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Terms in this set (105)
Jurors cannot testify to any manner or stmt that occurred during deliberation or to juror/s minds/emotions BUT may testify about
-extraneous prejudicial info improperly brought
-outside influence improperly brought
-mistake in entering verdict
According to Tanner v. US- jurors may not testify as to use of _______ during trial
W can only testify to matters they have __________ of; W must be able to _____________ what was perceived.
-CRC: comprehend, remember, communicate
Chain of Custody: Where item is ____ (rather than _____), authentication may require testimony describing series of perceptions
fungible (rather than unique)
Public records may be authenticated through ________, by...
1) by certified copy
2) by showing public filing/recording
3) by testimony from knowledgeable W
Best Evidence Rule requires...
party who wishes to prove content of writing to offering original writing itself
Original is required to prove content of...
-images (testimony of W /w knowledge of scene of pic;accurate depiction of scene)
-electronic recordings (explaining process made & why reliable;identify participants)
-phone convo (testimony to convo; identify person talking on other end)
Exceptions: duplicates are admissible unless...
-genuine Q raised to authenticity of original
-situation where unfair to admit duplicate in lieu of original
Exceptions: original not required if
-in possession of opponent
______ are admissible where original cannot be ______ examined
Remember, jury decides ___ and judge decides ___
What are adjudicative facts?
facts generally known to informed ppl or verifiable by unimpeachable sources
Noticed facts are ____ in civil cases but _____ in criminal laws
What are some dangers of relevant evidence that might hurt ct? (something non-probative: remember probative v. danger test)
-unfair prejudice (excessive emotionalism/jury unable to limit use)
-confusion of issues
-waste of time
-needless presentation of cumulative evidence
REMEMBER ____ makes decision of general admissibility and ____ makes decision when relevancy is condition on fact after ____ decides whether there's enough evidence to support a finding
judge, jury, judge
If there's evidence to support conditional fact determining relevancy, then it's _____
What are some policy reasons against hearsay?
-right of parties to cross declarant
-oath of truth
What are some dangers of hearsay?
What are non-hearsay purposes?
Where OCS is offered to prove something other than truth
What are examples of non-hearsay purposes?
1) verbal acts
2) prove fact that words were spoken
3) prove effect on listener
4) circumstantial evidence of state of mind
5) circumstantial evidence of knowledge
6) Non-assertive conduct
Non-Hearsay: Verbal Acts/Words of Independent Legal Significance
utterances that have operative effect under legal principles
-cts only care words were said, not that they were true
-ex: words: forming K, slander, adverse possession
Non-Hearsay: to prove that words were spoken
value comes from fact words were spoken, not from truth of matter asserted (ex: "I'm alive/dead")
Non-Hearsay: Proof of effect on listener
person's state of mind
-statement to show its effect on that person is NOT hearsay
look to in-class ketchup example
Non-Hearsay: Circumstantial Evidence of Knowledge
-OCS MUST display knowledge that is sufficiently distinctive so that relevant inferences can be drawn w/o relying on truth of stmt.
Ex: V's description of scene of crime (Bridge's case)
Non-Hearsay: Circumstantial Evidence of State of Mind
If person makes a stmt. that directly expresses her state of mind, stmt. is relevant.
-its hearsay but falls in exception
Ex: "Joe is a thief" to prove declarant did not like Joe, therefore did not leave his Estate to Joe (not hearsay) <--not that he really thought Joe was a thief
Non-Hearsay: Nonassertive conduct
conduct NOT intended by declarant to be an assertion=NOT hearsay
-ex: Surfers running to beach b/c surf is up
Rule: do we need to assess author's sincerity in order to rely upon conduct?
-if yes: HEARSAY
-if no: NOT hearsay
used to undermine credibility of W, not to prove truth of words uttered
What are the policy reasons for the hearsay exceptions?
Opposing party has opportunity to "cross-examine" or defend stmt & availability to testify=not an issue"
What are the hearsay exceptions?
