Evidence COMPLETE COURSE Flashcards
(220 cards)
1
Q
What is the general rule about relevant E?
RULE 402
A
Relevant evidence is admissible UNLESS any of the following provides otherwise: * US Constitution * Federal Statute * Rules of Evidence OR * Other rules, as directed by SCOTUS
Liberal approach to admissibility
2
Q
What is the test for relevant E?
RULE 401
A
Evidence is relevant if:
(a) It has any tendency to make a fact more or less probable that it would without the evidence
[–> It is relevant even if it does not conclusively establish any fact on its own
* Anything that could shift a fact finder’s view of facts even the smallest degree]
AND
(b) The fact is of consequence in determining the action
3
Q
What does “of consequence” mean in terms of what is relevant?
A
- Evidence is not relevant simply because it makes some fact more or less probable
- Must relate to the cause of action
- Very low threshold
- Encourages judges to more readily find evidence admissible
4
Q
What is a limiting instruction?
A
- The notion of using evidence for one purpose but not for others is difficult for jurors to understand
5
Q
What is the rule of admitting E for a particular purpose?
A
- Permits parties to introduce evidence for one purpose but not for others
- -> Judge usually gives the jury LIMITING INSTRUCTIONS to explain that the evidence may be used for some purposes but not for others
- -> If evidence is admissible only for limited purposes or against particular parties, and a party requests an instruction making those limits clear, THE JUDGE MUST GIVE THE INSTRUCTION
6
Q
Introducing Unrelated Misdeeds as E
A
- Parties often attempt to influence the jury by introducing evidence that an opposing party has engaged in illegal or immoral behavior
- -> Courts are especially reluctant to admit evidence of “unrelated” misdeed in discrimination lawsuits
- -> People who hold one type of bias are likely to harbor other biases
7
Q
What is “Opening The Door?”
A
- Irrelevant evidence sometimes becomes relevant to rebut claims made by another party
- If plaintiff creates a new fact of consequence (mother saying financial hardship when insurance is paying her), allows the other side to bring up who has been paying the bills and that there is no financial hardship
8
Q
What is hindsight and its effect on relevant E?
A
- Cases in which one individual uses deadly force against another, believing that the other poses a life-threatening danger
- -> Liability based on subjective belief of threat
- -> THEREFORE, courts try to eliminate the effect of hindsight
9
Q
What is negative E?
A
The dog did not bark
- Some judges will allow it if it has some tendency toward a fact
- -> Criminal: appropriate to rule generously in favor of evidence offered by criminal defendants
- -> The jury can reject evidence it finds self-serving or unpersuasive
10
Q
What are pre-trial motions?
A
- Motions focus particularly on whether or not information is admissible under the Rules of Evidence
- -> Motions in Limine
- -> Motion to Suppress
- -> Motion for Summary Judgement
11
Q
What is a Motion in Limine and what are the benefits?
A
- Motions focus particularly on whether or not information is admissible under the Rules of Evidence
- -> Either to exclude an opponent’s piece of evidence or to secure permission to introduce a potentially contested piece of their own evidence
- -> 3 tactical advantages
* Plan trial strategy
* Make more lengthy and sophisticated legal arguments
* Jurors may never know that the attorney attempted to keep them from hearing certain evidence
12
Q
What is a motion to suppress?
A
- Is not arguing that admitting the evidence will violate the Rules of Evidence
- But, claiming that opponent’s evidence was illegally obtained
13
Q
What is a motion for summary judgement?
A
- No genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law
- Judges often make evidentiary rulings when deciding these motions
14
Q
What is the rule of E that governs prejudice, confusion, or waste of time?
RULE 403
A
- The court MAY (courts discretion) exclude relevant evidence if its probative value is SUBSTANTIALLY OUTWEIGHED by a danger of one or more of the following:
- -> UNFAIR prejudice
- -> Confusing the issues, misleading the jury
- -> Undue delay, wasting time, OR needlessly presenting cumulative evidence
15
Q
What does SUBSTANTIALLY OUTWEIGHED mean in terms of Rule 403?
A
- Balance between probative value and unfair prejudice
- Recognizes a firm tilt toward admissibility
- -> THEREFORE, must substantially outweigh its probative value
- Evenly balanced?
- -> Must be admitted
16
Q
What does UNFAIR PREJUDICE mean in terms of Rule 403?
A
- All evidence is prejudicial
- Must be unfair to allow exclusion
- -> Tempt the jury to decide the case on grounds different from the law
17
Q
What are the 5 factors that judges consider when applying Rule 403?
A
- While it trigger an emotional reaction from the jury
- Will the jury overrate the evidence
- Is it closely related to the elements of the case
- Is there a less prejudicial way of proving the same facts
- Will introducing the evidence reduce prejudice
18
Q
What is a “stipulation?”
A
Facts related to an element of a crime or civil claim are of consequence even if the parties do not actually dispute that element
19
Q
What are the 2 goals of Rules 407-411?
A
- Two types of goals for all the rules:
- -> Promotes a socially valuable activity by protecting those who engage in that activity from evidence that might be used against them
- -> Evidence targeted by these rules tends to cause a high degree of unfair prejudice, while contributing little probative value
20
Q
What is the Rule of E for admitting subsequent remedial measures?
RULE 407
A
- When MEASURES are taken that would have made an earlier injury or harm LESS LIKELY TO OCCUR, E of the SUBSEQUENT measures is NOT ADMISSIBLE to prove:
–> Negligence
–> Culpable conduct
–> A defect in a product or its design
OR
–> A need for a warning or instruction - BUT the court may admit this E for ANOTHER PURPOSE, such as:
–> Impeachment
OR
–> If DISPUTED, proving OWNERSHIP, CONTROL OR FEASIBILITY of precautionary measures
21
Q
What are the problems with admitting E of subsequent remedial measures?
A
Two problems:
- Creates perverse incentive for Ds
- -> Want to encourage Ds to make repairs promptly w/o worrying about the effects of those repairs on pending litigation
- May give too much weight
- -> D’s post-accident conduct often bears little relationship to her pre-accident negligence
- -> Causes unfair prejudice that substantially outweighs its probative value
22
Q
In subsequent remedial measures, what is considered a “measure?”
A
- Would have made an earlier injury or harm LESS LIKELY to occur
- A D doesn’t have to change a product or dangerous condition directly to engage in a remedial measure
23
Q
When is a remedial measure considered “subsequent?”
A
- It is only AFTER a potential P has been injured
- -> Correcting a dangerous defect may avoid future injuries, litigation, and liability and shouldn’t be discouraged because of fear that the remedial action will be used against them
- Eliminates this disincentive, encouraging Ds to take remedial measures as quickly as possible
- -> Not designed to shield Ds from liability
- -> Targets only a very specific situation in which pending litigation may discourage remedial measures
24
Q
What is the “ownership or control” exception to admitting subsequent remedial measures?
A
- D claims that it did not own or control the instrument that injured the P, the P may introduce evidence of subsequent remedial measures
- -> Not to prove that the original condition of the instrument was reasonable dangerous but rather as evidence that the D did own or control that instrument
25
Remedial Measures by Non-Parties
Applies only when one party seeks to introduce E of a measure carried out by another party
- -> Non-parties have no fear of implicitly admitting liability so they don’t need the incentive
* Excludes E of subsequent remedial measures ONLY WHEN one party offers E of repairs made by another party
26
Exclusion of Relevant E Based on Public Policy
5 Types of E excluded b/c it's against public policy:
* Insurance
* Subsequent Remedial Measures
* Settlement Offers
* Payment of Medical Expenses
* Plea Agreements
27
When is insurance inadmissible?
RULE 411: Governs Liability Insurance
* Prohibits its use to PROVE that a person acted "negligently or otherwise wrongfully."
--> WHY? Jury might decide case on improper grounds
28
When is insurance admissible?
If the E of insurance is relevant FOR ANOTHER PURPOSE, then it would be admissible for that purpose.
