1
Q
FRE Application
A
Civil, Criminal, District Court, Appeals, Bankruptcy cases, etc.
NOT grand jury proceedings, criminal procedures re search warrants, preliminary examinations, rendition, extradition, bail, sentencing, probation
2
Q
Role of Jury
A
Trier of fact
Determines the weight and credibility assigned to evidence (FRE 104)
3
Q
Role of Judge
A
Trier of law
Determines what evidence the jury can weigh and evaluate; the admissibility of a witness or evidence; whether a witness is competent and if any privileges apply
4
Q
Challenging Evidentiary Ruling
A
A party may challenge an evidentiary ruling as erroneous if:
- The error affects a substantial right of a party; and
- The party notifies the judge of the error
5
Q
Calling Court’s Attention to an Error
A
- Objection or Motion to Strike
- preventative measure
- counsel must provide specific ground for objection - Offer of Proof
- if evidence is excluded, counsel must preserve the potential evidence for the appellate court
- must explain the relevance and admissibility of the testimony
6
Q
Definitive Ruling
A
Once the judge has made a definitive ruling, there is no need to renew the objection
7
Q
Plain Error Rule
A
When a substantial right is affected because of an obvious error, an objection is not necessary
8
Q
Rule of Completeness
A
When a party introduces a writing or recorded statement in part, an adverse party may compel the introduction of an omitted portion of the writing or statement if fairness dictates.
9
Q
Judicial Notice
A
The court’s acceptance of a fact as true without requiring formal proof
- adjudicative, not legislative facts
- cannot be subject to reasonable dispute
- must be generally known, although not by everyone. Accurately and readily determinable from a source that cannot be reasonably questioned
- judge cannot take judicial notice based solely on his personal knowledge
10
Q
Judicial Notice Procedure
A
A party can ask a court to judicially notice a fact any time during the trial or on appeal.
Court can take judicial notice on own initiative, unless against a criminal defendant for the first time on appeal
Must take judicial notice if requested or necessary information is given to the court
11
Q
Effect of Judicial Notice
A
Civil: Juris must accept the fact as true
Criminal: Juries may or may not accept that fact as true
12
Q
Scope of Cross-Examination
A
Limited to:
- The scope of direct; and
- Credibility (always at issue)
13
Q
5th Amendment and Preliminary Questions
A
The defendant does not waive his 5th Amendment privilege by answering preliminary questions
14
Q
Leading Questions
A
Suggest the answer in the question.
Not allowed on direct, unless
- Foundational questions
- A witness has trouble communicating
- Adverse or hostile witness
No restrictions on the use of leading questions on cross-examination
15
Q
Improper Questions
A
- Compound Questions
- Questions that Assume Facts Not in Evidence
- Argumentative Questions
- Questions that call for a conclusion or opinion that the witness is not qualified to give
- Repetitive Questions (asked and answers)
16
Q
Exclusion of Witnesses
A
Witnesses shall be excluded or sequestered:
- Upon the motion of a party; or
- Upon the court’s own motion
Exceptions:
- A party (only one party in a criminal case: the defendant)
- An officer or employee who is the representative of a corporation
- Advisory or Expert witnesses
- Victims
17
Q
Burdens of Proof
A
- Burden of Production: the party with this burden must present enough evidence that the trier of fact could infer that each alleged fact had not been proved.
- Burden of Persuasion: Degree to which legally sufficient evidence must be presented (does not shift)
Civil: Preponderance (CCE in fraud claim)
Criminal: Beyond a Reasonable Doubt
18
Q
Presumptions
A
A conclusion that the trier must draw regarding an underlying fact
- Rebuttable: may be overcome if contrary evidence is presented
- judge must instruct the jury to accept if no contrary evidence
- shifts the burden of production to the other side - Conclusive (irrebuttable): may not be challenged. Treated like a rule of substantive law
19
Q
Relevance
A
All relevant evidence is admissible unless it is excluded by Rule, Law, or Constitutional provision.
Evidence is relevant if it is bot probative and material.
