Outline Flashcards
(332 cards)
1
Q
The Federal rules apply to most US civil and criminal proceedings, except for (3 exceptions)
A
(1) The court’s determination of a preliminary admissibility question
(2) Grand jury proceedings
(3) Certain issues in criminal proceedings (issuance of a search warrant, bail, sentencing, probation)
2
Q
3 situations when hearings on preliminary matters must be conducted outside the presence of a jury:
A
(1) The hearing involves the admissibility of confessions
(2) A D in a criminal case is a witness and so requests, or
(3) Justice requires it
3
Q
Once evidence has been admitted, it is the role of the jury to determine the ______________ of the evidence
A
Weight and credibility
4
Q
How can a party challenge a court’s decision to admit evidence?
A
Objection or Motion to Strike (same thing)
Unless it is apparent from the context, the party must usually state the specific ground for the objection or motion to preserve the admissibility issue for appeal.
5
Q
How can a party challenge a court’s decision to exclude evidence?
A
Offer of Proof
6
Q
What is an offer of proof?
A
An offer of proof is an oral or written explanation of the relevance and admissibility of the evidence made on the record.
7
Q
What is the plain error rule?
A
Allows the court to reverse an evidentiary ruling, even without an objection or offer of proof being made.
8
Q
Under the plain-error rule, what is a plain error?
A
A plain error is an obvious error that affects a party’s substantial rights and the fairness of judicial proceedings.
9
Q
What is the Rule of Completeness?
A
Under the rule of completeness, when a party introduces part of a statement, an adverse party may compel the introduction of an omitted portion of the statement.
Admission of the omitted portion may be compelled if, in the interest of fairness, it should be considered at the same time (i.e., when the omitted portion explains or clarifies the admitted portion).
This rule also applies to a separate statement that relates to the introduced statement, such as the original letter when the reply letter has been introduced.
10
Q
(T/F) The rule of completeness requies an adverse party to compel the immediate introduction of evidence during the presentation of related evidence.
A
FALSE. While the rule permits it, it does not require the adverse party to do so. The adverse party may instead choose to present the omitted evidence subsequently (e.g., during cross-examination).
11
Q
What is judicial notice?
A
Judicial notice is the court’s acceptance of a fact as true without requiring formal proof.
Despite being termed “judicial notice,” judges may not take notice of a fact based solely on their own personal knowledge.
12
Q
Adjudicative Facts
v.
Legislative Facts
A
Adjudicative: Adjudicative facts are facts that are important to the legal outcome of a particular case. Issues relating to adjudicative facts are typically decided by the jury.
Legislative: Legislative facts are facts that help a court or agency understand why a law was made and how the law should be applied.
13
Q
When can judicial notice of an adjudicative fact be taken?
A
Only if it is not subject to reasonable dispute because:
i) The fact is generally known within the territorial jurisdiction of the trial court; or
ii) The fact can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
14
Q
When can a court take judicial notice?
A
A court may take judicial notice at any time during a proceeding, including on appeal, whether upon request of a party or by the court’s own initiative.
However, a court may not take judicial notice against a criminal defendant for the first time on appeal.
15
Q
What is the one big exception when a court can’t take judicial notice
A
A court may not take judicial notice against a criminal defendant for the first time on appeal.
16
Q
If a court takes judicial notice of a fact, how should the jury be instructed to take that fact in a Civil case? What about in a Criminal case?
A
Civil: In a civil case, the jury must be instructed to accept the noticed fact as conclusive.
Criminal: In a criminal case, the jury must be instructed that it may or may not accept any judicially noticed fact as conclusive.
17
Q
(T/F) If a party makes a request for judicial notice and the court is supplied with the necessary information, then the court must take notice of the fact.
A
TRUE
18
Q
When a party makes a timely request for judicial notice, is the judge required to give the party an opportunity to be heard on the issue?
A
YES. When a party makes a timely request, the judge must give the party an opportunity to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. This right to be heard exists even if the court has taken judicial notice of a fact before notifying the party.
19
Q
What is an illustrative aid?
A
An illustrative aid is any presentation offered to assist the trier of fact in understanding evidence or an argument but is not offered as substantive evidence.
20
Q
Is the court’s approval required for a party to offer an illustrative aid?
A
YES
21
Q
(T/F) An illustrative aid must be entered into the record when possible.
A
TRUE.
An illustrative aid is not evidence but must be entered into the record when possible.
22
Q
When will the court allow a party to offer an illustrative aid to help the trier of fact understand the evidence or argument?
A
If the aid’s effectiveness is not substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or wasting time.
23
Q
An illustrative aid cannot be provided to the jury during deliberations UNLESS: (2 situations)
A
(1) All parties consent, OR
(2) The court orders otherwise for good cause
24
Q
What is a party’s “case-in-chief”?
A
Case-in-chief is the portion of a trial in which a party presents evidence to establish a claim or defense.
25
What is the general order of the trial process?
A trial traditionally begins with the case-in-chief of the plaintiff or prosecutor, followed by the defendant’s case, followed by the rebuttal of the plaintiff or prosecutor.
26
(T/F) Subject to the evidentiary rules, a party is generally free to present evidence in the manner and order that the party feels is most effective.
TRUE
However, the order of the witnesses and presentation of the case are within the discretion of the court. This discretion enables the court to effectively determine the truth, avoid wasting time, and protect witnesses from harassment.
27
Can a judge question a witness?
YES
28
Can a judge call a witness?
YES. If the judge calls a witness, all parties may cross-examine that witness.
29
If a party objects to a judge calling or questioning a witness, when should they object?
A party objecting to the judge’s calling or interrogation of a witness may wait to object until the next opportunity when the jury is not present.
30
The scope of cross-examination is generally limited to:
the subject matter of the direct examination and the credibility of the witness. However, the court may allow inquiry into additional matters.
31
Redirect Examination
v.
Recross Examination
Redirect: After cross-examination, the party who called the witness may engage in redirect examination. The purpose of redirect examination is to reply to any significant new matter raised on cross-examination
Recross: Recross-examination is also generally permissible concerning significant new matters brought up during redirect examination.
*For both redirect and recross, the court has discretion to permit inquiry into other matters.
32
In what scenario is a D protected from being compelled to testify?
The Fifth Amendment privilege against self-incrimination protects a defendant in a criminal case from being compelled to testify
33
(T/F) A D in a criminal case who testifies as to a preliminary question, such as the voluntariness of the D's confession, has opened himself up to cross-examination on other issues of the case.
FALSE
34
During trial testimony, when shoud objections be made?
During trial testimony, objections should be made after an improper question is asked but before the witness responds.
If it is the witness’s answer that makes the testimony improper (e.g., unresponsive to the question, hearsay), counsel should move to strike the answer as inadmissible.
Unresponsive answers are only subject to motions to strike by the examining counsel.
35
What is a leading question?
A leading question suggests the answer within the question.
36
Improper questions include questions with any of the following 6 characteristics:
i) Compound;
ii) Assumes facts not in evidence;
iii) Argumentative;
iv) Calls for conclusion or opinion;
v) Repetitive; or
vi) Lack of foundation (e.g., authentication issues).
37
Direct Examination
v.
Cross Examination
Direct examination is the questioning of a witness by the party who called that witness.
Cross-examination is the questioning of a witness who testified for the opposing party at a trial or hearing.
38
A leading question is only permitted on direct examination in the following 3 circumstances:
(1) When it is necessary to develop the witness's testimony (eg, when eliciting preliminary background information that is not in dispute)
(2) When questioning a witness who has difficulty communicating because of age or a physical/mental condition
(3) When the witness is likely to be antagonistic/hostile.
(EG, A leading question may be allowed when examining a witness who presents adverse testimony (i.e., a hostile witness) or a witness who is an adverse party or associated with an adverse party, even if adverse testimony may be unanticipated.)
39
Is there generally any restriction on the use of leading questions during cross-examination?
Generally, no. However, if questions concerning matters beyond the subject matter of the direct examination are permitted, then those inquiries must be made as if on direct examination.
40
The use of leading questions can be restricted in cross-examination when the cross examination is one of form rather than fact. What does this mean?
(e.g., when a party is cross-examined by his own lawyer after being called as a witness by an opposing party).
41
What is an improper compound question?
A question that requires answers to multiple questions is compound. Compound questions are not permitted.
Example: “Didn’t you leave the house at 7:00, lock the door behind you, get in your car, and drive away?” A “no” answer could mean that the witness did not leave at all, left at a time other than 7:00, did not lock the door, etc.
42
What is an improper question that assumes facts not in evidence?
A question is not permitted if the question assumes as true facts that have not been established.
Example: “When did you stop cheating at poker?” The question assumes that the witness plays poker and used to cheat while playing. If neither fact has been established, this question is objectionable.
43
What is an improper argumentative question?
A question is not permitted when the question is intended to present an argument, rather than elicit a factual response.
Example: “It sounds like you are not the kind of person that the jury should trust, doesn’t it?”
44
What is an improper question taht calls for a conclusion or opinion?
A question is not permitted when the question requires the witness to draw a conclusion or state an opinion that he is not qualified to make.
Example: “How did your mother feel after you told her the news?” The witness cannot know how her mother felt and would have to give an opinion to answer the question.
45
The court may (on its own initiative) or must (at a party’s request) exclude witnesses from the courtroom so that they do not hear the testimony of other witnesses.
However, there are 4 types of witnesses that cannot be excluded from the courtroom:
i) A PARTY who is a natural person;
ii) An officer or employee of a party that is not a natural person if that officer or employee has been designated as the party’s representative by its attorney, including a police officer in charge of the investigation in a criminal case;
iii) Any person whose presence is essential to a party’s presentation of its case; or
iv) A person, such as a victim, whose presence is permitted by statute.
*NOTE: A victim may be excluded if the court determines, by clear and convincing evidence, that the victim’s testimony would be materially altered by the victim hearing other testimony.
46
In addition to excluding witnesses from the courtroom, to prevent witnesses from hearing testimony of other witnesses, the court may also prohibit 2 additional things:
i) Disclosure of trial testimony to witnesses who are excluded from the courtroom; and
ii) Excluded witnesses from accessing trial testimony.
47
Burden of Production
v.
Burden of Persuasion
Burden of production refers to a party’s obligation to provide sufficient evidence to support a proposition of fact.
Burden of persuasion refers to a party’s obligation to convince the factfinder to believe a proposition of fact. The burden of persuasion (or standard of proof) is the degree to which legally sufficient evidence must be presented to the trier of fact.
48
The party with the burden of production must produce:
Legally sufficient evidence as to each element of a claim or defense, so that a reasonable trier of fact could infer that the alleged fact has been proved.
In meeting this burden, a plaintiff or prosecutor makes a prima facie case.
49
A party's failure to meet the burden of production can result in:
a directed verdict against the party bearing the burden
50
Determining whether the burden of production has been met rests with __________.
The court
51
Can the burden of production/persuasion shift between parties during trial?
