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Other Crimes Evidence - Permissible Uses
K - Knowledge
I - Intent
P - Plan
P - Preparation
O - Opportunity
M - Motive
I - Identity
A - Absence of Mistake
CHARACTER evidence, 3 Categories of
I = Impeachment character evidence
C = Conformity character evidence
E = Element character evidence
Character evidence, 5 claims in which it is an element:
D = Defamation
N = Negligent hiring, supervision or entrustment
I = Immigration
C = Child custody
E = Entrapment defense
Character evidence, 3 methods of proving
R = Reputation
O = Opinion
C = Conduct (Specific Instances of Conduct)
Impeachment, 6 methods of
I = Interest and bias
I = Inconsistent statement/conduct
C = Contradiction (by other witness or evidence)
C = Conviction of crime
C = Character (for truthfulness)
C = Capacity (to observe, recall, relate)
Non-hearsay, 6 types
I = Impeachment
S = State of Mind
L = Legally operative facts
A = Verbal acts
C = Capacity
E = Effect on hearer
"I See LACE"
HOW can silence be a statement or
When can SILENCE be a "statement" for hearsay purposes?
When can SILENCE be "inconsistent" for prior inconsistent statement?
H = Witness Heard and understood what was said by another about witness
O = Witness had the Opportunity to respond
W = Witness Would have responded if the statement were not true
Unavailability, Causes of (6)
P = Privilege
E = Exhaustion of memory
R = Refusal to testify
I = Inability to procure witness' attendance despite due diligence
S = Sick (physical or mental)
H = History (as in dead!)
Hearsay exceptions that REQUIRE UNAVAILABILITY of Declarant (5)
D = Dying Declarations (civil and homicide related cases)
A = Statement Against interest (proprietary, pecuniary, or penal)
F = Former Testimony
F = Forfeiture by wrongdoing
Y = Family HistorY
SPOT expert issues
Issues involving expert testimony:
S = Proper Subject (subject requires scientific, technical or specialized knowledge)
P = Proper Person (witness has special knowledge, training, education, experience, or skill)
O = Proper Opinion (witness has sufficient factual basis to support the opinion)
T = Proper Testimony (expert opinion is stated properly, not a legal conclusion)
Any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence
(a) Admission w/out a sponsoring witness
(b) certified business & public records
(c) newspapers, magazines, trademarks, etc.
Judge or jury may authenticate by comparison with document already authenticated [FRE 901(b)(3)]
Character Evidence - 4 Q's
(1) Is the evidence character evidence? (What is the evidence?)
(2) Why is it being offered?
(3) Is it admissible for the purpose offered?
(4) How is it being offered? - If admissible, is the proposed method of proving it permitted?
Character evidence offered to show a witness should not be believed
i) Reputation, Opinion
ii) Specific instances of conduct - Very limited
(a.k.a propensity evidence)
Character evidence offered to show a person acted in conformity with the character trait; to infer conduct in present case from character or similar acts in unrelated prior instances
Admissible? No, with limited exceptions.
i) Reputation, Opinion - YES.
ii) Specific instances of conduct - Very limited.
(a.k.a character at issue)
Character evidence offered because it is relevant to an element of a cause of action, crime or defense
i) Reputation, Opinion - YES.
ii) Specific instances of conduct - YES
Why is Impeachment Evidence being offered
(1) Evidence of a personality trait that shows untruthfulness or truthfulness only.
(2) Admissible for this purpose? YES
(3) Permitted Methods? Reputation and Opinion - YES; Conduct - Very limited.
Why is Element Character Evidence being offered
Character is at issue - Relevant to an essential element of a cause of action, crime, defense or damages.
EXAMPLE. In defamation action, the plaintiff's reputation in the community is an element, so character evidence is admissible; in an entrapment defense, the defendant's predisposition to commit the crime is an element, so character evidence is admissible.
Is it admissible for this purpose? Yes, but in very limited causes of action where character is an "essential element" of a claim or defense. Mnemonic: "She has a Darn NICE character".
