Evidence for BAR

Question 1

Relevance

Answer 1

Evidence is RELEVANT if it has ANY TENDENCY AT ALL to make a material fact probable or less probable than would be the case without the evidence

Question 2

Relevance…. admissabilty

Answer 2

All relevant evidence is ADMISSABLE. 
UNLESS:
A) some specific exclusionary rule is applicable or
B) the court makes a discretionary determination that the probative value of the evidence is substantially outweighed by one ore more of 6 pragmatic considerations: 
1) The Danger of Unfair Prejudice
2) Confusion of the issues
3) Misleading the Jury
4) Undue Delay
5) Waste of Time
6) Unduly Cumulative

1-3) promote accuracy of fact finding
4-6) promote efficiency

Question 3

Similar Occurrences…6 types

Answer 3

In general, if evidence concerns SOME TIME, EVENT, OR PERSON OTHER THAN THAT INVOLVED IN THE CASE AT HAND, the evidence is INADMISSABLE.

probative value is usually outweighed by pragmatic considerations (weak relevance, danger of confusion, misleading the jury, time-consuming)

Question 4

1) Plaintiff’s Accident History….

Answer 4

generally INADMISSABLE b/c it shows nothing more than the fact that the plaintiff is accident prone.

Being accident prone is nothing more than Character Evidence, which is not allowed in civil action to prove conduct on particular occasion.

Question 5

Exception - Plaintiff’s prior accidents ADMISSIBLE if….

Answer 5

the event that caused P injuries is in issue.

Admit evidence to show P’s injury wasn’t caused by D, but was caused by a prior accident.

Question 6

Always ask - for what purpose is the evidence being offered

Answer 6

QTIP

Question 7

2) Similar accidents caused by same instrumentality or condition (D’s other accidents)….

Answer 7

generally inadmissible b/c they suggest nothing more than general character for carelessness.

Question 8

2) Similar accidents caused by same instrumentality or condition (D’s other accidents)….EXCEPTION

Answer 8

Other accidents involving same instrumentality or condition may be admitted for 3 potential purposes IF the other accident occurred UNDER SUBSTANTIALLY SIMILAR CIRCUMSTANCES. Any of the 3:

1) To show existence of a dangerous condition
2) causation of accident
3) prior notice to the def.

Question 9

Substantial Similarity rule also governs admissibility of EXPIREMENTS AND TESTS….

Answer 9

the tests or experiments must be conducted under circumstances substantially similar to the matter at issue.

Question 10

3) Intent in Issue.

Answer 10

prior similar conduct of a person MAY BE ADMISSABLE to raise an inference of the person’s intent on a later occasion.

Question 11

4) Comparable Sales on Issue of Value (Property Value)

Answer 11

Selling price of other property of:
- similar type, 
- in same general location, and 
- close in time to period at issue
is some evidence of value of property at issue.

Question 12

5) Habit Evidence

Answer 12

Rule: Habit of a person (or routine of business) is ADMISSABLE as circumstantial evidence of how the person (or business) acted on the occasion at issue in the litigation.

Question 13

CHARACTER EVIDENCE is NOT Admissable

Answer 13

CHARACTER EVIDENCE refers to a person’s general disposition or propensity. Character is usually not admissible to prove conduct on a particular occasion.

Question 14

HABIT EVIDENCE (admissible) is a repetitive response to a particular set of circumstances.

habit evidence has 2 defining characteristics:

Answer 14

1) Frequency of the Conduct AND
2) Particularity of the Conduct.

KEY WORDS: Always, Never, Invariably, Automatically, Instinctinvly

Question 15

6) Industrial Custom as a Standard of Care

Answer 15

Evidence as to how others in same trade or industry have acted in the recent past may be ADMITTED as some evidence as to how a party in the instant litigation should have acted

Evidence of APPROPRIATE STANDARD OF CARE.

Not conclusive or binding but provides some evidence.

Question 16

POLICY BASED EXCLUSIONS (4 KINDS)

Answer 16

1) Liability Insurance
2) Subsequent Remedial Measures
3) Settlement of Disputed Civil Claim
4) Offer to pay hospital or medical expenses

Question 17

POLICY BASED EXCLUSIONS (1) Liability Insurance

Answer 17

Evidence that a person has or does not have liability insurance is INADMISSBLE for the purpose of proving fault or the absence of fault.

policy: to avoid risk that jury will base decision on availability of insurance instead of merits of case, and to encourage purchase of liability insurance.

Question 18

POLICY BASED EXCLUSIONS (1) Liability Insurance….. EXCEPTION

Answer 18

Evidence of insurance may be admissible for some other relevant purpose, such as:

a) proof of OWNERSHIP/CONTROL OF INSTRUMENTALITY OR LOCATION, if that issue is disputed by D. OR
b) for the purpose of impeachment of a witness (show W shouldn’t be believed) on ground of bias.

NOTE: LIMITING INSTRUCTION should be given to the jury whenever evidence is admissible for one purpose but not for another. Judge should tell jury to consider the evidence only for the permissible purpose.

Question 19

POLICY BASED EXCLUSIONS (2) SUBSEQUENT REMEDIAL MEASURES

Answer 19

Post-accident repairs, design changes, policy changes INADMISSIBLE for the purpose of proving NEGLIGENCE, CULPABLE CONDUCT, PRODUCT DEFECT, OR NEED FOR WARNING.

Policy: encourage post-accident repairs, etc. to avoid future accidents. Don’t want to deter repairs.

Question 20

POLICY BASED EXCLUSIONS (2) SUBSEQUENT REMEDIAL MEASURES……EXCEPTION…..

Answer 20

Subsequent remedial measures may be ADMISSIBLE for some other relevant purpose, such as proof of OWNERSHIP / CONTROL or FEASIBILITY OF SAFER CONDITION. IF EITHER IS DISPUTED BY DEFENDANT.

D must specifically claim lack of feasibility, something safer for exception to apply.

NOTE: in products liability based on strict liability, the manufacturer’s subsequent remedial measures are inadmissible to show the existence of a defect in the product at time of accident.

Question 21

POLICY BASED EXCLUSIONS (3) SETTLEMENTS OF DISPUTED CIVIL CLAIMS

Answer 21

In the event of a Disputed Civil Claim, the following are INADMISSABLE:
1) settlement
2) offer to settle
3) statements of fact made during settlement discussions……
……..for the purpose of showing liability OR impeaching a Witness as a prior inconsistent statement.

POLICY: to encourage settlements.

*CANT USE other settlement as admission of liability.

Question 22

POLICY BASED EXCLUSIONS (3) SETTLEMENTS OF DISPUTED CIVIL CLAIMS …….2 EXCEPTIONS

Answer 22

1) Settlement evidence admissible for the purpose of impeaching a Witness on the ground of BIAS.
2) Statements of FACT made during settlement discussion in civil litigation with a GOVERNMENT REGULATORY AGENCY are admissible in a later criminal case (corporate fraud, SEC). Public policy favors prosecutor’s use of highly probative factual evidence.

Exception in criminal cases does NOT apply to settlements and offers to settle, ONLY FOR STATEMENTS OF FACT.

