Card Set Information

2011-12-02 15:17:19
Federal Rules Evidence

Show Answers:

  1. Relevant Ev.
    All is admissible (unless it's not because of Const, Rules, or Congress)

  2. Nonrelevant Ev.
    Never admissible

  3. Rule 402
    Admissibility of Ev.
  4. Rule 105
    Limited Admissibility
  5. Limited Admissibility
    Ev. admissible for one purpose, but not another

    Jury instruction available upon request
  6. Rule 106
    Remainder of writing or statement
  7. Admission of a written or recorded statement requirement
    Opposing party may request the remainder of a statement, recorded or written, be put into the record
  8. Remainder of writing exception to hearsay
    E.g., Hubby view on airplane crash––entire report could be read in
  9. Rule 401
    Relevant evidence
  10. Relevance defined
    Having a tendency to make the existenceof any fact (of consequence) more or less probably than w/o the ev
  11. Material ev. defined
    A fact of consequence in the axn, properly provable.

    E.g., drunkennes not related to [required for] robbery, BUT victim's drunkenness is material because he can't ID perp.
  12. Questions to ask to determine relevance
    • 1. Does the proposition help to prove that at which it's aimed? (Relevant)
    • 2. Is the proposition at which it's aimed properly provable? (Material)
  13. How to determine if ev. is properly provable?
    • 1. Look at substantive law's elements;
    • 2. Look at pleadings;
    • 3. Look at credibility
  14. Sufficiency defined
    Quantity is enough to support a verdict
  15. Probative force
    Sufficient and relevancy differ in probative force
  16. Does the fact to which ev. is directed need be in dispute?

    E.g., a stipulation that man committed felony; can still name felony (Old Chief)
  17. Inference and assumptions
    E.g., people who drive on a highway maintain continuous speed, so it was likely he was speeding at time of accident, even if only seen 30 mi. before speeding, BUT people don't always maintain the same speed/weather conditions change, etc.
  18. Corroboration of inferences and assumptions
    Sometimes allowed––observations can defeat inferences

    E.g., Change in weather or road conditions over a 30 mi stretch
  19. Rule 403
    Pragmatic relevance

    Prob. val < risk of prejudice
  20. When relevancy is < relevance, is the ev. admissible?

    NB: But parts of relevant ev. can be offered up to and under the point of unfair prejudice (e.g., 1 or 2 death photos, not 7)
  21. When are corpse photos allowed?
    • 1. Prove corpus delicti;
    • 2. ID victim;
    • 3. Nature and location of injury
    • 4. Corroborate state witness
    • 5. Illustrate or explain testimony; and
    • 6. Corroborate state theory as to how and why homicide was committed.

    NICE, CC
  22. What to do if relevant ev. would make jury convict on "bad character"
    Don't admit––prejudicial.

    NB: If there is an alternate way to support same proposition w/o prejudice, that way is preferred
  23. Test of relevancy v. prejudice
    Weigh prejudice that jury would convict D simply because of character regardless of ev. that would show he's a malfeasor
  24. Example of relevancy v. prejudice
    • Wife called battered woman shelter years before, now dead, H is on trial:
    • Relevance: Inference: she wouldn't seek shelter there unless abused
    • Prejudice: May convict simply on bad character, BIT if there is no better way to show she was abused, it would be allowed in
  25. Limiting instruction
    Allowing ev. for only specific reason; tell jury to ignore for any other reason
  26. Rule 404
    Character Ev
  27. Character Ev.––Generally
    Not admissible for proving axn. in conformity w/ char
  28. "Pertinent" character trait
    Depends on charges––can't prove general character––must prove that trait is related to crime charged

    • E.g., battery, peaceableness is relevant, honesty is not
    • NB: "Law abiding" char is almost always relevant
  29. Jury instruction on character
    • Split:
    • 1. Pro-D––Good char alone may raise Q of doubt to reasonable
    • 2. Pro-Pros––Consider good char. in context of all other ev.
  30. Opening the Door
    Allow in char. ev. if used to rebut the D opening the door

    Rule 404(a)(1)
  31. D offering char. of victim
    Only D can offer ev. of victim's character, but he opens the door. When opened, Pros. can show ev. of D's bad char of the same char.