Permitted methods? All methods - Reputation, Opinion and specific instances of Conduct
Why Conformity of Character evidence being offered?
As circumstantial evidence; to infer conduct in present case from character or similar acts in unrelated prior instances - to show a person acted in conformity with the character trait. "S/he did it before, so s/he probably did it again."
Personality trait other than truthfulness.
Is it admissible for this purpose? General Rule - NO.
Conformity of Character evidence Admissibility Exceptions
Good Criminals Go First
Criminals Attack Victims
V's Sexual Character - Rape Shield Laws
D's Sexual Predatory Character
Good Criminals Go First
Criminal cases, offered by Def. - evidence of Def's own relevant character trait; govt. can rebut.
Criminal D's Evidence
Robbery case; D can offer evidence of own character to show he's an upstanding citizen who would not rob.
MD/FRE Gov't can rebut with character evidence that D is not an upstanding citizen.
Criminals Attack Victims
Criminal cases, offered by Def. - evidence of Victim's ("V") relevant character trait, particularly V's violent nature to support self-defense; govt. can rebut.
Criminal assault case; D can offer character evidence of V's "violent" character / personality to show V started fight.
FRE ONLY (NOT MD): Gov't can also offer character evidence about D on the same character trait on which D attacked V.
MD/FRE Gov't can rebut with character evidence of V's "non-violent" personality.
FRE - Gov't can offer character evidence of D's "violent" personality.
MD -Gov't can NOT offer character evidence of D's "violent" personality.
V's Sexual Character - Rape Shield Laws
Very complex; see materials for detail.
Basic idea: In cases involving sexual misconduct, the victim's prior sexual conduct is NOT admissible, with very limited exceptions.
D's Sexual Predatory Character
FRE: In criminal or civil sex-related cases (sexual assault, child molesting or sexual child abuse), specific instances of D's prior sexual predatory conduct is admissible to show conforming behavior. FRE 413-415.
Permitted Methods for "Conformity" Character Evidence
(1) Reputation and Opinion - Yes
(2) Specific instances of conduct - Cross Exam ONLY
(3) Sex case exceptions - different rules re: permitted methods.
Public Policy Exclusions - Generally
Frequently, this evidence is logically relevant, but its prejudicial effect outweighs its probative value
Beware. Such statements almost always involve hearsay, and an exception applies, particularly Statement of a Party Opponent. However, the evidence still is NOT admissible because of these public policy rules
Subsequent Remedial Measures
Generally, inadmissible to show party acted wrongfully (to show liability, fault or defect in a product)
b. Exception - IF at issue:
(3) feasibility of precautionary measures
An offer to settle a civil matter and statements made in connection with the offer are inadmissible to prove validity or amount of a disputed civil claim or to impeach by prior inconsistent statement
(1) EXAMPLE. After an auto accident, one driver said to the other, "Let's settle this. I shouldn't have been drinking, but you were drunk, too."
(2) Offer to settle ("Let's settle this.") and related statements - admissions of fact ("I shouldn't have been drinking....') - generally, are NOT admissible.
(3) The claim or amount must be disputed at time of statement. If party admits liability, the admission of fact that proves liability, IS admissible.
Mere admission of harmful facts does NOT make the claim undisputed.
Exceptions - admissible to show bias, laches (delay in bringing action)
MD - Settlement w / party in hospital within 15 days of the injury is unenforceable and statements are unusable
Offer to Pay Medical Expenses
Statements made in connection with an offer to pay medical expenses are NOT admissible to prove liability, BUT, admissions of fact made in connection with those statements ARE admissible
EXAMPLE. After an auto accident, one driver said to the other, "Let me pay your hospital bills. I shouldn't have been drinking, even though you were drunk, too."
The offer to pay medical expenses ("Let me pay your hospital bills") is NOT admissible to show liability
The admission of fact (" I shouldn't have been drinking." IS admissible as an admission of fact made in connection with an offer to pay medical bills, whether or not the speaker disputes the claim.
Guilty plea offer and related statements are inadmissible to prove guilt or fault, if not accepted or plea withdrawn, with limited exceptions.