Question 23

The EXCLUSIONARY RULE only applies if there is a CLAIM that is DISPUTED at time of settlement discussions either as to validity of the claim (liability) OR the amount of damages.

Answer 23

A must assert a claim against B, then settlement talks occur for exclusion to apply.

Exclusionary rule isn’t triggered until we have a disputed claim. No Dispute then No Exclusionary Rule.Dispute must be regarding damages OR liability, not both, to be triggered and apply.

An admission at the accident scene of fault is a relevant party admission that is admissible.

Question 24

Exclusionary Rule and PLEA BARGAINING IN CRIMINAL CASES. (prosecutor offers a plea)

THE FOLLOWING ARE INADMISSABLE:

Answer 24

• OFFER TO PLEAD GUILTY - cannot be used against the D in the pending criminal case or in subsequent civil/crim litigation based on the same facts
• WITHDRAW OF GUILTY PLEA - cannot be used agains thte D in the pending criminal case or subsequent civil litigation based on the same facts.
• PLEA OF NOLO CONTENDERE (‘no contest’) - cannot be used against the D in subsequent civil litigation based on the same facts.
• STATEMENT OF FACT - made during any of the above plea discussions.

BUT, a PLEA OF GUILTY, NOT WITHDRAWN, IS ADMISSIBLE in subsequent litigation based on the same facts under the rule of party admissions.

Question 25

POLICY BASED EXCLUSIONS (4) Offer to pay hospital or medical expenses

Answer 25

Evidence that a party has paid or offered to pay an accident victim’s hospital or medical expenses is INADMISSABLE to prove liability.

POLICY: to encourage charity.

Note: this rule does not exclude other statements made in connection with an offer to pay hospital or med expenses. only excludes payment or offer to pay.

An outright admission of fact made in connection with offer to pay med bills is admissible.

Question 26

CHARACTER EVIDENCE refers to…

Answer 26

a person’s GENERAL PROPENSITY or disposition

honesty, peacefulness, fairness, or violence.

Question 27

Potential purpose for the ADMISSABILITY OF CHARACTER EVIDENCE…

Answer 27

1) person’s character is an ESSENTIAL ELEMENT IN TEH CASE (rare in civil, NEVER in criminal)
2) Character evidence as CIRCUMSTANTIAL EVIDENCE OF THE PERSON’S CONDUCT ON A PARTICULAR OCCASION
3) Witness’s bad character for truthfulness to IMPEACH CREDIBILITY.

Question 28

Character evidence and Criminal cases

1) D’s Character

Answer 28

Ds Character

Rule: evidence of D’s character to prove D’s conduct on a particular occasion is INADMISSABLE DURING THE PROSECTIONS CASE IN CHIEF. (danger of misuse by jury) (character trait never element in criminal case, rare in civil case)

however, D, during the defense, may introduce evidence of a RELEVANT CHARACTER TRAIT (via reputation or opinion testimony of a character witness) to prove his conduct, but this OPENS THE DOOR TO REBUTTAL BY THE PROSECUTION.

Question 29

When character evidence is admissible through a character W for the proof of conduct and conformity, the proper form of testimony is

Answer 29

Reputation and/or Opinion testimony

Can have 1 W for each or 1 W for both.

W can’t get evidence of specific acts, that’s too time consuming.

Characer W can only testify to a character trait relevant to the type of crime charged. Trait for murder is peacefulness.

Question 30

Character evidence and Criminal cases

2) Prosecution’s Rebuttal

Answer 30

IF D has opened the door by calling the character witness (only way to open door), the prosecution may rebut in 2 ways:

1) by cross examining the D’s character witness with ‘have you heard’ or ‘did you know’ questions about specific acts of D that reflect adversely on the particular character trait that D has introduced. Used for limited purpose to impeach character witness’ knowledge about the D. RULE - PROSECUTOR ALLOWED TO TEST CHARACTER W KNOWLEDGE OF D’S REPUTATION AND TEST SOUNDNESS OF CHARACTER W’S OPINION.
- —-if W denies having heard or knowing, prosecution must take that answer, can’t prove acts actually happened. Only inquiry allowed, ask but cannot prove.
- —- Can only ask W about bad acts or arrest relevant to type of character trait that D introduced.

2) by calling its own reputation or opinion witnesses to contradict D’s witnesses.

Question 31

Character evidence and Criminal cases

3) Victim’s Character - Self Defense Case (criminal case only)

Answer 31

In addition to direct evidence that the alleged victim of an assault was the first aggressor, the criminal D may introduce evidence of victim’s violent character as CIRCUMSTANTIAL EVIDENCE that the victim was the first aggressor.

Proper method: character W may testify to victim’s REPUTATION FOR VIOLENCE and may give OPINION. Door opens for prosecution

Prosecution rebuttal: evidence of victim’s good character for peacefulness (reputation or opinion test) AND prosecution may prove D’s character for violence. DOOR OPENS WIDE.

In homicide case, if D offers evidence of any kind that victim was first aggressor, prosecution may intro evidence of victim’s good character for peacefulness.

Question 32

Character evidence and Criminal cases

3) Victim’s Character - Self Defense Case (criminal case only)

Testimony must be reputation or opinion. no specific acts.

But, SEPARATE RULE OF EVIDENCE…

Answer 32

If D, at time of the alleged self defense, was AWARE OF THE VICTIM’S VIOLENT REPUTATION OR PRIOR SPECIFIC ACTS OF VIOLENCE, such awareness may be proven to show the D’s state of mind - fear - to help prove that he acted reasonably in responding as he did to the victim’s aggression.

Question 33

Character evidence and Criminal cases

4) Victim’s Character - Sexual Misconduct Case (RAPE)

Answer 33

Under Rape Shield Law, in both criminal and civil cases, where D is alleged to have engaged in sexual misconduct, the following evidence about the victim is ORDINARILY INADMISSABLE:

• opinion or reputation evidence about the victim’s sexual propensity
• evidence of specific sexual behavior for the victim.

Question 34

Character evidence and Criminal cases

3 EXCEPTIONS in CRIMINAL CASES, codified in the rules….

Answer 34

1) specific sexual behavior of victim to prove that someone other than the D was the source of semen or injury to victim. Defense is somebody else did it, show sex with other person.
2) victim’s sexual activity with the D if the defense of consent is asserted - prior sex between victim and D allowed
3) where exclusion would violated D’s right of due process. The LOVE TRIANGLE DEFENSE - D should be allowed to show that victim had a sexual relationship with X at time of D’s alleged rape if X was aware of victim’s sexual contact with the D. Purpose is to suggest the victim had to falsely claim that the sexual contact with the D was nonconsensual so X won’t get jealous.

Question 35

Character evidence and CIVIL cases

EXCEPTION…

Answer 35

1) Court may admit evidence of specific sexual behavior or sexual propensity of the victim if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.

Question 36

Character evidence and CIVIL cases

(1) Character evidence generally is INADMISSABLE to prove a person’s conduct on a particular occasion.

Answer 36

• can’t offer D’s reputation for careless driving.
• D can’t offer W to testify that D is prudent and careful driver.

D in CIVIL case CANT show character, even when the underlying conduct is criminal in nature. No liberty of D is at stake, just $.

