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56 terms

WA Bar Exam - Evidence

WA Rules of Evidence
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Objections
Timely and specific objection must be made to preserve an issue for appeal and must be made as soon as the basis becomes apparent
Leading questions
Prohibited on direct but allowed on cross; allowed to establish preliminary facts or lay foundation; allowed to question person with diminished capacity or expert
Narrative questions
Questions that call for narrative/compound answer generally not allowed
Limiting instruction
Evidence admissible for a limited purpose or parties are introduced with limiting instruction
Judicial comment
WA judges must not make comments on evidence although they may question a witness
Judicial notice
The court may take judicial notice of facts not subject to reasonable dispute as they are generally known or capable of accurate and ready determination by reference to authoritative sources
Relevance
Relevant evidence has any tendency to make any material fact more or less likely than it would be without the evidence.
Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury
Subsequent remedial measures
Offers to pay medical bills/settle/pleas/insurance are inadmissible to show recognition of liability/fault but may be admitted for other purposes with limiting instruction
Privilege
Statements made in confidential communication are secured by privilege when privilege is not waived
List of privileges
-attorney
-physician
-psychologist
-clergy
-spouses
-mediator
-interpreter
-journalist
-public officer
Journalist privilege
Journalists enjoy a qualified privilege based in common law.
Judge will WEIGH competing interests:
- reporter in protecting confidentiality of source
- free flow of information to the press
- plaintiff's interest in pursuing her civil claim
Spousal incompetence
A spouse cannot testify against other spouse if married at time of trial (or indictment in criminal case)
Spousal communication
Spouse against whom testimony is being offered can assert privilege to any communications made while in marriage even if divorced at time of trial
EXCEPT:
child abuse/domestic violence
Admissibility of character evidence (general)
Evidence of character is NOT admissible to show defendant acted in conformity therewith on a particular occasion
Admissibility of character evidence in civil cases
Character evidence is admissible only if it is directly in issue (e.g., defamation, child custody, negligent hiring, etc)
Admissibility of character evidence in criminal cases
Criminal defendant may admit reputation/opinion evidence of his good character and prosecution may so rebut
Prior bad acts
Admissible in criminal case for purposes of showing motive/intent/plan/signature crime, but not as evidence that defendant did current bad act
Habit/routine practice
Regular response to repeated stimulus is admissible to show conformity with habit or routine practice.
Sex offenses
In criminal sex offense action evidence of commission of sex offense (not necessarily conviction) is admissible
Character of victim
Criminal defendant may introduce evidence of bad character of victim to show victim was first aggressor
Rape shield law
evidence of prior sex acts with victim or victim's sexual history, is inadmissible, except to show that victim consented
Character of witness
Witness's truthfulness may be challenged by reputation/opinion/acts and rebutted by similar means
Character impeachment of witness
May be impeached by crime of dishonesty:
Theft (not burglary), fraud, perjury
Cannot be impeached by crime punishable by death or >1year committed more than 10 years ago, unless very probative
Competence
Anyone with personal knowledge capable of accurately perceiving facts is competent (including mentally disabled) with no minimum age
Child competence
Court will assess a child's individual ability to testify
Expert competence
Any witness may qualify as expert if he has knowledge, skill, expertise, training, or education
Dead Man's Statute
Representative of estate with interest may not testify in his own affect about decedent's statement
Lay opinion
Lay testimony is admissible if it is rationally based on personal perception, but not on scientific or specialized knowledge, and is helpful to determination of fact by the fact finder
Expert opinion
Expert may testify if subject matter is beyond understanding of average juror
Frye test for expert
Expert may base opinion on personal knowledge/inadmissible evidence so long as that scientific principle is generally accepted in that scientific field
Foundation
Evidence must be sufficient to support a finding that the matter in question is what its proponent claims
Authentication
Witness who placed a mark/stamp/seal on real or demonstrative evidence may confirm/recognize it in the beginning of testimony to help juror asses its authenticity
Chain of custody
Physical evidence may be authenticated by testimony of witness who knows about its chain of custody
Handwriting
Must be identified by expert or compared to a known sample by jury
Voice
Voice must be recognized by witness who knows the speaker, or self-authenticated by recorded speaker
Ancient document
Document is deemed authentic if it is > 20 years old and is found in a place where it is normally found/stored
Best evidence rule
To prove the content of writing/recording/photograph, the original is required, except if it is lost/unavailable and the offering party has no fault in that.
- Duplicate is admissible unless there is genuine issue of authenticity
Self-authentication
Evidence that is unlikely to be forged
- Public documents under seal or certified copies
- Notarized documents
- Official publications
- Signed checks
- Newspapers
- Items w/trade inscriptions
ER 904
Documents must be presented to other side and are deemed admitted if not objected to within 30 days
Hearsay
Out of court statement offered for the truth of the matter asserted; must be intentional assertion and not non-assertive conduct; is not admissible unless an exception applies
Statutory non-hearsay
Statement is not hearsay if declarant is available and the statement is
1) Prior inconsistent statement under oath (not in affidavit)
2) prior consistent statement even if unsworn
3) prior identification made after perceiving
4) admission by party opponent/co-conspirator admission
12 hearsay exceptions when declarant is available
1) Present sense impression
2) Excited utterance
3) Statement of present mental state
4) Statement for purpose of receiving treatment
5) Past recollection recorded
6) Business records
7) Certified copy of public records
8) Vital statistics
9) Ancient document
11) Learned treatise
12) Statements by children < 10 yrs in abuse case
Present sense impression exception
A present sense impression describing the event/condition made during the event or immediately thereafter
Excited utterance exception
Utterance made under the stress of significant excitement/agitation/pain and about the event
Present mental state exception
Statements offered to show declarant's present mental state, emotion, or physical condition (e.g., "I'm going." or "it hurts.")
Statements for treatment exception
Statements of past/present physical condition made to a doctor or nurse for purpose of treatment or diagnosis
Past recollection recorded
A past recorded recollection that declarant once wrote (accurate when written) and now has insufficient memory of
Business records exception
Records made in 1) the ordinary course of business
2) by the custodian of records with a duty to record
3) soon after the event
-- not in anticipation of litigation, not by bystander
Certified copy of public records exception
Certified copies of public records under the seal, absence of record is also admissible
Vital statistics exception
Death/birth, religious records (baptism etc), family records (tomb stone/portrait)
Ancient document exception
Document > 20 years old and found where it was supposed to be; >10 years old for market data
Learned treatise exception
Learned treatise found to be authoritative by expert and relied on it during testimony
Statements by children exception
Statements by children < 10 years of age in abuse cases must be shown to be reliable or corroborated by other evidence
Declarant unavailability
Absent from jurisdiction, sick/dead, refuses to testify, asserts privilege, lacks memory
Exceptions where declarant unavailable
Statement can be admitted as either:
1) Former testimony given under oath for similar motive and offering party had opportunity to cross
2) dying declaration made under belief of imminent death (only in homicide and civil cases)
3) declaration against interest by non-party and must be against interest when made
Confrontation Clause
Prohibits the introduction of testimonial out of court statements against a criminal defendant unless the declarant appears as a witness or is unavailable AND defendant had prior opportunity to cross-examine concerning the statement