Nolo contendre plea not admissible, with limited exceptions.
Exceptions - doctrine of completeness, perjury or false statement prosecution, prior inconsistent statement in subsequent civil proceeding
Generally, inadmissible to show party acted wrongfully
Exception - admissible to show ownership, agency, control or bias of a witness
Collateral Source Rule
Can't show that someone else, like an insurance company, will pay the civil judgement
Competency of a witness
Competence = whether a person is permitted to testify
General rule - Every person is presumed competent
Dead Mans Rule
Statements or transactions of decedent in cases involving someone acting as successor of decedent's interest (PR, heir, devisee, etc.) that will effect $ of the estate if offered by the party is excluded
Not in FRE but may be in federal court if applying state law
Exceptions to dead mans rule
if party is called by the opposite party
if disinterested party, or
if the statements or transactions are already admitted in evidence
Requirement of Personal Knowledge
Generally, testimony can only be about facts Witness learned through Witnesses' own senses
When a witness has a diminished memory, something may be used to refresh the witness' recollection, and if successful, the witness testifies from present memory / personal knowledge."
Nearly anything can be used to refresh!
The "thing" used to refresh is NOT the evidence; the evidence is the testimony from present memory
If a document is used to refresh, there is no hearsay or other document-related issue, because, the document is not being offered as evidence but the opponent can introduce item.
Lay opinion Evidence
Lay opinions are not admissible (because testimony can only be about facts within the witness' personal knowledge)
Exception Lay opinion Evidence
Exception: Permitted if:
Rationally related to witness' perception and assist trier of fact to understand evidence or determine issues. Examples: speeding, intoxication, upset, etc.
Common shorthand summaries of perception (e.g., X was "upset.")
NOT permitted if expertise required (lay witness can't offer opinion of blood type)
Complaint to testimony/evidence with reason stated
FRE - Specific objections required
Offer of Proof - a.k.a. Proffer
When evidence is excluded, lawyer should state [oral, written or Q & A] what the excluded evidence is, so an appellate court can determine if it was error to exclude
Plain Error Rule
Appellate court considers error, even though no objection at trial, usually because fundamental to fair trial right
Evidence considered without formal offering of evidence to prove the fact
Court can take judicial notice of a fact at any stage of litigation, including on appeal
A Court can take judicial notice of a fact not reasonably subject to dispute because they are:
a. Notorious Facts - ; OR
b. Easily Verified Facts
Conclusive Proof? Yes in Civil Cases; NOT in criminal cases - Due Process requires the burden of proof on government.
Facts "generally known in the territorial jurisdiction . . . of the court" (Everybody around here knows that type facts!)
Easily Verified Facts
Facts "capable of accurate and ready determination" from sources "whose accuracy cannot reasonably be questioned." (Easy to look up type facts)
an attack upon the believability (credibility) of a witness
If a person has NOT testified, the person can NOT be impeached (with one rare exception)
Evidence which detracts an attack upon the believability (credibility) of a witness [MRE 5-616 (c)]
If a witness was NOT impeached, the witness can NOT be rehabilitated
Two Ways To Impeach
"Intrinsic" evidence - Witness' own answers on the stand.
"Extrinsic" evidence - Everything else [other witnesses, documents, photos, etc.]
How to introduce prior inconsistent statements - extrinsic evidence
Not admissible unless
PIS - Collateral Matter
the PIS is NOT relevant to the cause of action, except to show the witness answered a question untruthfully
The lawyer may question Witness about it (intrinsic evidence), but even if Mr. Witness denies having made the PIS, the loan application itself (the extrinsic evidence) will NOT be admissible to impeach
Foundation Required for Impeachment by PIS
Pre-impeachment disclosure is NOT required, but Wit must be given the chance to explain or deny the statement.
But must "Show & Tell"
(1) Written PIS - Wit. must be shown the statement
(2) Oral PIS - must tell Witness the circumstances under which PIS was made and to whom.