When the relevance of evidence depends on the existence of another fact, it is admissible if sufficient proof of the other fact is introduced.
20
Q
Probative and Material
A
Probative: Evidence has a tendency to make a fact more or less probable than it would be without that evidence
Material: It is a fact of consequence in determining the action
21
Q
Direct Evidence
A
Evidence that is identical to the factual proposition it is offered to prove
22
Q
Circumstantial Evidence
A
Evidence that indirectly proves a factual proposition through inference
23
Q
403 Exclusion of Relevant Evidence
A
Relevant Evidence may be excluded if its probative value is substantially outweighed by the danger of:
- unfair prejudice;
- confusing the issues;
- misleading the jury;
- undue delay, waste of time; or
- needless presentation of cumulative evidence
24
Q
Curative Admission
A
The court may allow additional irrelevant evidence in to rebut the irrelevant evidence
25
Foundation
A foundation must be laid for relevant evidence. Failure to lay a foundation may be challenged by an objection for lack of proper foundation
26
Character Evidence
General information about a person's behavior.
Generally not admissible to prove conduct in conformity.
27
Defendant's Character in Civil Cases
Inadmissible to prove conforming conduct UNLESS character is an essential element of a claim or defense
28
Defendant's Character in Criminal Cases
The prosecution cannot introduce evidence of a defendant's bad character to prove that the defendant has a propensity to have committed the crime in question.
Exception: The defendant may present positive character evidence that is inconsistent with the type of crime being charged, either through reputation or opinion testimony. The prosecution may then introduce negative character evidence to rebut the defendant's evidence.
29
Evidence of Victim's Character
A criminal defendant may introduce evidence of the victim's character that is relevant to one of the defenses asserted, either by opinion testimony or reputation evidence.
Ty prosecution can then offer victim's good character evidence.
30
Prior Bad Acts
Not admissible to prove conforming conduct.
May use for MIMIC purposes (other than to show propensity)
- Motive
- Intent
- absence of Mistake
- Identity
- Common plan
Prosecution must give the defense reasonable notice if its intent to use at trial
31
Prior Bad Acts: Civil Cases
When character evidence is admissible (an element of a claim or defense), it may be proved by reputation, opinion, or specific instances of conduct
32
Prior Bad Acts: Criminal Cases
When character evidence is admissible, it may be proved by reputation or opinion.
Specific instances of conduct are not admissible unless to prove something other than propensity (MIMIC), or to cross-examine a character witness.
33
Habit and Routine Practice Evidence
Habit refers to the act of a person.
Routine practice refers to the acts of an organization.
Evidence of a person's habit or the routine practice of an organization is admissible to prove conduct in conformity on a particular occasion (propensity).
May be admitted without corroboration or an eyewitness
34
Competence
Every witness is presumed competent unless proven otherwise
35
Oath
All witnesses and interpreters must take an oath or affirmation.
36
Lay Witnesses
Lay witnesses must have personal knowledge
37
Judges as Witnesses
Judges may not testify in a trial over which they preside.
No objection is required under the Plain Error Rule.
38
Jurors As Witnesses
At Trial: May not testify as witness at trial in front of their co-jurors
After the Trial -
May not testify about:
- Statements made during the deliberation;
- The effect of anything on a particular juror's vote; or
- Any juror's mental processes
May testify about:
- Extraneous prejudicial information brought in;
- Outside improper influences;
- Mistakes made in entering the verdict on the form
39
Child Witnessess
The court decides competency (no bright-line rule)
Factors:
- Intelligence
- Ability to distinguish between truth and falsehood
- Understanding the importance of telling the truth
40
Dead Man Statutes
Common law only (Not criminal. Not federal)
A party that has a financial interest in a civil case is prohibited from testifying about a communication or transaction with a dead person whose estate is a party to that suit, and the alleged communication is adverse to the estate.
41
Impeachment
A witness may be impeached by calling witness's credibility into question.
