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All is admissible (unless it's not because of Const, Rules, or Congress)
Admissibility of Ev.
Ev. admissible for one purpose, but not another
Jury instruction available upon request
Remainder of writing or statement
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
Remainder of writing exception to hearsay
E.g., Hubby view on airplane crash––entire report could be read in
Having a tendency to make the existenceof any fact (of consequence) more or less probably than w/o the ev
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.
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)
How to determine if ev. is properly provable?
- 1. Look at substantive law's elements;
- 2. Look at pleadings;
- 3. Look at credibility
Quantity is enough to support a verdict
Sufficient and relevancy differ in probative force
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)
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.
Corroboration of inferences and assumptions
Sometimes allowed––observations can defeat inferences
E.g., Change in weather or road conditions over a 30 mi stretch
Prob. val < risk of prejudice
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)
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.
What to do if relevant ev. would make jury convict on "bad character"
NB: If there is an alternate way to support same proposition w/o prejudice, that way is preferred
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
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
Allowing ev. for only specific reason; tell jury to ignore for any other reason
Not admissible for proving axn. in conformity w/ char
"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
Jury instruction on character
- 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.
Opening the Door
Allow in char. ev. if used to rebut the D opening the door
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
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
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.
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
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
Proof of Char. Ev.
Wit. has interacted w/ person in question
No direct interaction needed, but w/in same reasonable community as person in question
Specific instances of conduct
Only allowed on cross/to impeach.
Use of specific instances when an element of crime
Allowed (though almost never used in a criminal case)
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)
Char. in Sex Offense Cases
Admissibilty of sex offense victim's past behavior
Generally it's not.
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
When does the const. require revelation of sexual history?
Show a motive for making a false charge against D
Sexual history and showing previous knowledge (even if incorrect)
E.g., D was told that "no" means "yes" with the victim
Habit and routine practice
Allowance of habit evidence
Generally allowed. If a habit or routine, can be shown that the person or corp. acted in accordance w/ routine
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
Repeated violent behavior––Habitual?
Nope. Violent behavior is too volitional.
Drinking as a habit
ACN suggests its not a habit––turns on regularity of drunkenness
Organizational custom and practice
Routine prax. of an org. is more likely to be admitted becuase it is less personal (and thus, more reliable)
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)
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
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)
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.
Settlement negotiation ev. inadmissibility
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!
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
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.
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.
Medical expenses inadmissibility
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
Admissibility of having liability ins.
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
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
Some items can authenticate themselves by their distinctive characteristics
E.g., A letter can be found authentic due to its contents
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.
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
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?"
Authentication and chain of custody
Each person who handled an item of ev. must be called.
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)
Authentication and circumstantial ev.
Authentication can be entirely based on circ. ev.
Includes appearance, contents, substance, and other distinct chars.
Exceptions to 901(b) authentication
Many of them––read them.
Authentication of photographs
Person who took the photo needn't testify, only needs to be corroborated by someone familiar w/ the scene.
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.
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
An out of ct. statement meant to prove the matter asserted
Why exclude hearsay?
Aren't cx-able––can't rely on their truthfulness.
Dangers of hearsay
- 1. Misperception;
- 2. Misstatement;
- 3. Memory fault;
- 4. Distortion
How to determine if a statement is hearsay
- 1. Ascertain purpose for which it is offered
- 2. Then, look at what statement says
Hearsay to impeach
Allowed. It's not offered to prove the matter asserted.
Hearsay and non-assertive conduct
Not-not-not rule: Not verbal, not assertive, not hearsay. Admissible.
Can't have someone testify to their half of a convo to get in ev. of the person he was talking to's guilt
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
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.
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.
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.
Hearsay Exception––Verbal objects
E.g., mug that says "Eagle's Nest" to prove that D was at restaurant.
Hearsay Exception––State of Mind
E.g., "I am a potato!" Shows the declarant's state of mind, not that he was a potato.
Non hearsay items
- (A) Prior inconsistent statements under oath; (impeach)
- (B) Prior consisten statements; (rehab wit)
- (C) Statements of prior identification (IDing others)
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
Hearsay and station-house declarations
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
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."
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
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
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.
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
Sketches and prior statements of ID
Admissible. Dont' have to C-X artist, either.
Witness doesn't need a second viewing, either.
Admissions––Excluded from hearsay
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.
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.
D manifests his adoption of a belief.
E.g., "Were you speeding?" "Yes."
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.
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)
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.
- 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)
Statements that are hearsay, but allowed in
Declarant doesn't have to testify at trial
Present sense impression
- 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
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)
Statements made under the struess from exciting events are generally admissible
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
Look at unconsciousness––this will discount lapse of time accordingly
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
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.
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
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)
Can't prove through a statement of memory believed
Then-existing physical condition admissibilty
Allowed when it's from speaking to a physician, spouse, or friend.
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)
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
Using state of mind exception to show intent
Allowed. Shows that person had intent and acting in conformity therewith.
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.
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)
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.
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
- 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
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
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
Past recollection recorded
- 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
Insufficient memory is req'd––you must first try to refresh wit's mem.
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
How are recollections recorded offered into ev.?
Read aloud, not allowed in jury room.
Business records exception
- 1. Regular business and regularly kept rec.;
- 2. Personal knowledge of the source3. 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
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)
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
Mundane describing of activities of the office or agency
- Generally admissible
- 1. Ct. transcripts to prove test. given
- 2. Marshal's return to indicate svc of process
- 3. Order committing a criminal defendant
- 4. Etc.
Matters observed by public officials
- Generally admitted
- 1. Building inspector reports
- 2. Legis. preamble froma state law in a river's navigability
- 3. etc.
Factual findings from official investigators
- Generally admitted
- 1. Findings of employment disc.
- 2. Studies on toxic shock syndrome by CDC
- 3. Etc.
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)
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
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
Admissibility in a criminal trial of facts that are the product of an investigation
Generally not admissible
Hearsay exceptions when declarant is unavailable
Ways to be unavailable pursuant to 804
- 1. Privilege
- 2. Refusal to test.
- 3. Lack of memory
- 4. Death, illness, infirmity
- 5. Unavoidable absence
It's not physical unavailability
that counts––it's the unavailability of testimony that matters
For 804 to apply
- Unavailability itself is not an exception, proponent must show:
- 1. Unavailability; and
- 2. One of the listed exceptions under 804
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
"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
Depositions in crminal trials, generally
Not favored––allowed only in "exceptional circumstances"––right to confrontation is huge
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.
Predecessors can even have come from a criminal case
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
Is actual death req'd for dying dec?
Nope. Just a belief of imminent death.
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
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
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
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
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