more than a year
- Criminal defendant: only if probative value outweighs the potential prejudicial effect to the defendant
- Other Witnesses: must be admitted unless 403

More than 10 Years Old:
- Only if probative value substantially outweighs risk of unfair prejudice; and
- Proponent gives reasonable notice

44

Inadmissible Conviction Evidence

- Pardoned
- Annulled
- Later found innocent
- Rehabilitated

45

Juvenile Convictions

Not admissible to impeach a defendant.

Non-Defendant: admissible to impeach truthfulness and if:
- offered in a criminal case
- would be admissible if an adult conviction would be admissible; and
- admitting the evidence is necessary for fair determination of guilt or innocence

46

Manner of Proving Prior Conviction

- Witness's admission on cross or direct; or
- extrinsic evidence

47

Prior Inconsistent Statement

May be used to impeach a witness.

Does not need to be a sworn statement.

Attorney does not need to show the prior statement to the witness, but must show to opposing counsel if requested.

EE only if witness given opportunity to explain or deny (No opportunity to explain or deny if impeaching hearsay, or admission of party opponent). Cannot be used regarding a collateral matter.

48

Bias

Bases:
- Witness has a relationship to the party or victim
- Witness has an interest in the outcome of a case
- Witness has an interest in testifying

Foundation must be laid before EE introduced.

49

Sensory Competence

Witness may be impeached by showing witness has a deficiency in ability to perceive, recall, or relate information

50

Impeaching a Hearsay Declarant

May be impeached by any evidence that would have been admissible had the declarant testified

51

Rehabilitation

A witness who has been impeached can be rehabilitated by:
- explanation on redirect
- reputation or opinion evidence with regard to character for truthfulness (if witness's character was attacked)
- prior consistent statement offered to rebut a charge that the witness lied

52

Religious Opinions and Beliefs

May be used to show bias or interest, but may not be used to attack or support a witness's credibility

53

Contradictory Evidence

A witness may be impeached by evidence that is contradictory to the witness's testimony

54

Collateral Issues

Generally, a witness's credibility may not be impeached by introducing extrinsic evidence on a collateral matter.

55

Present Recollection Refreshed

A witness may examine any item to refresh the witness's present recollection.

The witness may not use the object or item while testifying.

The item is not introduced into evidence.

Opposing counsel has a right to see and inspect the refreshing item and may introduce the item into evidence (usually for impeachment)

56

Past Recollection Recorded

A party may admit into evidence a memorandum or record regarding a matter about which a witness once had knowledge but now has insufficient recollection upon which to testify.

57

Lay Witness Opinion Testimony

Generally, a lay witness may not testify about an opinion unless it is a common sense impression based on the witness's perception.

Must be helpful to clear the understanding of a fact at issue

Cannot be scientific, technical, or specialized in nature

58

Expert Witness Subject Matter

Before an expert witness can testify, the court must find that subject matter of the testimony is:

Reliable - Scientific, technical, or specialized

Relevant - will help the trier of fact understand evidence or a fact

59

Qualified Expert

To be qualified to testify as an expert, witness must show:

1. Witness is qualified by possessing knowledge, skill, experience, training, or education;
2. Testimony is based on sufficient facts or data;
3. Testimony is the product of reliable principles and methods;
4. Witness applied those principles and methods to the facts of the case

Experts must also possess a reasonable degree of certainty

60

Experts and Ultimate Issue

An expert may give an opinion on an ultimate issue (including a defendant's state of mine)

An expert cannot give an opinion on whether a criminal defendant had the requisite mental state for the crime charged

61

Basis of an Expert's Opinion

- Personal observations
- Data that was provided

62

Court-Appointed Experts

A court may appoint an expert

Court must inform expert of expert's duties

Expert must advise both parties of findings

Each party may depose a court-appointed expert

63

Tangible Evidence

Tangible evidence is any evidence not presented as oral or verbal in form.

All tangible evidence must be authenticated.

Authentication is showing that an object is what it is claimed to be.

64

Authenticating Physical Evidence

1. Through personal knowledge of the witness who has familiarity with the object

2. By chain of custody

65

Authenticating Reproduction

A witness who has personal knowledge must testify that it accurately depicts what it is claimed to represent

66

Authenticating X-Rays or Electrocardiograms

1. Accurate process;
2. Machine was working properly;
3. The operator was qualified; and
4. Chain of custody is shown

67

Common Methods of Authenticating Documentary Evidence

1. Stipulation

2. Testimony of an eye-witness

3. Handwriting verification

68

Ancient Documents

1) More than 20 years old;
2) In a condition that is unlikely to create suspicion about its authenticity; and
3) Found in a place it would likely be found.