Bases:
- Bias
- Character for untruthfulness
- Inability to perceive what they are testifying about
- Prior inconsistent statements
- Another contradictory witness or evidence
42
How to Impeach a Witness's Character for Truthfulness
Reputation;
Opinion;
Specific Instances
Credibility cannot be discussed until it has been attacked.
Extrinsic evidence of untruthful conduct generally not admissible. Can ask of specific instance on cross if have a good-faith belief in prior misconduct and questioning is not about an arrest.
43
Criminal Convictions
Crimes Involving Dishonesty: admissible subject to 10 year restriction
Crimes Not Involving Dishonestly: admissible if punishable by death or imprisonment for more than a year
- Criminal defendant: only if probative value outweighs the potential prejudicial effect to the defendant
- Other Witnesses: must be admitted unless 403
More than 10 Years Old:
- Only if probative value substantially outweighs risk of unfair prejudice; and
- Proponent gives reasonable notice
44
Inadmissible Conviction Evidence
- Pardoned
- Annulled
- Later found innocent
- Rehabilitated
45
Juvenile Convictions
Not admissible to impeach a defendant.
Non-Defendant: admissible to impeach truthfulness and if:
- offered in a criminal case
- would be admissible if an adult conviction would be admissible; and
- admitting the evidence is necessary for fair determination of guilt or innocence
46
Manner of Proving Prior Conviction
- Witness's admission on cross or direct; or
| - extrinsic evidence
47
Prior Inconsistent Statement
May be used to impeach a witness.
Does not need to be a sworn statement.
Attorney does not need to show the prior statement to the witness, but must show to opposing counsel if requested.
EE only if witness given opportunity to explain or deny (No opportunity to explain or deny if impeaching hearsay, or admission of party opponent). Cannot be used regarding a collateral matter.
48
Bias
Bases:
- Witness has a relationship to the party or victim
- Witness has an interest in the outcome of a case
- Witness has an interest in testifying
Foundation must be laid before EE introduced.
49
Sensory Competence
Witness may be impeached by showing witness has a deficiency in ability to perceive, recall, or relate information
50
Impeaching a Hearsay Declarant
May be impeached by any evidence that would have been admissible had the declarant testified
51
Rehabilitation
A witness who has been impeached can be rehabilitated by:
- explanation on redirect
- reputation or opinion evidence with regard to character for truthfulness (if witness's character was attacked)
- prior consistent statement offered to rebut a charge that the witness lied
52
Religious Opinions and Beliefs
May be used to show bias or interest, but may not be used to attack or support a witness's credibility
53
Contradictory Evidence
A witness may be impeached by evidence that is contradictory to the witness's testimony
54
Collateral Issues
Generally, a witness's credibility may not be impeached by introducing extrinsic evidence on a collateral matter.
55
Present Recollection Refreshed
A witness may examine any item to refresh the witness's present recollection.
The witness may not use the object or item while testifying.
The item is not introduced into evidence.
Opposing counsel has a right to see and inspect the refreshing item and may introduce the item into evidence (usually for impeachment)
56
Past Recollection Recorded
A party may admit into evidence a memorandum or record regarding a matter about which a witness once had knowledge but now has insufficient recollection upon which to testify.
57
Lay Witness Opinion Testimony
Generally, a lay witness may not testify about an opinion unless it is a common sense impression based on the witness's perception.
Must be helpful to clear the understanding of a fact at issue
Cannot be scientific, technical, or specialized in nature
58
Expert Witness Subject Matter
Before an expert witness can testify, the court must find that subject matter of the testimony is:
Reliable - Scientific, technical, or specialized
Relevant - will help the trier of fact understand evidence or a fact
59
Qualified Expert
To be qualified to testify as an expert, witness must show:
1. Witness is qualified by possessing knowledge, skill, experience, training, or education;
2. Testimony is based on sufficient facts or data;
3. Testimony is the product of reliable principles and methods;
4. Witness applied those principles and methods to the facts of the case
Experts must also possess a reasonable degree of certainty
60
Experts and Ultimate Issue
An expert may give an opinion on an ultimate issue (including a defendant's state of mine)
An expert cannot give an opinion on whether a criminal defendant had the requisite mental state for the crime charged
61
Basis of an Expert's Opinion
- Personal observations
| - Data that was provided
62
Court-Appointed Experts
A court may appoint an expert
Court must inform expert of expert's duties
Expert must advise both parties of findings
Each party may depose a court-appointed expert
63
Tangible Evidence
Tangible evidence is any evidence not presented as oral or verbal in form.