Impeachment with PIS is NOT substantive evidence
Impeachment by Contradiction
Can contradict Witness' testimony with other witness' testimony or tangible evidence (or Witness' own conduct or statements)
Can NOT use extrinsic evidence to contradict a witness on a collateral matter (a matter that is NOT relevant to the cause of action, except to show the witness answered a question untruthfully)
Impeachment by Capacity To Observe, Recall, Relate
Witness can / can't see; Witness can / can't recall accurately due to head injury, Witness can / can't speak / understand English, etc.
Impeachment by character evidence for untruthfulness
"Impeachment Character Evidence"
ONLY character trait here - TRUTHFULNESS
Methods of proof - Impeachment by character evidence for untruthfulness
Reputation and Opinion
Specific Instances of Conduct Showing Untruthfulness
Specific Instances of Conduct Showing Untruthfulness
(1) Conduct must reflect on believability
(2) Conviction NOT required
(3) Limited admissibility
(a) Can question Witness about own conduct only; not another's conduct
(b) Cross examination questions ONLY; NO direct examination questions; NO extrinsic evidence.
How to introduce - Impeachment by prior conviction of a crime
(1) "Elicited from the witness" - intrinsic evidence
(2) Public record of conviction - extrinsic evidence
Impeachment by prior conviction - 4 step analysis
(1) Prior - Age of Conviction (< 10 yrs)
(2) Conviction - Final Conviction
(3) Crime - Honesty crimes and felonies
(4) Balancing - Balancing Required?
Balancing Factors - for Impeachment (4)
(1) Impeachment value
(2) Subsequent criminal history of Witness and age of the crime
(3) Similarity between the prior crime and present charge
(4) Importance of the witness' testimony and credibility
Similarity between the prior crime and present charge
If the witness is the defendant, the similarity of the past crime and present charge increases the likelihood the trier of fact will use the conviction improperly - as propensity evidence - rendering it less likely to be admissible
Impeachment of Hearsay Declarants
Can impeach hearsay declarant as if the declarant had been on the witness stand herself
Example. If impeachment is offered through the former testimony exception -reading from a transcript, you can impeach the witness from the transcript as if s/he had testified in the courtroom.
Evidence which DETRACTS from an attack on a witness' credibility
Only rehabilitate AFTER impeachment
Once impeached, can rehab by any method, not just same method used to impeach. (e.g, if impeached with a PIS, can rehab with character evidence showing truthfulness.)
Rehabilitation by allowing witness to explain or deny the impeaching evidence
Can't deny guilt of Impeachment by Prior Conviction of Crime
Rehabilitation by Character Evidence for Truthfulness
Rules same as for Impeachment by Character Evidence for Untruthfulness
What's not hearsay
Usually because not offered for its truth
Statements of Capacity
Legally Operative Facts
Effect on Hearer or Reader
Circumstantial Evidence of Declarant's State of Mind
Statements of Capacity to Observe, Understand or Speak
Statements not offered for their truth, but to show that a person could see, hear, smell, understand, communicate, etc
Legally Operative Facts
Statements that have some legal effect, regardless of their truth.
Law attaches some liability or obligation simply by saying the words
EXAMPLE - Words of warning, slander, contract
Statements accompanying and clarifying ambiguous conduct
Parent threw car keys to the 14-year-old and said, "Here, have a great time."
Words explaining whether a transfer of money is a gift or payment of a debt. Joe hands Jane $10 and says, "Happy Birthday!"
Effect on Hearer or Reader
Statement offered to show information communicated to someone to explain the person's actions or show their knowledge
EXAMPLE: D is charged with murder of V. Wit can testify that D's spouse told D, "I'm pregnant with V's child," to show why D killed V. Doesn't matter if it's true
Circumstantial Evidence of Declarant's State of Mind
Statement of declarant offered as circumstantial evidence of what declarant was thinking, feeling or knew
EXAMPLE. "I am Napoleon, Emperor of France" - offered to prove a mental disorder
Prior Statements by witness - requirements
(1) Witness must testify and
(2) be subject to cross about the statement
Summary of - Prior Statements by witness
(1) FRE & MRE
(a) Prior Inconsistent Statement [PIS] Under Oath
(b) Prior Consistent Statement [PCS] Made Before Motive to Fabricate
(d) Past Recollection Recorded - [hearsay exception under MRE & FRE]
(2) MRE ONLY; not in FRE
(a) Nance statement [MRE only; not in FRE]
(b) Recorded Verbatim [MRE only; not in FRE]
(c) Prompt Report of Sexual Assault [MRE only; not in FRE]
Prior inconsistent statements under oath at a trial, deposition, before grand jury etc., offered substantively
FRE: not hearsay; MRE - hearsay exception, grand jury testimony excluded
Prior consistent statement [PCS] made before motive to fabricate arose
FRE non-hearsay; MD - hearsay exception
WHY IS THE EVIDENCE BEING OFFERED? - To rebut allegation of recent fabrication.