* No exclusive list of what is permissible BUT:
- proving W bias/prejudice
- proving agency
- OR proving ownership or control
29
"To Prove a W Bias/Prejudice"
Permissible use admitting E that is against public policy
| --> Someone working for the insurance co. that is testifying for the insurance company
30
"To Prove Ownership or Control"
Permissible use admitting E that is against public policy
| --> a vehicle in an accident that has a dispute over who actually owns it
31
When is a Settlement Offer Inadmissible?
RULE 408
Prohibits E of compromise, offers, and negotiation in these instances:
* to prove or disprove the validity of a disputed claim
* to prove or disprove the amount of a disputed claim
* to impeach by a prior inconsistent statement
*OR*
* to impeach by a contradiction
32
Settlement Offers: Claim Requirement
Rule REQUIRES there to be a disputed claim.
Claim = Fact specific, and tethered to the rationales underlying the rule, when there is an actual dispute or difference of opinion about the party's liability for or amount of claim
* Rule excludes virtually anything that is said or disclosed during negotiation
33
Settlement Offers: The Dispute Requirement
Rule REQUIRES either a disputee as to liability or amount
34
When are Settlement Offers Admissible?
Permitted uses include:
* to prove bias or prejudice
* to negate a contention of UNDUE DELAY
* to prove an effort to obstruct a criminal investigation or prosecution
* to interpret a settlement agreement
35
When is Payment of Medical Expenses Inadmissible?
RULE 409
| "Not admissible to prove liability for injury."
36
When is Payment of Medical Expenses Admissible?
Assuming it's relevant:
| * Such E will be admitted when it is offered to prove something OTHER THAN liability for the injury
37
When are Plea Agreements Inadmissible?
RULE 410
In a civil or criminal case:
* E of the following is NOT ADMISSIBLE against the D who made the plea or participated in the plea discussion:
(1) a guilty plea that was later withdrawn
(2) a nolo contendere plea
(3) a statement made during a proceeding on EITHER of those pleas
-OR-
(4) a statement made during plea discussions WITH AN ATTORNEY FROM THE PROSECUTING AUTHORITY
--> IF the discussion DID NOT RESULT in a guilty plea
-OR-
--> they resulted in a later withdrawn guilty plea
38
When is a Plea Agreement Admissible?
A guilty plea that is later withdrawn OR a nolo contendere plea are NEVER ADMISSIBLE.
Others may be admitted because of the language of the rule.
39
Character E
Generalized information about a person's behavior - SUCH AS information that the D is a criminal - is GENERALLY INADMISSIBLE
40
Character E; Civil Cases
| * TO PROVE CONFORMING CONDUCT
Generally inadmissible to prove conforming conduct:
* the person acted in accordance with that character or character trait on a particular occasion.
- -> EXCEPTION:
* E concerning past sexual assault or child molestation by a D in a case in which the claim for relief is based on D's sexual misconduct
* E concerning the past sexual behavior of a victim of sexual misconduct is ADMISSIBLE IN LIMITED CIRCUMSTANCES
41
Character E; Civil Cases
| * CHARACTER AT ISSUE
Character E is ADMISSIBLE when character is an ESSTENTIAL ELEMENT of a claim or D
(Such as: defamation, negligent hiring, child custody)
42
Character E; Criminal Cases
| * D CHARACTER - BY PROSECUTION
Prosecution is NOT PERMITTED to introduce E of a D's BAD CHARACTER to prove that the D has a PROPENSITY to commit crimes AND THEREFORE is likely to have committed the crime in question
43
Character E; Criminal Cases
| * D CHARACTER - BY D
A D is PERMITTED to introduce E of his GOOD CHARACTER as being inconsistent with the type of crime charged.
* MUST be in the form of:
- -> REPUTATION testimony
- -> OR OPINION testimony
44
What is REPUTATION TESTIMONY?
A D's reputation in the community.
| * includes people with whom the D engages on a REGULAR BASIS
45
Character E; Criminal Cases
| * D OPENS THE DOOR
If the D offers E of being of good character, he OPENS THE DOOR for the prosecution to rebut the D's claims by attacking the D's character.
--> Can also be done if D offers E of V's bad character
IMPORTANT NOTE: Prosecution's E regarding the D MUST RELATE to the same character trait that the D's E was about.
46
Character E; Criminal Cases
| * V's BAD CHARACTER
Criminal D MAY INTRODUCE reputation or opinion E of the alleged V's character when it is RELEVANT to the defense asserted
47
Character E; Criminal Cases
| * V's GOOD CHARACTER
Prosecution MAY OFFER rebuttal E of the alleged V's good character ONLY AFTER the D has introduced E of the alleged V's bad character
48
Character E; Methods of Proving Character
When admissible:
| * may always be proved by testimony about the person's reputation or in the form of the W's opinion
49
Character E; Impeachment
Character E is admissible for impeachment purposes:
* to show that the W is not a person whose testimony SHOULD BE BELIEVED
- -> W's character for untruthfulness is relevant
50
Bad Acts
```
NOT ADMISSIBLE to prove a person's character in order to show that the person acted in accordance with that character on a particular occasion.
* ADMISSIBLE for other purposes: proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident
RULE 404(b)(2)
```
51
MIMIC E
Bad Acts are ADMISSIBLE:
* MIMIC*
- M = Motive
- I = Intent
- M = Mistake
- I = Identity
- C = Common Plan
52
Bad Acts; Advance Notice
When a criminal D requests:
* the prosecution MUST PROVIDE REASONABLE NOTICE of the general nature of such E that the prosecution intends to offer at trial
* MUST:
- Generally be given before trial
- BUT can be given during trial, when the court, FOR GOOD CAUSE, excuses the lack of pretrial notice
53
Bad Acts: Introduction of SPECIFC Acts as Character E
| --> CIVIL CASES
When character E IS ADMISSIBLE as E in a civil case, it MAY BE PROVED by SPECIFIC INSTANCES of a person's conducts AS WELL AS EITHER:
* testimony about the person's reputation
* OR *
* by testimony in the form of an opinion
54
Bad Acts: Introduction of SPECIFIC Acts as Character E
| --> CRIMINAL CASES
```
When character E IS ADMISSIBLE as E in a criminal case, specific instances of a person's conduct ARE NOT ADMISSIBLE
* Character MUST BE PROVEN by either reputation or opinion testimony
RULE 405(a)
```
55
Bad Acts: Introduction of SPECIFIC Acts as Character E
- -> CRIMINAL CASES
- --> NON-PROPENSITY USE
When a D's bad act is NOT USED TO SHOW the D's criminal propensity BUT FOR ANOTHER PURPOSE, such instance of conduct MAY BE ADMISSIBLE for that purpose
56
Bad Acts: Introduction of SPECIFIC Acts as Character E
- -> CRIMINAL CASES
- --> ESSENTIAL ELEMENT OF THE CRIME CHARGED
```
When character or a character trait is AN ESSENTIAL ELEMENT of the crime charged, the D MAY INTRODUCE RELEVANT SPECIFIC ACTS inconsistent with the crom
RULE 405(b)
```
57
Bad Acts: Introduction of SPECIFIC Acts as Character E
| --> CROSS OF CHARACTER W
```
When a character W is crossed, the court MAY ALLOW a party to inquire into SPECIFIC ACTS committed by the person about whom the W is testifying
FULE 405(a)
```
58
Habit E
E of a person's habit or an organizational routine IS ADMISSIBLE to prove that the person or organization acted IN ACCORDANCE WITH THE HABIT or routine on a particular occasion.
--> May be admitted without corroboration AND without an eyewitness
RULE 406
59
W; Competence
GENERALLY = Every person is presumed to be competent enough to be a W
* Questions of mental competence go to WEIGHT RATHER THAN the admissibility of the testimony
- -> STATE LAW may govern this when in state court
60
W; Personal Knowledge
A non-expert W MUST have PERSONAL KNOWLEDGE of a matter in order to testify about that matter
--> MAY BE ESTABLISHED: W's own testimony AS WELL AS through other means
61
W; Oath or Affirmation
A W MUST give an oath or affirmation to testify truthfully
* MUST BE in a form designed to IMPRESS THAT DUTY onto the W's conscience
- -> An interpreter MUST GIVE an oath or affirmation to make a TRUE TRANSLATION
62
W; Judge as W
The presiding judge is ABSOLUTELY BARRED from testifying as a W in the trial.