    NB: Pros. can also show the peaceable nature of the victim

  32. When can crimes, wrongs, or acts of person be used?
    Can't use to show conformity therewith, but can use to prove motive, opportunity, intent, preparation, planning, knowledge, ID or absence of mistake or accident.

    E.g., revealing a threat, not to show conformity, but intent
  33. Proving intent through other acts
    E.g., can't give ev. that D had sold hash to prove he did on this occasion, BUT it can be used to show intent to do so on this occasion.

    NB: Intent must be genuinely at issue.
  34. Proving ID through other acts
    • To prove, must show:
    • 1. High degree of similarity of past and present acts;
    • 2. Similarities must be sufficiently distinctive to permit inference of pattern (e.g., unique, idiosyncratic)

    E.g., always hunching over like a monkey when running
  35. Proving plan or design through other acts
    E.g., judge always receiving envelopes of cash, att'y said he paid judge to give him verdicts––may show pattern
  36. Rule 405
    Proof of Char. Ev.
  37. Opinion ev.
    Wit. has interacted w/ person in question
  38. Reputation
    No direct interaction needed, but w/in same reasonable community as person in question
  39. Specific instances of conduct
    Only allowed on cross/to impeach.
  40. Use of specific instances when an element of crime
    Allowed (though almost never used in a criminal case)
  41. 4 times when specific instances of conduct may be used in a civil case:
    • 1. Negligent entrustment
    • 2. Child custody
    • 3. Defamation (when truth is a defense)
    • 4. Wrongful death (if deceased was "worth" less, less dmg)
  42. Rule 412
    Char. in Sex Offense Cases
  43. Admissibilty of sex offense victim's past behavior
    Generally it's not.
  44. Exceptions to non-admissibility of past sexual behavior in sex offense cases
    • 1. To show semen belonged to someone other than the accused
    • 2. Ev. of previous trysts w/ the accused to prove consent
    • 3. Ev. that, if excluded, would violate const. rights of D
  45. When does the const. require revelation of sexual history?
    Show a motive for making a false charge against D
  46. Sexual history and showing previous knowledge (even if incorrect)
    E.g., D was told that "no" means "yes" with the victim
  47. Rule 406
    Habit and routine practice
  48. Allowance of habit evidence
    Generally allowed. If a habit or routine, can be shown that the person or corp. acted in accordance w/ routine
  49. What is a habit?
    • 1. Particular behavior in a specific setting and is, by nature, at least regular––reflexive
    • 2. One's regular response to a repeated sitch
    • 3. Accepted in both crim. and civ. proceedings
  50. Repeated violent behavior––Habitual?
    Nope. Violent behavior is too volitional.
  51. Drinking as a habit
    Mixed cases.

    ACN suggests its not a habit––turns on regularity of drunkenness
  52. Organizational custom and practice
    Routine prax. of an org. is more likely to be admitted becuase it is less personal (and thus, more reliable)
  53. Rule 407
    Remedial measures
  54. Use of remedial measures to prove fault
    Generally, not allowed (unless D says there wasn't a problem or it was not feasible to fix the problem)
  55. When are remedial measures admissible?
    • Impeaching: D says there wasn't a problem, show he fixed it
    • Feasibility: Must be put at issue––P can't controvert feasibility by herself––used to show remedial measure was possible and D just didn't do it
  56. Narrow feasibility exception to prohibition of remedial measure evidence
    Only allow admission of remedial measures when D claims it wasn't PET (physically, economically, or technologically possible)
  57. Broad feasibility exception to prohibition of remedial measure evidence
    Allow remedial ev. when it's claimed remedial measures couldn't have been utilized effectively––not merely possible, but that which is capacble of being utilized successfully.
  58. Rule 408
    Settlement negotiation ev. inadmissibility
  59. Settlement negotiation ev.
    Generally not admissible

    More broad than rule 409. Any discussions in trying to reach a settlement to a suit are inadmissible whereas, if someone said, "I'm sorry, I didn't see the red light and I hit you––I'll pay all of your medical expenses." The first clause is admissible even though the second part isn't.