Question 37

Character evidence and CIVIL CASES

2) Evidence of a person’s character is ADMISSIBLE in civil action where such character is an ESSENTIAL ELEMENT OF A CLAIM OR DEFENSE (provable by reputation, opinion, and specific acts).

Only 3 situations…

Answer 37

1) Tort Action alleging negligent hiring or entrustment
2) Defamation (oral = libel. writing = slander)
3) Child Custody Dispute.

Question 38

Defendant’s Other Crimes for Non-Character Purpose

General Rule: Other crimes or specific bad acts of D are not admissible during the prosecution’s case in chief if the only purpose is to suggest that because of D’s bad character he is more likely to have committed the crime currently charged.

Answer 38

RULE: BUT, D’s bad acts or other crimes may be admissible to show: SOMETHING SPECIFIC ABOUT THE CRIME CURRENTLY CHARGED (Something separate and apart from mere propensity to commit the crime).

5 most common non-character purposes are MIMIC:
Motive
Intent
Mistake or Accident, the absence thereof
Identity
Common Scheme or Plan (Modus Operandi, MO, the D’s signature on each crime).

• If MIMIC category is satisfied, the prosecution may use other-crimes as part of its case-in-chief. MIMIC evidence is NOT dependent on D’s introduction of favorable character evidence.
• NONE of MIMIC categories can be used to show propensity. must be specific.

Question 39

METHOD of proof of MIMIC purpose crimes.

2 ways:

Answer 39

1) by conviction or
2) by evidence (witness, etc) that proves the crime occurs: CONDITIONAL RELEVANCY STANDARD - prosecution need only produce sufficient evidence from which a reasonable juror could conclude that D committed the other crime. *Easy burden to satisfy

Question 40

Upon D’s request, prosecution must give pretrial notice of intent to introduce MIMIC evidence.

Answer 40

In all cases, court must also weigh probative value v. prejudice and give limiting instructions if MIMIC evidence is admitted.

Question 41

MIMIC in CIVIL CASES:

Answer 41

if relevant to a non-character purpose, MIMIC evidence CAN ALSO BE USED IN CIVIL CASES, such as tort actions for fraud or assault.

Question 42

OTHER Sexual Misconduct to Show Propensity in Sex-Crime PROSECUTION OR CIVIL ACTION

In cases alleging sexual assault, the D’s prior specific acts of sexual assault are ADMISSABLE as part of the case i chief of the prosecution or the plaintiff for purpose of showing Ds propensity for sexual assault.

Answer 42

In case of child molestation, the same rule allows prior acts of child molestation.

Note: this rule allows prior acts only, not reputation or opinion.

Don’t have to be convictions, just prove it happened.

Once a rapist always a rapist.
Once a child molestor always a child molestor.

Question 43

AUTHENTIFICATION OF WRITINGS

TIP: whenever a writing appears on the exam, be alert for 3 potential issues (aside from RELEVANCE, which is always an issue):

Answer 43

1) authentication
2) Best Evidence Rule
3) Hearsay

Question 44

AUTHENTIFICATION OF WRITINGS

Authentication:

Answer 44

if relevance of writing depends on ITS SOURCE OR AUTHORSHIP, a showing must be made that the writing is authentic (genuine) that it is what is purports to be.

This is process of authentication.

in the absence of stipulation as to authenticity, a FOUNDATION must be made in order for the document to be admissible.

Question 45

AUTHENTIFICATION OF WRITINGS

METHODS OF AUTHENTICATION

Issue is whether X is author of DOCUMENT

Answer 45

1) Witnesses personal knowledge (W observed X sign doc)

2) Proof of Handwriting (3 ways):
a) a Lay Person’s Opinion (based on familiarity with X’s handwriting as a result of experience in normal course of affairs - family, co-worker, classmate)
b) Expert Comparison Opinion (Handwriting expert testifies to opinion that X wrote document on basis of comparison between document and genuine sample (exemplar) of X’s handwriting)
c) Jury Comparison (Jury compares document with exemplar of X’s handwriting)

3) Proof by Circumstantial Evidence (not handwritten: e-mail, text, type written). Anything relevant that connects alleged author with doc - appearance, contents, substance, internal patterns or other distinctive characteristics. Includes having inside knowledge.

4) ANCIENT DOCUMENT RULE - authenticity may be inferred IF doc is:
a) At least 20 years old
b) facially free of suspicion, and
c) found in a place of natural custody

5) Solicited Reply Doctrine
- Doc can be authenticated by evidence that it was received in response to a prior communication to the alleged author. Ex: P e-mails K offer to X, and later receives an acceptance purportedly sent by X.

Question 46

AUTHENTIFICATION OF WRITINGS

CONDITIONAL RELEVANCY STANDARD

Applies when a Q of fact is raised about the authenticity of document.. the procedure to be followed is…..

Answer 46

Document is ADMISSIBLE if court determines there is sufficient evidence from which a reasonable juror could conclude the document is genuine, i.e. that X is the author.

• Judge doesn’t have to be persuaded doc is genuine.
• Judge only needs SOME evidence in Record that the jury could use to determine authenticity.
  Jury makes ultimate determination on authenticity.

Question 47

AUTHENTIFICATION OF WRITINGS

*SELF AUTHENTICATING DOCUMENTS

Answer 47

Memorize this list.

Presume authentic - no need for foundation testimony:

1) OFFICIAL PUBLICATIONS (published by Gov)
2) CERTIFIED COPIES OF PUBLIC OR PRIVATE RECORDS ON FILE IN PUBLIC OFFICE (real estate deed or mortgage)
3) NEWSPAPERS OR PERIODICALS
4) TRADE INSCRIPTIONS AND LABELS
5) ACKNOWLEDGED DOCUMENT (Doc that has a certification by a notary)
6) COMMERCIAL PAPER (promissory note)

These docs shift the burden of proof to the other side to prove forgery or lack of genuineness. Presumed Authentic.

Question 48

AUTHENTIFICATION OF WRITINGS

*Authentication of Photographs

Answer 48

Witness may testify on basis of personal knowledge that photograph is FAIR AND ACCURATE REPRESENTATION of the people or objects portrayed.

W doesn’t have to be photographer, only has to have personal knowledge of what the photo shows.

Question 49

BEST EVIDENCE RULE

Answer 49

A party who seeks to prove the contents of a WRITING must either PRODUCE THE ORIGINAL WRITING or PROVIDE AN ACCEPTABLE EXCUSE FOR ITS ABSENCE.

If the court finds the excuse is acceptable, the party may then use secondary evidence - oral testimony or a copy.

Writing includes sound recordings, X-rays and films

Question 50

When BEST EVIDENCE RULE applies….(frequently on bar):

When a party is seeking to prove the contents of a writing.

Two Principal Situations

Answer 50

1) The Writing is a legally operative document - the writing itself creates rights and obligations. Ex: patent, deed, mortgage, divorce decree, written contract.
2) Witness is testifying to facts that she learned solely from reading about them in a writing (referring to a writing).

Question 51

Violation of best evidence rule when W testifies that he watched a security camera film and it clearly shows D was guilty.

Answer 51

Can’t prove D’s act solely on what witness watched in the film (writing).

Show the film to the jury.

Question 52

When BEST EVIDENCE RULE DOES NOT apply….