* A party is NOT REQUIRED to object in order to preserve the issue
63
W; Juror as W at Trial
MAY NOT TESTIFY as a W at a trial in front of the members of the jury
* If juror called to testify = the opposing party MUST BE GIVEN the opportunity to object OUTSIDE the presence of the jury
* MAY BE called to testify OUTSIDE the presence of the other jurors as to matters that occurred during the trial
- -> Think bribery
64
W; Juror as W after Trial
During an inquiry into the validity of a verdict, a juror GENERALLY MAY NOT TESTIFY about:
* Any statement made or incident that occurred DURING THE COURSE of the jury's deliberations
* The effect of anything upon that juror's, OR ANY OTHER JUROR'S, vote
* OR *
* Any juror's MENTAL PROCESSES concerning the verdict
THERE ARE EXCEPTIONS
65
W; Juror as W after Trial
| --> EXCEPTIONS
A juror MAY TESTIFY about whether:
* Extraneous prejudicial information was brought to the jury's attention
* An outside influence was improperly brought to bear on a juror
* OR *
* A mistake was made in entering the verdict onto the verdict form
- -> DOES NOT EXTEND to mistakes about the consequences of the agreed-upon verdict
66
W; Child as W
Competence of a child depends on:
* His intelligence
* His ability to differentiate b/w the truth and a lie
* AND *
* His understanding of the importance of telling the truth
--> Too young to understand the requirements for telling the truth? Disqualified
--> No specific age at which a person becomes competent
THEREFORE, court makes the determination
67
Improper Questions
1) Compound Question
2) Assumes facts not in E
3) Argumentative
4) Calls for conclusion or opinion
5) Repetitive
68
Compound Question
Question that requires answers to multiple questions is compound and is NOT PERMITTED
69
Assumes Facts NOT in E
Question that assumes a true fact THAT HAS NOT BEEN ESTABLISHED is NOT PERMITTED
70
Argumentative
Question that is INTENDED to provoke an argument, RATHER THAN ELICIT A FACTUAL RESPONSE, is NOT PERMITTED
71
Calls for Conclusion or Opinion
Question that requires the W to draw a conclusion or state an opinion that he is NOT QUALIFIED to make is NOT PERMITTED
72
Repetitive
Question that has BEEN ASKED AND ANSWERED is NOT PERMITTED
| * May allow SOME, particularly on cross
73
Exclusion of Ws
At a party's request OR upon the court's own initiative:
* the court MUST EXCLUDE Ws from the courtroom so that they DO NOT HEAR the testimony of other Ws
EXCEPTIONS APPLY
74
Exclusion of Ws; EXCEPTIONS
1) A party who is a natural person
2) An officer or employee of a party that IS NOT A NATURAL PERSON, after the individual has been designated as the party's rep by its attorney
3) A person whose presence is ESSENTIAL to a party's presentation of its case
--OR--
4) A person, SUCH AS A V, whose presence is PERMITTED BY STATUTE
EXCEPTION: V MAY BE EXCLUDED if the court determines, BY CLEAR AND CONVINCING E, that the V's testimony would be materially altered by the V hearing other testimony
75
Burden of Proof
Two distinct burdens:
* The burden of production
* AND *
* The burden of persuasion
76
Burden of Production
Burden going forward
* MUST PRODUCE legally sufficient E as to each element of a claim or D
* Failure to meet this burden CAN RESULT in a directed verdict AGAINST the party bearing the burden
77
Burden of Persuasion
The degree to which legally sufficient E MUST BE presented to the trier of fact
* Civil Standard
* Criminal Standard
78
Burden of Persuasion; Civil Standard
PREPONDERANCE OF THE E
* more likely to exist than not
* higher standard is CLEAR AND CONVINCING E
- -> the existence of a fact MUST BE HIGHLY probable OR REASONABLY CERTAIN
79
Burden of Persuasion; Criminal Standard
The prosecution MUST PROVE EACH ELEMENT of a crime BEYOND A REASONABLE DOUBT
80
Presumptions
A conclusion that the trier of fact is required to draw upon a party's proof of an underlying fact or set of facts
81
Rebuttal Presumption
May be overcome by E to the contrary
| * Conclusive presumption MAY NOT
82
Relevance
E MUST BE RELEVANT TO BE ADMISSIBLE and all relevant E is admissible UNELSS EXCLUDED BY A SPECIFIC RULE.
* E is relevant if:
- has ANY TENDENCY to make a fact MORE OR LESS probable that it would be without the E
- the fact is OF CONSEQUENCE in determining the action
RULE 401
83
Direct E
Identical to the factual proposition's that it is offered to prove.
* There is no rule that requires the presentation of direct E in order to convict a D
84
Circumstantial E
Tends to INDIRECTLY prove a factual proposition through inference from collateral facts
85
Exclusion of Relevant E
Relevant E MAY BE EXCLUDED by RULE 403
86
Relevance Dependent on the Existence of Facts
When the relevance of E depends upon whether a fact exists:
* Proof MUST BE INTRODUCED SUFFICIENT to support a finding that the fact DOES exist
* Court MAY ADMIT the proposed E on the condition that the proof is introduced later
- -> HOW? Examines ALL of the E and decides whether a jury COULD REASONABLY FIND the conditional fact by preponderance of the E
87
Admission of Irrelevant E; Curative Admission
When a court admits E that is not relevant, the court MAY PERMIT the introduction of additional irrelevant E to rebut the previously admitted E
88
Laying a Foundation
Various types of E ARE ADMISSIBLE SUBJECT to the EXISTENCE of a NECESSARY PREDICATE
- SUCH AS authentication of tangible E
* *Failure MAY BE CHALLENGED by an objection for LACK OF PROPER FOUNDATION
89
Dead Man's Statutes
A party with a financial interest in the outcome COULD NOT TESTIFY in a civil case about a COMMUNICATION OR TRANSACTION with a person whose estate was party to the case AND the testimony was ADVERSE to the estate UNLESS there was a waiver
* DO NOT APPLY IN CRIMINAL CASES
90
Dead Man's Statutes; Protected Parties
To protect a decedent's estate from parties with a financial interest in the estate.
* THEREFORE, protected parties GNERALLY include;
- an heir
- a legatee
- a devisee
- an executor
- OR -
- an administrator of an estate
91
Dead Man's Statutes; Disqualified Ws
Any person DIRECTLY AFFECTED FINANCIALLY by the outcome of the case MAY BE DISAULIFIED as a W under a Dead Man's Statute
* Predecessor in interest to the party MAY BE DISQUALIFIED in order to PREVENT CIRCUMVENTION of the statute by transference of property to a relative or friend
92
Dead Man's Statutes; Interested Person
A personal rep of the decedent or a successor in interest MAY ALSO BE protected as an interested person.
93
Dead Man's Statutes; Waiver
An interested person or protected party MAY WAIVE the protection afforded by this in several ways, including:
* failing to object to the introduction of testimony by a disqualified W
* OR *
* introducing E of a conversation or transaction to which the statute applies
94
Impeachment
A W MAY BE impeached by calling into question credibility.
* Typically challenged based on character for:
- untruthfulness
- bias
- ability to perceive or testify accurately
- OR -
- prior statements that contradict the W's testimony at trial
* *ALSO, W MAY BE IMPEACHED by another W OR by other extrinsic E that contradicts the W's testimony
95
Who may impeach a W?
ANY PARTY, including the party that called the W to testify
| RULE 607
96
Impeachment; W's Character for Truthfulness
| --> Reputation & Opinion Testimony
A W's credibility MAY BE ATTACKED by testimony regarding the W's character for untruthfulness.