All tangible evidence must be authenticated.
Authentication is showing that an object is what it is claimed to be.
64
Authenticating Physical Evidence
1. Through personal knowledge of the witness who has familiarity with the object
2. By chain of custody
65
Authenticating Reproduction
A witness who has personal knowledge must testify that it accurately depicts what it is claimed to represent
66
Authenticating X-Rays or Electrocardiograms
1. Accurate process;
2. Machine was working properly;
3. The operator was qualified; and
4. Chain of custody is shown
67
Common Methods of Authenticating Documentary Evidence
1. Stipulation
2. Testimony of an eye-witness
3. Handwriting verification
68
Ancient Documents
1) More than 20 years old;
2) In a condition that is unlikely to create suspicion about its authenticity; and
3) Found in a place it would likely be found.
69
Public Records
1. Recorded or filed in a public office as authorized by law; or
2. The document is from the office where items of that kind are kept.
70
Reply Letter Doctrine
Written response to an original communication; and
| Unlikely it was forged by someone else
71
Handwriting Verification
Comparison: Expert witness or the trier of fact compares the writing in question with another writing that has been proven to be genuine
Personal Knowledge: A non-expert witness with personal knowledge of the handwriting who recognized the handwriting (*cannot have become familiar for litigation purposes)
72
Self-Authenticating Documents
No Extrinsic Proof Required
i. Public documents bearing a seal;
ii. Certified copies of public records;
iii. Official publications issued by a public authority;
iv. Newpapers or periodicals;
v. Trade inscriptions;
vi. Notarized or acknowledged documents;
vii. Commercial paper;
viii. Documents declared by federal statute to be authentic;
ix. Records of regularly conducted business activity
73
Voice Identification
May be authenticated by any person who has heard the voice at any time, even if made for purpose of litigation.
Makes no difference whether mechanical, electronic, or live.
74
Telephone Authentication
A party to a telephone conversation may authenticate statements made during that conversation by testifying that:
1. he recognized the speaker's voice;
2. the speaker knew fact s that only a particular person would have known;
3. the caller dialed the number that was believed to be the speaker's and the speaker identified himself upon answering; or
4. the caller dialed a business number and spoke to the person about regular business
75
Best Evidence Rule
When the material terms of a writing are at issue or a witness is relying on the document while testifying, an original any counterpart intended to have the same effect as the original is required
76
Best Evidence Rule Exceptions
A duplicate is admissible if produces accurately unless a genuine question of authenticity of the original arises or it is unfair to admit the duplicate.
A duplicate will suffice if:
- all originals are lost or destroyed
- the original could not be obtained through any judicial process
- the party against whom it is being offered is in control and fails to produce when they had notice
- collateral matter
77
Copies of Public Records
Best Evidence Exception
Must be certified or, if non-certified, there must be testimony by someone who saw the original.
If no copies available, court may allow other means to prove the issue
78
Summaries or a Chart of an Original
Exception to Best Evidence
Allowed if proponent makes originals or duplicates available for copy and examination
79
Admission by a Party
Best Evidence Exception
Can be a substitute for an original if the contents of a writing, recording, or photograph are proven by testimony of the party against whom it is being offered
80
Role of the Court in the Best Evidence Rule
The court determines whether the Best Evidence Rule has been satisfied
81
Parol Evidence Rule
Exclusionary rule that relates to written contracts.
Assumes that a written contract represents the complete agreement.
