Evidence (MBE) Flashcards
(134 cards)
1
Q
Relevance
A
Evidence is relevant if it has any tendency to make the existence of any fact of consequence more or less probable
2
Q
Court’s Discretion to Exclude Relevant Evidence
A
A trial judge may exclude relevant evidence if its probative value is SUBSTANTIALLY outweighed by: (i) the danger of unfair prejudice, (ii) confusion of the issues, (iii) undue delay, (iv) or misleading the jury
Unfair surprise is NOT A REASON to exclude relevant evidence.
3
Q
Similar Occurrences Rule
A
If evidence involves some time, event or person other than that involved in the present case, it is INADMISSIBLE.
4
Q
Similar Occurrences Exceptions
A
(i) Prior similar false claims or bodily injury (other than carelessness), (ii) similar accidents or injuries caused by the same event or condition, and (iii) habit
5
Q
Habit and Business Routine Evidence
A
Evidence of a person’s habit is admissible to show that the person acted in accordance with the habit, so long as the following are elements are shown: (i) FREQUENCY of conduct, and (ii) PARTICULARITY of circumstances
6
Q
Liability Insurance (Public Policy Exclusion)
A
Evidence of a party’s insurance against liability (or lack thereof) is NOT ADMISSIBLE to prove NEGLIGENCE.
However, it may be admissible to prove: (i) OWNERSHIP or control, (ii) to IMPEACH (usually for bias), or (iii) admission of LIABILITY.
7
Q
Subsequent Remedial Measures (Public Policy Exclusion)
A
Evidence of repairs or other precautionary measures made following an injury is NOT ADMISSIBLE to prove: (i) negligence, (ii) culpable conduct, (iii) a defect, or (iv) need for a warning or instruction.
However, it may be admissible to prove: (i) ownership, (ii) rebut a claim that precaution was not feasible, or (iii) to prove that the opposing party has destroyed evidence.
8
Q
Civil Settlements and Settlement Negotiations (Public Policy Exclusion)
A
Evidence of a settlement or offer to compromise a civil claim is NOT ADMISSIBLE in any case to prove: (i) the validity or amount of a disputed claim, or (ii) impeach a witness by prior inconsistent statement or contradiction.
This public policy exclusion only applies if there was an indication that a party was going to MAKE A CLAIM, and the claim must have been in dispute as to either: (i) LIABILITY, or (ii) AMOUNT.
9
Q
Civil Dispute with Government Authority Exception (Public Policy Exclusion)
A
In CRIMINAL CASE, conduct or statements made during compromise negotiations about a civil dispute with a governmental regulatory authority are NOT EXCLUDED.
10
Q
Plea Discussions (Public Policy Exclusion)
A
The following are generally INADMISSIBLE in any criminal or civil case against the defendant: (i) OFFERS to plead guilty, (ii) WITHDRAWN guilty pleas, (iii) actual pleas of NOLO CONTENDERE (no contest), and (iv) STATEMENTS of fact made during plea discussions.
Note: An actual guilty plea (not withdrawn) is generally ADMISSIBLE as a statement of an opposing party.
11
Q
Offers to Pay Medical Expenses (Public Policy Exclusion)
A
Evidence that a party has paid or offered to pay an injured person’s medical, hospital, or similar expenses is INADMISSIBLE to prove liability for the injury.
However, unlike settlement negotiations, ADMISSIONS OF FACT accompanying such payments and offers are ADMISSIBLE.
12
Q
Character Evidence: Methods of Proving Character
A
(i) Evidence of the person’s SPECIFIC ACTS, (ii) OPINION testimony of a witness who knows the person, or (iii) REPUTATION in the community.
13
Q
Character Evidence: Defendant’s Character in a Criminal Case
A
The prosecution CANNOT initiate evidence of the defendant’s bad character to show conformity. However, the defendant is PERMITTED to introduce evidence of their own good character through reputation and opinion (NOT specific acts) to show their innocence. If done, then the prosecution can REBUT with evidence of defendant’s bad character.
14
Q
Character Evidence: Prosecution’s Cross-Examination of Defendant’s Character Witness and Rebutal
A
Once the defendant opens the door by introducing character evidence, the prosecution may: (i) cross-examine the defendant’s witness asking about SPECIFIC ACTS to show witness’s lack of knowledge, NOT TO PROVE defendant’s bad character, or (ii) call its own witness to provide REPUTATION or OPINION testimony about the defendant’s bad character for the trait in question.
15
Q
Character Evidence: Evidence of Victim’s Character
A
In a CRIMIINAL CASE (except for sexual assault), defendant may introduce REPUTATION or OPINION evidence of bad character trait to show the victim was likely to be the first aggressor.
The prosecution may REBUT with reputation or opinion evidence of: (i) victim’s GOOD CHARACTER, or (ii) defendant’s BAD CHARACTER for the SAME TRAIT.