Requirements: To be admissible substantively:
(1) Out of court statement must be consistent with initial trial testimony
(2) Out of court statement must be made before motive to fabricate arose
Prior Witness Identification
Evidence of a statement of a prior eyewitness identification made after perception, if identifying witness also testifies.
FRE: non-hearsay; MD - hearsay exception.
Example - V and Police Officer each testify that V identified D in a pre-trial line up. Admissible, so long as V testifies and is subject to cross about the ID
MD - Prompt report of sexual assault reported by Victim
Out of court statement by witness that is admissable
Statement of a Party Opponent - generally
Statement of a party opponent
Important distinction for the MBE: FRE - NOT hearsay; MD - hearsay exception
Statement Inconsistent with party's interest at trial
(1) Need not have been against the party's interest at the time the statement was made by the party.
(2) Contrast with the statement against interest hearsay exception, to be discussed shortly.
of a party
Of a Party
a. Named Party
Vicarious Admissions/Adopted Statement [MRE 5-803 (a)(2)]
Authorized Statement [ MRE 5-803 (a)(3)]
Statement of Agent / Employee [MRE 5-803 (a)(4)]
Co-conspirator [ MRE 5-803 (a)(5)]
Vicarious Admission/Adopted Statement
a.k.a. Adoptive admission ([MRE 5-803 (a)(2)])or admission by association
Statement was not actually made by a named party, but it is treated as if made by the party
A statement of which the party has manifested an adoption of or belief in its truth; can adopt by silence.
EXAMPLE. W says to X, in D's presence, "D just robbed the store." D smiles and says, "Yup, I'm da man!"
"Speaking Authority" required.
EXAMPLE. D, after accident, tells brother to tell P that D is sorry, and that it was all his [D's] fault.
Statement of Agent / Employee
By agent or employee of party.
Speaking during and concerning matter within scope of employment.
EXAMPLE. In suit versus Trucking Co., Truck Driver, employee of D, says "I knew those brakes needed repair."
By co-conspirator speaking during and in furtherance of conspiracy
Not confession to police - because confession is not in furtherance of the conspiracy and / or the conspiracy is over
Hearsay w/in Hearsay
An out of court statement that contains another out of court statement
Hearsay exception must apply to each level
EXAMPLE - A police officer investigating a horrific auto accident includes in the police report the statement of an hysterical eyewitness who described what happened. The report is offered in a civil case.
Levels of hearsay?
Document - Public Records exception
Contents - Excited Utterance
Hearsay Exception - Rational Reminder
reliability & necessity; every exception involves a statement given under circumstances that make it more likely to be true
5 Broad Categories of Hearsay Exceptions
(1) Observational / State of Mind Exceptions
(2) Document Exceptions
(3) Reputation Exceptions
(4) Unavailability Required Exceptions
(5) Catch-All (Residual) Exception
Present Sense Impression
a. "Sayin' it while they're seein' it."
c. Describing or explaining event
d. Made contemporaneous to event (immediately after probably OK)
b. Describing or explaining a startling event
c. Made while under the effects of the startling event (longer time permitted than with present sense impression)
Statements of Present Condition
Mental, emotional or physical condition
Two Admissible Varieties
1) Present State of Mind Statements
2) Forward Looking Statements
Present State of Mind Statements
(a) Statement of then existing state of mind, feelings, etc.