69

Public Records

1. Recorded or filed in a public office as authorized by law; or
2. The document is from the office where items of that kind are kept.

70

Reply Letter Doctrine

Written response to an original communication; and
Unlikely it was forged by someone else

71

Handwriting Verification

Comparison: Expert witness or the trier of fact compares the writing in question with another writing that has been proven to be genuine

Personal Knowledge: A non-expert witness with personal knowledge of the handwriting who recognized the handwriting (*cannot have become familiar for litigation purposes)

72

Self-Authenticating Documents

No Extrinsic Proof Required

i. Public documents bearing a seal;
ii. Certified copies of public records;
iii. Official publications issued by a public authority;
iv. Newpapers or periodicals;
v. Trade inscriptions;
vi. Notarized or acknowledged documents;
vii. Commercial paper;
viii. Documents declared by federal statute to be authentic;
ix. Records of regularly conducted business activity

73

Voice Identification

May be authenticated by any person who has heard the voice at any time, even if made for purpose of litigation.

Makes no difference whether mechanical, electronic, or live.

74

Telephone Authentication

A party to a telephone conversation may authenticate statements made during that conversation by testifying that:
1. he recognized the speaker's voice;
2. the speaker knew fact s that only a particular person would have known;
3. the caller dialed the number that was believed to be the speaker's and the speaker identified himself upon answering; or
4. the caller dialed a business number and spoke to the person about regular business

75

Best Evidence Rule

When the material terms of a writing are at issue or a witness is relying on the document while testifying, an original any counterpart intended to have the same effect as the original is required

76

Best Evidence Rule Exceptions

A duplicate is admissible if produces accurately unless a genuine question of authenticity of the original arises or it is unfair to admit the duplicate.

A duplicate will suffice if:
- all originals are lost or destroyed
- the original could not be obtained through any judicial process
- the party against whom it is being offered is in control and fails to produce when they had notice
- collateral matter

77

Copies of Public Records

Best Evidence Exception

Must be certified or, if non-certified, there must be testimony by someone who saw the original.

If no copies available, court may allow other means to prove the issue

78

Summaries or a Chart of an Original

Exception to Best Evidence

Allowed if proponent makes originals or duplicates available for copy and examination

79

Admission by a Party

Best Evidence Exception

Can be a substitute for an original if the contents of a writing, recording, or photograph are proven by testimony of the party against whom it is being offered

80

Role of the Court in the Best Evidence Rule

The court determines whether the Best Evidence Rule has been satisfied

81

Parol Evidence Rule

Exclusionary rule that relates to written contracts.

Assumes that a written contract represents the complete agreement.

Complete integration: If the document contains some but not all of the terms, extrinsic evidence is allowed at trial and PER would not apply

82

Privileges: General

When there is potential evidence, but an individual has the right to hold the evidence secret and cannot be forced to provide the information.

The FRE contain no specific privilege provisions. State law applies.

A claim of privilege applies at all stages of a case.

83

Confidential Communication

For a communication to be privileged, ti must be confidential.

The privilege is destroyed if overheard by an unwanted third party unless the third party is an unknown eavesdropper or if the party's presence is necessary

84

Privilege Waiver

- If holder fails to timely assert privilege
- Voluntary disclosure
- Contractual waiver

85

Spousal Privilege

Two distinct privileges:
Spousal immunity and Confidential marital communications

86

Spousal Immunity

A married person may not be compelled to testify against her spouse in any criminal proceeding, including a grand jury.

Federal and Majority: The witness spouse holds the privilege
Minority: The party spouse holds the privilege and may prevent spouse from testifying.

Only during a valid marriage (expires on divorce or annulment)
Applies to testimony about events occurring before and during the marriage.

87

Confidential Marital Communication

A communication made between spouses while married is privileged.

Majority: Both spouses hold the privilege

Applies only to communications made during the marriage.

Applies to both civil and criminal cases.

Extends beyond the end of marriage.

88

Spousal Privilege Exceptions

- When one spouse is suing the other spouse

- When one spouse is charged with a crime against the other spouse

-When one spouse is charged with a crime against the children of either spouse

89

Attorney-Client Privilege

Communications intended to be confidential for legal advice or representation

Third party kills privilege unless client representatives

Held by the client and can only be waived by the client. Attorney must assert. Privilege exists until waived and survives the client's death.