16
Q
Character Evidence: When Prosecution Can Initiate
A
In a HOMICIDE case in which the defendant pleads SELF-DEFENSE, the prosecution can offer evidence of a victim’s GOOD CHARACTER for peacefulness, regardless of whether the defendant has introduced character evidence of the victim’s violent propensity
17
Q
Character Evidence: Civil Cases Generally
A
In civil cases, character evidence is generally INADMISSIBLE to prove conformity, unless character is an ESSENTIAL ELEMENT of a claim, such as: (i) defamation, (ii) negligent hiring or entrustment, and (iii) child custody cases, then ALL FORMS of character evidence are admissible.
18
Q
Character Evidence: Other Misconduct for Non-Character Purposes
A
Character evidence can be used to show other necessary information for trial, other than propensity to commit the crime, such as (MIMIC): motive, intent, absence of mistake, identity, or common plan.
19
Q
Authentication of Writing and Spoken Statements Rule
A
A writing must be authenticated by proof that shows the writing is what the proponent claims it is.
20
Q
Methods of Authenticating Writing
A
The following are examples of proper authentication of writing: (i) opponent’s admission, (ii) eyewitness testimony, (iii) handwriting verifications (lay witness with familiarity or expert who has compared the writing)
21
Q
Writings: Ancient Documents
A
A document can be authenticated by evidence if it: (i) is at least 20 YEARS OLD, (ii) is in a condition that creates no suspicion as to authenticity, and (iii) was found in a place where such writing would likely be kept.
22
Q
Best Evidence Rule
A
To prove the content of a writing, the original must be produced if the terms of the writing are material. Oral testimony is only admissible if the proponent provides a satisfactory excuse for the original’s absence.
Applies where the writing is LEGALLY OPERATIVE/DISPOSITIVE or where the knowledge of a witness results from having read it in the writing.
23
Q
Dead Man Act
A
In CIVIL cases, an interested person is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successor in interest of the deceased.
There is no Dead Man Act in Federal law, so any MBE question would need to assert the court is using the Dead Man Act from state law.
24
Q
Using Documents to Aid Oral Testimony: Refreshing Recollection
A
A witness may use any writing or object for the purpose of refreshing their PRESENT RECOLLECTION. They usually may not read from the writing while testifying.
25
Using Documents to Aid Oral Testimony: Adverse Party's Options after Refreshing Recollection
Whenever a witness has used a writing to refresh their memory while on the stand, an adverse party is entitled to: (i) have the writing produced at trial, (ii) cross-examine the witness about the writing, and (iii) introduce portions of the writing relating to the witness's testimony into evidence.
26
Using Documents to Aid Oral Testimony: Past Recollection Recorded
A memorandum or another record may be READ INTO EVIDENCE if a proper foundation is laid where a witness states that they have insufficient recollection of an event, even after they have consulted the record. The foundation must include proof that: (i) the witness has INSUFFICIENT recollection, (ii) the witness had PERSONAL KNOWLEDGE of the facts when the record was made, (iii) the record was MADE BY THE WITNESS, (iv) the record was made WHEN THE MATTER WAS FRESH, and (v) witness VOUCHES FOR THE ACCURACY of the record.
27
Opinion Testimony by Lay Witness
Opinions by lay (nonexpert) witnesses are generally INADMISSIBLE, unless no better evidence can be obtained. Opinion testimony by lay witness is admissible when it is: (i) based on witness's perception, (ii) helpful, and (iii) not based on specialized knowledge.
Admissible opinions of lay witnesses include: speed of moving object, general appearance of condition of a person, state of emotion, value of own services, and voice or handwriting identification.
28
Admissibility of Opinion Testimony by Expert Witness
For expert testimony to be admissible: (i) the subject matter must be one where SCIENTIFIC, TECHNICAL, or other specialized knowledge would assist the trier of fact, (ii) the opinion must be BASED ON SUFFICIENT FACTS, (iii) the opinion must be the product of RELIABLE PRINCIPLES and METHODS, and (iv) the expert must have RELIABLY APPLIED the principles and methods to the facts of the case.
29
Accrediting or Bolstering a Witness
Generally, a party is NOT PERMITTED to bolster or accredit the testimony of their witness UNITL the witness has been impeached.
However, a party may offer evidence that the witness made a TIMELY COMPLAINT or a PRIOR STATEMENT OF IDENTIFICATION even if this tends to bolster their in-court testimony.
30
Impeachment Methods
A witness may be impeached BY ANY PARTY with facts specific to the case, such as: (i) prior inconsistent statements, (ii) bias or interest, (iii) sensory deficiencies, (iv) contradictory facts,
Or with general bad character for untruthfulness, such as: (v) opinion or reputation evidence of untruthfulness, (vi) conviction of a crime or (vii) bad acts involving untruthfulness, by cross examination or extrinsic evidence using the following methods: (i) CROSS EXAMINATION, or (ii) EXTRINSIC EVIDENCE.
31
Impeachment: Prior Inconsistent Statements
A party may show a witness made prior inconsistent statements to impeach a witness, but if under oath, it may be entered into substantively.