(b) offered to show directly how person is feeling at that moment.
EXAMPLE: "I'm in pain" - offered to show declarant was in pain at the time.
Forward Looking Statements
Statement of then existing state of mind, feelings, etc.
offered to show or explain future conduct consistent with that state of mind, etc.
Offered to show intent, motive, plan or design
EXAMPLE. "I'm in pain. Call the nurse." offered to show declarant subsequently asked for pain medication.
NOT backward looking statements [statements regarding memory]
Except statement of declarant's memory regarding declarant's will
Statements for Medical Diagnosis / Treatment
Statement made relating to a past or present physical condition or cause of the condition that is pathologically germane - related to treatment or diagnosis
Pathologically germane "refers to facts commonly considered relevant to treatment or diagnosis of the patient's condition"
Statements for Medical Diagnosis / Treatment - MD v. FRE
FRE - diagnosis OR treatment
If statement made to doctor only as expert witness, with no plans that this doctor will prescribe treatment or that this doctor's diagnosis will be used by other doctors to prescribe treatment - admissible under FRE, but NOT MD
MD - diagnosis AND treatment
"Treatment or diagnosis in contemplation of treatment"
If the only reason Doctor saw P was so Dr. could testify - NOT admissible in MD
Past Recollection Recorded
Witness has insufficient recollection (usually after unsuccessful attempt to refresh recollection)
Evidence is the document itself
Made when fresh
written, signed or adopted
Read into record; document not introduced, except by opponent
Beware - hearsay within hearsay, authentication
Elements of Business Records Exception to Hearsay
(1) Writing concerning an event (acts, conditions, opinions or diagnoses)
(2) contemporaneously made (at or near the time of the event)
(3) by or from one with personal knowledge
(4) where such a writing is regularly made and kept in the ordinary course of business
(5) where it is the regular course of the business to make and keep such records - record related to the business of the business
(6) and it is trustworthy - not made in anticipation of litigation
Sponsoring witness to authenticate - custodian of records
Self-authentication - need certifying letter
Absence of records to show event didn't happen [FRE 803(b)(7); MRE 5-803(b)(7)]
Example. Custodian / certified letter saying business searched and found no record of P notifying D, to show P did NOT give some required notice.
Elements of Public Records and Reports
(1) Writing of a public agency
(2) concerning its public function
(a) Recording ordinary activities
(b) Recording of facts where duty to observe and report
(c) Trustworthy reports of authorized investigations
Absence of records to show event didn't happen [FRE 803(b)(10); MRE 5-803(b)(10)]
FRE and MRE - Reports of police observations are not admissible as public records against an accused in a criminal case because of Confrontation Clause
Judgment of Previous Convictions
FRE ONLY NOT IN MD
(1) Record of a criminal conviction
(2) for a felony [greater than 1 year]
(3) is admissible in subsequent civil action (and criminal cases in limited circumstances),
(4) if relevant to an element of the cause of action.
Acquittal NOT admissible.
Doesn't work the other way - Can't use civil judgment in subsequent criminal prosecution
Statement under belief of impending death
(1) Declarant Unavailable
(2) Admissible in any civil action and criminal homicide related prosecution
(a) FRE - Homicide
(b) MRE - Homicide or attempted homicide
(3) Belief of imminent death - Declarant believed death was "near and certain," but need not actually die
(4) Relates to cause of death
Statements Against Interest
(1) Declarant unavailable
(2) A statement
(3) against proprietary, pecuniary or penal interest - Cost 'em money, property or jail time!
If Declarant's statement was against penal interest, and offered to exculpate accused, unless there is corroboration to show trustworthiness, it is NOT admissible
Example. A defense witness testifies that Declarant told her, "I did it, not Defendant."
If Declarant's statement was against penal interest, and offered to inculpate accused, it is NOT admissible in hearsay form because of the Confrontation Clause. (Of course, Declarant could testify to the fact that D did it!)
Statements Against Interest - When Made
At time Declarant made the statement, Declarant knew she was admitting to something that could cost her!