Answer 52

When a W with personal knowledge testifies to a fact that exists independently of a writing that records the fact.

Ex; W saw the event and a writing corroborates the event. By seeing it = personal knowledge, so W doesn’t have to produce the writing.

Question 53

Best Evidence Rule - what qualifies as the ‘original writing’…..

Answer 53

1) Whatever the parties intended as the original: any counterpart intended to have the same effect; any negative of film or print from the negative; computer print out (Ex: 2 copies of a lease, one for L one for T)

2) DUPLICATE - any counterpart produced by any mechanical means that accurately reproduced the original (photocopy, carbon copy).
- -RULE ON DUPLICATES - duplicate is admissible to same extent as original UNLESS it would be UNFAIR (copy of fuzzy fax), OR Genuine Question is raised as to authenticity of original.

3) Handwritten copy is neither an original or duplicate.

Question 54

Best Evidence Rule: Excuses for Non Production of Original Writing…

Answer 54

1) Lost or Cannot Be Found with due diligence, OR
2) Destroyed without bad faith (flood; every 17 yrs company shreds docs), OR
3) Cannot be Obtained with Legal Process (beyond Subpeona power, in swiss bank)

Court must be persuaded by a preponderance of the evidence that excuse has been established. Secondary evidence is then admissible (e.g. testimony based on memory, handwritten copy)

Question 55

Best Evidence Rule - ESCAPES

Answer 55

1) Voluminous Reports can be presented through a summary or chart, provided the original records would be admissible and they are available for inspection.
2) Certified Copies of PUBLIC RECORDS (keep original on file)
3) Collateral Documents - not important to case.

If court, in its discretion, determines writing is collateral, contents may be proven by secondary evidence.

Question 56

WITNESSES

Competency of witness, in general….. 2 requirements:

Answer 56

1) Personal Knowledge - testify to something saw with own eyes or heard with own ears
2) Oath or Affirmation - Witness must demonstrate willingness to tell the truth. Affirmation = solemn promise.

Question 57

WITNESSES

Dead Man’s Statute

Answer 57

1) W is NOT ordinarily incompetent merely b/c she has an interest - a direct legal stake - in outcome of litigation.

Question 58

WITNESSES

Dead Man’s Statute

2) BUT some (half) states have a DEAD MANS ACT.

Answer 58

Typical DEAD MAN’S ACT statute provides:

i) in a CIVIL action (N/A to Criminal)
ii) an INTERESTED Witness
iii) is INCOMPETENT to testify
iv) Against the ESTATE of a Defendant
v) concerning a TRANSACTION OR COMMUNICATION between the interested W and the decedent.

*Fear of perjury.
One of participants in transaction has died, lips are sealed. Statute seals the testifier’s lips.

Question 59

Dead Man’s Act **NOT IN FED RULES, only in STATES with DEAD MAN’s ACT.

Answer 59

Thus on Multistate, W ordinarily are not incompetent on this ground.

BUT, if Question explicitly states that the particular jurisdiction in which the case arises has a ‘dead mans statute’ apply the rule. Note: bias doesn’t disqualify, must be interested party to be disqualified.

Question 60

WITNESSES

Leading Questions = form of question suggests the answer

3 part RULE

Answer 60

1) GENERALLY Leading Questions are NOT ALLOWED on Direct Examination of Witness.
2) Generally LEADING Qs ARE ALLOWED on Cross-Examination of witness.

3) BUT allowed on DIRECT EXAM as follows: (Exceptions)
i) Preliminary Introductory Matters (to get things started)
ii) A youthful or forgetful W (jog the memory)
iii) A hostile W
iv) W is adverse/opposing party or someone under control of the opposing party (P in Med Mal calls treating Dr.)

Question 61

WITNESSES

*Writings in Aid of Oral Testimony

2 situations

Answer 61

1) Refreshing Recollection
a) Basic Rule: W may not read from prepared memo, must testify on basis of current recollection/memory.
b) BUT IF W’s memory fails him, he may be shown a memo (or any other tangible item) to job his memory (typically a writing).
- — writing isn’t entered into evidence, just offered to jog W memory.
- —- safeguard against abuse: Adversary has right to (1) inspect the memory refresher, (2) to use it on cross, (3) to introduce it into evidence.

2) Past Recollection Recorded (Hearsay Exception)
* Read writing to jury for substitute of W lack of memory. Must meet all of the following:
1) showing writing to W fails to jog memory.
2) W had personal knowledge at former time.
3) writing was either MADE by W, or ADOPTED by W.
4) making or adoption occurred while the event was still fresh in the W’s memory. COUPLE WEEKS MAX!
5) W can vouch for accuracy of writing when made or adopted.
* ** the opposing party has option to put the writing into evidence, but it can’t be introduced by the party using the evidence (party reading it to the jury)

Question 62

WITNESSES

*Opinon Testimony

1) Lay Witness
2) Expert Witness

Answer 62

1) Lay Witness
a) Lay Opinion admissible if:
1) the opinion must be rationally based on W own perception (personal knowledge), AND
2) Opinion must be helpful to jury in deciding a fact

Court has discretion to admit

Examples include opinion on:

• drunk/sober of another person
• speed of vehicle
• sane/insane
• emotions of another person (happy sad, depressed, angry)
• odors
• handwriting
• character (when permitted)

Question 63

WITNESSES

• Opinon Testimony
  2) Expert Witness - Qualifications

Answer 63

Qualifications of Expert Witness, either:

1) Education (degree), AND/OR
2) Experience

Must be Proper Subject Matter

• scientific, technical, or other specialized knowledge IF it will be HELPFUL to jury in deciding a fact.
• — an opinion is not helpful if the proposition is obvious.

Question 64

WITNESSES

• Opinon Testimony
  2) Expert Witness - basis of opinion

Answer 64

Expert must have opinion based on ‘reasonable degree of probability or reasonable certainty’

Expert may draw upon three permissible data sources:

1) Personal Knowledge (treating physician)
2) Other evidence in the trial record (testimony by other witnesses, exhibits (med reports, x rays) made known to expert by hypothetical question
3) facts outside the record (hearsay) IF this outside material is of a type reasonably relied upon by experts in the particular field in forming opinions.
* ***the contents of such out of court material should NOT be disclosed to the jury unless the Judge determines it would help the jury evaluate the expert’s opinion.
* **If Judge allows it, out of court material may be emitted with a warning to the jury to consider it ONLY in evaluating the quality of the expert’s opinion.

Question 65

WITNESSES

• Opinon Testimony
  2) Expert Witness - RELEVANCE and RELIABILTY

To be admissible, expert opinion must be relevant to the issue at hand and SUFFICIENTLY RELIABLE

Expert must use reliable METHODS and PRINCIPLES and Apply them reliably to facts of the case.