32
Impeachment: Conviction of a Crime
A witness may be impeached by proof of a CONVICTION for the following crimes: (i) ANY CRIME involving dishonesty or false statement, (ii) FELONY not involving dishonesty or false statement and under 10 years since conviction or date of release (witnesses for criminal defendants - probative value must outweigh prejudicial effect/for all other witness - probative value must substantially outweigh prejudicial effect), and (iii) an older conviction if its probative value SUBSTANTIALLY OUTWEIGHS its prejudicial effect and the proponent gives the adverse party reasonable written notice.
33
Impeachment: Juvenile Convictions
Juvenile offenses are generally NOT ADMISSIBLE for impeachment purposes, unless in a CRIMINAL CASE where the judge has discretion.
34
Methods of Impeachment of a Hearsay Declarant
A hearsay declarant can be impeached by ANY METHOD, and need not be given an opportunity to explain or deny a prior inconsistent statement.
35
Impeachment: Rehabilitation
A witness who has been impeached may be rehabilitated on the same basis they were attacked by the following methods: (i) explanation on redirect, (ii) good character for truthfulness, and (iii) prior consistent statement ((1) motive to fabricate or (2) faulty memory).
36
Hearsay
An out of court statement offered to prove the truth of the matter asserted. Hearsay statements are inadmissible upon appropriate objection unless an exception applies.
37
Hearsay: Common Non-Truth Statements
The following statements are not hearsay because they are not being offered for the truth of the matter asserted: (i) verbal acts or LEGALLY OPERATIVE FACTS, (ii) statements offered to show their EFFECT ON THE LISTENER or reader, or (iii) statements offered as circumstantial evidence of declarant's STATE OF MIND.
38
Hearsay: Hearsay Exemptions
(i) Prior inconsistent statement given by the declarant under penalty of perjury, (ii) prior CONSISTENT statement either offered to rebut a charge that the witness was lying because of MOTIVE or offered to rehabilitate, (iii) statement of IDENTIFICATION, or (iv) statement made or adopted by a party to the action (i.e., spokesperson authorized to speak on her behalf, agent within scope of agency, partner, co-conspirator, or privity in title).
39
Hearsay Exemptions: Prior Statements
Prior statements by a TESTIFYING WITNESS who is subject to CROSS-EXAMINATION is exempt if: (i) the statement is one of IDENTIFICATION of a person perceived earlier, (ii) is INCONSISTENT with the declarant's in-court testimony and was given under oath, or (iii) the prior statement is CONSISTENT with the declarant's in court testimony and is offered to rebut a charge that the witness is lying or exaggerating or offered to rehabilitate a witness who has been impeached on some other ground.
40
Hearsay Exemption: Statements by an Opposing Party
To qualify, the statement need not have been against the declarant's interest when made, and may be in the form of an opinion.
41
Hearsay Exemption: Statements by an Opposing Party - Adoptive Statements (and Silence)
Where a party expressly or impliedly adopts or acquiesces in the statement of another, it may be admissible against them.
Silence may be considered an implied acquiescence to the truth of that statement if the following requirements are met: (i) the party HEARD and UNDERSTOOD the statement, (ii) the party was physically and mentally CAPABLE OF DENYING the statement, and (iii) a reasonable person WOULD HAVE DENIED the accusation.
42
Hearsay Exemption: Statements by an Opposing Party - Vicarious Statements
Certain statements by another person are admissible against a party because of the relationship between them, such as authorized spokesperson, agents and employees (if (i) within the scope of employment, and (ii) during the existence of the relationship), partners, and co-conspirators.
43
Similar Occurrences Exceptions - Similar Accidents or Injuries Caused by Same Event or Condition
Evidence of prior accidents or injuries caused by the same event or condition and occurring under substantially similar circumstances is admissible to prove: (i) the EXISTENCE of a dangerous condition, (ii) that the dangerous condition was the CAUSE of the present injury, and (iii) that the defendant had NOTICE of the dangerous condition.
44
Writings: Main Issues Associated with Writings
1) Authentication, 2) Best Evidence Rule, and 3) Hearsay
45
Writings: Examples of Authentication
1) Opponent Admission, 2) Eyewitness testimony, 3) lay opinion on handwriting (who has familiarity with writing, not for purposes of litigation), 4) expert opinion, or 5) jury comparison of handwriting.
46
Opinion Testimony by Expert Witness - Reliability of Testimony
There are four principal Daubert factors courts use to determine the reliability of experts' principles and methods (TRAP): 1) testing of principle methodology, 2) rate of error, 3) acceptance by experts in the same discipline, and 4) peer review and publication.
47
Hearsay Exceptions: When Declarant is Unavailable
1) Former Testimony, 2) Statements Against Interest, 3) Dying Declarations, 4) Statements of Personal or Family History, and 5) Statements Offered Against Party Procuring Defendant's Availability
48
Hearsay Exceptions: Grounds for Unavailability
1) Privilege, 2) Refusal to Testify, 3) Incapacity due to physical or mental illness, 4) Does not remember, and 5) Absent (beyond reach of subpoena).