*GENERALLY = testimony MUST BE about the W's REPUTATION for having a character for untruthfulness OR in the form of an OPINION of the W's character for untruthfulness
97
Impeachment; W's Character for Truthfulness
| --> Truthful Character E
Credibility of a W MAY NOT BE BOLSTERED
* THEREFORE, E of a W's truthful character is ADMISSIBLE ONLY AFTER the W's character for truthfulness HAS BEEN ATTACKED
- E that impeaches the W BUT DOES NOT SPECIFICALLY attack the W's character for truthfulness DOES NOT constitute an attack
- E generally admissible ONLY IN THE FORM OF REPUTATION OR OPINION
98
Impeachment; W's Character for Truthfulness
| --> Specific Instances of Conduct
NOT ADMISSIBLE to attack or support the W's character for truthfulness
* ON CROSS = W MAY BE asked about SPECIFIC INSTANCES of conduct IF IT IS PROBATIVE for the truthfulness or untruthfulness of:
- the W
- OR -
- another W about whose character the W being crossed has testified
99
Impeachment; W's Character for Truthfulness
| --> Specific Instances of Conduct; LIMITATIONS
Judge MAY REFUSE to allow such questioning if RULE 403 applies.
* Lawyer examining MUST HAVE GOOD FAITH BASIS for believing that the misconduct occurred before asking the W about it.
100
Impeachment; W's Character for Truthfulness
| --> Specific Instances of Conduct; ARREST
W MAY NOT be crossed about having been arrested SOLELY for the purpose of impeaching the W's character for truthfulness
* HOWEVER the W can be crossed about the underlying conduct that lead to the arrest
101
Impeachment; W's Character for Truthfulness
| --> Specific Instances of Conduct; USE OF EXTRINSIC E
On cross, if the W DENIES a specific instance of conduct, EXTRINSIC E IS NOT ADMISSIBLE to prove the instance
* May be admissible under difference grounds (like bias)
102
Impeachment; W's Character for Truthfulness
| --> Specific Instances of Conduct; Privilege Against Self-Incrimination
By testifying on another matter, a W does NOT waive the privilege against self-incrimination for testimony that relates only to the W's character for truthfulness
103
Impeachment; W's Character for Truthfulness
| --> Criminal Conviction
W's character for truthfulness MAY BE IMPEACHED with E that the W has been convicted of a crime SUBJECT TO LIMITATIONS
104
Impeachment; W's Character for Truthfulness
| --> Criminal Conviction; LIMITATIONS
* Crimes involving dishonesty or false statements
* Crimes not involving dishonesty or false statements
* Convictions MORE THAN 10 years old
* Effect of pardon
* Juveniles Adjudications
* Manner of Proof
* Pendency of Appeal
105
Impeachment; W's Character for Truthfulness
--> Criminal Conviction; LIMITATIONS
CRIMES INVOLVING DISHONESTY OR FALSE STATEMENTS
Subject to the 10 year restriction:
* Any W MAY BE IMPEACHED with E that he ahs been convicted of ANY CRIME - felony or misdemeanor - involving DISHONESTY OR FALSE STATEMENT regardless of punishment imposed OR the prejudicial effect of the E
106
Crimes Involving Dishonesty or False Statements
```
If the established elements of the crime REQUIRE PROOF of an act of dishonesty or false statement = Crimes involving dishonesty or false statements
RULE 609(a)(2)
```
107
Impeachment; W's Character for Truthfulness
--> Criminal Conviction; LIMITATIONS
CRIMES NOT INVOLVING DISHONESTY OR FALSE STATEMENTS
A conviction for a crime NOT involving fraud or dishonesty IS ADMISSIBLE to impeach a W ONLY IF the crime is PUNISHABLE BY DEATH OR IMPRISONMENT FOR MORE THAN ONE YEAR
--> Typically, a felony
RULE 609(a)(1)
108
Impeachment; W's Character for Truthfulness
--> Criminal Conviction; LIMITATIONS
CRIMES NOT INVOLVING DISHONESTY OR FALSE STATEMENTS --> CRIMINAL D
When the W is a criminal D, E of a felony conviction for a crime NOT INVOLVING dishonesty or false statement IS ADMISSIBLE ONLY IF its compliant with RULE 403
109
Impeachment; W's Character for Truthfulness
--> Criminal Conviction; LIMITATIONS
CRIMES NOT INVOLVING DISHONESTY OR FALSE STATEMENTS --> Other Ws
For Ws other than criminal D, such E generally MUST BE admitted
* Court does have the discretion to exclude the E when the party objecting to the impeachment SHOWS that it is subject to RULE 403
110
Impeachment; W's Character for Truthfulness
--> Criminal Conviction; LIMITATIONS
CONVICTIONS MORE THAN 10 YEARS OLD
* Time starts from the release of confinement
* E of conviction is admissible ONLY IF:
- follows RULE 403
- proponent gives an adverse party REASONABLE WRITTEN NOTICE of the intent to use such E so that the adverse party has a fair opportunity to contest the use of such E
111
Impeachment; W's Character for Truthfulness
--> Criminal Conviction; LIMITATIONS
EFFECT OF PARDON
E of a W's conviction is NOT ADMISSIBLE if the conviction has been the subject of a pardon, annulment, or other action based on a finding of INNOCENCE
* ALSO APPLIES: To an action based on a finding that the W has been rehabilitated PROVIDED that the W has not been convicted of a later crime punishable by death or imprisonment in excess of one year
112
Impeachment; W's Character for Truthfulness
--> Criminal Conviction; LIMITATIONS
JUVENILE ADJUDICATION
E of a juvenile adjudication IS NOT ADMISSIBLE to impeach a D.
* When the W is NOT the D, E of a juvenile adjudication CAN BE USED to impeach the W's character for truthfulness ONLY IF:
1) it if offered in a criminal case
2) An adult's conviction for that offense would be admissible to attack the adult's credibility
-AND-
3) Admitting the E is necessary to fairly determine guilt or innocence
RULE 609(d)
113
Impeachment; W's Character for Truthfulness
--> Criminal Conviction; LIMITATIONS
MANNER OF PROOF
E of a prior conviction may be produced by way of admission by the W, whether during DIRECT TESTIMONY OR ON CROSS, as well as by extrinsic E
114
Impeachment; W's Character for Truthfulness
--> Criminal Conviction; LIMITATIONS
PENDENCY OF APPEAL
A W's conviction MAY BE USED for impeachment purposes EVEN IF AN APPEAL IS PENDING.
* E of pendency is ALSO admissible
115
Impeachment; W's Character for Truthfulness
| --> Prior Inconsistent Statements
A W's prior statement that is INCONSISTENT w/ a material part of the W's testimony MAY BE USED to impeach the W
116
Impeachment; W's Character for Truthfulness
| --> Prior Inconsistent Statements; DISCLOSING THE STATEMENT TO THE W
A party who is examining a W about the W's prior statement is NOT required to show it or disclose its contents to the W
* BUT the statement MUST BE SHOWS, or its contents disclosed, to an adverse party's attorney UPON REQUEST
RULE 613(a)
117
Impeachment; W's Character for Truthfulness
| --> Prior Inconsistent Statements: EXTRINSIC E
MAY BE INTRODUCED ONLY IF the W is given the opportunity to EXPLAIN OR DENY the statement, AND the opposing party is given the opportunity to EXAMINE THE W about it
* W's opportunity to explain OR deny the statement NEED NOT take place before the statement is admitted into E
118
Impeachment; W's Character for Truthfulness
--> Prior Inconsistent Statements: EXTRINSIC E
EXCEPTIONS TO THE OPPORTUNITY TO EXPLAIN
The opportunity to explain or deny a prior inconsistent statement DOES NOT apply when the statement:
1) impeaches a hearsay declarant
- OR-
2) qualifies as an opposing party's statement
119
Impeachment; W's Character for Truthfulness
--> Prior Inconsistent Statements: EXTRINSIC E
COLLATERAL MATTER
Extrinsic E of a prior inconsistent statement CANNOT BE USED to impeach a W regarding a collateral matter
* Questioning party is BOUND by the W's answer
120
Impeachment; W's Character for Truthfulness
| --> Bias or Interest
B/c a W MAY BE influenced by his relationship to a party, or his interest in the outcome
* THEREFORE, a W MAY BE impeached on these grounds
121
Impeachment; W's Character for Truthfulness
| --> Sensory Competence
A W MAY BE impeached by showing a deficiency in her testimonial capacities to perceive, recall, or relate info.