Forfeiture for Wrongdoing
FRE 804(b)(6) - If party procured witness' unavailability [e.g., paid witness to leave town], that witness' hearsay statement will be admitted against the procuring party.
MD - [CJP 10-901, 5-804(b)(5)] - More limited
(1) Admissible only in felony CDS or crime of violence (MRS BAKER Plus) prosecutions
(2) Statement must be under oath at court type proceeding or written and signed or recorded
(3) Notice and hearing required
Former Testimony; Depositions
(1) Declarant unavailable
(2) Testimony under oath
(3) At a prior proceeding or deposition
(4) Where the party against whom the statement is offered had:
(a) Same Motive and Opportunity, AND
(b) Right Party
i) Identity of Parties; OR
ii) Identity of Interests (Civil Case Only)
Same Motive and Opportunity
An opportunity and similar motive to develop testimony of the now unavailable witness in the prior proceeding on direct, cross or re-direct, etc.
Identity of Parties
Same parties in earlier and current proceedings - Party in the current proceeding had the opportunity to cross examine the now unavailable witness in the earlier proceeding
Example. Retrial of a case after a hung jury
Identity of Interests (Civil Case Only)
Predecessor / successor relationship. Not the same parties in current and earlier proceeding, but had "same interests"
Example. Boundary dispute, A v. B ends in a mistrial. Before retrial, A sells her land to C. A and C have an identity of interest, permitting former testimony against C, even though C wasn't able to cross examine the now unavailable witness
Residual / Catch All Exception
For new exception, not covered by traditional exceptions.
Hearsay with enhanced reliability.
Pre-trial notice required
Illegally Recorded Evidence
MD - Evidence illegally recorded in MD is NOT admissible for any purpose in any type of proceeding. CJP 10-405.
MD requires consent of both / all parties to a conversation for recording to be admissible, with limited exceptions.
Property SUBJECT of Expert Testimony
Testimony involves scientific, technical or specialized knowledge
Science and expert's opinion will assist the fact finder to understand the evidence or determine the issues.
EXAMPLE. Serologist, a blood expert, is needed to identify the red stuff on the clothing as blood and identify the blood type to help the jury to understand the blood evidence
Science and the procedure must be sufficiently reliable
FRE - Scientific Evidence Test
FRE - 702 / Daubert / Kuhmo Tire Rule.
Applies to ALL expert testimony.
Court makes preliminary determination that:
Methods and procedures are "reliable" and Methods and procedures were reliably applied.
MD - Scientific Evidence Test
MD - Frye / Reed Rule
(1) Applies to only novel science.
(2) Court makes preliminary determination that:
Science and procedure that is the subject of the testimony is "generally accepted in scientific / medical community"
Proper Person - Qualification of Expert Witness
Witness has special knowledge, training, education, experience or skill
Qualifications must go to subject of the testimony. (E.g, Radiologist not an expert about psychiatry.)
Proper Opinion - Basis of Opinion
Expert must have a sufficient factual basis to form opinion.
FRE and MRE - Ct. makes preliminary determination.
Source of Factual Basis
Personal knowledge - test run, interviews conducted, etc. by expert witness.
Hearsay - test run, interviews conducted, reports, etc. by ANOTHER expert witness if information reasonably relied upon by experts in the field
EXAMPLE: Doctor can read the notes, reports, X-rays, etc. of other doctors and nurses; learned texts, etc.
Listen to in-court testimony.
Proper Testimony - Proper Expression of the Opinion
Opinion stated "to a reasonable degree of scientific or medical probability / certainty."
Opinion based on expertise, not a legal conclusion
"Was Doctor negligent?" - maybe NOT proper opinion.
"Did Doctor provide reasonable degree of medical care?" - OK
Privileges - Generally
A privilege means that a witness or lawyer can refuse to disclose or prevent another from disclosing privileged information
Waiver of Privilege
by intentional disclosure by holder of privilege
EXAMPLE: Testifying about privileged information waives a privilege; being overheard by unanticipated eavesdropper does not
EXAMPLE: Husband's disclosure does NOT waive privilege for wife
Spousal Immunity Privilege
"A witness-spouse of a criminal defendant to whom the witness is married at the time of the trial may refuse to testify against the defendant-spouse".