Production: YES
Persuasion: NO
52
Burden of Persuasion in
Civil Cases
v.
Criminal Cases:
Civil Standard: Preponderance of the evidence (>50%)*
*A higher standard used in some civil cases (such as fraud) is clear and convincing evidence. Under this standard, the existence of a fact must be highly probable or reasonably certain.
Criminal Standard: Beyond a reasonable doubt
53
What is a presumption?
A presumption is a conclusion that the trier of fact is required to draw upon a party’s proof of an underlying fact or set of facts (i.e., basic facts).
Example: A presumption arises that a person is dead when a party establishes that the person has been missing and not heard from for more than seven years.
Example: A letter is presumed received by the intended recipient when the sender places a properly addressed, stamped envelope into an outgoing mailbox.
54
Rebuttable Presumption
v.
Conclusive Presumption
A rebuttable presumption is a conclusion of fact that can be overcome by evidence to the contrary.
Conclusive presumptions are treated as rules of substantive law and may not be challenged by contrary evidence, no matter how strong the proof.
-----Example: The presumption in some states that a child under the age of four lacks the ability to form the intent necessary to commit an intentional tort. No evidence to the contrary is permitted to disprove this assumption.
55
How do jury instructions regarding a rebuttable presumption differ when:
(1) There is no contrary evidence
(2) There is contrary evidence
(1) No Contrary Evidence: Judge must instruct jury to accept presumption
(2) Contrary Evidence: Burden of persuasion remains; Judge may instruct jury that it may draw conclusions from the facts
56
How does the Erie doctrine apply to determine the resolution of evidentiary issues?
In a federal diversity action, the federal court generally applies the Federal Rules to determine the resolution of evidentiary issues.
However, when state substantive law is determinative of the existence of a claim or defense (i.e., provides the rule of decision) under the Erie doctrine, then state law (rather than the Federal Rules) governs the effect of a presumption related to the claim or defense
57
3 things that a party that seeks to use destroyed evidence must show to be entitled to a rebuttable presumption that the evidence would have been unfavorable to the party who destroyed the evidence:
i) The destruction was intentional;
ii) The destroyed evidence was relevant to the issue about which the party seeks the inference; and
iii) The proponent acted with due diligence regarding the destroyed evidence.
58
As a general rule, evidence must be _______ to be admissible.
Relevant
59
(T/F) Irrelevant evidence is generally inadmissible.
TRUE
60
Relevant evidence is admissible unless excluded by _______, ____, or ________.
A specific rule, law, or constitutional provision
61
Evidence is relevant if: (2 requirements)
(1) PROBATIVE: It has any tendancy to make a fact more or less probably than it would be without the evidence
(2) MATERIAL: The fact is of consequence in determining the action.
62
Direct Evidence
v.
Circumstantial Evidence
DIRECT: Direct evidence is evidence identical to the factual proposition it is offered to prove.
Example: An eyewitness who testifies that she saw the defendant kill the victim is direct evidence that the defendant committed a homicide.
CIRCUMSTANTIAL: Circumstantial evidence is evidence that tends to indirectly prove a factual proposition through inference from collateral facts.
Example: Testimony from a witness who heard a gunshot and then entered the room to see someone holding a smoking gun over the body of a victim is circumstantial evidence. Although the witness did not actually see the defendant shoot the victim, the witness’s testimony supports an inference that the defendant committed a homicide.
63
(T/F) While it is sometimes said that direct evidence is stronger than circumstantial evidence, circumstantial evidence may have greater probative value.
TRUE.
Example: Testimony concerning the identity of a thief based on a fleeting glimpse by an eyewitness with poor vision may not be as persuasive as testimony that the stolen item was found in the defendant’s home.
64
Under Rule 403, relevant evidence may be excluded if the probative value of the evidence is substantially outweighed by the danger or risk of:
(one of these 6 things)
i) Unfair prejudice;
ii) Confusing the issues;
iii) Misleading the jury;
iv) Undue delay;
v) Wasting time; or
vi) Needlessly presenting cumulative evidence.
65
(T/F) Evidence may be admissible even if the danger of prejudice (or other factors) outweighs the probative value so long as the danger does not do so “substantially.”
TRUE
66
In determining the probative value of evidence, the court should consider:
The availability of other evidence to establish the same fact
67
What happens if the relevance of evidence depends on whether or not a certain fact exists?
(1) Proponent must introduce evidence sufficient to support finding that fact exists, and
(2) Court may admit proposed evidence on condition that supporting proof will be introduced later.
68
In making its determination that sufficient evidence has been introduced to support a finding that a fact does exist (when the relevance of evidence depends on the existence of that fact), the court must:
Examine all of the evidence and decide whether the jury could reasonably find the conditional fact by a preponderance of the evidence.
*The court is not required to find that the conditional fact exists by a preponderance of the evidence.
69
What is a curative admission?
When a court erroneously admits evidence, it may permit the introduction of additional inadmissible evidence to rebut the previously admitted evidence.
Known as a curative admission, the evidence can be admitted at the court’s discretion when necessary to remove unfair prejudice.
70
Is a party required to have objected when a court erroneously admitted evidence in order for the court to later allow a curative admission?
No, but the failure of a party to object to the admission of the initially inadmissible evidence is one factor to be considered in determining whether the party was unfairly prejudiced by it.
71
What is character evidence?
Character evidence is evidence offered to show a person’s general personality traits or propensities.
Example: Examples of generalized information about a person’s behavior include that a defendant is a criminal, a bad parent, or an inattentive driver.
72
As a general rule, character evidence is generally ________.
Inadmissible.
73
2 main exceptions when character evidence is admissible:
(1) Character is an essential element of a claim or defense, or
(2) Character evidence is used for impeachment
74
In Civil Cases, character evidence is generally inadmissible to prove conforming conduct. What does that mean?
In a civil case, evidence of a person’s character (or character trait) is generally inadmissible to prove that the person acted in accordance with that character (or character trait) on a particular occasion.
Example: A plaintiff cannot introduce evidence that the defendant is a reckless driver to prove that the defendant drove recklessly on the day in question.
75
What is the main exception when a P can introduce character evidence about the D to prove D's conforming conduct in a civil case?
Evidence concerning past sexual assault or child molestation by a defendant in a case in which the claim for relief is based on the defendant’s sexual misconduct is admissible. This includes evidence of specific acts.
76
Is evidence concerning the past sexual behaviour of a victim of sexual misconduct (eg, rape) admissible?
Yes, in limited circumstances
77
When there is a dispute about who was the first aggressor, what is the majority rule about whether or not character evidence can be admitted?
When there is a dispute concerning who was the first aggressor, the majority rule is that either party may introduce evidence of his own character for peacefulness or the other party’s character for violence
78
3 common examples when character evidence is admissible because it is an essential element of a claim or defense:
(1) Defamation (character of the P)
(2) Negligent hiring or negligent entrustment (character of the person hired or entrusted)
(3) Child-custody cases (character of the parent or guardian)
79
In Criminal cases, can the prosecution introduce evidence about the Defendant's bad character?
No. In general, the same rule that applies in a civil action applies to the prosecution in a criminal case. The prosecution is not permitted to introduce evidence of a defendant’s bad character to prove that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question.
Example: A defendant is charged with brutally murdering his wife. The prosecution may not present evidence of the defendant’s violent nature.
80
In Criminal cases, can the Defendant introduce evidence of the Defendant's good character?
A defendant is permitted to introduce evidence of his good character as being inconsistent with the type of crime charged (i.e., “the mercy rule”). The defendant’s character evidence must be pertinent to the crime charged.
Example: A defendant is charged with brutally murdering his wife. The defendant may present evidence of his peaceable nature.
Example: A defendant is charged with embezzling money from her employer. The defendant may not present evidence of her peaceable nature.
IMPORTANT NOTE: If a defendant offers evidence of his good character, he has “opened the door” and the prosecution is free to rebut the defendant’s claims by attacking the defendant’s good character. Fed. R. Evid. 404(a)(2)(A). Without opening of the door, the prosecution cannot introduce evidence of the defendant’s character.
81
What does "opening the door" mean in the context of evidence?
Opening the door refers to a party’s conduct or questions that render otherwise inadmissible evidence or objectionable questions admissible. The doctrine frequently applies to character evidence.
82
(T/F) The D opens the door to character evidence by taking the stand as a witness.
FALSE. However, as a witness, the defendant is always subject to impeachment.
83
If the D introduces evidence of the victim's bad character, then the D has opened the door for the prosecution to introduce evidence of the D's bad character.
BUT the prosecution's evidence regarding the D must:
relate to the same character trait (e.g., violence) that the defendant’s evidence about the victim did.
84
In a criminal case, when can the prosecution offer rebuttal evidence of the alleged victims good character?
Generally, only after the defendant has introduced evidence of the alleged victim’s bad character.
85
Proof of character, whether good or bad, offered by any party, generally must be in the form of ______ or _________.
Reputation or Opinion Testimony
86
What is reputation evidence?
Reputation evidence is evidence about a defendant’s character or standing in the community. “Community” includes people with whom the defendant engages on a regular basis.
87
What is impeachment?
The process of attacking or challenging a witness's credibility
88
In evidence, specific acts of a D refers to:
Any other crimes, wrongs, or actions of a D.
89
General rule regarding whether evidence of a D's specific acts is admissible:
Evidence of a specific act is not admissible to prove a person’s character to show that the person acted in accordance with that character on a particular occasion
90
Mnemonic to remember the permitted uses of evidence of a D's specific acts:
MIMIC
Motive
Intent
Absence of Mistake
Identity
Common Plan
91
Notice Requirements for the prosecution to offer evidence of a D's specific acts at trial:
(1) Prosecution must provide reasonable notice of the intent to offer at trial evidence of the D's specific acts.
(2) P must articulate the permitted (MIMIC) purpose for which the evidence is being offered.
92
When does the prosecution have to give notice of its intent to offer evidence of D's specific acts at trial?
Notice must generally be given in writing before trial, but it may be given in any form during trial if the court finds good cause for the lack of pretrial notice.
93
Is it harder to introduce evidence of a D's specific acts in civil or criminal cases?
Criminal.
When character evidence is admissible as evidence in a civil case (e.g., evidence that is an essential element of a claim or defense), it may be proved by specific instances of a person’s conduct or by reputation or opinion testimony.
Generally, when character evidence is admissible as evidence in a criminal case (e.g., evidence of a defendant’s good character), specific instances of a person’s conduct are not admissible. Character must be proved by either reputation or opinion testimony.
94
(T/F) Evidence of a D's specific bad acts that is otherwise admissible is especially subject to challenge under Federal Rule 403.
TRUE. Keep in mind that evidence of a bad act that is otherwise admissible is especially subject to challenge under Federal Rule 403. The Rule 403 exception permits the court to exclude evidence when its probative value is substantially outweighed by the danger of unfair prejudice or other factors (e.g., undue delay).
95
What is habit evidence?
Evidence of a person's habit or an organization's routine.