Complete integration: If the document contains some but not all of the terms, extrinsic evidence is allowed at trial and PER would not apply
82
Privileges: General
When there is potential evidence, but an individual has the right to hold the evidence secret and cannot be forced to provide the information.
The FRE contain no specific privilege provisions. State law applies.
A claim of privilege applies at all stages of a case.
83
Confidential Communication
For a communication to be privileged, ti must be confidential.
The privilege is destroyed if overheard by an unwanted third party unless the third party is an unknown eavesdropper or if the party's presence is necessary
84
Privilege Waiver
- If holder fails to timely assert privilege
- Voluntary disclosure
- Contractual waiver
85
Spousal Privilege
Two distinct privileges:
| Spousal immunity and Confidential marital communications
86
Spousal Immunity
A married person may not be compelled to testify against her spouse in any criminal proceeding, including a grand jury.
Federal and Majority: The witness spouse holds the privilege
Minority: The party spouse holds the privilege and may prevent spouse from testifying.
Only during a valid marriage (expires on divorce or annulment)
Applies to testimony about events occurring before and during the marriage.
87
Confidential Marital Communication
A communication made between spouses while married is privileged.
Majority: Both spouses hold the privilege
Applies only to communications made during the marriage.
Applies to both civil and criminal cases.
Extends beyond the end of marriage.
88
Spousal Privilege Exceptions
- When one spouse is suing the other spouse
- When one spouse is charged with a crime against the other spouse
- When one spouse is charged with a crime against the children of either spouse
89
Attorney-Client Privilege
Communications intended to be confidential for legal advice or representation
Third party kills privilege unless client representatives
Held by the client and can only be waived by the client. Attorney must assert. Privilege exists until waived and survives the client's death.
90
Not covered under Attorney-Client Privilege
- Fee Arrangement
- Identity of client
- Underlying facts of employment
- Statement made to an attorney who is acting in another capacity
91
Corporate Attorney-Client Privilege
Federal: Non-control group communications can be privileged if they are communicating within their employment duties and for the purpose of seeking legal advice for the corporation
92
Attorney-Client Privilege Exceptions
- Communications made to enable or aid commission of what the client know or should have known was a crime or fraud
- Communications regarding disputes between attorney and client
- Communications between two parties who claim the same deceased client
- Communications between co-clients of the same attorney who are now adverse
93
Inadvertent disclosure
No waiver of privilege in a federal proceeding if holder:
- took reasonable steps to prevent disclosure; and
- took reasonable steps to rectify disclosure
94
Intentional Disclosure
Acts as a waiver of the privilege
Extends to undisclosed information if:
- both sets of information concern the same subject; and
- fairness requires disclosure of both
95
Disclosure in State Proceeding
Does not act as a waiver in later federal proceeding if:
- would not have been a waiver in federal courts; or
- was not a disclosure under state law
(federal court must apply most protective law)
96
Physician-Patient Privilege
Not privileged under common law
Most states protect by statute, so long as communication is for medical treatment
Patient holds the privilege; only patient can waive
97
Situations Where Physician-Patient Privilege Does Not Exist
1. Information was acquired for reasons other than treatment
2. Patient's physical condition is at issue in the case
3. Communication was made as part of the commission of a crime or tort
4. A dispute exists between the physician and the patient
5. The patient contractually agreed to waive the privilege
6. A case is brought in federal court and state law does not apply
98
What if an attorney sends a client to a doctor?
Communication is not privileged unless treatment is being contemplated.
99
Psychotherapist-Patient Privilege
Most states recognize (more widely recognized than Doctor-Patient).
Between psychiatrist, psychologist, or licensed social worker and a patient.
Patient hold privilege
No privilege if:
- patient's mental condition is at issue
- communication was part of a court-ordered exam
- case is a commitment proceeding against the patient
100
Self-Incrimination
The Fifth Amendment allows a witness to refuse to give testimony that may tend to incriminate him.