* Can be achieved by demonstrating that the W is physically or mentally impaired OR through E of outside interference with the W's abilities
122
Impeachment; W's Character for Truthfulness
| --> Rehabilitation of a W
A W who has been impeached may be REHABILITATED by the introduction of rebuttal E to support credibility.
123
Impeachment; W's Character for Truthfulness
| --> Religious Opinions and Beliefs
E of W's religious opinions or beliefs is NOT ADMISSIBLE to attack or support a W's credibility
* MAY BE ADMISSIBLE to show bias or interest
124
Impeachment; W's Character for Truthfulness
| --> Impeachment by Contradictory E
W MAY BE IMPEACHED by E that contradicts the W's testimony
| * Impeachment MAY BE BY extrinsic E as well as by cross
125
Impeachment; W's Character for Truthfulness
| --> Collateral Issues
Court MAY REFUSE to admit E related to a collateral issue UNDER RULE 403
126
Present Recollection Refreshment
W MAY EXAMINE any item to REFRESH the W's present recollection
* W testimony MUST BE BASED on the W's refreshed recollection, NOT ON THE ITEM ITSELF
127
Present Recollection Refreshment; ADVERSE PARTY'S OPTIONS
When item is used to refresh, the adverse party is entitled to have the doc produced, to inspect the doc, to cross the W about it, AND to introduce any relevant portion into E
128
Present Recollection Refreshment; FAILURE TO PRODUCE OR DELIVER THE WRITING
In a criminal case, if the prosecution REFUSES to comply with a court order to produce or deliver a writing, the court MUST STRIKE the W's testimony, OR MAY declare a mistrial, if justice so requires
129
Past Recollection Recorded
A memo or record about a matter that a W once had knowledge of BUT NOW has insufficient recollection of to testify to it MAY BE ADMISSIBLE under hearsay exception
* Record MAY BE READ into E
130
Ways to Accomplish Rehabilitation
* Explanation or clarification on redirect examination
* Reputation or opinion E of his character for truthfulness, IF W's character was attacked on that ground
* OR*
* A prior consistent statement offered to rebut an express or implied charge that the W lied due to improper motive or influence
131
What is Rape Shield Law?
PROHIBITED USES. The following E is NOT ADMISSIBLE in a civil OR criminal proceeding involving alleged sexual misconduct:
(1) E offered to prove that a V engaged in other sexual behavior
OR
(2) E offered to prove a V’s sexual predisposition
132
EXCEPTIONS to Rape Shield Law
(b) EXCEPTIONS
Criminal Cases: The court MAY ADMIT the following E in a criminal case:
(A) E of specific instances of a V’s sexual behavior, if offered to prove that SOMEONE OTHER THAN THE D was the source of semen, injury, or other physical E
(B) E of specific instances of a V’s sexual behavior WITH RESPECT TO THE PERSON ACCUSED of the sexual misconduct
--> IF OFFERED by the D to prove consent
OR
--> IF OFFERED by the prosecutor
AND
(C) E whose exclusion would violate the D’s K rights
133
What is the REVERSE 403 Standard?
Highlights the low probative value of most E related to a P’s sexual conduct in sexual harassment cases
Helps judges ID the unfair prejudice posed by this E
Much of the E rests on an unstated assumption that any indication of a woman’s sexuality signals her openness to all sexual approaches in the workplace
134
What is the rule for Preliminary Questions IN GENERAL?
IN GENERAL: The court MUST DECIDE any preliminary questions about whether a W is qualified, a privilege exists, OR E is admissible. In so deciding, the court is NOT BOUND BY E RULES EXCEPT THOSE OF PRIVILEGE
Both issues of laws and matters of fact
135
Preliminary Questions; RELEVANCE THAT DEPENDS ON A FACT
When the RELEVANCE of E depends on whether a fact exists, proof MUST BE introduced SUFFICIENT to support a finding that the fact DOES EXIST. The court MAY ADMIT the proposed E on the condition that the proof be introduced later
136
How must the court have hearings regarding preliminary questions?
CONDUCTING A HEARING SO THAT THE JURY CANNOT HEAR IT: The court must conduct any hearing on a preliminary question so that the JURY CANNOT HEAR IT IF:
A hearing involved the admissibility of a confession
A D in a criminal case is a W and so requests
OR
Justice so requires
137
Preliminary Questions: Crossing a D in a CRIMINAL CASE
CROSS-EXAMINING A D IN A CRIMINAL CASE: By testifying on a preliminary question, a D in a criminal case DOES NOT BECOME SUBJECT to cross on other issues in the case
138
Preliminary Questions: E RELEVANT TO WEIGHT AND CREDIBILITY
E RELEVANT TO WEIGHT AND CREDIBILITY: This rule does NOT limit a party’s right to introduce before the jury E that is relevant to the weight or credibility of other E.
139
Preliminary Questions; Admissibility UNRELATED to Relevance
Questions of Admissibility Unrelated to Relevance
* Timing of Remedial Measures Under RULE 407
* Whether Repeated Conduct is Propensity or Habit under RULE 406
* Existence of a dispute or compromise negotiations sufficient to invoke RULE 408
* Whether a D offered to pay expenses excluded under RULE 409
* Whether plea discussions occurred that would shield statements under RULE 410
* Whether a questioner has a good faith belief for questions posed on cross under RULE 608 and 405
140
What is Hearsay?
(1) The declarant DOES NOT MAKE while testifying at the CURRENT trial OR hearing
AND
(2) A party offers in E to PROVE the truth of a matter asserted in the statement
--> Declarant's OUT OF COURT statement offered to prove the truth of the matter asserted
141
Who is the DECLARANT in Hearsay?
means person who made the statement
142
Why do courts prefer non-hearsay testimony?
* Secondhand testimony doubles the possibility that one of the reporters is mistaken or lying
* Firsthand testimony can be tested by cross
* The finder of fact can better evaluate the confidence and sincerity of the information if they can watch the individual report it firsthand
* At trial, firsthand testimony is made under oath in a formal, solemn setting
143
What is the basic RULE 802?
Hearsay is NOT ADMISSIBLE UNLESS any of the following provides otherwise:
* Federal Statute
* These Rules
* OR *
* Other rules prescribed by the courts
144
What does "hearsay" mean?
(c) HEARSAY means statement that:
(1) The declarant DOES NOT MAKE while testifying at the CURRENT trial OR hearing
AND
(2) A party offers in E to PROVE the truth of a matter asserted in the statement
145
Who is a "declarant" and a "witness"?
A declarant is the one who is speaking.
* All Ws are declarants
* BUT declarants are Ws only when they testify UNDER OATH at a TRIAL OR HEARING
146
What is a W's "prior statement"?
Testimony not about perception BUT RATHER a prior statement
| ** ANY STATEMENT REFERRING TO A STATEMENT MADE OUTSIDE THE COURTROOM IS POTENTIALLY HEARSAY **
147
What are common purposes for out of court statements that do NOT depend on the "truth of the matter asserted"?
Common purposes for out-of-court statements that do NOT depend on the truth of the matter asserted:
KNOWLEDGE of the speaker
NOTICE to a listener
PUBLICATION in a defamation case
EFFECT on the listener
LEGALLY BINDING STATEMENTS
--> Can be relevant for more than one fact
148
What is a "statement" as it applies to hearsay?
* An oral assertion
* Written assertion
* OR *
* Nonverbal conduct
- -> IF the person intended it as an assertion
149
What are the 4 areas of hearsay exceptions?