49
Hearsay Exceptions (Unavailability): Former Testimony + Grand Jury Testimony
The testimony of an unavailable witness is admissible if: (i) the testimony was given UNDER OATH, (ii) against whom the testimony is NOW BEING OFFERED (or in a civil case, the party's predecessor in interest), and (iii) the other party had an OPPORTUNITY and SIMILAR MOTIVE to direct, cross-examine and re-direct.
REMEMBE: Grand jury testimonies are NOT ADMISSIBLE since there is no opportunity to cross-examine declarants.
50
Hearsay Exceptions (Unavailability): Statements Against Interest
A statement of a person, now unavailable as a witness, may be admissible if it was against that person's pecuniary, proprietary, or penal interest when made, such that a reasonable person in the declarant's position would have made it only if they believed it to be true.
The declarant must have had PERSONAL KNOWLEDGE of the facts, and must have been aware that the statement was against their interest AT THE TIME it was made.
51
Hearsay Exceptions (Unavailability): Statements Against Interest - Criminal Cases
In criminal cases, statements against penal (criminal) interest must be corroborated.
52
Hearsay Exceptions (Unavailability): Dying Declaration
In HOMICIDE prosecutions or ANY CIVIL CASE, a statement by an unavailable declarant is admissible if: (i) the declarant believed their death was imminent, and (ii) the statement concerned the cause or circumstance.
53
Hearsay Exceptions (Unavailability): Statements of Personal or Family History
Statements by an unavailable declarant concerning births, marriages, divorces, relationship, genealogical status, etc., are admissible provided that: (i) the declarant is a member of the family or immediately associated with it, and (ii) the statements are based on the declarant's personal knowledge.
54
Hearsay Exceptions (Unavailability): Statements Offered Against Party Procuring Declarant's Unavailability
Statements of a person is admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant's unavailability to prevent him from testifying.
55
Hearsay Exceptions Where Availability is Immaterial
1) Excited Utterances, 2) Present Sense Impression, 3) Present State of Mind or Bodily Condition, 4) Statement for Medical Diagnosis, 5) Recorded Recollection, 6) Business Records (or Absence Thereof), 7) Public Records, 8) Judgments
56
Hearsay Exceptions (Availability Immaterial): Excited Utteranes
An out-of-court statement relating to a startling event made WHILE UNDER THE STRESS of the excitement from the event.
57
Hearsay Exceptions (Availability Immaterial): Present Sense Impression
A present sense impression is a statement that describes or explains an event or condition, and is made IMMEDIATELY AFTER the declarant perceives it.
58
Hearsay Exceptions (Availability Immaterial): Present State of Mind
A statement of the declarant's then-existing (present) state of mind (including motive, intent, or plan) or their emotional, sensory, or physical condition is admissible.
However, a statement of MEMORY or BELIEF is NOT ADMISSIBLE to prove the truth of the fact remembered or believed.
59
Hearsay Exceptions (Availability Immaterial): Statements Made for Purposes of Medical Diagnosis or Treatment
A statement that describes a person's medical history, past or present symptoms, or their inception or general cause is admissible if it was MADE FOR, and PERTINENT TO, medical diagnosis.
Statements like this usually are made to medical personnel, but CAN BE made to family member or anyone she is seeking medical assistance from.
60
Hearsay Exceptions (Availability Immaterial): Records of Regularly Conducted Activity/Business Records
Any writing or record made as a memorandum of any act, event, condition, opinion, or diagnosis is admissible in evidence as proof of that occurrence if: (i) entry is made in the ordinary course of business, (ii) the business regularly keeps such records, (iii) made at or near the time of the event, and (iv) was made within the personal knowledge of the entrant.
61
Hearsay Exceptions (Availability Immaterial): Records of Regularly Conducted Activity/Business Records - Required Foundation
The authenticity of the record must be established by a sponsoring witness, who can be a custodian of records. This can be accomplished by the records custodian: (1) testifying that the record meets the elements of the business records exception, or (2) certifying in writing that the record meets the elements of the business records exception.
62
Hearsay Exceptions (Availability Immaterial): Official Records and Other Official Writings
The following records of a public office or agency are admissible: (i) records setting forth ACTIVITIES of the agency, (ii) records of matters OBSERVED pursuant to a duty imposed by law, NOT INCLUDING police observations in criminal cases, and (iii) records of factual findings resulting from an investigation authorized by law for CIVIL actions or AGAINST THE GOVERNMENT in CRIMINAL cases.
63
Hearsay Exceptions (Availability Immaterial): Judgments + Prior Criminal Convictions
A certified copy of a judgment is always admissible proof that such judgment was entered.
For PRIOR CRIMINAL CONVICTIONS, a judgment is admissible in criminal and civil actions to prove ANY ESSENTIAL FACT TO THE JUDGMENT. In a criminal case, however, the government may use the judgment for this purpose ONLY AGAINST THE ACCUSED.
Prior criminal acquittals are EXCLUDED.
A civil judgment is inadmissible in a subsequent criminal proceeding and generally in subsequent civil proceedings, unless to prove matters of personal or family history, or other admissible things.