Answer 65

Court Serves as GATEKEEPER and will use 4 principal factors to determine reliability or principles and methodology use by expert to reach opinion (DAUBERT):

TRAP

Testing of the principles or methods
Rate of Error
Acceptance by other experts in same discipline. General Acceptance not required.
Peer review and publication

*KNOW THE FACTORS THE COURT USES FOR THIS GATEKEEPING FUNCTION

Question 66

WITNESSES

• Opinon Testimony
  2) Expert Witness - Learned Treatise in Aid of Expert Testimony (Hearsay Exception)

Answer 66

1) on direct examination of party’s own expert….. relevant portions of treatise, periodical, or pamphlet may be read into evidence as SUBSTANTIVE EVIDENCE (to prove truth of matter asserted) if the book is established as a reliable authority. (Cant use book itself, only w/ test. of expert)

2) On Cross-Examination of opponent’s expert:
- Read into evidence to impeach and contradict opponent’s expert. Comes in as substantive evidence.

3) BUT learned treatises may not be introduced as exhibit. Jury might give it too much weight.

Question 67

WITNESSES

*Opinon Testimony: ULTIMATE ISSUES

Opinon test. (lay or expert) is not objectionable just b/c it embraces an ‘ultimate issue’ in the case (ex: DWI case, layperson testifies X ‘seemed drunk’ could be admitted). BUT all other requirements for opinion test. must be satisfied, including the requirement that the opinion is HELPFUL TO THE JURY.

W can’t give test. of legal jargon. meaningless to jury, not helpful.

Answer 67

CRIMINAL CASES: “ULTIMATE ISSUE” is still proper objection if EXPERT seeks to give direct opinion that D did or did not have relevant MENTAL STATE.

Expert can only testify in general terms about effects of D’s mental condition w/o linking it to the particular case, such as: “D has schizo, a person with the disease cannot distinguish fact from fantasy.”

Question 68

CROSS EXAMINATION

Party has RIGHT TO cross examine any opposing W who testifies at the trial. Significant impairment of this right will result, at minimum, in striking of W’s testimony.

Answer 68

Proper Subject Matter (things you can ask W on cross)

a) matters within the scope of direct examination
b) Matters that test the W’s credibility.

Question 69

Credibiilty and Impeaching of W, In General

1) Bolstering Own W

Answer 69

1) Bolstering Own W
The Rule: not allowed until after the W credibility has been attacked.

Post impeachment repair of W’s credibility called REHABILITATION.

Question 70

*INADMISSABLE PRIOR CONSISTENT STATEMENT

Answer 70

W can’t testify that “I told everyone at work the next day after accident that I saw D run red light.”

Improper bolstering on direct.

Not allowed b/c

1) no attack on W credibility
2) Prior Consistent Statement has minimal probative value
3) hearsay

Question 71

PRIOR CONSISTENT STATEMENT EXCEPTION…..

likely in criminal case.

Answer 71

W’s prior ID of a person.

W test. that she recognizes D, sitting in court, as perpetrator. Also, “I picked D out of line up 2 weeks ago.”

Prior ID by trial W is not barred by hearsay rule. It is labeled as EXCLUSION from hearsay and comes in as substantive evidence.

NOTE: W who made prior ID must testify at trial and must be subject to current cross-examination.

Question 72

Credibiilty and Impeaching of W, In General

2) Impeachment of OWN Witness

Answer 72

RULE: it is permitted w/o limitation

Note: even though fed rules speak only of impeaching a W on cross, a party can impeach her OWN W during direct examination.

Question 73

IMPEACHMENT METHODS *BIG ON BAR

Answer 73

1) Prior inconsistent statements
2) bias, interest or motive to misrepresent
3) sensory deficiences
4) bad reputation or opinion about W’s character for truthfulness
5) Criminal Convictions
6) Bad Acts (w/o conviction) that reflect adversely on W’s character for truthfulness
7) Contradiction

Question 74

Procedure for impeachment methods

2 possible ways

1) ask the W about the impeaching fact with the aim of having the W admit it (“confronting the W”) OR
2) Prove the impeaching fact with “Extrensic evidence” (documentary or testimony form other W)

Answer 74

1) The impeaching fact may be proven with extrinsic evidence as to ALL impeachment methods EXCEPT #6, BAD ACTS and Some of #7 - contradictory facts that are collateral.
2) For the impeachment methods that allow extrinsic evidence, it is NOT necessary to ask the W about the impeaching fact before the extrinsic evidence is introduced …..EXCEPT for #2, BIAS.

Question 75

IMPEACHMENT METHOD #1) Prior Inconsistent Statements

Any W may be impeached by showing that on some prior occasion, she made a material statement (oral or writing) that is INCONSISTENT with her trial test.

Answer 75

GENERAL PURPOSE: prior inconsistent statement is admissible for the purpose of IMPEACHMENT (suggest trial test. false or mistaken, not as substantive evidence that th statement is actually true). Show W Cant keep story straight, raise doubt about W credibility.

Question 76

IMPEACHMENT METHOD #1) Prior Inconsistent Statements

EXCEPTION regarding admissibility as substantive evidence

Answer 76

EXCEPTION - a prior inconsistent statement of a W may be admitted both to impeach AND as substantive evidence (to prove the truth of the matter asserted in the prior statement) IF the W is currently subject to cross-examination and the prior inconsistent statement was made:

a) orally under oath, AND
b) as part of a formal proceeding, hearing, trial, or deposition, including grand jury proceeding.

Question 77

IMPEACHMENT METHOD #1) Prior Inconsistent Statements

Confrontation timing

RULE - Confrontation timing is flexible. not required to immediately confront W on stand. But after proof of extrinsic evidence, W must be given an opportunity at some point to return to stand to explain or deny the prior inconsistent statement.

Answer 77

EXCEPTION - no opportunity to explain need be given if W is the opposing party. Also, the prior inconsistent statement of an opposing party can be used against that party as substantive evidence (“party admission” or “statement of an opposing party”)

*ALWAYS FOCUS ON STATUS OF W. IF Opposing party then no opportunity tot explain/deny prior inconsistent statement - even if statement was informally made to another person.

Question 78

ANY STATEMENT MADE BY OPPOSING PARTY IS ADMISSABLE AS SUBSTANTIVE EVIDENCE FOR ITS TRUTH AS PARTY ADMISSION

Answer 78

!

Question 79

IMPEACHMENT METHOD #2) BIAS, INTEREST, OR MOTIVE TO MISREPRESENT

Bias may be based on any fact that would give a W a reason to testify favorably or negatively about a party’s case.

EX: W is party; friend, relative, employee of party; expert W being paid by party; person with grudge against party, etc.
Ex: proseuction W testifying pursuant to plea bargain has motive to testify for gov.

Purpose: suggest test. is false, slanted, or mistaken in party’s favor.

Answer 79

Procedural issue:
1) W MUST BE CONFRONTED with Alleged Bias while on the stand.

2) If confrontation prerequisite is met, BIAS may be proven by EXTRINSIC EVIDENCE

Question 80

IMPEACHMENT METHOD #3) SENSORY DEFICIENCIES

Anything that could affect W’s perception or memory.

Ex: bad eyes, bad hearing, mental retardation, consumption or alcohol/drugs at time of event or while W on stand.

Purpose: to suggest mistake

Answer 80

Confrontation is NOT required.

Extrinsic evidence is allowed.

Question 81

IMPEACHMENT METHOD #4) Bad Reputation or Opinon about W’s Character for Truthfulness

ANY W is subject to impeachment by this method.

Answer 81

Confrontation is NOT required.