90

Not covered under Attorney-Client Privilege

- Fee Arrangement
- Identity of client
- Underlying facts of employment
- Statement made to an attorney who is acting in another capacity

91

Corporate Attorney-Client Privilege

Federal: Non-control group communications can be privileged if they are communicating within their employment duties and for the purpose of seeking legal advice for the corporation

92

Attorney-Client Privilege Exceptions

- Communications made to enable or aid commission of what the client know or should have known was a crime or fraud
- Communications regarding disputes between attorney and client
- Communications between two parties who claim the same deceased client
- Communications between co-clients of the same attorney who are now adverse

93

Inadvertent disclosure

No waiver of privilege in a federal proceeding if holder:
- took reasonable steps to prevent disclosure; and
- took reasonable steps to rectify disclosure

94

Intentional Disclosure

Acts as a waiver of the privilege

Extends to undisclosed information if:
- both sets of information concern the same subject; and
- fairness requires disclosure of both

95

Disclosure in State Proceeding

Does not act as a waiver in later federal proceeding if:
- would not have been a waiver in federal courts; or
- was not a disclosure under state law

(federal court must apply most protective law)

96

Physician-Patient Privilege

Not privileged under common law

Most states protect by statute, so long as communication is for medical treatment

Patient holds the privilege; only patient can waive

97

Situations Where Physician-Patient Privilege Does Not Exist

1. Information was acquired for reasons other than treatment
2. Patient's physical condition is at issue in the case
3. Communication was made as part of the commission of a crime or tort
4. A dispute exists between the physician and the patient
5. The patient contractually agreed to waive the privilege
6. A case is brought in federal court and state law does not apply

98

What if an attorney sends a client to a doctor?

Communication is not privileged unless treatment is being contemplated.

99

Psychotherapist-Patient Privilege

Most states recognize (more widely recognized than Doctor-Patient).
Between psychiatrist, psychologist, or licensed social worker and a patient.

Patient hold privilege

No privilege if:
- patient's mental condition is at issue
- communication was part of a court-ordered exam
- case is a commitment proceeding against the patient

100

Self-Incrimination

The Fifth Amendment allows a witness to refuse to give testimony that may tend to incriminate him.
-Only covers current testimony (not prior statements)
-Does not apply to physical characteristics or mannerisms
- Only held by human beings, not corporations or other organizations

101

Fifth Amendment Comment

Criminal Case: A prosecutor cannot comment on a defendant's failure to take the stand or suggest the jury should draw a negative inference therefrom

Civil Case: Opposing counsel can ask the jury to draw a negative inference from a witness's claim of privilege

102

Fifth Amendment and Immunity

A witness may be compelled to provide incriminating testimony if the government grants him immunity from prosecution

Transactional: Protection regards entire transaction

Use: Protection only covers the compelled statements

If the government does prosecute the witness, the government has the burden to show in a later proceeding that compelled testimony did not provide an investigative lead to the prosecution

103

Clergy-Penitent

A confidential communication made by a penitent to a member of the clergy is privileged.

The penitent holds the privilege; clergy member asserts

104

Accountant-Client

Not available at common law, but many jurisdictions recognize by statute

Similar to attorney-client privilege

105

Professional Journalist Privilege

No federal privilege protecting a journalist's source of information

Some states have enacted statutes extending protection to journalists

106

Government Privileges

The government, at all levels, is privileged against disclosing the identity of a criminal informant in a criminal case and the communication o official information by or to public officials

107

Subsequent Remedial Measures

Public policy exclusion that prohibits the admission of measures taken after injury or harm that make future injury less likely.

Inadmissible to prove negligence, a defective product or design, or culpable conduct.

Admissible to show ownership/control of the property or for impeachment

108

Compromise Offers or Negotiations

Public policy exclusion

Offers, conduct or statements made during negotiations are not admissible to prove a disputed claim, an amount, OR for impeachment

Exceptions:
- Negotiations with governmental agencies are admissible in a later criminal case
- Admissible to prove bias, prejudice of a witness, obstruction, or to negate a claim of delay

109

Offers to Pay Medical Expenses

Not admissible to prove liability for plaintiff's injuries

Any conduct or statements that accompany the payment or the offer to pay would be admissible

110

Plea Negotiations

Civil and Criminal, the following are inadmissible against the defendant:
- withdrawn guilty
- please of nolo contendere
- statements made while negotiating with the DA
- statements made during plea proceedings

Exceptions: pleas or negotiation statements are admissible if fairness dictates or at perjury hearings

May be waived knowingly or voluntarily

111

Liability Insurance

Evidence of insurance or lack of insurance is not admissible to prove negligence or wrongful conduct

Admissible if it goes to agency, ownership, control, or witness bias and prejudice

112

Rape Shield Law

A victim's sexual behavior or predisposition is not admissible in any civil or criminal proceeding involving sexual misconduct.