- Only covers current testimony (not prior statements)
- Does not apply to physical characteristics or mannerisms
- Only held by human beings, not corporations or other organizations
101
Fifth Amendment Comment
Criminal Case: A prosecutor cannot comment on a defendant's failure to take the stand or suggest the jury should draw a negative inference therefrom
Civil Case: Opposing counsel can ask the jury to draw a negative inference from a witness's claim of privilege
102
Fifth Amendment and Immunity
A witness may be compelled to provide incriminating testimony if the government grants him immunity from prosecution
Transactional: Protection regards entire transaction
Use: Protection only covers the compelled statements
If the government does prosecute the witness, the government has the burden to show in a later proceeding that compelled testimony did not provide an investigative lead to the prosecution
103
Clergy-Penitent
A confidential communication made by a penitent to a member of the clergy is privileged.
The penitent holds the privilege; clergy member asserts
104
Accountant-Client
Not available at common law, but many jurisdictions recognize by statute
Similar to attorney-client privilege
105
Professional Journalist Privilege
No federal privilege protecting a journalist's source of information
Some states have enacted statutes extending protection to journalists
106
Government Privileges
The government, at all levels, is privileged against disclosing the identity of a criminal informant in a criminal case and the communication o official information by or to public officials
107
Subsequent Remedial Measures
Public policy exclusion that prohibits the admission of measures taken after injury or harm that make future injury less likely.
Inadmissible to prove negligence, a defective product or design, or culpable conduct.
Admissible to show ownership/control of the property or for impeachment
108
Compromise Offers or Negotiations
Public policy exclusion
Offers, conduct or statements made during negotiations are not admissible to prove a disputed claim, an amount, OR for impeachment
Exceptions:
- Negotiations with governmental agencies are admissible in a later criminal case
- Admissible to prove bias, prejudice of a witness, obstruction, or to negate a claim of delay
109
Offers to Pay Medical Expenses
Not admissible to prove liability for plaintiff's injuries
Any conduct or statements that accompany the payment or the offer to pay would be admissible
110
Plea Negotiations
Civil and Criminal, the following are inadmissible against the defendant:
- withdrawn guilty
- please of nolo contendere
- statements made while negotiating with the DA
- statements made during plea proceedings
Exceptions: pleas or negotiation statements are admissible if fairness dictates or at perjury hearings
May be waived knowingly or voluntarily
111
Liability Insurance
Evidence of insurance or lack of insurance is not admissible to prove negligence or wrongful conduct
Admissible if it goes to agency, ownership, control, or witness bias and prejudice
112
Rape Shield Law
A victim's sexual behavior or predisposition is not admissible in any civil or criminal proceeding involving sexual misconduct.
CANNOT be used for impeachment for substantive purposes
Sexual Behavior: intercourse, diseases, use of contraceptives
Predisposition: the way a person dresses, speech, lifestyle
113
Rape Shield Exceptions in Criminal Cases
Sexual behavior of the victim can be used:
- to prove source of semen or source of injury
- to prove victim's consent
- if offered by the prosecution
- if exclusion would violate Sixth Amendment
114
Rape Shield Exceptions in Civil Cases
Victim's reputation admissible only if victim places it in controversy
Victim's sexual behavior is admissible if the probative value substantially outweighs any unfair prejudice
Restriction on this evidence only applies if the party is a victim of sexual misconduct
115
Procedure to Use Victim's Sexual Conduct
Notice requirement for intent to use the evidence: At least 14 days before trial
116
Defendant's Sexual Conduct
Criminal: Evidence of defendant's other sexual assault is admissible when defendant is accused of committing sexual assault, rape, or child molestation (propensity allowed; subject to 403)
-Not limited to convictions, can include prior arrests and unreported incidents
15 days notice before trial
117
Hearsay
An out-of-court statement that is offered to prove the truth of the matter asserted.
Generally inadmissible.
Declarant: must be a person.
Statement: must be an assertion.