1) Stmt of Party Opponent
2) Stmt by Agent
3) Authorized Admissions
4) Adoptive Admission
5) Admission by co-conspirator
6) Stmt of Identification of Person
"Stmt of Party Opponent"
anything other side said out of ct. can come in
Rationale- parties almost always available to testify & has chance to explain
"Stmts by Agent"
-OCS by agents concerning matters w/in scope of agency & made during agency relationship
-OCS must be offered against party
-OCS must have been made by person authorized by party to make certain stmt concerning subject
(authorization can be implicit/explicit, authority of speaking agent may be ltd. to certain subjects)
Two types: Explicit & Implicit
Explicit Adoptive Admission
-OCS offered against party
-party has explicitly adopted stmt as true
Implicit Adoptive Admission
-OCS offered against a party
-party heard stmt or read it
-probable human behavior would be to deny if not true
-party did not deny
-no other reason for lack of denial
"Admission by Co-Conspirator"
-OCS offered against party
-Conspiracy existed (two or more /w intent to commit a crime, MUST know of venture & intended to associate)
-declarant & party members to conspiracy
-stmt made during AND in furtherance of conspiracy
"Stmt of identification of person"
-OCS declarant testifying & subject to cross
-stmt is one identifying person & was made after perceiving person in Q
what are hearsay exceptions?
1) Present Sense Impression
2) Excited Utterance
3) State of Mind
4) Statement for Med Diagnosis
5) Recorded Recollection
6) Biz Records
7) Public records
8) Forfeiture by wrongdoing
9) Residual Exception Rule
"present sense impression"
-made while declarant perceived event or condition or immediately thereafter
-must describe or explain thing being perceived
-Sufficiently startling event
-declarant sufficiently started by event (reflect/reasoning blocked)
-made while declarant under stress caused by event
-must relate to startling event
Backward Looking Stmts (State of mind exception)
backward looking stmts are excluded (except stmts relating to execution, revocation, identification and/or terms of declarant's will)
-Ex: "I was sad yesterday is NOT admissible"
Forward Looking Stmts. (state of mind exception)
when used as evidence of future conduct, stmt admissible as evidence of declarant's future conduct
-ex: Hillman case
Stmts. for Med Diagnosis 803(4)
-declarant believed OCS would result in med diagnosis or treatment
-doctor would reas. rely upon OCS in diagnosing or treating patient
-statement doesn't have to be made to doctor; simply made for purpose of obtaining med treatment or diagnosis
-statement need not be made by sick person (parent's statement about child's condition)
EXCEPTION DOES NOT COVER DIAGNOSIS ITSELF
-W made or adopted a record
-based on 1st hand knowledge
-matter was fresh in W's memory
-record reflects W's knowledge
-at time of trial, testifying W no longer has sufficient memory of matter recorded to allow her to testify fully or accurately; and
-at trial, W must remember that record is accurate
-OCS record made in course of reg. conducted biz (can be non-profit) activity
-record made at or near time of event recorded
-record made by someone who had personal knowledge or based record on info provided by someone who had personal knowledge
-ocs must be public record or report
-must set out one of these three
1) activities of office or agency that prepared report
2) matters agency had legal duty to observe & legal duty to report upon (unless crim case & record in Q is public report; this protects D's confrontation rights)
3) factual findings resulting from investigation made pursuant to authority granted by law (includes factually based conclusions or opinions)
-records w/in this description cannot be introduced against Crim D
est. foundation= you do not need live testimony. Certified copy of public record or report is usually enough
forfeiture by wrongdoing
-party engaged/acquiseced in wrongdoing INTENDED to & procured unavailability of declarant as testifying W
-OCS offered against that party (wrongdoer cannot use this exception)
*Co-Conspirators can be deemed to have waived confrontation & hearsay objections as a result of certain actions that are in furtherance, w/in scope & reasonably foreseeable as necessary or natural consequence of ongoing conspiracy
-reliability: evidence must have "equivalent circumstantial guarantees of trustworthiness as evidence admitted under 803/804
-relative probative value
-interests of justice
-advance notice (proponent's notice in advance of trial or hearing of his intention to offer evidence
when is the "availability of the declarant is material"?