CANNOT be used for impeachment for substantive purposes

Sexual Behavior: intercourse, diseases, use of contraceptives
Predisposition: the way a person dresses, speech, lifestyle

113

Rape Shield Exceptions in Criminal Cases

Sexual behavior of the victim can be used:
- to prove source of semen or source of injury
- to prove victim's consent
- if offered by the prosecution
- if exclusion would violate Sixth Amendment

114

Rape Shield Exceptions in Civil Cases

Victim's reputation admissible only if victim places it in controversy

Victim's sexual behavior is admissible if the probative value substantially outweighs any unfair prejudice

Restriction on this evidence only applies if the party is a victim of sexual misconduct

115

Procedure to Use Victim's Sexual Conduct

Notice requirement for intent to use the evidence: At least 14 days before trial

116

Defendant's Sexual Conduct

Criminal: Evidence of defendant's other sexual assault is admissible when defendant is accused of committing sexual assault, rape, or child molestation (propensity allowed; subject to 403)
-Not limited to convictions, can include prior arrests and unreported incidents

15 days notice before trial

117

Hearsay

An out-of-court statement that is offered to prove the truth of the matter asserted.

Generally inadmissible.

Declarant: must be a person.
Statement: must be an assertion.

118

Not Offered to Prove the Matter Asserted

1. Legally Operative Fact: a statement offered to prove that the statement itself was made, regardless of its truth
2. To Show the Effect on the Listener
3. Offered to Show Declarant's Mental State or State of Mind
4. Impeachment

119

Multiple Hearsay

Hearsay within hearsay

May be admissible if all levels of hearsay fall within an exception

120

801(d) Non-Hearsay

1. Prior Inconsistent Statements
2. Prior Consistent Statements
3. Prior Statements of Identification
4. Party Admissions

121

Non-Hearsay: Prior Inconsistent Statements

Admissible as substantive evidence if:

1. Previously made under penalty of perjury; and
2. Inconsistent with the present testimony being given at trial

If not previously given under oath, can be offered for impeachment purposes, not for the substance of what was previously said

122

Non-Hearsay: Prior Consistent Statements

Only admissible to rebut a charge or claim that the declarant is fabricating or has recent motive to fabricate the statement in court

Admissible regardless of whether made under oath or not
- Must have been made before the declarant had reason to fabricate the statement

123

Non-Hearsay: Prior Statements of Identification

A previous out-of-court identification of a person after seeing them is admissible as substantive evidence

*Witness must be available for cross-examination

124

Non-Hearsay: Party Admissions

A prior out-of-court statement made by a party (or representative) to the current litigation that is offered by the opposing party against that party is not hearsay.

Need not have been against the party's interest at the time the statement was made.

Must be admitted even if it is not based on personal knowledge or within the party's normal scope of knowledge

125

Judicial Admissions

Available if made:

- During discovery process
- By Stipulation
- During a proceeding
- Unless they are amended

126

Adoptive Admission

A statement made by another person (not the party) that a party expressly or impliedly adopts as his own can be used in court

Silence is considered an adoptive admission if:
1. the party was present and heard and understood the statement;
2. the party had the ability and opportunity to deny it; and
3. A reasonable person who is similarly situated would have denied the statement

127

Vicarious Admission

An out-of-court statement made by one person that may be imputed to an opposing party based upon certain relationships between the parties.

Employee or Agent: Qualifies as an opposing party's statement if
- made within the scope of employment; and
- during the course of the relationship

Statement made by an authorized speaker

Co-Conspiritor: A statement made by a co-conspirator is admissible if it is made during and in furtherance of the conspiracy

128

Five Unavailable Declarant Exceptions

1. Former Testimony
2. Dying Declarations
3. Statements Against Interest
4. Statement of Personal or Family History
5. Declarant Unavailable Due to Wrongdoing

129

Hearsay Exception: Former Testimony

Testimony will be admissible if:
- declarant is unavailable;
- the statement was prior testimony given at trial, hearing, or deposition; and
- the opposing party had an opportunity and similar motive to develop the testimony through cross- or direct examination

Prior testimony at a different case does not qualify as former testimony

130

Hearsay Exception: Dying Declaration

Statement will be admissible at trial if:
- the declarant is unavailable; and
- the declarant believed her death was imminent when she made the statement; and
- the statement pertains to the cause or the circumstances of her death

131

Hearsay Exception: Statements Against Interest

Statement is admissible if:
- declarant unavailable;
- the statement is agains the declarant's self interest; and
- a reasonable person would not have made the statement unless he believed it was true

Against self interest: pecuniary or proprietary interest; or exposes declarant to civil or criminal liability

132

Hearsay Exception: Statement of Personal or Family History

A statement concerning the unavailable declarant's own birth, adoption, marriage, divorce, etc., is not excluded

133

Hearsay Exception: Declarant Unavailable Due to Wrongdoing

A statement that is offered against a party who is wrongfully responsible for the declarant's unavailability is admissible.