96
Habit evidence is ________ specific than character evidence
MORE
97
On the bar exam, words like ______ or ______ generally refer to habit, whereas _____ or ______ are more likely to imply character evidence.
Habit: "Always" or "every time"
Character: "Often" or "Frequently"
98
General rule regarding the admissibility of Habit Evidence
Habit evidence is admissible to prove that the person or organization acted in accordance with a habit or routine on a particular occasion. Habit evidence may be admitted without corroboration and without an eyewitness. Fed. R. Evid. 406.
Example: A person drives the same route to work and parks in the same spot every day.
99
Who has the burden of establishing that habit evidence is inflexible regular and proven by an adequate and representative sample?
The proponent of the evidence
100
In the context of evidence law, what does competence mean?
Refers to the ability of a person with personal knowledge of a matter to testify truthfully about it.
101
3 main requirements for a person to testify:
(1) Competence
(2) Personal Knowledge
(3) Oath or Affirmation
102
Do the federal rules subject a witness who lacks mental capacity or is immature (eg, a young child) to a special test of competency?
NO. However, a court may conduct an examination as to whether the person understands the importance of telling the truth and can differentiate between truth and falsehood.
103
(T/F) A person who is unable to understand the requirement to tell the truth is incompetent to be a witness.
TRUE
104
There is a rebuttable presumption that children are competent to testify.
TRUE (including a child who has suffered abuse or witnesses a crime)
105
If a court determines that a child is unable to testify in open court in the presence of the defendant in a proceeding involving an alleged offense against that child, the court may order that
the child’s testimony be taken by closed-circuit television.
106
Standard the judge must use to determine if a witness has personal knowledge in a jury trial:
In a jury trial, the judge must decide whether, based on the evidence, the jury could reasonably find that the witness possesses personal knowledge.
This determination examines whether the witness could and did perceive the matter about which the witness is testifying and can now recall and recount the matter.
The judge is not required to find that the witness possessed personal knowledge. If the judge finds that sufficient evidence exists, then the decision as to whether the witness had personal knowledge rests with the jury
107
(T/F) The judge, in a jury trial, is required to find that the witness possessed personal knowledge.
FALSE. Just has to find that there is sufficient evidence that the jury could reasonably find that the witness possesses personal knowledge
108
What is the "personal knowledge" requirement when a witness is testifying as to hearsay?
A witness testifying as to hearsay must have personal knowledge regarding the making of the statement but need not have personal knowledge of the matter asserted in the statement.
109
Can a presiding judge testify as a witness in the trial?
NO.
The presiding judge is absolutely barred from testifying as a witness in the trial. A party is not required to object to preserve the issue for appellate review.
110
Can a juror testify as a witness DURING trial?
A juror may not testify as a witness at trial in front of the members of the jury.
If a juror is called to testify, the opposing party must be given the opportunity to object outside the presence of the jury.
A juror may be called to testify outside the presence of the other jurors regarding matters that occur during the trial, such as the bribery of a juror or a juror’s failure to follow the court’s instruction (e.g., discussing the case with family members)
111
AFTER trial, during an inquiry into the validity of a verdict, a juror generally may not testify about these 3 things:
(No Impeachment Rule)
i) Any statement made or incident that occurred during the jury’s deliberations (e.g., refusal to apply the court’s instructions);
ii) The effect of anything upon that juror’s, or any other juror’s, vote; or
iii) Any juror’s mental processes concerning the verdict.
112
AFTER trial, during an inquiry into the validity of a verdict, a juror generally MAY testify about these 3 things:
(No Impeachment Rule)
i) Extraneous prejudicial information was brought to the jury’s attention (e.g., the circulation of a newspaper article not introduced into evidence about the trial and the defendant’s guilt);
ii) An outside influence was improperly brought to bear on a juror (e.g., a threat on the life of a juror’s spouse); or
iii) A mistake was made in entering the verdict onto the verdict form.
The mistake exception, item iii above, does not extend to mistakes about the consequences of the agreed-upon verdict. Fed. R. Evid. 606(b).
113
There is a constitutional right to an impartial jury in civil as well as criminal cases. When does this right override the "no impeachment rule"? (1 situation)
When does this right not override the "no impeachment rule"? ( 2 situations)
OVERRIDES: This right overrides the “no impeachment” rule when a juror makes a clear post-verdict statement that he relied on racial stereotypes or animus to convict a criminal defendant, and that the animus was a significant motivating factor in the juror’s vote to convict.
DOES NOT OVERRIDE: However, this right does not override the “no impeachment” rule when a juror’s post-verdict statement reveals that some jurors were under the influence of alcohol and drugs during the trial, or that a juror failed to disclose a pro-defendant bias during voir dire
114
What is a Dead Man's Statute?
At common law, a party with a financial interest in the outcome could not testify in a civil case about a communication or transaction with a person whose estate was party to the case and the testimony was adverse to the estate, unless there was a waiver.
115
(T/F) Dead Man's Statutes are included in the Federal Rules.
FALSE.
The Federal Rules do not include such a restriction, but about 20 jurisdictions currently have a “Dead Man’s Statute,” which may be applicable in federal cases when state law applies (i.e., diversity cases).
116
When do Dead Man's Statutes apply?
Dead Man’s Statutes do not apply in criminal cases.
Civil cases in federal court when state law applies (ie, diversity cases).
The Federal Rules do not include such a restriction, but about 20 jurisdictions currently have a “Dead Man’s Statute,” which may be applicable in federal cases when state law applies (i.e., diversity cases).
117
What is the rationale of a dead man's statute?
The rationale of a Dead Man’s Statute is to protect a decedent’s estate from parties with a financial interest in the estate.
118
7 protected parties under a Dead Man's Statute?
(1) An Heir
(2) A legatee (someone who receives money from dead man)
(3) A devisee
(4) An executor
(5) An administrator of an estate
(6) A personal representative of the decedent (potentially)
(7) A successor in interest (potentially)
119
2 main groups of people who are disqualified as witnesses under a Dead Man's Statute:
(1) Any person directly affected financially by the outcome of the case may be disqualified as a witness under a Dead Man’s Statute.
(2) A predecessor in interest to the party may be disqualified to prevent circumvention of the statute by transference of property to a relative or friend.
120
2 main ways that an interested person or protected party may waive the protection afforded by a Dead Man's Statute:
i) Failing to object to the introduction of testimony by a disqualified witness; or
ii) Introducing evidence of a conversation or transaction to which the statute applies.
121
What is impeachment?
The process of challenging a witness's testimony
122
Who may impeach a witness?
Any party, including the party that called the witness to testify, may attack the credibility of a witness. Fed. R. Evid. 607.
123
Is evidence of the truthful character of a witness admissible to bolster the credibility of a witness?
NO. The credibility of a witness may not be bolstered.
Exception: Evidence of the truthful character of the witness is admissible only after the witness’s character for truthfulness has been attacked.
124
Evidence of the truthful character of the witness is admissible only after the witness’s character for truthfulness has been attacked. What does this mean?
The evidence has to specifically attack the witness's character for truthfulness.
Evidence that impeaches the witness but does not specifically attack the witness’s character for truthfulness, such as testimony that the witness is biased, does not constitute an attack.
125
4 main ways a witness's testimony is challenged:
(1) Character for untruthfulness
(2) Bias
(3) Ability to perceive or testify accurately
(4) Prior contradictory statements
126
(T/F) Generally, a specific instance of conduct (e.g., lying on a job application) is not admissible to attack or support the witness’s character for truthfulness.
TRUE.
127
On cross-examination, a witness may be asked about specific instances of conduct if it is probative of the truthfulness of either:
(1) the witness or
(2) another witness about whose character the witness being cross-examined has testified. Fed. R. Evid. 608(b).
128
The lawyer who examines the witness must have a___________ for believing that the misconduct occurred before asking the witness about it
Good faith basis
129
Can a witness be cross-examined about having been arrested solely for impeaching the witness's character for truthfulness?
NO. Because an arrest for misconduct is not itself misconduct, a witness may not be cross-examined about having been arrested solely for impeaching the witness’s character for truthfulness. However, the witness may be cross-examined about the underlying conduct that led to the arrest.
130
On cross-examination, when a witness denies an instance of conduct, is extrinsic evidence admissible to prove that instance to attack or support THE WITNESS'S CHARACTER FOR TRUTHFULNESS?
NO. This prohibition also bars references to any consequences that a witness may have suffered because of the conduct (e.g., suspension from a governmental job for improper personal use of governmental property).
NOTE: Extrinsic evidence of specific conduct can be admissible to impeach the witness on other grounds, such as bias.
Note 2: While a document is generally considered to be extrinsic evidence, when the foundation for the document is established through the witness being impeached, it is possible that the document might be admissible to impeach the witness’s character for truthfulness.
131
Can a witness's character for truthfulness be impeached with evidence that the witness has been convicted of a crime?
If so, does it matter whether the conviction is for a federal or state crime?
Generally yes, subject to some limitations.
It does not matter whether the conviction is for a state or federal crime.
132
When trying to use evidence that a witness has been convicted of a crime to impeach a witness's character for truthfulness, If more than 10 years have elapsed since the conviction (or release from confinement, whichever is later), then evidence of the conviction is admissible only if:
i) The probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
ii) The proponent gives an adverse party reasonable written notice of the intent to use the evidence so that the adverse party has a fair opportunity to contest the use of that evidence.
133
Rule for using evidence that a witness has been convicted of a crime involving dishonesty or false statement:
Subject to the 10-year restriction, any witness may be impeached with evidence that he has been convicted of any crime—felony or misdemeanor—involving dishonesty or false statement, regardless of the punishment imposed or the prejudicial effect of the evidence.
134
Rule for using evidence that a witness has been convicted of a crime that does NOT involve dishonesty or false statement:
Subject to the 10-year restriction, a conviction for a crime not involving fraud or dishonesty is admissible to impeach a witness only if the crime is punishable by death or imprisonment for more than one year (typically, a felony)
CRIMINAL DEFENDANT: When the witness is a criminal defendant, evidence of a felony conviction for a crime not involving dishonesty or false statement is admissible only if its probative value outweighs the prejudicial effect to that defendant. This stricter-than-usual balancing test gives extra protection to a criminal defendant who takes the stand in his own defense.
OTHER WITNESSES: For witnesses other than a criminal defendant, such evidence generally must be admitted. However, the court does have the discretion to exclude the evidence when the party objecting to the impeachment shows that its probative value is substantially outweighed by its prejudicial effect (i.e., the Rule 403 standard).
135
4 common crimes of dishonesty:
Embezzlement
False pretenses
Criminal fraud
Perjury
136
Is evidence of a witness's conviction admissible if the conviction has been the subject of a pardon, annulment or other action based on a finding of innocence?
NO.