Unavailability of testimony (declarant can be in ct, yet be unavailable)
1. Claim of privilege ruled valid by ct
2. Refusal to testify
3. Lack of memory
4. Death or illness
5. Unable to procure testimony - declarant's whereabouts unknown despite reas. efforts
what are examples of the "availability of the declarant is material"
1) former testimony
2) statement under belief of impending death
3) statement against interest
what are the elements of "former testimony"?
-OCS given as W under oath at prior legal proceeding
-identity/similarity of interests of party (in crim: party against whom hearsay is offered was party to former proceeding; in Civil: either party against stmt now offered or "predecessor in interest" of that party must have been party to former proceeding")
-at former proceeding, party against whom hearsay is now offered (had opportunity to Q declarant)
-had similar motive to Q the W in each proceeding
"Stmt under belief of impending Death"?
-at time stmt made, declarant believed about to die
-declarant does not have to be dead at time of trial; simply unavailable
-OCS concerns cause or circumstances of anticipated impending death
ONLY for civil case or prosecution for homicide
"Stmts against interest"?
-at time OCS made, it was against declarant's interest such that reas. person wouldn't have made stmt unless true (stmt would subject declarant to civil or crim liability)
-stmts that expose declarant to social ridicule/embarrassment don't count
-ocs knew stmt against her interest at time made
What is the confrontation clause?
in all crim prosecutions, accused shall enjoy right to be confronted /w W against him
Confrontation Clause analysis is triggered when...
prosecutor offers hearsay against D in crim case
Character Evidence is not admissible for...
purpose of proving action in conformity /w particular occassion
Evidence of person's character can't be used to prove conduct in accordance /w that character on specific occassion EXCEPT
-Crim D's: D can offer evidence of pertinent trait of character to help prove he did not commit charged crime (must relate to type of crime charged BUT door is opened when D attacks character of V)
-Crime V's: in crim trial, evidence of trait of character of D is admissible if: offered by accused to prove his innocence, it is offered by prosecutor to rebut character evidence offered by accused, in homicide case when prosecutor offers character evidence pertaining to peacefulness of alleged V to rebut defense evidence that alleged V was 1st aggressor)
-Ws (in both crim & civ, evidence of character of W is admissible)
-sexual assault cases: allows character evidence to prove conduct in accordance /w such character in sex assault & molestation bases (only specific instances & must be same type of crime as one currently on trial for)
-Rape Shield Laws: allows D's past conduct to come in but not evidence about V's past conduct
Character of Evidence to Prove MIMIC
Evidence of other crimes, wrongs, acts NOT admissible to prove character of person in order to show action in conformity but may be admissible for other purposes
What is MIMIC?
Motive- when prior crimes are offered to prove motive, need not be similar in nature to charged offense (D's exp. drug prob. as motive to commit robbery)
Intent- when prior crimes are highly probative on issue of intent, must be close resemblance between prior & charged crime
Mistake-prior acts show D was in victinity of crime when it was committed or had knowledge/familiarity/experience to commit crime (evidence D escaped from prison could be admitted to est. his presence in victinty of car theft)
Identity-where charged crime was commited by means of modus operandi (distinctive & unsual that bears close resemblance to some crime D did on prior occasion)
Common Plan- prior crimes may be relevant to prove common plan
What must one determine to admit MIMIC
-evidence must be offered for proper purpose
-evidence must be relevant to prove MIMIC fact in Q
-probative value test under 403
-court must issue limiting instruction if party requests to do so and may issue absent a request
evidence of habit of a person or routine practice of an org is admissible to prove conduct of person/org on particular occasion was in conformity /w habit or routine practice
What are subsequent remedial measures?
post-accident measures, taken to prevent future accidents of same nature are excludable when offered to prove negligence
What are some exceptions to subsequent remedial measures?