134

Hearsay Exceptions Where Declarant's Availability is Immaterial

1. Present Sense Impression
2. Excited Utterance
3. Statements of Mental, Emotional, or Physical Condition
4. Statements Made for Purposes of Medical Diagnosis or Treatment
5. Recorded Recollection
6. Business Records
7. Public Records
8. Learned Treatise
9. Judgment of a Previous Conviction

135

Hearsay Exception: Present Sense Impression

A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived the event.

Availability Immaterial

136

Hearsay Exception: Excited Utterance

A statement made about a startling event or condition while the declarant is under the stress of excitement caused by the event.

Statement must relate to the event, but the declarant need not be a participant in the event

Availability Immaterial

137

Hearsay Exception: Statements of Mental, Emotional, or Physical condition

A statement of a declarant's then-existing state of mind, emotional, sensory, or physical condition used to show the declarant acted in conformity therewith
(Present intent, motive, plat)

Physical condition: can be used to prove that the condition existed, cannot be used to prove the cause of the condition

Availability immaterial

138

Hearsay Exception: Statements Made for Purposes of Medical Diagnosis or Treatment

An out-of-court statement is admissible if it is made for medical diagnosis or treatment.

Can include statements of past or present symptoms.
Also admissible if it goes to the cause of the injury.

Availability immaterial

139

Hearsay Exception: Recorded Recollection

- The record is about a matter the witness once knew about;
- The record was made or adopted by the witness when the matter was fresh in his mind;
- The record accurately reflects the witness's knowledge; and
- The witness now cannot recall the events well enough to testify, even after consulting the writing while on the stand

*may be read into evidence, however the proponent cannot enter the record as an exhibit

140

Hearsay Exception: Business Records

A record is not excluded as hearsay if:
- record is kept in the course of regularly conducted business activity;
- the making of the record was a regular practice of the activity; and
- the record was made at or near the time by someone with knowledge

Authentication:
- by the custodian
- qualified witness
- records may be self-authenticated

141

Absence of Record

May be admissible to prove the event did not occur.

Admissible if a record is usually kept for that type of matter.

142

Hearsay Exception: Public Records

Applies to a record or a statement of a public office or agency that sets out
- the activities of office or agency; or
- an observation of a person who has a duty to report that observation; or
- factual findings of a legal investigation in a civil case, or in a criminal case if it is against the government

143

Hearsay Exception: Learned Treatise

Statement in a treatise, periodical, pamphlet, etc.

Not excluded if:
- an expert relied on the statement during direct or expert was cross examined on it; and
- if publication is established as a reliable authority (by expert, by another expert, by judicial notice)

If admitted, statement is read into evidence; the publication is NOT admitted as an exhibit

144

Hearsay Exception: Judgment of a Previous Conviction

Not excluded if:
- Judgment was entered after trial or a guilty plea;
- Punishable by death or imprisonment greater than one year; and
- The evidence is offered to prove a fact essential to sustain the judgment

145

Other Enumerated Hearsay Exceptions

o Records of religious organizations regarding personal or family history o Marriage and baptismal certificates
o Family records (e.g., family Bible)
o Records of documents affecting an interest in property
o Ancient documents (authenticated documents in existence at least 20 years)
o Market reports
o Reputation concerning personal or family history, boundaries, general history, or character o Judgments regarding proof of matters of personal, family, or general history if the matter
was essential to the judgment and could be proved by evidence of reputation

146

Hearsay Residual/Catch-All Exception

A hearsay statement may be admissible under this exception if:
1. Equivalent circumstantial guarantees of trust;
2. It is offered as evidence of a material fact;
3. It is more probative than any other evidence on the point; and
4. Admitting the hearsay statement will best serve the purpose of the FRE and the interests of justice

*Reasonable notice must be given to opposing counsel of the intent to use this

147

Sixth Amendment

Confrontation Clause and Hearsay Evidence

A testimonial statement is admissible agains a criminal defendant only if:
- Declarant is unavailable; and
- Defendant had an opportunity to cross the declarant prior to trial

148

Fourteenth Amendment

The Due Process Clause may prevent application of a hearsay rule when the rule would restrict the defendant's ability to mount a defense

149

Constitutional Limitations - Face-to-Face Confrontation

The Confrontation Clause generally requires a face-to-face confrontation between the defendant and a witness.

Exception: When there is an important public interest, such as protecting a child