    NB: A claim must be in dispute as to validity or amount to be inadmissible!
  60. Exceptions to inadmissibility of settlement negotiation ev.
    • 1. Ev. otherwise admissible even though it's used in negotiations;
    • 2. Proving bias or prejudice;
    • 3. Negativing contention of undue delay
    • 4. Proving an effort to obstruct criminal investigation
  61. Example of inadmissibility of settlement ev.
    D gets in wreck w/ A and B. Settles w/ A. B can't show A settled w/ D to prove D's guilt.
  62. Example of Admissibility of Settlement Ev.
    D gets in wreck w/ A and B. Settles w/ A. B can't show A settled w/ D to prove D's guilt, BUT, if D calls A to testify on his behalf, B can show settlement to prove A's bias.
  63. Rule 409
    Medical expenses inadmissibility
  64. Medical expenses admissibility
    Generally, not, to prove liability for injury.

    BUT, only the medical expenses is excepted from a statement––other admissions, unless so intertwined w/ the medical expense statement
  65. Rule 411
    Liability Insurance
  66. Admissibility of having liability ins.
    Generally, not.
  67. Exceptions to inadmissibility of liability ins.
    • When used for another purpose:
    • 1. Proof agency, ownership, or control
    • 2. Show bias or prejudice

    E.g., respondeat superior claim or expert witness works for State Farm and State Farm represents the D
  68. Rule 901
    Authentication, generally
  69. What is authentication?
    Offering ev. sufficient to support a finding that hte matter in question is what its proponent claims

    E.g., to offer a gun into ev. as the murder weapon, there must be a showing that it really is the murder weapon
  70. Self-authentication
    Some items can authenticate themselves by their distinctive characteristics

    E.g., A letter can be found authentic due to its contents
  71. Rule 104(b)
    Judge has to ensure there is enough proof of authenticity to enable ev. to go to the jury to actually decide if the ev. is authentic.
  72. Authentication and certainty
    Not required. Judge being "pretty sure" is enough to get ev. to a jury––jury then decides if ev. is actually credible
  73. Authentication and illustrative exhibits
    Parties can offer ev. for the ltd. purpose of showing how a similar object was used

    E.g., showing an axe––not the axe used in a murder, but to ask, "Is this the type of axe used in the murder?"
  74. Authentication and chain of custody
    Each person who handled an item of ev. must be called.
  75. Chain of custody exception
    So long as ther eis sufficient proof that the ev. is what it purports to be, it can be admitted.

    E.g., if you can't find the guy who did something inconsequential such as put the ev. in the back of an ev. van, but you can find everyone else who played substantive role in the acquiring of ev. (contra e.g., you can't find the guy who initially found drugs in a drug bust)
  76. Authentication and circumstantial ev.
    Authentication can be entirely based on circ. ev.

    Includes appearance, contents, substance, and other distinct chars.
  77. Exceptions to 901(b) authentication
    Many of them––read them.
  78. Authentication of photographs
    Person who took the photo needn't testify, only needs to be corroborated by someone familiar w/ the scene.
  79. Authentication of voice
    There has to be some familiarity with the voice.

    What is familiar? Heard the voice at least once––anyone can say they're someone else.
  80. Rule 902
    Self-authenticating Exhibits
  81. What are the types of defacto self-authenticating exhibits?
    • 1. Domestic pub. docs. under seal (e.g., US gov't doc)
    • 2. Domestic pub. docs. not under seal––must be certified by public offier who has the capacity to do so
    • 3. Foreign pub. docs––certified by foreign official who has capacity to do so
  82. Hearsay
    An out of ct. statement meant to prove the matter asserted
  83. Why exclude hearsay?
    Aren't cx-able––can't rely on their truthfulness.
  84. Dangers of hearsay
    • 1. Misperception;
    • 2. Misstatement;
    • 3. Memory fault;
    • 4. Distortion