118
Not Offered to Prove the Matter Asserted
1. Legally Operative Fact: a statement offered to prove that the statement itself was made, regardless of its truth
2. To Show the Effect on the Listener
3. Offered to Show Declarant's Mental State or State of Mind
4. Impeachment
119
Multiple Hearsay
Hearsay within hearsay
May be admissible if all levels of hearsay fall within an exception
120
801(d) Non-Hearsay
1. Prior Inconsistent Statements
2. Prior Consistent Statements
3. Prior Statements of Identification
4. Party Admissions
121
Non-Hearsay: Prior Inconsistent Statements
Admissible as substantive evidence if:
1. Previously made under penalty of perjury; and
2. Inconsistent with the present testimony being given at trial
If not previously given under oath, can be offered for impeachment purposes, not for the substance of what was previously said
122
Non-Hearsay: Prior Consistent Statements
Only admissible to rebut a charge or claim that the declarant is fabricating or has recent motive to fabricate the statement in court
Admissible regardless of whether made under oath or not
- Must have been made before the declarant had reason to fabricate the statement
123
Non-Hearsay: Prior Statements of Identification
A previous out-of-court identification of a person after seeing them is admissible as substantive evidence
*Witness must be available for cross-examination
124
Non-Hearsay: Party Admissions
A prior out-of-court statement made by a party (or representative) to the current litigation that is offered by the opposing party against that party is not hearsay.
Need not have been against the party's interest at the time the statement was made.
Must be admitted even if it is not based on personal knowledge or within the party's normal scope of knowledge
125
Judicial Admissions
Available if made:
- During discovery process
- By Stipulation
- During a proceeding
- Unless they are amended
126
Adoptive Admission
A statement made by another person (not the party) that a party expressly or impliedly adopts as his own can be used in court
Silence is considered an adoptive admission if:
1. the party was present and heard and understood the statement;
2. the party had the ability and opportunity to deny it; and
3. A reasonable person who is similarly situated would have denied the statement
127
Vicarious Admission
An out-of-court statement made by one person that may be imputed to an opposing party based upon certain relationships between the parties.
Employee or Agent: Qualifies as an opposing party's statement if
- made within the scope of employment; and
- during the course of the relationship
Statement made by an authorized speaker
Co-Conspiritor: A statement made by a co-conspirator is admissible if it is made during and in furtherance of the conspiracy
128
Five Unavailable Declarant Exceptions
1. Former Testimony
2. Dying Declarations
3. Statements Against Interest
4. Statement of Personal or Family History
5. Declarant Unavailable Due to Wrongdoing
129
Hearsay Exception: Former Testimony
Testimony will be admissible if:
- declarant is unavailable;
- the statement was prior testimony given at trial, hearing, or deposition; and
- the opposing party had an opportunity and similar motive to develop the testimony through cross- or direct examination
Prior testimony at a different case does not qualify as former testimony
130
Hearsay Exception: Dying Declaration
Statement will be admissible at trial if:
- the declarant is unavailable; and
- the declarant believed her death was imminent when she made the statement; and
- the statement pertains to the cause or the circumstances of her death
131
Hearsay Exception: Statements Against Interest
Statement is admissible if:
- declarant unavailable;
- the statement is agains the declarant's self interest; and
- a reasonable person would not have made the statement unless he believed it was true
Against self interest: pecuniary or proprietary interest; or exposes declarant to civil or criminal liability
132
Hearsay Exception: Statement of Personal or Family History
A statement concerning the unavailable declarant's own birth, adoption, marriage, divorce, etc., is not excluded
133
Hearsay Exception: Declarant Unavailable Due to Wrongdoing
A statement that is offered against a party who is wrongfully responsible for the declarant's unavailability is admissible.
134
Hearsay Exceptions Where Declarant's Availability is Immaterial
1. Present Sense Impression
2. Excited Utterance
3. Statements of Mental, Emotional, or Physical Condition
4. Statements Made for Purposes of Medical Diagnosis or Treatment
5. Recorded Recollection
6. Business Records
7. Public Records
8. Learned Treatise
9. Judgment of a Previous Conviction
135
Hearsay Exception: Present Sense Impression
A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived the event.