Extrinsic evidence is allowed (only way for #4)

Call a character W to testify that Target W has bad rep for truthfulness or that character W has low opinion of Traget W’s character for truthfulness. NO EVIDENCE OF SPECIFIC ACTS, only reputation or opinion.

Purpose: suggest that Target W is not telling the truth on the stand.

Question 82

IMPEACHMENT METHOD #5) Criminal Convictions (indirect attack)

Purpose: suggest test. is false. allowed in both civil and criminal cases (like all MIMIC).

Relevance: person who has been convicted of a crime is more likely to lie under oath than is a person with an unblemished record.

Answer 82

Permissible Types of Convictions (2 part rule)

1) conviction of any crime (felony or Misd) as to which the prosecution was required to prove FALSE STATEMENT AS AN ELEMENT OF HTE CRIME (automatically admitted)
2) If Conviction did not require proof of false statement, it must be a FELONY, and court has discretion to exclude if probative value on issue of W credibility is outweighed by danger of unfair prejudice to a party (misuse as evidence of liability or guilt).
- —-Factors that Make a Felony Convictoin Probative: seriousness of crime, relation to deception and stealth.
- —-Prejudice Factors: similarity to case being tried; inflammatory nature of prior crime.

• Time Limitation applies to #1 and #2
• -Conviction or release from prison, whichever later, must be within 10 years of trial. If more than 10 yrs, conviction may not be sued for impeachment UNLESS:
• — proponent shows probative value on credibility is substantial; Ct has discretion.
• Method of Proof: ask W to admit prior conviction OR Introduce record of conviction (extrinsic).
• Not required to confront W prior to intro of record of conviction.

Question 83

IMPEACHMENT METHOD #6) Inquiry About Bad Acts (w/o conviction) IF they reflect adversely on W’s Character for Truthfulness. (Ex: lying on Gov application)

only permissible procedure: to confront the W on CROSS EXAM and hope W admits it. NO Extrinsic evidence allowed. **Can only ask about underlying act, CANT ask if W was arrested for bad act.

NOTE: proof w/ extrinsic evidence may still be allowed if bad act is relevant for some purpose other than #6, bad character. Ex: Bias.

Answer 83

Cross Examiner must have good faith basis for inquiry, and permission to make the inquiry is subject to the court’s DISCRETION.

Inquiry is limited to the act of untruthfulness itself, not its consequences, such as job termination, civil judgment, or arrest.

Question 84

IMPEACHMENT METHOD #7) Contradiction

Cross Examiner through confrontation of W, may try to obtain admission that she made a mistake or lied about any fact she testified to during direct examination.

Answer 84

If W admits the mistake or lie, she has been impeached by contradiction. However, if she sticks to her story, the issue becomes whether EXTRINSIC EVIDENCE may be introduced to prove the contradictory fact.

RULE: EXTRENSIC EVIDENCE IS NOT ALLOWED for the purpose of contradiction IF the fact at issue is COLLATERAL (i.e the fact has no significant relevance to the case or the Ws credibility).

*Can submit extrinsic evidence of a non-collateral contradictory fact. (significant contradiction going to merits of the case)

Question 85

REHABILITATION - after W impeaches

2 Methods:

Answer 85

1) Showing W’s good character for truthfulness

2) Prior Consistent Statement to Rebut

Question 86

REHABILITATION - after W impeaches

Method 1: Showing W’s good character for truthfulness

Answer 86

• WHEN: allowed only when impeachment showed W was lying (bad rep, prior convictions, bad acts) as compared to merely being a mistake
• How: bring out a character W to testify impeached W has good character via reputation or opinion testimony.

Question 87

REHABILITATION - after W impeaches

Method 2: Prior Consistent Statement to Rebut (3 situations)

3a is most often on bar

Answer 87

3a: To rebut a charge of recent fabrication
- WHEN - if W’s trial test. is charred as a recent fabrication (improper influence or bias), a prior statement by the W that is consistent with her test. will be admissible to rebut the charge IF the statement was MADE BEFORE THE MOTIVE TO FABRICATE AROSE.
- Relevance: suggets bribe had no influence on test.

3b: To rebut a contention of inconsistency:
Ex: cop testifies she picked D due to scar on face, but cop didn’t mention scar in handwritten report. To rebut, cop can show scar mentioned in formal final report.

3c: To rebut a Contention of Sensory Defiency:
Ex: W impeached b/c year after accident she underwent treatment for mental disorder. Rebut by showing that W gave same account of accident to police when the accident happened last year.
Purpose: prior consistent statement that fits within any of the rebuttal rules is admissible to rehabilitate credibility AND as substantive evidence that the prior statement was true. Hearsay exclusion.

Question 88

PRIVILEGES

If on exam, the hypo indicates the action is pending in FED COURT, apply following procedural rules:

Answer 88

1) in fed court action ARISING UNDER FED SUBSTANTIVE LAW (Const or fed statute, all crim. cases) ‘privileges are governed by the principles of the common law as they may be interpreted by the fed courts int eh light of reason and experience.’
2) In Fed Court based on DIVERSITY, where state substantive law applies to claims and defenses (ERIE), Fed Court MUST APPLY PRIVILEGE LAW OF THE STATE whose substantive law is applicable.

NOTE: In DIVERSITY Fed courts also apply STATE LAW ON COMPETENCY (Dead Man Statute) and STATE LAW ON BURDENS OF PROOF AND PRESUMPTIONS.

Question 89

ATTORNEY CLIENT PRIVILEGE

To encourage client to speak only to counsel (rationale)

Answer 89

Elements. Privilege applies to:

1) confidential communications
2) between attorney and client or a rep of either
3) made during a legal consultation
4) unless privilege waived by client
5) unless an exception applies

Question 90

AC priv

1) Confidentical Comm

Answer 90

Client must have reasonable expectation of confidentiality.

No priv if client knows 3P is listening.

Joint Client RULE: if 2 or more clients with common interest consult, their comm. with counsel concerning the common interest are privileged as to 3P. BUT if joint clients later have dispute regarding common interest, the privilege does not apply between them.

Question 91

Communication:

Priv covers the exchange of info between attorney and client.

Answer 91

it does not apply to client’s knowledge of underlying info, preexisting docs, or physical evidence.

Question 92

Priv attaches at outset of formal consultations with attorney even if client does not retain attorney.

Answer 92

Primary purpose of comm. must be to obtain or render legal services (professional legal consultation), not business or social advice.

Question 93

AP PRIVELEGE - WAIVER, 3 types

Answer 93

1) VOLUNTARY WAIVER
- Only the CLIENT has power to waive the prig. After client’s death, the prig continues and only the client’s estate can waive it.

2) SUBJECT MATTER WAIVER
- voluntary waiver of priv as to some communications will also waive the prig as to other comm IF
a) the pretrial disclosure is INTENTIONAL,
b) the disclosed and undisclosed communications concern THE SAME SUBJECT MATTER, and
c) FAIRNESS requires that the disclosed and undisclosed communications be considered together.
EX: client gives to other person 1 of 3 docs

3) INADVERTENT WAIVER
inadvertent disclosure of privileged comm. will NOT waive privilege so long as the privilege holder:
a) took REASONABLE STEPS TO PEVENT DISCLOSURE AND
B) TAKES REASOABLE STEPS TO CORRECT THE ERROR
Ex: lose 2 pages from box of papers.