EUDRA
* There is an EXEMPTION
* UNAVAILABLE DECLARANT
* There is a RESIDUAL exception
* Issue with the declarant's AVAILABILITY
150
What conditions MUST BE MET to admit any statement under prior statements by a W?
* The declarant MUST TESTIFY at the trial
* AND *
* the declarant MUST BE subject to CROSS on the statement
151
If prior conditions are met, what are the types of PRIOR W statements that are admissible?
* Statements that are inconsistent with the W's courtroom testimony
* Statements that are consistent with that testimony
* AND *
* Pretrial IDs of a person
152
Under the hearsay exemption for a W's prior statements, what conditions must be satisfied in order to exempt a W's prior statement?
* The statement is inconsistent with the W's current testimony
* It was made under penalty of perjury
* AND *
* It occurred at a deposition OR during a trial, hearing, or other proceeding
153
What must a party show in order to rehabilitate a W's credibility with a prior statement?
* That the W's credibility has been attacked
* AND *
* that the prior consistent statement has probative value in rehabilitating credibility
154
Why are pretrial IDs of people an exemption under hearsay?
Out-of-court IDs often are MORE IMPORTANT that in-court ones because memory fades.
155
What is the rule regarding W's subject to cross in regards to admitting prior statements?
* W with real or feigned memory loss are SUBJECT TO CROSS
* W who assert a blanket privilege are NOT SUBJECT TO CROSS
* W who claim privilege selectively MAY BE SUBJECT TO CROSS
156
Elements of Prior Inconsistent Statements being exempt from the rule on hearsay
* Memory failure constitutes inconsistency
* Statement must have been given under penalty of perjury at a hearing, deposition, or other proceeding
* Grand jury hearings count as proceedings, police interrogations DO NOT
157
Elements of Prior Consistent Statements being exempt from the rule on hearsay
* W credibility MUST BE ATTACKED
* Statement MUST BE PROBATIVE for REHABILITATION
* If offered under this rule, prior statement MUST HAVE BEEN MADE before the motive to fabricate or improper influence began
158
Element of Identification as a prior statement being exempt from the rule of hearsay
MUST be an ID of a person
159
Excited Utterance
* An exception to hearsay REGARDLESS of the availability of the W
* statement relating to a STARTLING EVENT OR CONDITION, made while the declarant was UNDER THE STRESS of excitement that it caused
- -> Subjective/Objective standard: Not the same for everyone but must be explained so that a reasonable person can relate
160
Exceptions to Hearsay; THEN-EXISTING Mental, Emotional, or Physical Condition
--> THEN-EXISTING Meaning
* Exception covers ONLY statements made in the THEN-EXISTING state of mind
* Comments like "My leg hurt an hour ago" are not admissible under this exception
161
Exceptions to Hearsay; THEN-EXISTING Mental, Emotional, or Physical Condition
* Regardless of whether the declarant is available as a W
* A statement of the declarant's THEN EXISTING:
- state of mind (such as motive, intent, or plan)
- OR -
- emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health)
- -> BUT NOT INCLUDING a statement or memory or belief TO PROVE the fact remembered or believed UNLESS it relates to the validity or terms of the declarant's will
* pose no risks of erroneous perception or memory and raise limited credibility concerns
162
Exceptions to Hearsay; THEN-EXISTING Mental, Emotional, or Physical Condition
--> State of Mind
* includes ONLY the declarant's SUBJECTIVE feeling, not references to EXTERNAL facts that prompted those feelings
* may use as circumstantial E of the declarant's prior OR subsequent actions
163
What are the requirements for PRESENT SENSE IMPRESSIONS under the exceptions for hearsay?
Two requirements:
* The statement MUST describe, or explain, the event or condition
* AND *
* The statement MUST BE MADE:
- While the declarant perceived it
- OR -
- Immediately after the declarant perceived it
- -> A play-by-play
164
What are the requirements for EXCITED UTTERANCE under the exceptions for hearsay?
Three requirements:
* There was a startling event
* The statement related to the startling event
* AND *
* The statement was made WHILE UNDER the stress of the excitement that it caused
- -> Stressed and therefore doesn't have time to think
165
What are the requirements for THEN-EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION under the exception for hearsay?
Two requirements; the statement MUST:
* Describe the state of mind, or the emotional, sensory, or physical condition of the declarant at the time the statement was made
* AND *
* NOT be one of memory or belief to prove the fact remembered UNLESS it relates to the validity or terms of the declarant's will
166
What is the EXCEPTION for THEN-EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION?
The statement that would otherwise be admissible under this exception is INADMISSIBLE if it is a statement of memory or belief offered to prove the fact remembered or believed.
- -> MAY testify "I am scared" but NOT "I am scared because the D threatened me."
* First goes to state of mind, second goes to the belief that the D threatened her
167
What are the requirements under the hearsay exception for STATEMENTS MADE FOR MEDICAL DIAGNOSIS OR TREATMENT?
Two requirements:
* The declarant's motive in making the statement is consistent with the purposes of promoting treatment
* AND *
* The content of the statement must be one that would be reasonably relied upon by a physician for treatment or diagnosis
- -> NOT limited to physicians, but would not apply to your mother treating your injury
168
What is the EXCEPTION under the hearsay exception for STATEMENTS MADE FOR MEDICAL DIAGNOSIS OR TREATMENT?
* Statements which go beyond that and potentially identify an assailant would unlikely met the requirements of the exception
* UNLESS IDing the assailant are relevant to treating the victim's emotional or psychological injuries
169
What are the requirements under the hearsay exception for RECORD RECOLLECTION?
* The statement MUST be in a record of some kind
* The statement MUST be on a MATTER THAT THE W ONCE KNEW ABOUT
* The matter contained in the statement MUST be one that the W CANNOT NOW RECALL well enough to testify fully and accurately
* The statement was made at a time when the matter was FRESH in the W's memory
* AND *
* The statement accurately REFLECT'S the W's KNOWLEDGE
- -> If admitted, then the W MAY ONLY READ the statement at issue into the court record
- -> Can only be offered into E by the adverse party
170
What is HEARSAY WITHIN HEARSAY?
Because any information in a document is hearsay AND documents often contain statements by 3rd parties, there is multiple levels of hearsay
171
What is the RULE regarding HEARSAY WITHIN HEARSAY?
Hearsay within hearsay is NOT EXCLUDED by the rule against hearsay IF EACH PART of the COMBINED STATEMENTS CONFORMS with an exception rule.
172
What are the requirements under the hearsay exception for BUSINESS RECORDS?
* The record MUST be of an ACT, EVENT, CONDITION, OPINION, or DIAGNOSIS
* The record MUST have been made:
- At the time of the matter contained in the record
- OR -
- NEAR the time of the matter contained in the record
* The record MUST have been made:
- By someone WITH KNOWLEDGE of the matter contained in the record
- OR -
- TRANSMITTED by someone WITH KNOWLEDGE of the matter contained in the record
* The record was KEPT in the course of REGULARLY CONDUCTED ACTIVITY of the entity which made the record
* It was a REGULAR PRACTICE to make that kind of record
* A QUALIFIED W can testify that the above requirements were met
* AND *
* The adverse party does NOT INDICATE A LACK OF TRUSTWORTHINESS
173
What is STEP 1 (of 6) needed to meet the requirements of the BUSINESS RECORDS exception to hearsay?
STEP 1:
* Is the record sought to be admitted, one that is an "act, event, condition, opinion, or diagnosis?"
- IF SO, then continue to the next 4 steps.
174
What is STEP 2 (of 6) needed to meet the requirements of the BUSINESS RECORDS exception to hearsay?
STEP 2:
* Was the record "kept in the course of a regularly conducted activity of a business, organization, occupation, or calling?"
- -> Can be applied BROADLY to hospitals, schools, universities, churches, restaurants, etc.
175
What is STEP 3 (of 6) needed to meet the requirements of the BUSINESS RECORDS exception to hearsay?
STEP 3:
| * Was the making of the record a REGULARLY PRACTICED ACTIVITY?