    Michael Moore, MD
  85. How to determine if a statement is hearsay
    • 1. Ascertain purpose for which it is offered
    • 2. Then, look at what statement says
  86. Hearsay to impeach
    Allowed. It's not offered to prove the matter asserted.
  87. Hearsay and non-assertive conduct
    Not-not-not rule: Not verbal, not assertive, not hearsay. Admissible.
  88. Indirect hearsay
    Can't have someone testify to their half of a convo to get in ev. of the person he was talking to's guilt
  89. When a statement is not hearsay
    • 1. Impeachment
    • 2. Verbal acts
    • 3. Effect on listenter or reader
    • 4. Verbal objects
    • 5. Circ. ev. of mem. or belief
    • 6. Circ. ev. of state of mind
  90. Hearsay Exception––Impeachment
    Statements used to impeach, not to prove the matter asserted

    E.g., Prior statement, "The light was green." In court statement, "The light was red." Can use previous statement not to prove the light was green, but to show inconsistency and attack credibility of witness.
  91. Hearsay Exception––Verbal acts
    Some statements are instrumental in creating legal relationships––the statement has a legal sig. indep. of the declarant's desire or capacity to be accurate and trutheful

    Contents of the statement (and their implications) are at issue, not the truthfulness of it.

    • E.g., "I'm versatile, baby... I can do it any way you like." Not looking if she can "do it any way he likes," but if the statement = solicitation
    • E.g., "This is your corn, this is mine. " Seems like hearsay, but it shows the forming of a legal relationship not that "this" corn was his and that corn was his.
  92. Hearsay Exception––Effect on the listener
    E.g., proving agency, "I'm Joe, I work for the Gas Co. Take me to your leak."

    E.g., "Lady, don't step on that ketchup in the aisle." Shows lady was warned in premises liability suit.
  93. Hearsay Exception––Verbal objects
    E.g., mug that says "Eagle's Nest" to prove that D was at restaurant.
  94. Hearsay Exception––State of Mind
    E.g., "I am a potato!" Shows the declarant's state of mind, not that he was a potato.
  95. Rule 801(d)(a)
    Non hearsay items
  96. Non-hearsay Items
    • (A) Prior inconsistent statements under oath; (impeach)
    • (B) Prior consisten statements; (rehab wit)
    • (C) Statements of prior identification (IDing others)
  97. Requirements for prior inconsistent statements to be non-hearsay
    • 1. Wit. must be c-x-able concerning the prior statement;
    • 2. Statement must be inconsisten w/ present test;
    • 3. Statement must have been under oath in a prior proceeding
  98. Hearsay and station-house declarations
    Not hearsay
  99. Prior inconsistent statements––Prior proceedings req
    Reliability is key––minimal guarantees of truthfulness are needed (e.g., statement before a notary, under penalty of perjury)

    NB: Helpful if statement is in wit.'s own words
  100. Prior inconsistent statements––C-X req
    Wit. must be c-x-able concerning making the statement, not necessarily the underlying events––c-x-ing for credibilty

    E.g., victim beat really badly, doesn't remember the beating, but remembers the cop taking him to hospital and saying "Joe Schmo did this."
  101. Prior inconsistent statements––Substantive use of inconsistent statements
    • 1. Substantive use––statements meant to prove what it says
    • 2. Non-substantive use––only admitted to diminsh cred.

    Both are allowed
  102. Req's of prior consistent statement to be non-hearsay
    • 1. Wit. must be c-x-able
    • 2. Statement must be consisten w/ present test.
    • 3. Must be offered to rebut a charge of recent fabrication or improper incluence or motice

    E.g., On D-X, wit. test. won't trigger 801(d)(1)(B); on c-x, there must be a charge of improper influence or fabrication––then judge will allow consisten statements
  103. Time relationship in re: consistent statements and fabrication
    Consistent statement must have been made before the alleged fabrication

    Reasoning: If you offer a consistent statement after the fabrication, you're offering nothing different.
  104. Req's for Statments of ID to be non-hearsay
    • 1. The wit. must be c-x-able
    • 2. Statement must be one of ID of a person after perceiving the person
  105. Sketches and prior statements of ID
    Admissible. Dont' have to C-X artist, either.