-impeachment: where defending party presents testimony that machine or premise is safe, proponent may use evidence to refute
-feasiability: where defending party offers evidence it would be impossible or impracticable to make a particular change to prevent similar accidents
Comprise & Offers to Comprise: agreements/stmts are inadmissible to prove...
liability or invalidity of claim or its amount or to impeach testimony of party @ trial
Payment of Med Expenses are...
inadmissible when offered to show party is liable for injury. Only applies to actual stmt (not surrounding ones)
Proof of liability ins. cannot be used to show...
negligence or other wrong acts.
What are some exceptions to liability insurance?
-agency, ownership, control
-bias - impeachment -prejudice
What are ways one can impeach a W?
1) defect in mental or sensory capacity
2) bad character (rep/opinion)
3) bad character (prior crim convictions)
6) Prior Inconsistent Stmts
7) Prior Consistent Stmts
Discuss Impeachment of a W: Defect in Mental or Sensory Capacity
Factors that Enhance/Weaken Credibility.
-W's opportunity/capacity to perceive
-W's capacity to recollect
-W's capacity to narrate
What are some forms of proof for "Defect in Mental or Sensory Capacity"?
-atk'in party can inquire about sensory/mental defects on cross
-atk'in party can call 2ndary W to testify to mental/sensory defects
alcohol/drug use gen. excluded by cts in regards to addiction UNLESS it bears on ability of W to perceive/recall events at issue
-extrinsic evidence: admissible to prove mental illness/disability (evidence of unrelated mental illness is excluded for privacy purposes///med records indicating treatment provide basis for cross but may be excluded)
Bad Character Rep/Opinion Impeachment Factors
Character W in regards to principle W must
-be acquainted /w community where principle W spends most of his time
-know principle W long enough to give opinion
Limitations to Rep/Opinion?
-evidence may refer only to character for truthfulness or untruthfulness (no extrinsic evidence)
-evidence of truthful character is admissible only after character of W for truthfulness has been attacked by opinion/ rep evidence or otherwise
Bad Character Prior Crim Convictions
use of crim convictions to show W is untruthful is admissible HOWEVER b/c of prejudice, 403 warrants exclusion only under balancing test
Factors used in the balancing test for Bad Character- Prior Crim Convictions?
-nature of prior crime
-similarity to charged crime
-extent/nature of record
-importance of D's testimony
-importance of credibility issues
-conviction in trial where D testified
For Bad Character-Prior Crim Convictions, what can automatically be admissible?
crimes involving element of dishonesty or false stmts
What are some exceptions for Bad Character-Prior Crim Convictions?
-10 yr limit (unless probative>prejudicial)
Prior convictions are usually proved by asking W about them on ____ or ____ but ____ evidence is also admissible
direct or cross...extrinsic
Discuss Impeachment of a W: Bias/Motive/Interest
W may be impeached by showing bias for or against party- Why? B/C bias is always relevant
How to prove bias?
-on cross BUT calling party may also develop points showing bias on direct
-circumstantial evidence: family/financial/friends/etc
Discuss Impeachment of a W: Contradiction
showing something W said is not so by offering counterproof, will raise doubts in jurors' minds
What is the dual relevancy requirement in Contradiction to Impeach a W?
evidence must be relevant for ADD'L REASON (other than proving Ws' testimony is wrong)
EXCEPTION: when counterproof tends to refute a point W simply could not have been mistaken about if he is truthful
What is the Collateral Matter Limitation in Contradiction to Impeach a Witness?
factual matters that have no importance to case except in its tendency to undercut credibility of W by contradiciton rather than in some other manner are excluded
Extrinsic Evidence in regards to Contradiction to Impeach a W is...
NOT admissible to contradict W on a collateral matter
Discuss Impeachment of a W: Prior Inconsistent Statements
stmt by somebody who is now testifying that is inconsistent /w his testimony
In regards to extrinsic evidence for PIS it is admissible ONLY if...