64
Hearsay Exceptions (Availability Immaterial): Recorded Recollection
If a testifying witness's memory cannot be revived, a party may introduce a memorandum or other record that the witness made or adopted at or near the time of the event. The record can only be READ INTO EVIDENCE, it cannot be admitted as an exhibit unless OFFERED BY THE OTHER PARTY.
65
Hearsay Exceptions (Availability Immaterial): Learned Treatises
Statements contained in a learned treatise are admissible as substantive proof if: (i) the treatise is established as a reliable authority, and (ii) the excerpt is relied upon by an expert during direct examination. If admitted, such statements are READ INTO EVIDENCE, but not received as an exhibit.
66
Residual "Catch-All" Exception
Federal Rules provide a "catch-all" exception for hearsay statements not covered by a specific exception, which imposes the following conditions: (i) the statement possess sufficient guarantees of trustworthiness by considering TOTALITY OF CIRCUMSTANCES and EVIDENCE that corroborates the statement, (ii) statement must be STRICTLY NECESSARY, and (iii) the proponent must give REASONABLE NOTICE to the adversary as to their intent to offer the statement.
67
Constitutional Issues: Hearsay and the Confrontation Clause
Under the confrontation clause, a hearsay statement will not be admitted (regardless if an exception applies) where: (i) the statement is being offered AGAINST THE ACCUSED in a CRIMINAL CASE, (ii) declarant is UNAVAILABLE, (iii) the statement was TESTIMONIAL in nature (i.e. sworn statement), and (iv) the accused had NO OPPORTUNITY to cross-examine the declarant's statement prior to trial.
68
Constitutional Issues: Hearsay and Due Process Rights
Hearsay rules cannot be applied where such application would deprive the accused their right to a fair trial or deny their right to compulsory process.
69
Impeachment: Prior Inconsistent Statements - Foundation for Extrinsic Evidence
Extrinsic evidence can be introduced to prove a prior inconsistent statement ONLY IF, at SOME POINT (before or after introduction of extrinsic evidence): (i) the WITNESS is given an OPPORTUNITY TO EXPLAIN OR DENY the statement, and (ii) the ADVERSE PARTY is given an OPPORTUNITY TO EXAMINE the witness about the statement.
The foundation requirement does NOT APPLY if the prior inconsistent statement is an OPPOSING PARTY'S STATEMENT
70
Impeachment: Contradictory Facts
If the cross-examiner gets the witness to admit a mistake or lie, they have been impeached by contradiction; however, if the witness does not admit, EXTRINSIC EVIDENCE may be introduced unless it is collateral (meaning no significant relevance to the case).
71
Impeachment: Opinion or Reputation Evidence of Untruthfulness
A witness can be impeached with REPUTATION or OPINION evidence of their own bad character for truthfulness
72
Impeachment: Conviction of a Crime - Effect of Pardon
A conviction CANNOT be used to impeach a witness if the conviction was subject to a pardon and either: (i) the pardon was based on REHABILITATION, and the witness has not been convicted of a subsequent felony, or (ii) the pardon was based on INNOCENCE.
73
Impeachment: Bad Acts Involving Untruthfulness
A witness may be interrogated upon cross-examination with respect to an act of misconduct if the act is probative of truthfulness, but EXTRINSIC EVIDENCE is NOT PERMITTED.
74
Privileges in Federal Common Law
Federal courts currently recognize the following major privileges: 1) attorney client privilege, 2) spousal immunity, 3) privilege for confidential marital communications, 4) psychotherapist/social worker client privilege, 5) clergy-penitent privilege, and 6) governmental privileges.
75
Privilege: Confidentiality
To be privileged, a communication must be shown or presumed to have been made in confidence, meaning not intended to be disclosed to third parties.
76
Privilege: Comment on Privilege
Neither counsel for the parties nor the judge may comment on someone's claim of privilege
77
Privilege: Waiver
Any privilege is waived by: 1) failure to claim the privilege, 2) voluntary disclosure of the privileged matter by the privileged holder, or 3) a contractual provisions waiving in advance the right to claim a privilege.
78
Privilege: Eavesdropping
A privilege based on confidential communications is not destroyed because it was overheard by someone whose presence was unknown to the parties.
79
Attorney-Client Privilege
Communications between an attorney and client made during professional consultation are privileged from disclosure. This applies to: (i) confidential communications (not underlying evidence, preexisting documents, or physical evidence), (ii) between attorney and client (or client's representative, (iii) made during professional legal consultation, (iv) unless the privilege is waived or an exception applies.
80
Attorney-Client Privilege: Corporate Clients
Corporations are "clients" within the meaning of privilege and statements made by the corporate officials or employees to an attorney are protected if the employees were authorized or directed by the corporation to make such statements.
81
Attorney-Client Privilege: Communications Through Agents
Communications made to third parties are confidential and covered by the privilege if necessary to transmit information between the attorney and client (i.e., client sees doctor for information at trial).
82
Attorney-Client Privilege: Joint Client Rule
If 2 or more clients with a common interest consult the same attorney, their communications concerning the common interest are PRIVILEGED AS TO THIRD PARTIES, and DOES NOT apply to each other.