Availability Immaterial
136
Hearsay Exception: Excited Utterance
A statement made about a startling event or condition while the declarant is under the stress of excitement caused by the event.
Statement must relate to the event, but the declarant need not be a participant in the event
Availability Immaterial
137
Hearsay Exception: Statements of Mental, Emotional, or Physical condition
A statement of a declarant's then-existing state of mind, emotional, sensory, or physical condition used to show the declarant acted in conformity therewith
(Present intent, motive, plat)
Physical condition: can be used to prove that the condition existed, cannot be used to prove the cause of the condition
Availability immaterial
138
Hearsay Exception: Statements Made for Purposes of Medical Diagnosis or Treatment
An out-of-court statement is admissible if it is made for medical diagnosis or treatment.
Can include statements of past or present symptoms.
Also admissible if it goes to the cause of the injury.
Availability immaterial
139
Hearsay Exception: Recorded Recollection
- The record is about a matter the witness once knew about;
- The record was made or adopted by the witness when the matter was fresh in his mind;
- The record accurately reflects the witness's knowledge; and
- The witness now cannot recall the events well enough to testify, even after consulting the writing while on the stand
*may be read into evidence, however the proponent cannot enter the record as an exhibit
140
Hearsay Exception: Business Records
A record is not excluded as hearsay if:
- record is kept in the course of regularly conducted business activity;
- the making of the record was a regular practice of the activity; and
- the record was made at or near the time by someone with knowledge
Authentication:
- by the custodian
- qualified witness
- records may be self-authenticated
141
Absence of Record
May be admissible to prove the event did not occur.
Admissible if a record is usually kept for that type of matter.
142
Hearsay Exception: Public Records
Applies to a record or a statement of a public office or agency that sets out
- the activities of office or agency; or
- an observation of a person who has a duty to report that observation; or
- factual findings of a legal investigation in a civil case, or in a criminal case if it is against the government
143
Hearsay Exception: Learned Treatise
Statement in a treatise, periodical, pamphlet, etc.
Not excluded if:
- an expert relied on the statement during direct or expert was cross examined on it; and
- if publication is established as a reliable authority (by expert, by another expert, by judicial notice)
If admitted, statement is read into evidence; the publication is NOT admitted as an exhibit
144
Hearsay Exception: Judgment of a Previous Conviction
Not excluded if:
- Judgment was entered after trial or a guilty plea;
- Punishable by death or imprisonment greater than one year; and
- The evidence is offered to prove a fact essential to sustain the judgment
145
Other Enumerated Hearsay Exceptions
o Records of religious organizations regarding personal or family history o Marriage and baptismal certificates
o Family records (e.g., family Bible)
o Records of documents affecting an interest in property
o Ancient documents (authenticated documents in existence at least 20 years)
o Market reports
o Reputation concerning personal or family history, boundaries, general history, or character o Judgments regarding proof of matters of personal, family, or general history if the matter
was essential to the judgment and could be proved by evidence of reputation
146
Hearsay Residual/Catch-All Exception
A hearsay statement may be admissible under this exception if:
1. Equivalent circumstantial guarantees of trust;
2. It is offered as evidence of a material fact;
3. It is more probative than any other evidence on the point; and
4. Admitting the hearsay statement will best serve the purpose of the FRE and the interests of justice
*Reasonable notice must be given to opposing counsel of the intent to use this
147
Sixth Amendment
Confrontation Clause and Hearsay Evidence
A testimonial statement is admissible agains a criminal defendant only if:
- Declarant is unavailable; and
- Defendant had an opportunity to cross the declarant prior to trial
148
Fourteenth Amendment
The Due Process Clause may prevent application of a hearsay rule when the rule would restrict the defendant's ability to mount a defense
149
Constitutional Limitations - Face-to-Face Confrontation
The Confrontation Clause generally requires a face-to-face confrontation between the defendant and a witness.
Exception: When there is an important public interest, such as protecting a child
Themis Handouts
flashcards
Decks in class (8)
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