W has opportunity to explain or deny stmt unless interest of justice require (only for non-collateral matters)
Discuss Impeachment of a W: Prior Consistent Stmt
stmt by somebody who is now testifying that is consistent /w his testimony (to repair credibility)
-declarant testifies at trial or hearing
-subject to cross concerning stmt
-prior consistent stmt offered to rebut express or implied charge or recent fabrication or improper influence or motive
-prior consistent stmt was made before alleged improper influence or motive arose
Discuss Lay Opinion
generally admissible unless they are not based on personal perception of W or are not helpful to trier of fact (cannot be based on technical/scientific/specialized knowledge)
Discuss requirements for Expert Testimony
1) assist the jury
2) be qualified
3) supported by factual basis
4) based on reliable principles that were reliably applied to the facts
--a)evidence must present valid science
--b)science must be pertinent (must relate directly to issues & facts)
--c)may be excluded under 403 even if it satisfies a & b
Attorney Client Privilege Requirements
-Communication b/t C&L (whether written oral and to nonverbal conduct that is communicative in nature) <-- not to facts embodied in communications/pre-existing docs that have been merely turned over to lawyer/not lawyer's stmts
-privilege applies only to communications intended to be confidential
A/C Privilege For Corp Client: Control Group Test
confines privilege to communications by ppl in corp managerial hierarchy who have authority to act on any advice given
A/C Privilege For Corp Client: Subject Matter Test
confines privilege to communications by any EE relating to subject matter w/in scope of his job or resp. to corp
What are exceptions to A/C Privilege?
-doesn't shield from ongoing future crimes/frauds, only shields stmts relating to past misconduct
-breach of duty by L or C
-claimants through same deceased Cs (privilege survives death of C but exception for communications by deceased C that are relevant in suits b/t parties claiming through that C)
-L as attesting W
-Joint Cs become opposed to one another
What is the duration of A/C Privilege?
Privilege continues to protect confidential communications after death of C who is a person but it is unclear whether privilege survives dissolution of a Corp C
-Confession by Deceased C
privilege either permits W who is married to accused to refuse to testify for prosecution or permits accused to block his spouse from testifying for prosecution or both (ONLY FOR CRIM CASES)
who are the holders for spousal testimony?
-both hold privilege (some states)
-W only (fed rule) <-Trammel Doctrine: Prosecutors who have E that both spouses are involved in crime may bring (threaten to bring) charges against one & use leverage gained to force other to agree
-party only (some states)
What is the scope for spousal privilege?
covers ALL testimony & is not limited to testimony describing marital confidences (Does NOT apply to OCS party has made if hearsay obj. is over come)
-privilege requires that W & party be married at time testimony is sought
What are exceptions to spousal testimony?
What are marital confidences?
covers private communications b/t spouses during marriage (criminal or civil cases)
who is the holder in marital confidences?
-traditionally both hold privilege, so either can refuse to disclose/prevent other from disclosing
-narrow view: each spouse holds privilege only /w respect to his or her own stmts
What is the scope of privilege for martial confidences?
covers for all time all communications uttered in confidence during marriage, however does not cover non-communicative conduct
What are the exceptions to martial confidences?
-familial or spousal crimes or torts
What are the elements of Crawford?
1) offered against crim D
2) non-testifying declarant
3) no previous opportunity for cross
4) testimonial statement
testimonial stmts made by non-testifying declarants can be admitted against a crim D only if D has had previous opportunity to cross declarant (does not matter if OCS falls w/in hearsay exception)
whether stmt was testimonial depends whether circumstances objectively indicate primary purpose of convo was to
-investigate past crim conduct: testimonial (exclude)
-respond to ongoing emergency: non-testimonial (can admit)
ex of non-testimonial: police responding to investigate on-going emergency
order of trial
Leading Qs are not allowed in Direct simply b/c it decreases W's credibility by feeding them answers BUT leading Qs are allowed on direct when..
-to get to subject matter
-W /w ltd understanding
REMEMBER BIAS is NOT an ___
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