176
What is STEP 4 (of 6) needed to meet the requirements of the BUSINESS RECORDS exception to hearsay?
STEP 4:
* OPTION 1: Was the record made AT OR NEAR the time of the matter?
* OR *
* OPTION 2: Was the record CREATED FROM INFORMATION TRANSMITTED by someone WITH KNOWLEDGE of the matter?
177
What is STEP 5 (of 6) needed to meet the requirements of the BUSINESS RECORDS exception to hearsay?
STEP 5:
* Each of the steps to the requirements for the business records exception MUST BE SHOWN by ONE of the following:
- The testimony of the custodian of the records
- The testimony of someone OTHER THAN the custodian who is APPROPRIATELY QUALIFIED
- A cert. that complies with RULE 902(11), (12),
- OR -
- A statute that permits certification
- -> Need NOT be the individual who PERSONALLY gathered the business records
178
What is STEP 6 (of 6) needed to meet the requirements of the BUSINESS RECORDS exception to hearsay?
STEP 6:
* Can the adverse party SHOW that the source of info or the method or circumstances of preparation indicate a LACK OF TRUSTWORTHINESS
179
What is the rule regarding EMAILS in re: BUSINESS RECORDS exception to hearsay?
Properly authenticated emails MAY BE ADMITTED BUT it would be INSUFFICIENT to survive a hearsay challenge simply to say that since a business keeps and receives emails, then all those emails fall into the exception.
180
What is the rule regarding DOCUMENTS PREPARED IN ANTICIPATION OF LITIGATION in re: BUSINESS RECORDS exception to hearsay?
Documents prepared in anticipation of litigation are NOT ADMISSIBLE UNDER THIS HEARSAY EXCEPTION because the making of the record MUST BE A REGULARLY PRACTICE ACTIVITY and when they are prepared for litigation it is NOT A REGULARLY PRACTICED ACTIVITY.
181
Who is considered a QUALIFIED W to lay the foundation for the BUSINESS RECORDS exception to hearsay?
W MUST be able to testify that:
* The record was kept in the course of a regularly conducted business activity
* The record was kept as part of a regular practice
* AND *
* The record was made by someone with PERSONAL KNOWLEDGE of the recorded info OR from info transmitted by a person with that personal knowledge
182
What is the rule regarding the PUBLIC RECORDS exception under hearsay?
The following are NOT EXCLUDED by the rule against hearsay REGARDLESS of whether the declarant is available as a W:
* A record or statement of a public office is if:
- it sets out:
- -> the office's ACTIVITIES
- -> a MATTER OBSERVED while under a LEGAL DUTY to report (BUT NOT INCLUDING A CRIMINAL CASE) a matter observed by LE personnel
- -> OR in a CIVIL CASE (OR AGAINST THE GOVERNMENT in a criminal case) FACTUAL FINDINGS from a legally authorized investigation
- AND -
- the adverse party DOES NOT show that the source of info or other circumstances indicate a LACK OF TRUSTWORTHINESS
183
What are the 4 factors that a court should consider in determining whether a public record of an investigation is trustworthy?
(1) The timeliness of investigation
(2) The special skill or experience of the official conducting the investigation
(3) Whether a hearing was held by the public agency PRIOR to the report being made
(AND)
(4) Whether the motivation of the public agency is suspect
184
What is the policy regarding POLICE REPORTS under the PUBLIC RECORDS EXCEPTION to hearsay?
Police reports have GENERALLY been excluded EXCEPT to the extent to which they incorporate FIRSTHAND OBSERVATIONS by the officer
185
What is the rule under the hearsay exception for for THEN-EXISTING MENTAL, EMOTIONAL, or PHYSICAL CONDITION?
- A statement of the declarant’s THEN-EXISTING
State of mind
* SUCH AS motive, intent or plan
- OR-
- Emotional, sensory, or physical condition
* SUCH AS mental feeling, pain or bodily health
--> BUT NOT INCLUDING a statement of memory OR belief TO PROVE the fact remembered OR believed UNLESS it relates to the validity or terms of declarant's will
186
What are the CIRCUMSTANCES under which the declarant is considered UNAVAILABLE to testify in court?
RULE 804(a): Criteria for Being Unavailable:
* A PRIVILEGE applies
* REFUSES to testify
* Testifies to NOT REMEMBERING on the subject matter
* In unavailable because of DEATH OR ILLNESS
* OR *
* The declarant CANNOT BE FOUND OR COMPELLED to come to court; NOR could the proponent OBTAIN A DEPOSITION
- -> RULE DOES NOT APPLY if the statement's proponent PROCURED OR WRONGFULLY CAUSED the declarant's unavailability as a W in ORDER TO PREVENT the declarant from attending or testifying.
187
What is the hearsay exception for FORMER TESTIMONY when the declarant is UNAVAILABLE as a W?
RULE 804(b)(1): The following are NOT excluded by the rule against hearsay if the declarant is UNAVAILABLE as a W:
* FORMER TESTIMONY is testimony that:
- Was given as a W at a TRIAL, HEARING, OR LAWFUL DEPOSITION, whether given during the current proceeding or a different one
- AND -
- Is now offered AGAINST A PART who had - or, in a CIVIL CASE, whose PREDECESSOR IN INTEREST had - an OPPORTUNITY AND SIILAR MOTIVE to develop it by direct, cross, or redirect.
- -> The opposing party NEED NOT have actually conducted an examination; the OPPORTUNITY SUFFICES
188
What is a PREDECESSOR IN INTEREST within the hearsay exception for FORMER TESTIMONY?
Any party that had a similar motive and interest in developing the testimony in the prior proceeding as the current opposing party has
* DOES NOT APPLY TO CRIMINAL CASES
189
What must the declarant be in order for the FORMER TESTIMONY EXCEPTION for UNAVAILABLE Ws under the hearsay rule?
The declarant MUST BE UNAVAILABLE.
190
What must the content of the statement be under the FORMER TESTIMONY EXCEPTION for UNAVAILABLE Ws under the hearsay rule?
Any content
191
What must the CONTEXT OF THE PRIOR STATEMENT be under the FORMER TESTIMONY EXCEPTION for UNAVAILABLE Ws under the hearsay rule?
The statement:
* MUST HAVE BEEN GIVEN as a W, which implies that it was UNDER PENALTY OF PERJURY
* Made during a TRIAL, HEARING, OR DEPOSITION at which the CURRENT OPPONENT (or, in a civil case, a predecessor in interest) had an OPPORTUNITY AND SIMILAR MOTIVE to develop the testimony
192
What is the hearsay exception for DYING DECLARATION when the W is UNAVAILABLE?
RULE 804(b)(2): Statement Under the Belief of Imminent Death
* In a PROSECUTION FOR HOMICIDE (or in a civil case, a statement that the declarant, WHILE BELIEVING THE DECLARANT'S DEATH WAS IMMINENT, made about its CAUSE OR CIRCUMSTANCES
- -> the declarant DOES NOT ACTUALLY HAVE TO DIE
193
How do courts consider whether a declarant SINCERELY BELIEVED DEATH WAS IMMINENT?
The courts will most often consider:
* Statements by the declarant
* Statements made by medical personnel and others to the declarant
* The nature and extent of the wounds or illness
* The length of time b/w the statement and the declarant's death
* The opinion of medical personnel who treated the declarant about the declarant's health
194
What is the hearsay exception when the declarant is UNAVAILABLE for STATEMENT AGAINST INTEREST?
RULE 804(b)(3): Statement Against Interest is a statement that:
* A REAONSONABLE PERSON in the declarant's position would have made ONLY IF the person BELIEVED it to be true because, WHEN IT WAS MADE, it:
- Was so contrary to the declarant's PROPRIETARY OR PECUNIARY interest
- Had so great a tendency to INVALIDATE THE DECLARANT'S CLAIM against someone else
- OR -
- To expose the declarant to CIVIL OR CRIMINAL LIABILITY
* AND *
* Is supported by CORROBORATING CIRCUMSTANCES that clearly indicate its trustworthiness, if it is OFFERED IN A CRIMINAL CASE as one that tends to EXPOSE THE DECLARANT TO CRIMINAL LIABILITY
195
What is the RATIONALE behind the hearsay exception (when the W is UNAVAILABLE) for STATEMENTS AGAINST INTERESTS being allowed into E?
Reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true.
196
What are the factors courts consider to figure out if this statement was SUFFICIENTLY TRUSTWORTHY?
* How far against the declarant's interest the statement was AT THE TIME
* The MOTIVE in making the statement
* Whether the statement was REPEATED BY DECLARANT CONSISTENTLY
* The party or parties to whom the statement was made
* The RELATIONSHIP of the declarant with the accused
* AND *
* The NATURE AND STRENGTH of independent E relevant to the conduct in question
197
What is the hearsay exception for UNAVAILABLE Ws when the statement is offered against a party that WRONGFULLY CAUSED THE DECLARANT'S UNAVAILABILITY?
RULE 804(b)(6): Statement Offered Against a Party That Wrongfully Cause the Declarant's Unavailability
* A statement offered AGAINST A PARTY that WRONGFULLY cause (or acquiesced in wrongfully causing) the declarant's UNAVAILABILITY AS A W,
* AND *
* DID SO INTENDING THAT RESULT
- -> The opposing party NEED NOT COMMIT THE WRONG, as long as he acquiesced in its commission
198
Why is it important to have the hearsay exception for STATEMENTS OFFERED AGAINST A PARTY THAT WRONGFULLY CAUSE THE DECLARANT'S UNAVAILABILITY?
Rule tries to ensure that parties do not benefit from intimidating, killing, or otherwise causing the unavailability of Ws.
199
When the W is UNAVAILABLE, what is the hearsay exception for statements by an OPPOSING PARTY?
RULE 804(d)(2): The statement is offered AGAINST AN OPPOSING PARTY AND:
* was MADE BY THE PARTY in an individual or representative capacity
* is one the party MANIFESTED THAT IT ADOPTED or believed to be true
* was made by a person whom the PARTY AUTHORIZED TO MAKE A STATEMENT on the subject
* was made by the party's AGENT OR EMPLOYEE on a matter within the scope of that relation while it existed
- -> Limited to statements introduced AGAINST a party; a party MAY NOT introduce his or her own hearsay statement
- -> Opposing party need not have personal knowledge of facts in that statement
- -> A party can adopt a statement by SIGNING, ORALLY AGREEING, or (sometimes) by SILENECE
200
What is the rule for hearsay within hearsay?
Hearsay within hearsay is NOT EXCLUDED by the rule against hearsay IF EACH PART of the COMBINED STATEMENTS CONFORMS with an exception to the rule.
201
What is the rule about statements made by OPPOSING PARTY with MULTIPLE PARTIES involve?
* When an opposing party's statement is admitted against ONE PARTY, it is NOT ADMISSIBLE against a co-D or co-P (some exceptions apply)
* Civil: the judge will give the jury a limiting instruction
* Criminal: if the co-D who made the statement DOES NOT TESTIFY, the Confrontation Clause MAY REQUIRE the prosecutor to redact the statement or try the Ds separately (or forgo the use of the statement)
202
What are the 5 circumstances in which a W is UNAVAILABLE and hearsay E MAY be admitted?
1. A privilege applies
2. W REFUSES to testify
3. Bad Memory
4. Death or illness
5. Absent from trial
203
Hearsay; Unavailable D
| --> A Privilege Applies
A D is considered to be unavailable as a W if the D is exempt from testifying about the subject matter of the D statement because the court rules that a privilege applies
- -> Privileges
* Attorney-client
* Journalist
* Marital
* Doctor-patient
* Self-Incrimination
* Clergy-penitent
* Accountant-client
* Governmental
204
Hearsay; Unavailable W
| --> REFUSAL TO TESTIFY
A D is considered to be unavailable as a W if the D refuses to testify about the subject matter despite a court order to do so
--> Judge must have ordered the witness to testify in order for this exception to apply
205
Hearsay; Unavailable W
| --> BAD MEMORY
A declarant is considered to be unavailable as a witness if the declarant testifies to not remembering the subject matter
206
Hearsay; Unavailable W
| --> DEATH OR ILLNESS
A declarant is considered to be unavailable as a witness if the declarant cannot be present to testify at the trial or hearing because of death or a then-existing common physical illness, or mental illness
- -> The declarant must be unable to be physically present at the hearing.
- -> However, the bias for the lack of presence must be because of death, infirmity, or physical or mental illness --> a judge will usually require some form of proof that comports with the definition of unavailability
207
Hearsay; Unavailable W
| --> ABSENT FROM TRIAL
A declarant is considered to be unavailable as a witness if the declarant is absent from the trial or hearing and the statements proponent has not been able, by processor other reasonable means, to procure:
* Did the Clarence attendance, in the case of hearsay exception
* OR *
* D's attendance or testemony, in the case of a hearsay exception
208
Hearsay; Unavailable D
| --> UNAVAILABILITY CRITERIA DOES NOT APPLY
When the proponent of the testimony caused the unavailability of the witnessed, then the rule provides that the hearsay will be admitted
- -> 2 REQUIREMENTS
* It must be shown that the proponent procured, or wrongfully caused, the D's unavailability
* AND *
* The procurement, or cause of the unavailability, was done to prevent the declarant from attending or testifying
209
Hearsay; Unavailable D
| --> EXCEPTIONS
1. Former testimony
2. Statement under belief of imminent death
3. Statement against an interest
4. Statement of personal or family history
5. Statement offered against a party that wrongfully caused the declarant unavailability
210
Hearsay; Unavailable D
| --> EXCEPTIONS; Former Testimony
Former testimony is testimony:
* that was given as a witness at a trial, hearing, or a lawful deposition, whether given during the current proceeding or a different one
* and *
* is now offered against a party who had - or, in a civil case, whose predecessor in interest had - and opportunity and similar motive to develop it by cross, direct, or redirect examination
211
Hearsay; Unavailable D
| --> EXCEPTIONS; Statement under belief or eminent death
In a prosecution for homicide or in a civil case, a statement that the declarant, while believing that the Clarence death to be imminent, made about its cause or circumstances
212
Confrontation Clause
6th Amendment; Criminal D have the right to confront their accusers
- -> REQUIREMENTS
* The cases criminal
* The statement is offered against the defendant
* The D is unavailable
* The statement was testimonial in nature
* AND *
* The defendant had no opportunity to cross-examine the D as to the testimonium statement prior to trial
213
Testimonial Statements
If the purpose of the questions asked by law enforcement is to address an on-going emergency, then the statements made in response to the questions will generally not be considered testimonial.
--> If the primary purpose of the questions asked by lawn force man is to investigate, then the statements are testimonial.
214
Elements of Attorney-Client Privilege
The privilidge consists of 3 main elements
1. confidential communications
2. between an attorney and client
3. made for the purpose of facilitating the rendition of legal services to
215
Types of Spousal Privilege
Spousal communications
| Spousal immunity privilege
216
Spousal communications privilege
Confidential communications
Between spouses
Asserted by either; waived by both
217
Spousal immunity privilege
Married at time of trial
Asserted/waived by potentially testifying spouse
Criminal ONLY
218
Exceptions to spousal privilege
* When one spouse sues the other; adverse party; communications only
* When spouses jointly commit a crime; communications only
* When one spouse commits a crime against the other spouse or a child; both communications and immunities
219
Non-Hearsay Exemptions; PARTY-OPPONENT'S ADMISSION
Express Admission
* Alice was told by him that he did it
* Individual or rep. capacity
Implied or Adopted Admission
* Alice told her Mom in front of him that he did it and he agreed or nodded
* Agreement, adoption, or silence when someone usually would protest
220
Non-Hearsay Exemptions; DECLARANT'S ADMISSION
* Authorized admission (i.e. by a lawyer)
* Agent's
- Agent or employee
- Within scope of existing relationship
* Co-conspirators admission
- During and in further its of conspiracy