This rule also applies to an action based on a finding that the witness has been rehabilitated, provided that the witness has not been convicted of a later crime punishable by death or imprisonment more than one year (typically, a felony)
137
How can evidence of a prior conviction of a witness be proved? (ie, what methods)
Evidence of a prior conviction may be produced by way of an admission by the witness, whether during direct testimony or on cross-examination, as well as by extrinsic evidence (e.g., a record of the conviction).
138
Can a witness's conviction be used for impeachment purposes if an appeal is pending on that conviction?
Yes.
139
Evidence of a juvenile adjudication is not admissible to impeach a defendant.
When the witness is not the defendant, evidence of a juvenile adjudication can be used to impeach the witness’s character for truthfulness only if: (3 conditions)
i) It is offered in a criminal case;
ii) An adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
iii) Admitting the evidence is necessary to fairly determine guilt or innocence.
BIAS NOTE: Under the Sixth Amendment Confrontation Clause, evidence of a witness’s juvenile adjudication can also be used by a criminal defendant to impeach a witness’s credibility by showing bias, such as when the witness’s juvenile adjudication could provide a motive for the witness to lie
140
Extrinsic evidence meaning
Extrinsic evidence is evidence from sources other than a witness’s own testimony (e.g., documents, another witness’s testimony).
141
Unless otherwise ordered by the court, extrinsic evidence of a witness’s prior inconsistent statement may not be admitted until after 2 things happen:
(1) The witness is given the opportunity to explain or deny the statement, and
(2) the opposing party is given the opportunity to examine the witness about it.
The witness’s opportunity to explain or deny the statement must take place before the statement is admitted into evidence.
142
(T/F) A party who is examining a witness about the witness's prior statement is required to show it or disclose its contents to the witness.
FALSE.
But the statement must be shown, or its contents disclosed, to an adverse party’s attorney upon request
143
3 exceptions when a witness does not have to be given an opportunity to explain or deny prior inconsistent statements before evidence of such statements may be admitted:
The opportunity to explain or deny a prior inconsistent statement does not apply when the statement
(1) impeaches a hearsay declarant or
(2) qualifies as an opposing party’s statement
(3) Additionally, this opportunity is not mandated if justice so requires it (e.g., statement discovered after witness becomes unavailable).
144
(T/F) A witness may always be impeached due to their bias or interest in a case.
TRUE
145
3 main types of bias to look out for for impeachment:
i) The witness’s relationship to a party (e.g., employment);
ii) The witness’s interest in testifying (e.g., avoidance of prosecution); or
iii) The witness’s interest in the outcome of the case (e.g., receipt of an inheritance).
EXAM NOTE: Bar exam questions often test bias in the form of witnesses who are employed by one of the parties, or witnesses for the prosecution who testify in exchange for reduced or dropped charges.
146
(T/F) When a hearsay statement is admitted into evidence, the credibility of the declarant may be attacked (and, if attacked, supported) by any evidence that would be admissible if the declarant testified as a witness.
TRUE
147
A witness who has been impeached may be “rehabilitated” by the introduction of rebuttal evidence by either party to support the witness’s credibility. Rehabilitation may be accomplished by: (3 methods)
i) Explanation or clarification on redirect examination;
ii) Reputation or opinion evidence of his character for truthfulness, if the witness’s character was attacked on that ground under Fed. R. Evid. 608(a); or
iii) A prior consistent statement offered to rebut an express or implied charge that the witness lied because of improper motive or influence.
148
Is evidence of a witness's religious beliefs admissible to attack or support a witness's credibility?
NO. However, the evidence may be admissible to show bias or interest, such as when the witness is affiliated with a church that is a party to a lawsuit.
149
What is Present Recollection Refreshed?
A witness may examine any item (e.g., writing, photograph) to refresh the witness’s present recollection.
The witness’s testimony must be based on the witness’s refreshed recollection, not on the item itself (e.g., the witness cannot read from the refreshing document).
150
When the item used to refresh a witness’s recollection (Present Recollection Refreshed) is a writing, the adverse party is entitled to:
i) Have the document produced;
ii) Inspect the document;
iii) Cross-examine the witness about it; and
iv) Introduce any relevant portion into evidence.
NOTE: If the producing party claims that the document contains unrelated matter, the court may examine the document in camera and delete any unrelated portion before ordering that the rest be delivered to the adverse party. The adverse party may object to the deletion, in which case the deleted portion must be preserved in the record.
151
What is Past Recollection Recorded?
A memorandum or record about a matter that a witness once had knowledge of but now has insufficient recollection of to testify to it may be admissible under a hearsay exception. Although the record may be read into evidence, it is received as an exhibit only if offered by an adverse party.
152
Key distinction between Refreshed and Recorded Recollections:
The item used to refresh a witness’s present recollection is generally not admitted into evidence, but a document introduced under the recorded recollection hearsay exception may be admitted.
153
What is Opinion Testimony?
Opinion testimony is testimony based on a witness’s beliefs, thoughts, or inferences.
154
The admissibility of opinion testimony depends on:
Whether the witness is a lay person or an expert
155
What is an expert witness?
Expert witness is a person with scientific, technical, or other specialized knowledge on a subject that goes beyond a lay person.
156
(T/F) Even if an opinion is generally admissible, the opinion evidence is still subject to all other evidentiary rules, such as the requirement that the probative value of the evidence not be substantially outweighed by the risk of unfair prejudice or misleading the jury.
TRUE
157
A lay (nonexpert) witness is permitted to testify regarding the witness’s opinion if the opinion is: (3 requirements)
i) Rationally based on the perception of the witness;
ii) Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue; and
iii) Not based on scientific, technical, or specialized knowledge.
158
(T/F) If a lay witness has gained familiarity with a matter that the general public does not have but could acquire without a specialist’s training, then a lay witness may state an opinion.
TRUE
A frequent user of heroin can identify a substance as heroin, but the person cannot testify concerning the process for manufacturing heroin without qualifying as an expert.
159
Before an expert witness may testify, the proponent must demonstrate that it is more likely than not that the subject matter of the witness’s testimony: (2 things)
i) Is scientific, technical, or other specialized knowledge, which focuses on the reliability of the testimony; and
ii) Will help the trier of fact understand the evidence or determine a fact in issue, which focuses on the relevance of the testimony.
160
Can an expert state an opinion about whether a criminal defendant had the requisite state of mind of any element of the crime charged or of a defense?
NO.
This determination lies in the province of the trier of fact. Fed. R. Evid. 704.
However, an expert’s conclusion that “most people” in a group have a particular mental state is not an opinion about whether the criminal defendant possessed the requisite mental state.
161
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion if the proponent demonstrates to the court that it is more likely than not that: (3 things)
i) The testimony is based on sufficient facts or data;
ii) The testimony is the product of reliable principles and methods (i.e., the factual data, principles, and methods used as a basis for the testimony are of the type reasonably relied on by experts in the field, although the data need not be admissible itself); and
iii) The expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
162
(T/F) When cross-examining an expert, another party may require the expert to disclose the facts or data that the expert's opinion is based on.
TRUE.
163
Can a court appoint an expert witness?
YES.
The expert witness must advise each party of any findings. Each party may depose the witness, call the witness to testify, and cross-examine the witness. The court may authorize disclosure to the jury that the court appointed the expert.
164
A lawyer may not offer or pay a witness any consideration: (3 limitations)
i) In excess of the reasonable expenses incurred by the witness and the reasonable value of the witness’s time spent in providing evidence, except that an expert witness may be offered and paid a noncontingent fee;
ii) Contingent on the content of the witness’s testimony or the outcome of the litigation; or
iii) Otherwise prohibited by law.
NOTE: The prohibition against contingent compensation does not apply to an expert retained only to consult and not to testify or otherwise provide evidence
165
Any witness in attendance in federal court or a deposition pursuant to a federal rule or court order is entitled to 2 things:
(1) An appearance fee, and
(2) A travel allowance
166
What is tangible evidence?
Tangible evidence is evidence that is not presented in the form of testimony by a witness.
Tangible evidence includes:
(1) Documentary evidence (e.g., written contract, letter)
(2) Physical objects (e.g., gun, torn clothing, injured foot, sound recording)
167
All tangible evidence must be ____________.
Authenticated
168
All tangible evidence must be authenticated. What does authenticated mean?
Authenticated means evidence has proven to be what the proponent of the evidence claims.
169
(T/F) To authenticate an item of tangible evidence, the proponent must prove that the thing is what it the proponent claims by a preponderance of the evidence.
FALSE.
To authenticate an item, the proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims. This is a lesser standard than a preponderance of the evidence
170
2 main categories of tangible evidence:
(1) Documentary evidence (e.g., written contract, letter)
(2) Physical objects (e.g., gun, torn clothing, injured foot, sound recording)
171
5 ways to authenticate physical objects:
(1) Personal Knowledge: A physical object may be authenticated by testimony of personal knowledge of the object.
(2) Distinctive Characteristics: A physical object may be authenticated by testimony of its distinctive characteristics.
(3) Chain of Custody
(4) Reproductions and Explanatory Evidence
(5) X-rays and electrocardiograms
172
When MUST authentication by chain of custody be used?
Authentication by chain of custody must be used regarding a physical object that could easily be tampered with or confused with a similar item, such as a blood sample.
The witness testifying must account for the whereabouts of the item from the time it was obtained up until its introduction at the trial.
173
When reproductions (e.g., photographs, diagrams, maps, movies) are introduced into evidence, they may be authenticated by the testimony of:
a witness with personal knowledge that the object accurately depicts what its proponent claims.
NOTE: It is generally not necessary to call the person who created the reproduction to authenticate it. However, the creator may be called to authenticate the reproduction and may do so by testifying that the reproduction method produces an accurate result.
174
(T/F) X-Rays, electrocardiograms, and similar items can be authenticated by the testimony of a witness that they are accurate reproductions of the facts.
FALSE.
X-ray images, electrocardiograms, and similar items are physical representations of things that cannot otherwise be seen (i.e., the inner workings and functionality of a human body), and, as such, unlike other reproductions, they cannot be authenticated merely by the testimony of a witness that they are accurate reproductions of the facts.
175
How to authenticate X-Rays and electrocardiograms?
To authenticate the item, it must be shown that an accurate process was used, that the machine used was working properly, and that the operator of the machine was qualified to operate it. The chain of custody must also be established.
176
What is documentary evidence?
Documentary evidence is evidence that appears in a writing or other document.
Examples include ancient documents, contracts, public records, and correspondence.
177
Ancient documents or data compilations, including data stored electronically, is considered authentic if it is: (3 requirements)
i) At least 20 years old;
ii) In a condition unlikely to create suspicion as to its authenticity; and
iii) Found in a place where it would likely be if it were authentic.
178
How is a public record authenticated?
A public record may be authenticated by evidence that the document was recorded or filed in a public office as authorized by law or that the document is from the office where items of that kind are kept.
179
What is the "Reply Letter Doctrine"?
Says that a document may be authenticated by evidence that it was written in response to a communication so long as it is unlikely, based on the contents, that it was written by someone other than the recipient of the first communication.