Witness-spouse's right to refuse to testify, not criminal defendant right to prevent spouse's testifying
Applies in criminal case only - not civil cases
Marriage - at the time of trial
Witness-spouse can refuse to testify, not limited to refusing to disclose "communications"
MD - spouse can only assert this privilege one time in life in case involving domestic assault
Marital Communications Privilege
"One spouse may not disclose any confidential communications between the spouses made during the marriage."
Both spouses hold this privilege.
Refuse or prevent.
Marriage - at time of communication (not at the time of trial).
Doesn't matter whether married at the time of the trial.
(1) MBE - Suit between spouses.
(2) MD - only exception to commit drug-addicted spouse for treatment.
Communication - MCP
words or assertive conduct (conduct intended to send information); NOT mere conduct or events.
Attorney - Client Privilege
A lawyer may not disclose confidential communications concerning legal representation from the client without the client's consent
Elements of Attorney - Client Privilege
(1) A Lawyer - includes staff and those retained by lawyer to assist in case.
(2) May not disclose
(a) Lawyer must refuse to disclose
(b) Client holds privilege
(3) Confidential - Client had no intent to disclose
(a) Includes statement by Client to lawyer & from lawyer to client.
(b) Client's identity and fee arrangements not included.
(c) Material physical evidence of crime, even if received from client, must be disclosed - turned over to police.
(5) Concerning legal representation - consults lawyer in professional capacity.
(6) From the client - not statements of witnesses.
Exceptions to Attorney-Client Privilege
(1) Future fraud / crimes.
(2) Past fraud / crimes, if lawyer was unwittingly used in the fraud or crime
(3) Suit concerning breach of duty between lawyer & client
Work Product Doctrine
Discovery Rule - Not really part of the privilege - Documents created by the lawyer reflecting legal theories, thought processes, etc., made in connection with legal representation are protected from disclosure by the work product doctrine
Best Evidence Rule/Original Document Rule
Rule of Exclusion excludes testimony about what is in a document, if exact words of the document are what counts. Also, excludes some copies because they're too easy to doctor
The Best Evidence Rule provides that if the content of a document is central to litigation, to prove the contents of the document, the original is required, unless it is excused
BER - Central to Litigation
The words on the document itself, not the substance that the document records, is important. (e.g., the written contract in a contract action, the will in an heir's suit challenging a devise; the check in a suit involving payment by check.)
The BER does NOT apply if the document is collateral or incidental to the litigation.
BER - Legally Operative Fact
Document at issue has some legally operative effect; it's what's in the document that counts, not what someone did or thought about it. (e.g., will, contract, negotiable instrument.)
BER - Personal Knowledge
Witness has no personal knowledge (either never did or no longer recalls) of the subject of the testimony; knows or recalls only what s/he read / heard / saw in the document (e.g., Witness is to testify about events at Woodstock, but only knows about Woodstock from the movie / books, etc.; s/he was not there.)
BER - Original
Duplicates are admissible as originals, unless genuine authenticity is in dispute or it's unfair to admit the duplicate.
BER - Excused
Any excuse, including gross negligence, is acceptable, UNLESS document was destroyed to gain an unfair advantage.
Once excused, any secondary evidence (e.g., a hand copy, testimony about what document said) is admissible, in Ct's discretion.
Specific instances of Conduct
evidence that a person did a particular act offered to illustrate that person's character. (e.g., stealing shows a character for dishonesty; helping an elderly person across the street shows character for kindness.)
FRE - Daubert
whether a theory or technique can be (and has been) tested
whether it has been subjected to peer review and publication;
whether, in respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique's operation;
whether the theory or technique enjoys general acceptance within a relevant scientific community.
MD - Frye/Reed
Prior to the admission of expert testimony based on the application of new scientific techniques.
Must be first established that the particular scientific method is itself reliable.
Where the validity and reliability of a scientific technique is broadly and generally accepted within the scientific community court can take judicial notice
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