    Witness doesn't need a second viewing, either.
  106. 801(d)(2)
    Admissions––Excluded from hearsay
  107. Individual admissions
    The party's own statement, either in an indiv. or rep. capacity

    • NB: Doesn't have to be a statement against interest.
    • NB: Drunkenness isn't an excuse––statements made after an accident aren't admissible in some jx.
  108. Admission on someone else's behalf
    Can't do it.

    E.g., Two guys arrested for committing a crime. One says, "Me and Two did it." This is only admissible vs. One, not Two. Can't allow statement in.
  109. Adoptive admissions
    D manifests his adoption of a belief.

    E.g., "Were you speeding?" "Yes."
  110. Can one tacitly adopt an admission?

    E.g., GF of D says, "You should have ssen the money in the hotel room." D says nothing. Because D trusted his GF and didn't deny or correct the charge, it's admissible.

    NB: It's normal human behavior to deny being a robber when accused if he's not actually a robber.
  111. Admissions by Agents and Employees
    Speaking on a metter in the course and scope, admissions are admissible––employees don't typically speak against the interests of their employer unless being truthful

    NB: Does not need speaking auth. to be admissible (as opposed to 801(d)(2)(C)
  112. Admissions by Speaking Agents
    Statements made by persons auth'd by the party to make a statement concerning the subj.

    E.g., pleadings. These are out of court, authorized statements.
  113. Coconspirator Statement
    • Allowed in if req's are met:
    • 1. Coventurer (D and declarant conspired)
    • 2. Pendance (during the course of the venture)
    • 3. Furtherance (in furtherance of conspiracy)
  114. Hearsay exceptions
    Statements that are hearsay, but allowed in

    Declarant doesn't have to testify at trial
  115. Present sense impression
    • Declarant:
    • 1. Perceived the even whil in axn or immediately thereafter;
    • 2. Must have perceived the even herself (usu. sigh, can be smell/audio)
    • 3. Must describe or explain (characterized) the event

    NB: Statements made sufficiently contemporaneously w/ the situation at hand that leave a present sense on a person are admissible (e.g., heart attack after working)
  116. Excited utterances
    Statements made under the struess from exciting events are generally admissible

    NB: There must be sufficient contemporaneity to allow no time for reflection

    • Factors affecting admissibilty:
    • 1. Time for reflectoin;
    • 2. Age (older people may reflect more than younger)
    • 3. Type of event (brutality and seriousness considered)

    E.g., farmer's wife wandering for 14 hours after assault's statement naming her husband as attacker was allowed

    NB: Look at unconsciousness––this will discount lapse of time accordingly
  117. State of Mind Exceptions
    • Four uses:
    • 1. Declarant's then-existing physical condtion
    • 2. Declarant's then-existing mental or emotional condtion
    • 3. His later conduct; and/or
    • 4. Facts about his will

    NB: Lay predicate for later axns, e.g., T's disposition thru expressed feeling may be basis for a particular state of mind he had in disposign of prop.
  118. Reducing ambiguity and insincerity of state of mind exception
    • 1. Req'ing then-existing state of mind
    • - Past state of mind not okay (e.g., statement on Wed. about state of mind on Mon.)
    • - BUT, some states of mind persiste (e.g., statement on Wed. may have some bearing on Mon. and Fri's state of mind)
    • 2. Statement is describing an act or event or feelings and there is not a problem of misperception
  119. Proving state of mind
    • Proven through:
    • 1. Axns
    • 2. Statements
    • 3. Taking the stand (testifyig to a then-existing state of mind more reliable than backward-looking test)

    NB: Can't prove through a statement of memory believed
  120. Then-existing physical condition admissibilty
    Allowed when it's from speaking to a physician, spouse, or friend.
  121. Limiting instruction and 803(3) state of mind exception
    Usu. use it in conjunction w/ admission––you can only use to prove state of mind