180
2 methods by which handwriting verification may be used to authenticate a writing:
(1) COMPARISON: An expert witness or the trier of fact may compare the writing in question with another writing that has been proven to be genuine to determine the authenticity of the writing in question. This method may also be used for authenticating other items, such as fingerprints, cloth fibers, and hair.
(2) NONEXPERT OPINION: A lay witness with personal knowledge of the claimed author’s handwriting may testify as to whether the document is in that person’s handwriting. The lay witness must not have become familiar with the handwriting for the current litigation.
181
What are self-authenticating documents?
Self-authenticating documents are written documents that do not require extrinsic evidence (i.e., evidence outside the document) of authenticity to be admitted.
182
Although a proponent of a self-authenticating document is generally not required to give an adverse party advance notice of the intent to introduce the document, the proponent of ______________________must give an adverse party reasonable written notice before the trial or hearing of the intent to offer the record and must make the record available for inspection so that the other party has a fair opportunity to challenge them.
Business Records
183
9 self-authenticating documents that do not require extrinsic evidence of authenticity:
i) Public documents bearing a governmental seal and a signature of an authorized governmental official or that are not sealed but are signed by an authorized governmental official and certified by another authorized governmental official;
ii) Certified copies of public records;
iii) Official publications issued by a public authority;
iv) Newspapers and periodicals;
v) Trade inscriptions (e.g., labels affixed during business that indicate origin, ownership, or control);
vi) Notarized (acknowledged) documents;
vii) Commercial paper (including the signature, and related documents);
viii) Any document, signature, or other item declared by federal statute to be authentic; and
ix) Records of a regularly conducted activity (e.g., a business) certified by a custodian of the records.
184
Oral statements may need to be authenticated regarding the identity of the speaker in cases where:
That identity is important (eg, an opposing party's statement)
185
2 methods of authenticating oral statements:
(1) Voice Identification
(2) Telephone conversations
186
A party to a telephone conversation may authenticate statements made during that conversation as having been made by a particular individual by testifying that: (4 things)
i) The caller recognized the speaker’s voice;
ii) The speaker knew facts that only a particular person would know;
iii) The caller dialed a number believed to be the speaker’s, and the speaker identified himself upon answering; or
iv) The caller dialed a business and spoke to the person who answered about business regularly conducted over the phone.
187
Who can do voice identification for purposes of authenticating an oral statement?
A voice can be identified by any person who has heard the voice at any time. It makes no difference whether the voice was heard firsthand or through mechanical or electronic transmission or recording.
188
Key distinction between voice identification and handwriting verification:
Voice identification may be made by a witness who became familiar with the voice solely for litigation purposes. In contrast, handwriting verification may not be made by a lay witness who become familiar with the handwriting for litigation purposes.
189
What is the Best Evidence Rule?
Also known as the Original Document Rule
The best evidence rule requires that the original document or a reliable duplicate be produced to prove the contents of a writing, recording, or photograph, including electronic documents, x-rays, and videos.
190
The Best Evidence Rule applies in only 2 situations:
i) The contents of the document are at issue; or
ii) A witness is relying on the contents of the document when testifying.
191
(T/F) Under the Best Evidence Rule, a witness who wrote down her observations of an accident immediately after it happened may not testify about the event because a writing of her observations exists.
FALSE.
Despite its name, the best evidence rule does not require a party to present the most persuasive evidence.
Nor does the best evidence rule require the presentation of documentary evidence instead of a witness’s testimony simply because a document is available.
192
The contents of a document are at issue when: (3 situations)
i) The document is used as proof of an event (e.g., a photograph of a bank robbery);
ii) The document has a legal effect (e.g., a contract or a will); or
iii) The witness is testifying based on facts learned from the writing (as opposed to personal knowledge), such as with an x-ray image.
193
What is an "original" of a writing or recording?
An original of a writing or recording means “the writing or recording itself or any counterpart intended to have the same effect as the original by the person who executed or issued it.”
If the information is stored electronically, any legible printout (or other output readable by sight) that accurately reflects the information is an original.
An original photograph includes the negative and any print made from it.
194
What is a duplicate?
A duplicate means a counterpart produced by any process or technique that accurately reproduces the original.
195
A duplicate is admissible to the same extent as an original unless: (s situations)
i) There is a genuine question concerning the authenticity of the original; or
ii) The circumstances make it unfair to admit the duplicate, which may be the case when only part of the original is duplicated.
196
Are handwritten copies of an original considered a duplicate?
NO
197
Handwritten copies of an original are not duplicates and are admissible only when
the original or duplicate is lost, destroyed, or in the possession of an adversary who fails to produce it.
198
6 Exceptions to the Best Evidence Rule:
(1) Duplicates
(2) Handwritten Copies
(3) Original Unavailable
(4) Public Records
(5) Summaries
(6) Admission by Party
199
The contents of a public record are typically established by a __________ rather than by the original record.
Certified Copy
Alternatively, a public record may be introduced by a copy of the record plus the testimony of a person who has compared the copy with the original. If a certified or compared copy cannot be obtained by reasonable diligence, the contents may be proved by other evidence.
200
Exception to the Best Evidence Rule for Summaries:
The contents of voluminous writings, recordings, or photographs may be presented in the form of a chart, summary, or calculation, when the contents cannot be conveniently examined in court.
The proponent must make the originals or duplicates available for examination and copying by other parties at a reasonable time and place. The court may order the proponent to produce the originals or duplicates in court.
201
Exception to the Best Evidence Rule for Admissions by Party
The proponent may prove the contents of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered.
In this case, the proponent does not need to account for the original.
ORAL OUT-OF-COURT STATEMENT EXCEPTION: If a party against whom a document is offered admits to the contents of the document in an oral statement made out of court (other than during a deposition), the best evidence rule applies. The proponent must account for the original before using the adverse party’s oral statement to prove the contents of the document.
202
In a jury trial, who determines any issue about whether:
i) An asserted writing, recording, or photograph ever existed;
ii) Another writing, recording, or photograph produced at trial is the original; or
iii) Other evidence of content correctly reflects the content.
THE JURY!
203
What is the Parol Evidence Rule?
The parol evidence rule operates to exclude evidence that, if introduced, would change the terms of a written agreement. The rule is based on the assumption that a written contract represents the complete agreement between the parties.
204
Is evidence of negotiations conducted AFTER the execution of a written contract prohibited by the Parol Evidence Rule?
NO.
Only evidence of prior or contemporaneous negotiations is subject to the parol evidence rule. In other words, evidence of negotiations conducted after the execution of the written contract is not prohibited by the parol evidence rule and may be offered to prove subsequent modifications of the agreement.
205
If a contract is a partial integration, extrinsic evidence that _______ may be admitted, but evidence that _________ may not be admitted.
Adds to the Writing; Contradicts
206
Despite the Parol Evidence Rule, extrinsic evidence can ALWAYS be admitted for the following 4 purposes:
i) To clarify an ambiguity in the terms of the writing;
ii) To prove trade custom or course of dealings;
iii) To show fraud, duress, mistake, or illegal purpose on the part of one or both parties; or
iv) To show that consideration has (or has not) been paid.
207
In the law of evidence, ___________ refers to the special protection afforded to certain communications to shield them from compelled disclosure in a judicial proceeding.
Privilege
208
(T/F) A claim of privilege applies at all stages of a case or proceeding.
TRUE
209
A privilege may be waived if the person who holds the privilege: (3 actions)
i) Fails to assert the privilege in a timely manner (i.e., when the testimony is offered);
ii) Voluntarily discloses, or allows another to disclose, a substantial portion of the communication to a third party, unless the disclosure is privileged; or
iii) Contractually waives the privilege in advance.
210
6 main types of Privilege:
(1) Confidential Communication
(2) Spousal Privilege
(3) Attorney-Client Privilege
(4) Physician-Patient Privilege
(5) Psychotherapist-Patient Privilege
(6) Privilege Against Self-Incrimination
211
Spousal privilege comprises two distinct privileges:
spousal immunity and confidential marital communications.
212
What is Spousal Immunity?
The general rule is that the spouse of a CRIMINAL DEFENDANT may not be compelled to testify against their defendant spouse.
Nor may a married person be compelled to testify against his spouse in any CRIMINAL proceeding, including a grand jury proceeding, regardless of who is the defendant.
213
Does the spousal-immunity privilage apply to events that occurred before tha marriage?
Yes. The spousal-immunity privilege applies to testimony about events that occurred before and during the marriage.
214
Can the spousal-immunity privilege be asserted by an ex-spouse after a divorce?
No. The spousal-immunity privilege can be asserted only during a valid marriage. The right to assert the privilege expires upon divorce or annulment.
215
Who is the holder of the Spousal-Immunity Privilege?
MAJORITY: In federal courts (and a majority of states), the witness-spouse holds the privilege and may choose to testify but cannot be compelled to do so.
MINORITY: In a minority of jurisdictions, the party-spouse (as opposed to the witness-spouse) holds the privilege and may prevent the witness-spouse from testifying, even if the witness-spouse wants to testify.
216
What is the Confidential Marriage Communications Privilge?
A confidential communication made between spouses while married is privileged.
217
Does the Confidential Marriage Communications Privilege apply to communications made before marriage?
No. This privilege applies only to communications made during marriage.
218
If one spouse waives the Confidential Marriage Communications Privilege, does it automatically waive the other spouse's privilege as well>
No. Waiver of the privilege by one spouse does not affect the other spouse’s right to claim the privilege.
219
Key Distinction between the Spousal Immunity Privilege and the Confidential Marriage Communications Privilege:
Spousal immunity applies to events occurring during marriage but ends when the marriage ends. By contrast, the confidential communication privilege begins with marriage but continues after the marriage ends.
220
Can the Confidential Marital Communications privilege be asserted by an ex-spouse after a divorce?
YES. The time for asserting this privilege extends beyond the termination of the marriage. Therefore, either party may assert the privilege—by refusing to testify or by preventing the other party from doing so—at any time, even after divorce or the death of one spouse.
221
2 main situations when spousal privileges are subject to limitations:
In cases in which one spouse is suing the other, or when one spouse is charged with a crime against the other spouse or the children of either spouse.
For example, a defendant-spouse accused of battery of a witness-spouse would not be able to prevent the witness-spouse from testifying about confidential marital communications.
222
Does the attorney-client privilege extend beyond the clients death.
YES.
The privilege exists until it is waived. Notably, the privilege extends beyond the termination of the attorney-client relationship, and even the client’s death.
223
The attorney-client privilege does not protect these 4 types of confidential communications:
i) Communications made to enable or aid the commission of what the client knew or should have known was a crime or fraud;
ii) Communications relevant to a dispute between attorney and client or former client (e.g., client’s malpractice allegation, lawyer’s compensation or reimbursement claim);
iii) Communications relevant to a dispute between parties who claim through the same deceased client (i.e., testamentary exception); and
iv) Communications between former co-clients who are now adverse.