83
Attorney-Client Privilege: Duration
The attorney-client privilege applies indefinitely, even after the client's death (but, the estate has the power to waive).
84
Attorney-Client Privilege: Exceptions
1) If the attorney's services were sought to aid in the planning or commission of a crime, 2) where the client has put legal services at issue in the case, 3) for communication relevant to an issue of breach of duty between attorney and client, and 4) regarding a communication relevant to an issue between parties through the same deceased client.
85
Attorney Work Product
Documents prepared by an attorney for their own use is not protected by privilege, BUT they are not subject to discovery except in cases of NECESSITY.
86
Limitations on Waiver of Attorney-Client Privilege and Work Product Rule
A voluntary disclosure of privileged material operates as a waiver of the attorney-client privilege or work product protection only with respect to disclosed material.
Undisclosed material is subject to the waiver only if: (i) the waiver was intentional, (ii) the disclosed and undisclosed material concern the same subject matter, and (iii) the material should be considered together to avoid unfairness.
87
Physician-Patient Privilege
Confidential information acquired by a physician is privileged if: (i) there was a professional relationship FOR THE PURPOSE OF MEDICAL TREATMENT, (ii) the information was acquired for the PURPOSE OF DIAGNOSIS or TREATMENT, and (iii) the information was necessary for diagnosis or treatment
88
Physician-Patient Privilege Exceptions
The physician-patient privilege does not apply if: (i) the patient puts their physical condition in issue, (ii) the physician's assistance was sought to AID WRONGDOING, (iii) the communication is relevant to an issue of breach of duty in a DISPUTE BETWEEN THE PHSYICIAN AND PATIENT, (iv) the patient AGREED by contract to waive the privilege, or (v) it is a federal case applying the federal law of privilege.
89
Psychotherapist-Social Worker Patient Privilege
Federal courts recognize a privilege for confidential communications between a psychotherapist or social worker and their patient/client, UNLESS the patient puts their mental condition at issue in the case.
90
Privilege: Spousal Testimonial Privilege (Spousal Immunity)
A married person whose spouse is a defendant in a CRIMINAL CASE may not be called as a witness by the prosecution. This privilege lasts ONLY DURING the marriage. In federal courts, the privilege belongs to the witness-spouse, therefore they are not compelled to testify, but may do so.
91
Privilege: Confidential Marital Communications
In any civil or criminal case, confidential communications between spouses during a valid marriage are privilege, and either spouse can prevent the other from disclosing information.
92
Privilege: When Neither Marital Privilege Applies
1) Communications or acts in furtherance of a future joint crime or fraud, 2) legal actions between the spouses, or 3) where a spouse is charged with a crime against the testifying spouse or children.
93
Clergy-Penitent Privilege
Statements made to a member of the clergy are privileged if made in the capacity as a spiritual adviser.
94
Privilege Against Self-Incrimination
Under the 5th Amendment of the Constitution, a witness cannot be compelled to testify against themselves.
95
Burden of Production
The party who has the burden of pleading usually has the burden of producing evidence sufficient to make out a prima facie case.
96
Burden of Persuasion (Civil Cases)
The burden of persuasion for civil cases is by a PREPONDERANCE OF THE EVIDENCE, however, some cases (e.g., fraud or oral contract) will require clear and convincing evidence.
97
Burden of Persuasion (Criminal Cases)
The burden of persuasion for criminal cases is BEYOND A REASONABLE DOUBT.
98
Judicial Notice
Judicial notice is the recognition of a fact as true without formal presentation of evidence, a court may take judicial notice of any fact that is not subject to a reasonable dispute or facts within the jurisdiction of the court (e.g., on the record).
99
Judicial Notice: Conclusiveness
A judicially notice fact is CONCLUSIVE in a CIVIL CASE, but not in a CRIMINAL CASE.
100
Rule of Completeness
Where part or all of a writing or record statement is introduced into evidence, the adverse party may require the proponent to introduce any other part that ought in fairness to be considered at the time.
101
Preserving Claim of Error for Appeal
A party may claim error in the court's ruling if it affects a substantial right of the party, the party opposing the admitted evidence needs to make a TIMELY OBJECTION or move to strike the evidence.
102
Rulings on Evidence: Timing of Objections
Objections at trial should be made after the question, but before the answer.
103
DE Evidence Distinctions: Compassionate Communications by a Health Care Provider
In CIVIL actions AGAINST a health care provider, a statement or gesture of apology, sympathy, compassion, condolence, or benevolence by the health care provider or their employee is INADMISSIBLE if made to an injured or deceased person or their family members.
However, statements of LIABILITY or FAULT are ADMISSIBLE.
104
DE Evidence Distinctions: Accommodation Payments in Personal Injury Cases
Evidence of advance or partial payments of damages by a person or insurer as an accommodation to an injured person or the person's estate or dependents is NOT ADMISSIBLE to prove liability.