    (E.g., D accused of extortion, Wit's statement that he was afraid of D is admissible as to the duress portion, but not per se that D did it)
  122. Admission of state of mind ev. w/ limiting instruction limitations
    The admission of state of mind ev. w/ limiting instruction is also limited

    E.g., "X killed me" shows deceased's desire to live (and rebutting a suicide claim), but is far too prejudicial
  123. Using state of mind exception to show intent
    Allowed. Shows that person had intent and acting in conformity therewith.
  124. Hillmon doctrine
    Req's the trier of fact to infer that a person acted in accordance w/ their state of mind––can impute this on another

    E.g., "I'm going to buy weed from X." You can impute that X was going to sell declarant weed.
  125. Statements made to physicians
    Admissible. People make statements to physicians when life or health hand in the balance and have a high necessity for truthfulness.

    NB: Covers both past and present symptoms (provided they're pertinent to diagnosis)
  126. Statements to doctors regarding who committed act
    Allowed. May be necessary in diagnosis.

    • E.g., girl telling doc who raped her (helps diagnose how to help her, psychologically)
    • BUT, statement as to fault "do not ordinarily" qualify as a statment of promoting treatment
    • E.g., "What struck by a vehicle" is okay, but "The car ran a red light and hit me" is not.
  127. Statements to physicians in sex abuse cases
    Nature of abuser is important––may bear on how to psychologically treat the person

    NB: What if victim is 35 y.o.? It depends on the nature of emotional and psychological injuries so as to meet the Renville rule
  128. Renville rule
    • 1. Patient's motive consistent w/purposes of promoting treatment
    • 2. The content of the statement is such as is reasonably relied on by a physician in treatment or diagnosis
  129. Third person statements to doctors admissibility
    Admissible when patient cannot speak

    E.g., telling why your wife is unconscious is admissible as a statement for the purposes of treatment or diagnosis
  130. Statements to psychiatrists/psychologists
    • Two views:
    • 1. Admissible: Every said is pertinent to diagnosis
    • 2. Inadmissible: Patient will tell doc. something when getting physical treatment, but not mental health treatment
  131. Past recollection recorded
    • Req's:
    • 1. Wit lacks present recollection of the matter;
    • 2. Statement accurately reflects knowledge he once had;
    • 3. He made or adopted the statement; and
    • 4. He did so while the matter was fresh in his mind

    NB: Insufficient memory is req'd––you must first try to refresh wit's mem.
  132. Diff. between past recollection recorded and refreshing recollection
    Refreshing: Live test.––wit. refreshes mem., but test. w/ indep. knowledge

    Recorded: Wit. can't indep. remember but recollection was complete and accurate at the time the memo was written and was recorded accurately thereupon
  133. How are recollections recorded offered into ev.?
    Read aloud, not allowed in jury room.
  134. Business records exception
    • Req's
    • 1. Regular business and regularly kept rec.;
    • 2. Personal knowledge of the source
    • 3. Contemporaneity
    • 4. Foundation test. (wit. 1st-hand knowledge of rec. keeping system who can describe the manner in which the records are prepared)
    • NB: Allowed in because bus. recs are typically accurate and, otherwise, you'd have to call every person involved in the record keeping
  135. Medical records and business records
    Multiple hearsays must be solved: The record [hearsay] and the statement into the record [hearsay]

    Only admissible if underlying hearsay statement has an exception (e.g., statement for medical treatment or diagnosis)
  136. Public records exception
    Assumption that public officers will perform their duties, they lack the motive to falsify, and public inspection to which many records are subject will disclose inaccuracies
  137. Mundane describing of activities of the office or agency
    • Generally admissible
    • E.g.,
    • 1. Ct. transcripts to prove test. given
    • 2. Marshal's return to indicate svc of process
    • 3. Order committing a criminal defendant
    • 4. Etc.
  138. Matters observed by public officials
    • Generally admitted
    • E.g.,
    • 1. Building inspector reports
    • 2. Legis. preamble froma state law in a river's navigability
    • 3. etc.
  139. Factual findings from official investigators
    • Generally admitted
    • E.g.,
    • 1. Findings of employment disc.
    • 2. Studies on toxic shock syndrome by CDC
    • 3. Etc.
  140. Statements to an official record
    • Must have their own hearsay exception
    • E.g., saying who ran a red light (it can be used to shwo the statement was made, not for its truth)
  141. Factors of trustworthiness to an official record
    • 1. Timeliness of investigation
    • 2. Special skill and experience of official
    • 3. Whether a hearing was held
    • 4. Possible motivational problems
  142. Police reports in criminal cases
    Cannot be used by the prosecution (D can)