224
When made during a federal proceeding, the inadvertent disclosure of privileged communication or information (under the Attorney-Client Privilege) does not waive the privilege when the holder of the privilege:
i) Took reasonable steps to prevent disclosure; and
ii) Promptly took reasonable steps to rectify the error.
*In determining whether the holder took reasonable steps to prevent disclosure, factors such as the number of documents to be reviewed, the time constraints for production, or the existence of an efficient records-management system may be relevant.
225
When made during a federal proceeding, the intentional disclosure of privileged material (under the Attorney-Client Privilege) operates as a waiver of the attorney-client privilege. Does the waiver extend also to undisclosed information?
The waiver extends to undisclosed information only in those unusual situations in which:
i) The disclosed and undisclosed material concern the same subject matter; and
ii) Fairness requires the disclosure of related information because a party has disclosed information in a selective, misleading, and unfair manner.
226
When privileged material (under the Attorney-Client Privilege) is disclosed in a STATE proceeding and the state and federal laws are in conflict regarding the effect of the disclosure, the disclosure does not operate as a waiver in a subsequent FEDERAL proceeding when the disclosure:
i) Would not be a waiver had it been made in a federal proceeding; or
ii) Was not a disclosure under the law of the state where it was made.
*In other words, the federal court must apply the law that is MOST PROTECTIVE OF THE PRIVILEGE. This rule does not apply if the state court has issued an order concerning the effect of the disclosure. In this case, the state-court order controls.
227
What is "work product"?
Work product consists of documents prepared by or for a party or a party’s attorney in anticipation of litigation.
Examples of work product include summaries of interviews or notes regarding a witness’s statement.
228
What is the "Crime-Fraud Exception" to the Work Product Doctrine?
If the relationship between client and counsel has been abused (e.g., documents were prepared for the purpose of furthering an unlawful act), then the crime–fraud exception removes any protection from discovery that work product would otherwise enjoy, even if the work product consists of the mental impressions, conclusions, and trial tactics of a lawyer.
229
Is an attorney's compilation of various documents, each of which is in itself a proper subject of discovery, protected by the work-product doctrine?
If so, does this constitute ORDINARY work product or OPINION work product?
Most courts have adopted the view that an attorney’s compilation of various documents, each of which is in itself a proper subject of discovery, constitutes an attorney’s OPINION WORK PRODUCT because the process of selecting the documents represents an attorney’s mental impressions and legal opinions as to how the evidence within the documents relates to the litigation.
These compilations are protected from identification and production in discovery unless the party seeking disclosure can satisfy the exception to the work product doctrine.
230
If an attorney requests that a physician consult with the attorney’s client, then the physician-patient privilege applies only if
treatment is contemplated during the consult.
231
Can a physician decide to waive the physician-patient privilege?
NO. The patient holds the privilege. Therefore, only the patient may decide whether to waive it.
232
The physician-patient privilege does not exist if: (6 situations)
i) The information was acquired for reasons other than treatment;
ii) The patient’s physical condition is at issue;
iii) The communication was made as part of the commission of a crime or tort;
iv) A dispute exists between the physician and the patient;
v) The patient contractually agreed to waive the privilege; or
vi) A case is brought in federal court and state law does not apply (e.g., most cases that involve a federal question).
233
3 situations when the Psychotherapist-Patient Privilege does not exist:
i) The patient’s mental condition is at issue;
ii) The communication was a result of a court-ordered exam; or
iii) The case is a commitment proceeding against the patient.
234
What is the Privilege Against Self-Incrimination?
The Fifth Amendment protection against self-incrimination allows a witness in any proceeding to refuse to give testimony that may tend to incriminate the witness.
The protection covers only current (not prior) statements and the fruits derived from those statements, and it does not apply to physical characteristics or mannerisms.
235
(T/F) A corporation or other organization may assert the Privilege Against Self-Incrimination.
FALSE.
The privilege belongs only to human beings. A corporation or other organization is not able to assert the privilege.
236
The Privilage Against Self-Incrimination only protects against ___________ prosecutions.
DOMESTIC.
It cannot be invoked out of a fear of foreign prosecution
237
In a __________ case, a prosecutor may not comment on the defendant’s failure to take the stand and may not argue that the jury should draw a negative inference from the assertion of the privilege against self-incrimination.
In a ____________ case, however, it is proper for the opposing party to ask the jury to draw an adverse inference from a witness’s claim of privilege against self-incrimination.
Criminal; Civil
238
A witness may be compelled to provide incriminating testimony if the government grants him ________________.
Immunity from prosecution.
The witness is NOT entitled to TRANSACTIONAL immunity—protection against prosecution for the entire transaction about which he was testifying.
Instead, the government is constitutionally required to offer mere USE immunity, which prohibits only the use of the compelled testimony against the witness.
239
If the government grants a witness immunity from prosecution to compel the witness to provide incriminating testimony, but later does prosecute the witness, the government has the burden to show that:
the compelled testimony did not provide an investigatory lead that was helpful to the prosecution.
240
(T/F) A witness may lose the right to invoke the privilege against self-incrimination if the danger of incrimination has been removed through acquittal or conviction of the underlying charge.
TRUE
However, if the questioning about the adjudicated crime can lead to prosecution for other crimes, then the privilege can be invoked.
241
3 other, less common Privileges that may be asserted:
a. Clergy-penitent privilege
In some jurisdictions, a confidential communication made by a penitent (i.e., person who makes confession or penance) to a member of the clergy is privileged. The penitent holds the privilege, but the clergy member must assert the privilege on the penitent’s behalf.
b. Accountant-client privilege
Although not available at common law, many jurisdictions recognize a privilege for confidential communications made by a client to his accountant. The privilege operates similarly to the attorney-client privilege.
c. Privilege for professional journalists
There is no federal privilege protecting a journalist’s source of information, but some states have enacted statutes extending some protection to journalists.
242
At all levels, the government is privileged against disclosing: (2 things)
i) The identity of an informant in a criminal case; and
ii) The communication of official information (i.e., information that relates to the internal affairs of the government and is not open to the public) by or to public officials.
243
6 Public Policy Exclusions that make evidence inadmissable (these operate similar to asserting a PRIVILEGE):
(1) Subsequent Remedial Measures
(2) Compromise Offers and Negotiations
(3) Offers to Pay Medical Expenses
(4) Plea Negotiation
(5) Liability Insurance
(6) Sexual Conduct
244
"Subsequent Remedial Measures" Public Policy Exclusion:
When measures are taken that would have made an earlier injury or harm less likely to occur (e.g., repairing an area where a customer slipped), evidence of the subsequent remedial measures is not admissible to prove:
i) Negligence;
ii) Culpable conduct;
iii) Defective product or design; or
iv) The need for a warning or instruction.
However, evidence of subsequent remedial measures may be admissible for other purposes, such as impeachment or, if disputed, ownership or control of the cause of the harm (e.g., a car), or the feasibility of precautionary measures.
245
(T/F) The exclusion of evidence of a subsequent remedial measure applies to product liability actions based on negligence and those based on strict liability.
TRUE
246
To be excluded, the remedial measure must be taken ________ the P is injured.
After.
A remedial measure made after a product was manufactured but before the plaintiff was injured is not subject to exclusion under this rule.
247
Does the Subsequent Remedial Measures Exception apply to remedial measure undertaken by a third party, rather than a defendant?
No.
This exclusion does not apply to a remedial measure undertaken by a third party, rather than a defendant
248
"Compromise Offers and Negotiations" Public Policy Exception:
Compromise offers made or accepted by any party, as well as any conduct or statements made during compromise negotiations, are not admissible to prove or disprove the validity or amount of a disputed claim.
Additionally, compromise offers may not be admitted for impeachment by prior inconsistent statement or contradiction.
LACK OF DISPUTE NOTE: If the claim is not disputed concerning its validity or amount (e.g., a party admits to both), then a statement made in connection with an offer to settle for a lesser amount is admissible
249
An injured party who suffered $100,000 in damages enters into a settlement agreement with the tortfeasor to receive $75,000 within 30 days in exchange for agreeing to drop a lawsuit against the tortfeasor. The tortfeasor does not pay the injured party. Rather than seeking to enforce the settlement agreement, the injured party sues the tortfeasor based on the tort claim for $100,000 in damages.
Can the injured party introduce the settlement agreement as evidence that the tortfeasor admitted liability?
NO.
A party who has entered into a settlement agreement regarding a claim typically sues to enforce the agreement when the other party fails to adhere to the agreement. In this situation, a party who elects to sue on the original claim cannot introduce the settlement agreement as evidence of the validity of claim.
250
In an accident involving a truck and an automobile, the truck driver is sued by both the automobile driver and the passenger in the automobile. The truck driver pays the passenger an amount in settlement of the passenger’s claim against the truck driver.
Can the automobile driver introduce the passenger's settlement as evidence of the truck driver's liability?
NO.
A party’s furnishing or accepting valuable consideration in a claim compromise may not be used by a third person to prove or disprove the validity or amount of a disputed claim that the third person asserted against the party.
251
Evidence of settlement offers and negotiations is admissible to: (3 policy reasons)
i) Prove bias or prejudice of a witness;
ii) Negate a claim of undue delay; or
iii) Prove obstruction of a criminal investigation or prosecution.
252
"Offers to Pay Medical Expenses" Public Policy Exception:
Evidence of the payment, offer to pay, or promise to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury. Fed. R. Evid. 409.
253
Key Distinction between the "Compromise Offers and Negotiations" Public Policy Exception and the "Offers to Pay Medical Expenses" Public Policy Exception:
Unlike a compromise negotiation, any conduct or statement that accompanies the payment, offer to pay, or promise to pay medical expenses is admissible.
254
Under the "Plea Negotiation" Public Policy Exception, In a civil or criminal case, evidence of the following is generally not admissible against the defendant who made the plea or participated in the plea discussions:
i) Withdrawn guilty pleas;
ii) Pleas of no contest (i.e., a nolo contendere plea);
iii) Statements made while negotiating a plea with a prosecutor (e.g., an offer to plead guilty); and
iv) Statements made during a plea proceeding.
255
2 exceptions to the Plea Negotiation Public Policy Exception that allows statements made during please or negotiations to be admissible:
(1) another statement made during the same plea or negotiation has already been admitted and fairness requires that the statement in question also be admitted, or
(2) The statements also are admissible in a subsequent perjury prosecution if they were false statements made under oath, on the record, and with counsel present.
256
"Liability Insurance" Public Policy Exception:
Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully.
However, the evidence may be admissible for another purpose (e.g., to prove agency, ownership, or control, or to prove a witness’s bias or prejudice).
257
(T/F) In contrast with the general preference under the Federal Rules for reputation or opinion testimony over evidence of specific acts, in CRIMINAL cases involving sexual misconduct, reputation or opinion evidence of a victim’s sexual behavior or predisposition is NOT admissible.
TRUE.
258
What is the Rape Shield Rule?
Under the rape shield rule, evidence offered to prove the sexual behavior or sexual predisposition of a victim (or alleged victim) generally is not admissible in any civil or criminal proceeding involving sexual misconduct.