105
DE Evidence Distinctions: Sexual Assault Victim's Past Behavior
In CRIMINAL SEXUAL ASSAULT CASES, the defendant cannot introduce reputation, opinion, or specific acts about the VICTIM'S SEXUAL CONDUCT with any persons other than the defendant.
The prosecution can introduce evidence of the victim's sexual conduct, in which case the defendant can cross-examine the witness or otherwise offer evidence that specifically rebuts the prosecution's evidence.
106
DE Evidence Distinctions: Other Misconduct for Non-Character Purposes (MIMIC)
Delaware imposes more stringent restrictions of this type of evidence, and for the act to be admissible, it must be: 1) MATERIAL to an issue in the case, 2) NOT REMOTE in time from the charged crime, and 3) proven by "PLAIN, CLEAR, AND CONCLUSIVE" evidence.
A ruling must first be sought from the judge to introduce evidence of a defendant's specific acts of misconduct.
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DE Evidence Distinctions: Defendant's Similar Misconduct in Sex-Crime Cases
In a sexual assault or child molestation case, evidence of a defendant's other similar acts is NOT ADMISSIBLE to prove the defendant's general disposition to commit the charged crime (can be admissible to show MIMIC).
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DE Evidence Distinctions: Video Testimony in Domestic Violence, Sexual Assault, Stalking, and Child Abuse Prosecutions
In CRIMINAL cases for domestic violence, sexual assault, stalking, and child abuse, a VICTIM of the crime (regardless of age) or any NON-VICTIM WITNESS who is younger than age 11, MAY BE PERMITTED to testify by secured video connection. The court must determine that the victim would suffer serious emotional distress by testifying in the courtroom such that the victim would not be able to reasonably communicate.
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DE Evidence Distinctions: Videotaped Deposition of Child Witness
In any CRIMINAL case, or any HEARING ON DELINQUENCY, upon motion of the Deputy Attorney General prior to trial and with notice to the defense, the court may order all questioning of any witness UNDER AGE 12 to be videotaped.
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DE Evidence Distinctions: Recorded Recollections
The court MAY PERMIT a recorded recollection to be received by the jury as as EXHIBIT.
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DE Evidence Distinctions: Opinion Testimony by Expert Witnesses
Under Delaware Rules (and Federal Rules) an expert's opinion must be based on (i) facts based on the expert's personal observation, (ii) facts made known at trial, or (iii) facts supplied to the expert outside of the courtroom and of a type reasonably relied on in the field.
In Delaware, the adverse party may, BEFORE the expert gives the opinion, be allowed to conduct a VOIR DIRE EXAMINATION directed to the underlying facts or data on which the opinion is based.
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DE Evidence Distinctions: Opinion on Ultimate Issues
Testimony as to whether a criminal defendant had the mental state at issue in the crime is NOT PROHIBITED.
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DE Evidence Distinctions: Exclusions and Sequestration of Witnesses
A judge may not exclude the following people from a trial: (i) a party or designated officer or employee of a party, (ii) a persons whose presence is essential to the presentation of a party's claim or defense (e.g., expert witness), or (iii) a person statutorily authorized to be present. (FEDERAL RULES)
In Delaware, a judge MAY exclude witnesses from a courtroom at the request of a party, BUT IS NOT required to do so. In addition to the federal rules above, in CRIMINAL cases, victim and the victim's immediate family members have the right to be present UNLESS the defendant shows good cause to exclude them.
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DE Evidence Distinctions: Impeachment with Prior Inconsistent Statements
Under both Federal and Delaware rules, extrinsic evidence can be introduced to prove a prior inconsistent statement only if: (i) the witness is given an opportunity to explain or deny the statement at some point during trial, and (ii) the adverse party is given an opportunity to examine the witness about the statement.
Additionally, in Delaware, extrinsic evidence is admissible if the witness DOES NOT CLEARLY ADMIT the prior inconsistent statement.
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DE Evidence Distinctions: Impeachment with Prior Inconsistent Statements - When Admissible as Substantive Evidence
Federal Rules - a prior inconsistent statement is admissible and may be admitted as substantive evidence where the declarant is testifying at a trial and subject to cross-examination about the prior inconsistent statement, made under oath at a prior proceeding.
Delaware - Where the declarant is testifying at trial and subject to cross-examination, the statement is admissible EVEN IF NOT MADE UNDER OATH.
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DE Evidence Distinctions: Impeachment with Criminal Convictions
In Delaware, evidence of a conviction for a felony that does not involve dishonesty or false statement is admissible to impeach the witness only if the PROBATIVE VALUE OUTWEIGHS THE PREJUDICIAL EFFECT.
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DE Evidence Distinctions: Prior Statements of Testifying Witness
Federal - Exempts Prior Statements from hearsay if: (i) prior statement of identification, (ii) prior inconsistent statement made under oath, or (iii) prior consistent statement used to rehabilitate an impeached witness.
Delaware - (1) prior inconsistent statement need not be made under oath, (2) in a CRIMINAL case, any VOLUNTARY PRIOR STATEMENT is admissible as substantive evidence (judge must determine voluntariness and declarant must be asked about it on cross).