Question 94

AP PRIVELEGE - WAIVER, Exeptions to WAIVER

Answer 94

1) Future Crime or Fruad. Client says help me disguise bribes
2) Client puts legal advice in issue. D defends on grounds that she relied on advice from attorney in committing violation.
3) Attorney Client Dispute. Unpaid fees, legal malpractice.

Question 95

Physician Patient Privelege

Created by state statute. Rationale: to encourage candor by patient and to protect privacy.

Answer 95

Elements: Applies to

• Confidential comm. or info acquired by physician from patient for purpose of diagnosis or treatment of medical situation

Also applicable to psychotherapists (MD or other professional certified for mental/emotional diagnosis)

Fed law distinction: in fed court actions based solely on fed substantive law, privilege exists only for psychotherapy. NO privilege in fed court for actions based solely on fed law for comm. with physicians as regards to physical conditions.

EXCEPTION - if patient puts the physical or mental condition in issue. P suing for damages for personal injury or D asserts insanity defense.

Question 96

Spousal priveleges -

Spousal Immunity (CRIMINAL ONLY)
Rule: A spouse cannot be compelled to testify about anything against D spouse. 

Rationale: protect harmony of existing marriage at time of trial

The W spouse holds the privilege, not the D. W spouse may voluntarily testify against D if he/she so chooses.

W Spouse can’t be compelled to testify in criminal trial. BUT, if no longer married at trial, can be compelled to testify.

Answer 96

Spousal priveleges -

Confidential Communication Between Spouses

IN ANY TYPE OF CASE, a spouse is not required and is not allowed in absence of consent by other spouse, to disclose a confidential COMMUNICATION (statement or acts) made by one to the other during the marriage.

BOTH SPOUSES hold the privilege. Either can invoke.

Rationel: encourage candor between H and W during marriage.

Question 97

Spousal priveleges - EXCEPTIONS applicable to both privileges;

Answer 97

• comm. or bad acts in furtherance of jointly perpetrated future crime or fraud
• comm or cts destructive of family unit (spouse or child abuse)
• in litigation between the spouses themselves (divorce, breach of K)

Question 98

Hearsay,, defined:

Answer 98

1) The out of court statement of a person (oral or written) (doesn’t apply to machines, like a clock, or to animals)
2) offered to prove the truth of the matter asserted in the statement

Hearsay Rule: hearsay is inadmissible unless an exception or exclusion applies

Rationale: credibility of declarant at the time of statement was made was not tested through cross exam in the presence of the current fact finder.

Question 99

Non hearsay statemetnts:

Answer 99

Not hearsay if not offered to prove the truth of the matter asserted in the statement.

Question 100

Three principles categories of non-hearsay purposes for the BAR

Answer 100

1) VERBAL ACT (Legally operative words). A situation where the substantive law attaches rights and obligations to certain words simply b/c they were spoken. (Ex: K formation)
2) TO SHOW EFFECT ON PERSON WHO HEARD OR READ THE STATEMENT. If a person hears someone else make certain statements, this may be relevant to put the listener on notice of something, or to create fear, or to give the listener a motive or probable cause to do something w/o regard to whether the statement is true. Ex: a warning of a hazardous condition)
3) CIRCUMSTANTIAL EVIDENCE OF SPEAKER’S STATE OF MIND.

Question 101

Prior Statements of Trial Witnesses (Hearsay)

Answer 101

Rule: A W’s OWN PRIOR STATEMENT, if offered to prove the truth of the matter asserted in the statement, is hearsay and is INADMISSABLE unless an exception or exclusion applies.

Question 102

3 Witness-Statement Exclusions from Hearsay.

Witness is currently subject to cross examination AND

Answer 102

1) W’s prior statement of identification of a person, OR
2) W’s prior inconsistent statement IF oral, under oath and made during a formal trial, hearing, proceeding, or deposition, OR
3) W’s prior consistent statement to rebut charge of recent fabrication, or contention of inconsistency or sensory deficiency.

Question 103

Party Admissions (Statement of an opposing party)

Any statement made by an opposing party is admissible for its truth if it is offered AGAINST the opposing party.

Answer 103

Terminology: Called exclusion or non-hearsay.

Theory: Party ought to bear the consequences of what she says. Can explain to jury, and cannot complain about inability to cross-examine self. ROUGH JUSTICE

Ex: inflated $ numbers on past loan application can be brought in.

Question 104

Adoptive Admission:

if a party expressly or impliedly adopts a statement made by another person, it is as though the party herself made the statement.

Answer 104

Adoption By Silence occurs when a party who hears another persons’s statement remains silent under circumstances in which a reasonable person would protest if the statement were false.

Question 105

Vicarious Party Admission

Answer 105

Statement by agent/employee is admissible against principal/employer if statement concerns matter within scope of agency/employment and is made during the existence of the agency/employment relationship.

Question 106

Co-Conspirater Statement

Answer 106

Statement of co-conspirator is admissible against a party who was a member of the conspiracy if the statement was made (1) during and (2) in furtherance of the conspiracy.

Question 107

HEARSAY EXCEPTIONS TO FOCUS ON FOR BAR

Answer 107

1. Forfeiture by wrongdoing
2. former testimony
3. statement against interest
4. dying declaration
5. excited utterance
6. present sense impression
7. present state of mind
8. declaration of intent
9. present physical condition
10. statement for purpose of medical treatment or diagnosis
11. Business records
12. Public records

Also, past recollection recorded and learned treatises allowed b/c element of realibitly to them

Question 108

Criminal D’s right of Confrontation

6th Amendment right of confrontation requires that the criminal D be ‘confronted’ with the W against him.

Answer 108

Confrontation is the opportunity for CROSS EXAMINATION by the D.

RULE: In the context of hearsay, the prosecution may NOT us a hearsay statement against the criminal D (even if it falls within a hearsay exception) IF:

1) the statement is testimonial
2) the declarant has become unavailable, and
3) the D has had no opportunity for Cross Examination (cross can be before or at trial)

Question 109

Meaning of TESTIMONIAL STATEMENTS

Testimonial means Prosecution CANT use against D unless D can cross examine the authors.

Answer 109

1) Grand Jury Testimony is TESTIMONIAL

2) Statements in Response to Police Interrogation (depends)
a) testimonial IF primary purpose of questioning is to establish or prove PAST EVENTS that are potentially relevant to a later criminal prosecution.
b) NON Testimonial IF the primary purpose of the questioning is to enable police assistance to meet an ongoing emergency.
* **Ongoing emegency = crime has recently ended, the perpetrator is armed, and he still poses a threat to the victim, the police, or the public at large. EMERGENCY RULE

3) DOCUMENTS
A) Business Records are non-testimonial (bank or phone company records)
B) Sworn Affidavits are TESTIMONIAL.
C) A forensic lab report is TESTIMONIAL… IF its primary purpose is to accuse a targeted individual of criminal conduct.
BUT a DNA report is non-testimonial IF it analyzes a smile of bodily fluid collected from a crime scene for purpose of developing a DNA profile IF no particular person is suspected at the time of the analysis.