The exclusion applies to the use of such evidence for impeachment as well as substantive purposes.
NOTE: Sexual behavior includes not only sexual intercourse or contact but also activities that imply such sexual intercourse or contact, such as the use of contraceptives or the existence of a sexually transmitted disease. Sexual predisposition can include the victim’s mode of dress, speech, or lifestyle
259
In a CRIMINAL case involving sexual misconduct, when is evidence of specific instances to a victim's sexual behaviour admissible?
(1) to prove that someone other than the defendant was the source of semen, injury, or other physical evidence
(2) evidence of the victim’s sexual behavior with the person accused of sexual misconduct is admissible when it is offered by the defendant to prove CONSENT or offered by the prosecution.
260
In a civil case, evidence offered to prove a victim’s sexual behavior or predisposition is admissible if
its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.
261
(T/F) The restriction on evidence of a victim’s sexual behavior or predisposition applies only when the party against whom the evidence is offered can be characterized as a victim of sexual misconduct.
TRUE.
For example, a plaintiff in a defamation action based on a statement about the plaintiff’s sexual behavior is not a victim of sexual misconduct. By contrast, a plaintiff who brings a Title VII sexual harassment action can be characterized as a victim of sexual misconduct.
262
In a criminal or civil case, the party intending to offer evidence of the victim’s sexual behavior or predisposition must file a motion describing the evidence and stating the purpose for its introduction.
The motion must be filed at least ____ days before trial unless the court sets a different time.
14 days.
263
In both criminal and civil cases where a D is accused of sexual assault or child molestation (or similar), is evidence that the D committed any other similar offenses (previous sexual assault or child molestation) admissible?
YES.
Admissible to prove ANY RELEVANT MATTER.
264
The prosecutor or plaintiff who intends to introduce evidence of the D's sexual misconduct must disclose it to the defendant at least ______ days before trial unless the court allows for good cause a later disclosure
15 days
265
(T/F) An arrest or even testimony of an incident that was unreported to the authorities may be admitted as evidence that a defendant has committed sexual assault or child molestation.
TRUE! Not limited to just convictions, arrests and testimony are allowed too.
266
What is Hearsay?
Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted.
267
Admissibility of Hearsay RULE STATEMENT:
Hearsay evidence is generally inadmissible unless it falls within an exception or exclusion set out in the Federal Rules, a federal statute, or a Supreme Court rule.
268
(T/F) A statement that is not hearsay is automatically admissible.
FALSE.
For exam purposes, it is important to keep in mind that the statement must be admissible under the other rules restricting admission, such as the rules on privileges.
269
For Hearsay purposes, can a person's nonverbal conduct can be considered a "statement"?
YES.
A statement is a person’s oral or written assertion, or it may be nonverbal conduct intended as an assertion.[ii] An example of assertive conduct is a defendant nodding his head up and down to indicate a “yes” answer to a question.
*Contrast nonassertive conduct: Nonassertive conduct is not hearsay. An example of nonassertive conduct is a pilot’s act of flying an airplane when such evidence is offered as evidence of the plane’s safety.
270
A statement that contains hearsay within hearsay ("Multiple Hearsay") may only be admissible if:
Each part of the combined statement conforms to a hearsay exception. Fed. R. Evid. 805.
Example: A plaintiff sues a defendant for battery, claiming that the defendant struck the plaintiff’s kneecaps with a baseball bat. At trial, the plaintiff seeks to introduce as evidence a hospital record, which consists of a note from a physician that the plaintiff told the physician that the plaintiff’s injury was caused by being struck with a baseball bat.
Both the plaintiff’s statement to the physician and the note are hearsay because they are out-of-court statements being offered to prove the truth of the matter asserted—the cause of the plaintiff’s injury. However, because each part of the statement falls within a hearsay exception (the plaintiff’s statement is a statement made for the purpose of obtaining medical treatment, and the doctor’s note is a business record), the hospital record may be admissible.
271
Statements offered to prove something other than the truth of the matter asserted are not hearsay. 5 tricky examples of this to watch out for:
(1) Legally Operative Facts: A statement offered to prove that the statement was made, regardless of its truth, is not hearsay.
(2) Effect on Recipient: A statement offered to show the effect on the person who heard it is not hearsay.
(3) State of Mind/Mental State: A statement offered as circumstantial evidence of the declarant’s mental state is not hearsay.
(4) Identification: A statement that is used as circumstantial evidence linking a person with an event, place, or object is not being introduced for its truth and therefore is not hearsay.
(5) Impeachment and Rehabilitation: A statement offered solely to impeach or rehabilitate a witness is not being introduced for its truth and therefore is not hearsay
272
Federal Rule 801(d) expressly defines the following 2 types of statements, which otherwise would qualify as hearsay, as nonhearsay:
(1) Declarant-witness’s prior statements
(2) Opposing party’s statements
273
3 Types of a Declarant-Witness's Prior Statements that are NOT Hearsay:
(and IMPORTANT NOTE to remember on this point)
i) Prior inconsistent statements;
ii) Prior consistent statements; and
iii) Prior statements of identification.
IMPORTANT NOTE: With all three types of statements, the witness who made the statement (declarant-witness) must (i) testify at the present trial or hearing AND (ii) be subject to cross-examination concerning the statement for it to be admissible.
274
Prior Inconsistent Statements made by a Declarant-Witness are not hearsay, but are they admissible? And if so, for what purposes are they admissible for?
A prior inconsistent statement made under penalty of perjury at a trial, hearing, or other proceeding or in a deposition may be admissible to IMPEACH the declarant’s credibility and as SUBSTANTIVE EVIDENCE.
*Statements NOT Made at Former Proceeding: An inconsistent statement that was not made under penalty of perjury at a former proceeding may be admissible to IMPEACH a witness but is NOT admissible under this rule as substantive evidence.
275
What is a Prior Statement of Identification and is it admissible as substantive evidence?
A previous out-of-court identification of a person after perceiving that person (e.g., lineup) is not hearsay and may be admissible as substantive evidence.
276
Can a Declarant-Witness's prior statement of identification be admissible if the witness has no memory of the prior identification?
YES. Even if the witness has no memory of the prior identification, it will be admissible because the witness is subject to cross-examination about the prior identification.
*EXAM NOTE: Beware of fact patterns involving a prior out-of-court identification by a witness who is not testifying at the current trial and therefore is not subject to cross-examination. For instance, this rule cannot apply if the witness is dead or otherwise unavailable to testify.
277
What is an adoptive admission?
An adoptive admission is a statement of another person that a party expressly or impliedly adopts as his own
278
Silence in response to a statement is considered an adoptive admission if: (3 conditions are met)
i) The person understood the statement;
ii) The person had the ability and opportunity to deny the statement; and
iii) A reasonable person similarly situated would have denied the statement.
279
(T/F) Post-arrest silence by a defendant who received Miranda warnings may be used as an adoptive admission of a statement made by another person (e.g., a police officer).
FALSE.
280
An "Opposing Party's Statement" that is not Hearsay was traditionally known as an "Admission of a Party-Opponent".
281
For Hearsay purposes, a statement made by a party’s agent or employee constitutes an opposing party’s statement if
It was made concerning a matter within the scope of and during the course of the relationship
282
3 main situations when a statement made by one person will be vicariously imputed to another:
(1) Employee or agent
(2) Authorized Speaker
(3) Co-conspiritors
283
A statement about a subject that is made by a person who is __________ by a party to make a statement on the subject constitutes an opposing party’s statement.
Authorized
284
A statement made by a co-conspiritor ____________________ is admissible as an opposing party's statement against other co-conspiritors.
during and in furtherance
285
Is a statement made by a co-conspiritor after being arrested admissible as an opposing party's statement?
Generally, no because it was made during the conspiracy.
286
5 exceptions to the hearsay rule (where hearsay is admissible) that apply only if the declarant is UNAVAILABLE as a witness:
(1) Former Testimony
(2) Dying Declaration
(3) Statement Against Interest
(4) Statement of Personal Family History
(5) Statement offered against a party who wrongfully caused the declarant's unavailability
287
An unavailable declarant is a person who meets one of 5 conditions:
i) Is exempt on the grounds of privilege;
ii) Refuses to testify despite a court order to do so;
iii) Lacks memory of the subject matter of the statement;
iv) Is unable to testify because of death, infirmity, or physical or mental disability; or
v) Is absent and cannot be subpoenaed or otherwise made to be present.
288
Can a declarant be deemed unavailable if the unavailability is because of the procurement or wrongdoing of the proponent of the statement to prevent the declarant from testifying at or attending the trial.
NO
289
Former Testimony Hearsay Exception:
Testimony that was given by a witness at a trial, hearing, or lawful deposition is not excluded as hearsay if the party against whom the testimony is being offered (or, in a civil case, a party’s predecessor in interest) had an opportunity and similar motive to develop the testimony by direct examination, redirect examination, or cross-examination.
This exception applies whether the testimony was given during the current proceeding or during a different one, but the witness who gave the testimony must now be unavailable.
Grand jury testimony generally does not fall within the former testimony exception, but it may be admissible nonhearsay evidence as a prior inconsistent statement.
290
Dying Declaration Hearsay Exception:
When does a statement qualify as a dying declaration? (2 requirements)
A statement qualifies as a dying declaration when the:
i) Declarant believes that her death is imminent; and
ii) Statement pertains to the cause or circumstances of the death the declarant believes to be imminent.
Although the declarant must be unavailable, the declarant need not have actually died for the statement to avoid exclusion as hearsay.
291
The dying declaration hearsay exception applies only in ________________ and ______________ cases.
Homicide Prosecutions and Civil Cases
292
Statement Against Interest Hearsay Exception:
A statement made by a declarant who is unavailable to testify is not excluded as hearsay if the statement:
i) Was against the declarant’s interest at the time it was made; and
ii) Would not have been made by a reasonable person unless the person believed it to be true.
293
Under the Statement Against Interest Hearsay Exception, a statement offered in a criminal case that would subject the declarant to criminal liability is not admissible UNLESS:
corroborating circumstances clearly indicate the trustworthiness of the statement after considering the totality of the circumstances under which it was made and any evidence that supports or undermines the statement.
294
Key Distinction between a statement against interest and an opposing party's statement:
A statement against interest may be made by a nonparty when:
i) The declarant is unavailable; and
ii) The statement was against the declarant’s interest at the time it was made.
By contrast, an opposing party’s statement must have been made by a PARTY, and the statement need not have been against the party’s interest when it was made.
295
Statement of Personal or Family History Hearsay Exception:
A statement concerning the unavailable declarant’s own birth, adoption, marriage, divorce, legitimacy, familial relationship, or other similar fact of personal or family history is not excluded as hearsay.
**Additionally, a statement regarding similar facts about another person is not excluded when the declarant was related to that person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate
296
Statement Against Party Causing Declarant's Unavailability Hearsay Exception:
Formerly known as the forfeiture-by-wrongdoing exception, a statement offered against a party that wrongfully caused the declarant’s unavailability is not excluded as hearsay.