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DE Evidence Distinctions: Vicarious Opposing Party Statements - Co-Conspirators
In Delaware, co-conspirator's statement is not admissible as an opposing party's statement until the conspiracy has been established by a preponderance of the evidence.
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DE Evidence Distinctions: Hearsay Exceptions - Dying Declaration
Federal - Dying declaration applies only in homicide cases or civil cases
Delaware - Applies in ALL cases.
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DE Evidence Distinctions: Hearsay Exceptions Where Declarant's Availability Immaterial - Public Records Exception
Federal - The record of a public office is admissible if: (i) the record describes the activities of the office, (ii) the record describes matters observed pursuant to a duty imposed by law (not including police observations in criminal cases), and (iii) the record contains factual findings resulting from an investigation that was authorized by law
Delaware - provides the additional records that do not qualify: (i) investigative reports by police or government agency, (ii) factual findings by the government or special investigation, or (iii) any matter where the source lacks trustworthiness.
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DE Evidence Distinctions: Statements by Child Victim or Witness
In CRIMINAL cases for any felony relating to physical or sexual abuse, injury, or death, Delaware recognizes a statutory hearsay exception for statements made by a child who is UNDER 11 at the time of the proceeding.
The statement must concern an act that is a material element of the offense and the child must be either present and subject to cross OR unavailable (e.g., severe emotional trauma supported by expert testimony).
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DE Evidence Distinctions: Testimonial Privileges - Attorney-Client Privilege
In Delaware attorney-client privilege applies to confidential communications between the following persons: (i) client and lawyer, (ii) lawyer and the lawyer's representative, (iii) the client and the client's representative, (iv) lawyers representing the same client, and (v) the client or lawyer to another lawyer representing some other party in a matter of common interest.
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DE Evidence Distinctions: Testimonial Privileges - Health Care Provider - Patient Privilege
Delaware recognizes a combined privilege for communications with physicians, psychotherapists, and mental health providers made for the purposes of DIAGNOISING or TREATING a physical or mental condition.
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DE Evidence Distinctions: Testimonial Privileges - Exceptions to Privilege for Health Care Provider
Privilege DOESN'T APPLY in the following circumstances: (1) any proceeding in which the patient puts their PHYSICAL CONDITION AT ISSUE, (2) where the patient has expressed an intent to engage in conduct likely to result in IMMINENT DEATH or SERIOUS BODILY HARM, (3) where the provider's assistance was sought to aid wrongdoing, (4) in a proceeding to HOSPITALIZE the patient FOR MENTAL ILLNESS, (5) where the communication was made during a COURT ORDERED EXAMINATION, and (6) in cases involving CHILD ABUSE.
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DE Evidence Distinctions: Testimonial Privileges - Marital Privilege
Delaware DOES NOT RECOGNIZE the spousal immunity privilege, but does recognize privilege for confidential marital communications.
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DE Evidence Distinctions: Judicial Notice - Conclusiveness
Federal - a judicially noticed fact is conclusive in civil, but not in criminal.
Delaware - upon request, a court must instruct the jury to accept judicially noticed facts as conclusive in BOTH criminal and civil.
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DE Evidence Distinctions: Judicial Notice of Law
Delaware courts must take judicial notice of: (i) US Constitution and related case law, and (ii) Delaware Constitution and statutes, common law, and case law, and MAY take judicial notice of the statutes, common law, and case law of other states.
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DE Evidence Distinctions: Presumptions in Civil Cases - Effect of Presumption
A Delaware presumption in a civil case shifts the burden of persuasion - the party against whom it is directed has the burden of proving that the NONEXISTENCE of the presumed fact is MORE PROBABLE than its existence.
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DE Evidence Distinctions: Presumptions in Civil Cases - Conflicting Presumptions
In Delaware presumptions are inconsistent, the presumption that is founded upon weightier considerations of policy will apply. If the conflicting presumptions are of EQUAL WEIGHT, NEITHER presumption applies.
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DE Evidence Distinctions: Presumptions in Civil Cases - Spoliation
When a litigant INTENTIONALLY suppresses or destroys pertinent evidence, an inference arises that such evidence would be unfavorable to his case.`
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DE Evidence Distinctions: Presumptions in Civil Cases - Rebuttable Presumptions in Delaware Criminal Cases
Delaware recognizes the following rebuttable presumptions in criminal cases: (i) a person is presumed to intend the natural and probable consequences of their acts, and (ii) a person found to possess the goods acquired as the result of a recent crime is presumed to have committed the crime.
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Hearsay Exceptions: Market Reports
Market reports and other published compilations are admissible if generally used and relied upon by the public or by persons in a particular occupation.
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Relevant Evidence Rule 403 Balancing Test
Relevant evidence may be excluded if SUBSTANTIALLY OUTWEIGHED by prejudice, delay, confusion, or repetition.
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Self-Authenticating Documents
Certain writings "prove themselves," extrinsic evidence is NOT REQUIRED to prove the following: domestic public documents bearing a seal, official publications, newspapers and periodicals, notarized documents.