Even if forensic report is testimonial, no confrontation violation occurs if prosecutor calls a testifying expert who performed an independent analysis of the data, and the testifying expert only generally refers to the report to show a partial basis for her opinion w/o reading the report to the jury or introducing it as an exhibit. Then the report is not used for hearsay purpose, no confrontation violation.

Question 110

Forfeiture Hearsay Exception - Declarant Unavailable Due to D’s Wrongdoing

Any type of hearsay statement is admissible against D whose wrongdoing made the W unavailable if the court finds…

Answer 110

1) By a preponderance of the evidence
2) the D’s wrongdoing was designed to prevent a W from testifying.

D forfeits hearsay and 6th Amend. objection.

Policy to discourage tampering.

Question 111

Former Testiminoy Hearsay Exception

a) former test. of a now unavailable W, if given at former proceeding or depo, is ADMISSABLE against a party who, on the prior occasion, had an opportunity and motive to cross-examine or develop the testimony of the W. Issue in both proceedings must be essentially the same.
b) Theory: reliability assured by cross-examination on prior occasion; however, we prefer live testimony, so witness must now be unavailable. W MUST BE UNAVAILABLE.

Answer 111

NOTE:

IF a grand jury W testified to something favorable for the D, then became unavailable, the D might be able to use the former test. against the prosecution b/c the prosecutor, at the grand jury, did have an opportunity, and usually the motive, to develop the W’s testimony.

Question 112

Grounds of W unavailability:

Answer 112

1) privilege invoked by W
2) W is absent from jurisdiction
W cannot be found w/ due diligence or is beyond Ct subpeano power
3) Illness or death of W
4) Lack of memory by W
5) Stubborn Refusal to Testify

Question 113

Statement Against Interest Hearsya Excption

An unavaialble declerant statement against his or her

• pecuniary interest (pseronal finnce, money)
• properitary interst (property)
• penal interst (exposes decl to crmiinal liability)

This can be used against anybody, any party, if RELEVANT.

Answer 113

Theory: not likely to lie when making a personally damaging statement as to money, property, or criminal liability.

Statement against interest differs from party admission in 4 ways. To be statement against interest:

1) must be against interest of declarant when made
2) any person (not merely a party) can make statement against interest
3) personal knowledge IS required (declarrant must know statement self damaging)
4) Declarant must be unavailable (not true for party admissions)

Qualificatoin for CRIMINAL CASES: statement against penal interest must be supported by Circumstances showing trustworthiness of the statement.
Ex: additional corroborating evidence connecting person to crime. Motive, or being in area of crime scene needed to use stamtetnt against interest in criminal case.

Question 114

Dying Declaratoin (Hearsay)

Statement made under a belief of IMPENDING AND CERTAIN DEATH by a now unavailable declarant concerning the cause or surrounding circumstances of the declarant’s death.

Answer 114

Theory: expectation of imminent death is a solemn occasion.

Criminal Cases: Must be a charge of Homicide
Civil: Any type of case.

Question 115

Spontaneous Statements (unavailability of Declarant Not Required)

*Excited Utterance:
Statement concerning a startling event and made while declarant is still under the stress of excitement caused by the event.

Theory: stress of excitement suspends one’s capacity to fabricate.

Answer 115

Factors to consdier to determine whether statement qualifies as excited utterance:

1) Nature of the event (startling, traumatic)
2) passage of time (closer better; 10 min good; 30 min maybe; 60 min max)
3) Visual Clues
a) Exlamatory phrases in hypo
b) excitement oriented verb (shouted, screamed, exlaimed)
c) Look for an exclamation point!

Question 116

Spontaneous Statements (unavailability of Declarant Not Required)

*Present Sense Impression

Answer 116

Description of an event made while the event is occurring or immediately thereafter (FEW SECONDS)

Theory: declranat has no time to fabricate

Question 117

Spontaneous Statements (unavailability of Declarant Not Required)

*Present State of Mind

Answer 117

Contemporaneous statement concerning declarants present state of mind, feelings, emotions

Theory: contemporanesous staetment about matter as to which declarant has unique knowledge

Question 118

Spontaneous Statements (unavailability of Declarant Not Required)

*Declaration of Intent

Answer 118

Statement of declarant’s intent to do something in the future, including the intent to engage in conduct with another person

Theory: contemporaneous statement about matter as to which declarant has unique knowledge

This hearsay exception is BROAD.

Question 119

Spontaneous Statements (unavailability of Declarant Not Required)

*Present Physical Condition

Answer 119

Statement made to anyone about declarant’s CURRENT physical condition (can’t be statement about arm hurting 6 months ago. must be arm hurting right now)

Theory: contemporaneous statement about matter as to which declarant has unique knowledge

Question 120

Spontaneous Statements (unavailability of Declarant Not Required)

*Statemetn Made For the Purpose of Obtaining Medical Treatment or Diagnosis

Answer 120

Statement made to anyone (usually medical person) for purpose of obtaining medical treatment or diagnosis (including a diagnosis for expert test.) if it concerns the declarant’s:

1) present symptoms OR
2) past symptoms OR
3) General Cause of Declarant’s condition, but not including details of liability or ID of tortfeasor, unless domestic abuse or child abuse.

Theory: patient or injured person has motive to be honest and accurate to get medical assistance

This exception does not include oral statements made by a physician to the patient. Distinguish written entries made by physician in business records.

Question 121

Spontaneous Statements (unavailability of Declarant Not Required)

*Business Records

Answer 121

Elements:

1) Records of a business of any type
2) made in the Regular Course of business
3) the business Routinely Keeps such records
4) made Contemporaneasly (at or about time event recorded)
5) Contents consist of either information observed by employees of business OR a statement that falls within an independent hearsay exception.

Theory: Businesses depend on accurate ,up to date record. useful sub for testimony of employees.

*statement must be by someone with business duty/icnentive. not a bystander or outsider.

Question 122

Spontaneous Statements (unavailability of Declarant Not Required)

*Business Records

Process to prove business records foundatin

Answer 122

1) call sponsoring W to testify to the 5 elements of business records hearsay exception. W need not be author of report, can be records custodian or any other knowledgable person within the business, OR
2) written certification under oath attesting to elements of business records hearsay exception (with advance notice to opposing party)

Question 123

Spontaneous Statements (unavailability of Declarant Not Required)

*Public Records

Answer 123

Records of a public Governmetn office or agency setting forth any of the following:

1) activities of the office or agency (payroll records), or
2) matters observed pursuant to a duty imposed by law (weather records) or
3) findings of fact or opion resulting from an investigation authorized by law (OSHA inspection repot ton safety)

EXCLUSION:
Police reports prepared for PROSECUTORIAL PURPOSES are NOT ADMISSIBLE against the D in a criminal case. Nor is the prosecution allowed to introduce such reports against the D under the alternative theory of business records. (Cops can testify live to be cross examined).

Question 124

Hearsay Within Hearsay

Answer 124

If a hearsay statement is included within another hearsay statement, evidence is INADMISSABLE unless each statement falls within a hearsay exception.

Question 125

Any impeachment method may be used to attache the credibility of a hearsay declarant whose statement was emitted into evidence.

Answer 125

if the impeachment consists of a prior inconsistent statement, the usual requirement that the declarant be given an opportunity to explain or deny is waived.