Under this exception, the wrongful party forfeits the right to object to the admission of the declarant’s statement as hearsay.
The wrongdoing, which need not be criminal, may be accomplished by a deliberate act or by acquiescing to another’s act, but must be done with the intent of preventing the witness from testifying.
This exception applies to all parties, including the government
297
Why do some hearsay exceptions not require that the declarant be unavailable?
because the circumstances under which the statements were made suggest that the statements are inherently trustworthy
298
6 main Hearsay exceptions (where hearsay is admissible) that DO NOT require that the declarant be unavailable:
(1) Present Sense Impression
(2) Excited Utterance
(3) Statement of Mental, Emotional, or Physical Condition
(4) Statement made for Medical Diagnosis or Treatment
(5) Recorded Recollection
(6) Business Records
299
Present Sense Impression Hearsay Exception:
A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it is not excluded as hearsay. Fed. R. Evid. 803(1).
Example: Adele looks out the window and states, “It sure is raining hard tonight.” She has made a statement of present sense impression, which is admissible to prove that it rained on the night in question.
300
Excited Utterance Hearsay Exception:
A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused is not excluded as hearsay.
Example: Bob discovers that he has a winning lottery ticket and shouts, “I just won a million dollars!” He has made an excited utterance, which is admissible to prove that he won the money.
Although the event must shock or excite the declarant, and the statement must relate to the event, the declarant need not be a participant in the event (i.e., the declarant can be a bystander)
301
Key Distinction between Excited Utterance and Present Sense Impression:
Remember that a present sense impression must be a DESCRIPTION of the event, whereas an excited utterance need only relate to the exciting event. There is some overlap between these two exceptions. A statement could fall into both categories.
302
(T/F) It is possible for a statement to fallinto both the Excited Utterance and Present Sense Impression categories.
TRUE
303
Statement of Mental, Emotional, or Physical Condition Hearsay Exception:
A statement of the declarant’s then-existing state of mind or emotional, sensory, or physical condition is not excluded as hearsay
304
Under the Statement of Mental, Emotional, or Physical Condition Hearsay Exception, a statement of present intent, motive, or plan can be used to prove:
conduct in conformity with that state of mind.
A statement of a memory or past belief is inadmissible hearsay when used to prove the fact remembered or believed UNLESS the statement relates to the validity or terms of the declarant’s will.
EXAM NOTE: Do not confuse this “state of mind” hearsay exception with circumstantial evidence of the declarant’s state of mind, which is not hearsay. To fall under the hearsay exception, the statement must be offered to prove that the declarant acted in accordance with his stated intent.
305
Under the Statement of Mental, Emotional, or Physical Condition Hearsay Exception, a statement of a declarant's mental feeling, pain or bodily health can be used to prove ____________ but not ___________:
The existance of that condition, but not its cause
306
Statement Made for Medical Diagnosis or Treatment Hearsay Exception:
A statement describing medical history or past or present symptoms is not excluded as hearsay if it is made for medical diagnosis or treatment.
However, a statement regarding the cause or source of the condition is admissible as an exception to the rule against hearsay if it is reasonably pertinent to diagnosis or treatment
307
A statement that is excluded as hearsay under the Statement Made for Medical Diagnosis or Treatment exception may still be inadmissible if:
it is protected by the physician-patient privilege.
308
(T/F) Under the Statement Made for Medical Diagnosis or Treatment Hearsay Exception, the statement must be made to a physician.
FALSE.
Statements to other medical personnel, including hospital attendants and ambulance drivers, or even to family members, may be included.
309
(T/F) Under the Statement Made for Medical Diagnosis or Treatment Hearsay Exception, Statements made to a physician consulted only for the purpose of enabling the physician to testify at trial are admissible.
TRUE
310
(T/F) Under the Statement Made for Medical Diagnosis or Treatment Hearsay Exception, the statement must be made by the patient themselves.
FALSE
The statement need not necessarily be made by the patient, if it is made for the purpose of medical diagnosis or treatment.
The relationship between the declarant and the patient usually determines admissibility—the closer the relationship, the stronger the motive to tell the truth, and, as such, the more presumably reliable the statement.
311
Under the Recorded Recollection Hearsay Exception, If a witness is unable to testify about a matter for which a record exists, that record is not excluded as hearsay if the following foundation is established: (4 conditions)
i) The record is on a matter that the witness once knew about;
ii) The record was made or adopted by the witness when the matter was fresh in the witness’s memory;
iii) The record accurately reflects the witness’s knowledge; and
iv) The witness states that she cannot recall the event well enough to testify fully and accurately, even after consulting the record on the stand.
Under this exception, the record, if admitted, may be read into evidence, but it may be received as an exhibit only if offered by an adverse party.
312
Although this exception is commonly referred to as the “business records” exception, it extends to any ___________________ of an organization, including a nonprofit organization.
Regularly conducted activity
313
Under the Business Records Hearsay Exception, A record (e.g., memorandum, report, data compilation) of an act, event, condition, opinion, or diagnosis is not excluded as hearsay if:
i) The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling;
ii) The making of the record was a regular practice of that activity; and
iii) The record was made at or near the time by (or from information transmitted by) someone with knowledge.
314
Key distinction between recorded recollection exception and the business records exception:
Unlike the recorded recollection exception, the business records exception does not require the inability to remember, but it does require that the record be kept in the course of a regularly conducted activity.
315
A business record that otherwise qualifies under the "Business Records" hearsay exception is nevertheless inadmissible if the opponent shows that the source of information for the record or the method or circumstances of its preparation indicate a lack of trustworthiness.
What is the most common indicator of a lack of trustworthiness?
Anticipation of litigation: Records prepared in anticipation of litigation, such as an employee’s accident report, may not qualify under this exception due to a lack of trustworthiness
316
Can medical records fall under the business records hearsay exception?
Yes. Medical records are considered business records to the extent that the entries relate to diagnosis or treatment.
Statements related to fault associated with the cause of injury generally do not qualify under the business records exception.
317
A statement contained in a treatise, periodical, or pamphlet is not excluded as hearsay if: (2 conditions)
i) An expert witness relied on the statement during direct examination, or it was called to the expert’s attention on cross-examination; and
ii) The publication is established as a reliable authority by admission or testimony of the expert witness, by another expert’s testimony, or by judicial notice.
If admitted, the statement is read into evidence, but the publication itself may not be received as an exhibit.
318
Evidence of a final judgment of conviction is not excluded as hearsay when: (3 conditions)
i) The judgment was entered after a trial or guilty plea, but not a plea of no contest (i.e., nolo contendere);
ii) The conviction was for a crime punishable by death or imprisonment for more than one year; and
iii) The evidence is offered to prove any fact essential to sustain the judgment.
*If the prosecutor in a criminal case offers evidence of a final judgment of conviction for a purpose other than impeachment, the judgment must have been against the defendant. The pendency of an appeal may be shown but does not affect admissibility.
319
Can a driver’s guilty plea to a traffic offense that is punishable by a fine or imprisonment for one year or less be used as evidence of the driver’s negligence under the "Judgement of Previous Conviction" hearsay exception?
NO
320
9 other rare hearsay exceptions where the declarant doesn't need to be unavailable:
i) A statement concerning personal or family history, such as a birth, death, marriage, or divorce, contained in a regularly kept record of a religious organization;[xxv]
ii) A statement of fact in a marriage or baptismal certificate;[xxvi]
iii) A statement of fact about personal or family history contained in a family record, such as a Bible or an engraving on a ring;[xxvii]
iv) Records of, and statements in, documents affecting an interest in property;[xxviii]
v) Statements in ancient documents (i.e., authenticated documents prepared before January 1, 1998); [xxix]
vi) Market reports and similar commercial publications generally relied upon by the public;[xxx]
vii) Reputation concerning personal or family history or boundaries of land or general history;[xxxi]
viii) Reputation among a person’s associates or in the community concerning the person’s character;[xxxii] and
ix) A judgment admitted to prove a matter of personal, family, or general history or a boundary when the matter was essential to the judgment and could be proved by evidence of reputation
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If none of the other exceptions apply, Hearsay may still be admissible under the "Catchall Exception" when: (2 conditions are met)
i) The statement is supported by sufficient guarantees of trustworthiness—after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and
ii) It is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.
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2 Notice Requirements for a party to rely on the Catchall Hearsay Exception:
(1) The proponent must give an adverse party reasonable notice of the intent to offer the statement, as well as its substance and the declarant’s name.
(2) Notice should be given in writing before the trial or hearing, or in any form during the trial or hearing, if the court excuses earlier notice for good cause
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2 Constitutional Grounds Whereby Hearsay evidence can be challenged:
(1) Sixth Amendment (the Confrontation Clause)
(2) Due Process Clause of the 14th Amendment
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Confrontation Clause Constitutional Restriction on Hearsay Evidence
In a criminal trial, the Confrontation Clause requires that, to admit hearsay against a defendant, the declarant must:
i) Be unavailable; and
ii) Have had a prior opportunity to cross-examine the declarant.
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Due Process Clause Constitutional Restriction on Hearsay Evidence:
The Due Process Clause of the Fourteenth Amendment may prevent application of a hearsay rule when the rule unduly restricts a defendant’s ability to mount a defense.
Example: Application of a state evidentiary rule that prevents a defendant from using a witness’s hearsay statements to impeach the witness’s in-court testimony operated to deny the defendant the ability to present witnesses in the defendant’s own defense
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In the federal system, under spousal immunity privilege, can the defendant-spouse prevent the witness-spouse from waiving their privilege if they choose to testify against their spouse?
NO. Under the federal system, the witness-spouse holds the privilege
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4 Steps for a Hearsay Problem:
(Step 1): Determine whether the statement is hearsay by definition
-- Look for an out of court statement
--Determine whether it is being used for the truth of the matter asserted
(Step 2): See whether it falls within the definition of non-hearsay
(Step 3) Determine whether the declarant is unavailable in order to use that set of hearsay exceptions
(Step 4) See whether the remaining exceptions might allow admission of the hearsay statement
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What is the confrontation clause of the Sixth Amendment?
Says that criminal defendants have the right to be confronted with the witnesses against them.
In other words, witnesses must testify in front of the accused; there is a strong preference for face-to-face confrontations
*Sometimes particular accommodations are necessary to protect the interests of a vulnerable witness, such as a child (maybe who was a victim of sex crimes)
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Under Crawford, if an out of court statement is ______________ then its introduction against the defendant will violate the Confrontation Clause unless the defendant had/has the opportunity for cross-examination/
testimonial
Testimonial: Made under circumstances leading a reasonable observer to conclude it would be used in a criminal prosecution.
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Evidence of subsequent remedial measures can be used for 3 purposes:
(1) resolving a dispute about the feasibility of precautionary measures
(2) impeaching a witness or
(3) proving ownership or control.
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