    D has right to confrontation and these reports are based on outsider statement w/ outsiders feeling pressure to talk––can't c-x them
  143. Admissibility in a criminal trial of facts that are the product of an investigation
    Generally not admissible
  144. Rule 804
    Hearsay exceptions when declarant is unavailable
  145. Ways to be unavailable pursuant to 804
    • 1. Privilege
    • 2. Refusal to test.
    • 3. Lack of memory
    • 4. Death, illness, infirmity
    • 5. Unavoidable absence

    NB: It's not physical unavailability that counts––it's the unavailability of testimony that matters
  146. For 804 to apply
    • Unavailability itself is not an exception, proponent must show:
    • 1. Unavailability; and
    • 2. One of the listed exceptions under 804
  147. Former testimony
    804 exception. Unavailability req'd.

    Test. of a wit. at another hearding or a diff. proceeding or a law-compliant depo if the party against whom the test. is offered can examine the wit.

    NB: In civil trial, prev. test. is allowed in cases where a predecessor in interest had an opp. to examine
  148. "Other reasonable means" of obtaining testimony

    Proponent is req'd to use other reasonable means to obtain test.––this is increased by importance of wit.'s test.

    E.g., gov't taking women's depo then letting her go to Australia––didn't use reasonable enough means to get live test.

    NB: Wit.s are only unavailable if proponent made a good faith effort in procuring their test.––can't violate a persons right to c-x their accused when proponent hasn't even acted in good faith
  149. Depositions in crminal trials, generally
    Not favored––allowed only in "exceptional circumstances"––right to confrontation is huge
  150. Present opponent req in crim. vs. civil cases
    • 1. Criminal: D must have been present at prior hearing and had opportunity to c-x
    • 2. Civil: if present opponent was not present at prior proceeding, need a "predecessor in interest" who had an opportunity and a similar motive to c-x.

    NB: Predecessors can even have come from a criminal case
  151. Dying declarations
    804 exception. Unavailability req'd.

    Statements made while declarant believed he faced imminent death are admissible––only applies to cause and circumstances of his death
  152. Is actual death req'd for dying dec?
    Nope. Just a belief of imminent death.
  153. Declarations against interest
    804 exception. Unavailability req'd.

    • Determining factors:
    • 1. Context
    • 2. Conflicting interests
    • 3. One-way interests
    • 4. Circumstantially adverse facts
    • 5. Declarant's understanding
    • 6. Effect of later events
    • 7. Conclusory remarks

    Similar to admissions exception BUT can't be self-serving, can't be conclusory, must be unavailable
  154. Context of dec. against interest
    Determine is statement is disserving by context of statement

    E.g., statements of foreign workers who said they were paid justly to their employer––it makes sense they'd protect their interests in this way
  155. Conflicting interests in dec. against interest
    • Some statements may further one interest and hamper another
    • How to address:
    • 1. Determine statements cancel eachother out and rule inadmissible
    • 2. Ditermine statement is primarily disserving or self-serving. If former, admit
  156. One-way interestes in dec against interest
    • If statement was:
    • 1. To aim high: statement admissible to show max
    • 2. To aim low: statement is admissible to show minimum

    E.g., filling out tax return has reason to aim low
  157. Circumstantially adverse facts in dec. against interests
    A statement admitting fault in a context that might give rise to liability or loss to the declarant may be allowed

    E.g., employee saying he wen to warehouse of employer to smoke and drink––not admitted under 801(d)(2)(D) but is under 804(b)(3) because he could be fired