Evidence

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Author:
BlasterGirl
ID:
161750
Filename:
Evidence
Updated:
2012-07-09 23:45:11
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Relevance Witnesses Hearsay
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Auth, BER, Privy
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  1. I.     RELEVANCE
    A. Define
    B. Similar Occurrences
    C. Policy-Based Exclusions
    D. Character Evidence
    E. Defendant's Other Crimes
    F. Other Sexual Misconduct

    FOR WHAT PURPOSE IS THE EVIDENCE BEING ADMITTIED?
    Define: Evidence is relevant if it has any tendency to make a material fact more probable or less probable than would be the case without the evidence. 

    • All relevant evidence is admissible unless (a) an exclusionary rule applies, or (b) probative value of evidence is substantially outweighed by:
    • 1 - danger of unfair prejudice (must be shocking)
    • 2 - confusing the issues
    • 3 - misleading the jury
    • 4 - undue delay
    • 5 - waste of time
    • 6 - unduly cumulative
  2. I.     RELEVANCE
    A. Define
    B. Similar Occurrences
    C. Policy-Based Exclusions
    D. Character Evidence
    E. Defendant's Other Crimes

    FOR WHAT PURPOSE IS THE EVIDENCE BEING ADMITTIED?
    • B. Similar Occurrences:
    • If evidence concerns some other time, place, event or person then it is inadmissible, UNLESS:
    • (1) Plaintiff's Accident History
    • (2) Similar Accidents Caused by Same Event/Condition
    • (3) Intent in Issue
    • (4) Comparable Sales on Issue of Value
    • (5) Habit
    • (6) Industrial Custom as Standard of Care
  3. B. Similar Occurrences:
    (1) Plaintiff's Accident History
    (2) Similar Accidents Caused by Same Event/Condition
    (3) Intent in Issue
    (4) Comparable Sales on Issue of Value
    (5) Habit 
    (6) Industrial Custom as Standard of Care  

    FOR WHAT PURPOSE IS THE EVIDENCE BEING ADMITTIED?
    If evidence concerns some other time, place, event or person then it is inadmissible, UNLESS:

    (1) Plaintiff's Accident History: Admissible if cause of P's injuries are at issue.

    • (2) Similar Accidents: Other accidents involving same instrumentality or condition may be admitted if other accident occurred under substantially similar circumstances to show:
    •  1 - existence of dangerous condition,
    •  2 - causation of accident,
    •  3 - prior notice to D
  4. B. Similar Occurrences:
    (1) Plaintiff's Accident History 
    (2) Similar Accidents Caused by Same Event/Condition 
    (3) Intent in Issue
    (4) Comparable Sales on Issue of Value
    (5) Habit 
    (6) Industrial Custom as Standard of Care
    If evidence concerns some other time, place, event or person then it is inadmissible, UNLESS:

    (3) Intent in Issue: Similar prior conduct of a person may be admissible to raise an inference of person's intent on later occasion. 

    (4)  Comparable Sales: Selling price of similar type, location, time period evidences property value.
  5. B. Similar Occurrences: 
    (1) Plaintiff's Accident History 
    (2) Similar Accidents Caused by Same Event/Condition 
    (3) Intent in Issue 
    (4) Comparable Sales on Issue of Value
    (5) Habit 
    (6) Industrial Custom as Standard of Care
    If evidence concerns some other time, place, event or person then it is inadmissible, UNLESS:

    (5) Habit: Habit of a person or routine business organization is admissible as circumstantial evidence of how the person or business acted on the occasion at issue.

    • Habit = repetitive response to particular set of circumstances = frequency & particularity = admissible.
    • Character = one's general disposition or propensity = inadmissible
  6. B. Similar Occurrences: 
    (1) Plaintiff's Accident History 
    (2) Similar Accidents Caused by Same Event/Condition 
    (3) Intent in Issue 
    (4) Comparable Sales on Issue of Value
    (5) Habit 
    (6) Industrial Custom as Standard of Care
    If evidence concerns some other time, place, event or person then it is inadmissible, UNLESS:

    (6) Industrial Custom as Standard of Care: Evidence as to how others in the same trade acted may be admitted to show how a party should have acted i.e. to establish standard of care.
  7. I.     RELEVANCE
    A. Define
    B. Similar Occurrences
    C. Policy-Based Exclusions
    D. Character Evidence
    E. Defendant's Other Crimes

    FOR WHAT PURPOSE IS THE EVIDENCE BEING ADMITTED?
    • C. Policy Based Exclusions:
    • (1) Liability Insurance
    • (2) Subsequent Remedial Measures
    • (3) Settlement Offers in Civil Claims
    • (4) Offer to Pay Medical Expenses

    Define: Evidence is relevant if it has any tendency to make a material fact more or less probable than it would be without the evidence. All relevant evidence is admissible unless Policy Based Exclusion.
  8. C. Policy Based Exclusions:
    (1) Liability Insurance
    (2) Subsequent Remedial Measures 
    (3) Settlement Offers in Civil Claims
    (4) Offer to Pay Medical Expenses
    • (1) Liability Insurance:
    • Evidence of whether a person has insurance is INADMISSIBLE to prove fault or absence thereof. It is ADMISSLBLE to show proof of ownership if in dispute, or to impeach witness.

    Define: Evidence is relevant if it has any tendency to make a material fact more or less probable than it would be without the evidence. All relevant evidence is admissible unless Policy Based Exclusion.
  9. C. Policy Based Exclusions:
    (1) Liability Insurance
    (2) Subsequent Remedial Measures 
    (3) Settlement Offers in Civil Claims
    (4) Offer to Pay Medical Expenses
    • (2) Subsequent Remedial Measures:
    • Post-accident repairs are INADMISSIBLE to prove negligence, product defect or need for warning. ADMISSIBLE to show proof of ownership or feasibility of safer condition IF either is disputed by defendant.

    Define: Evidence is relevant if it has any tendency to make a material fact more or less probable than it would be without the evidence. All relevant evidence is admissible unless Policy Based Exclusion.
  10. C. Policy Based Exclusions:
    (1) Liability Insurance
    (2) Subsequent Remedial Measures 
    (3) Settlement Offers in Civil Claims*
         * MUST BE DISPUTED CLAIM
    (4) Offer to Pay Medical Expenses
    • (3) Settlement Offers in Civil Claims:
    •  1 - a settlement,
    •  2 - a settlement offer, and
    •  3 - statements of fact made during settlement negotiations (unless made with gov't regulatory agency in later criminal case)
    • Are INADMISSIBLE to show liability.
    • Are ADMISSIBLE to impeach witness on grounds of bias.

    DISPUTED CLAIM: Must be a claim in dispute at time of settlement discussions as to either validity of the claim or as to amount of damages.
  11. C. Policy Based Exclusions:
    (1) Liability Insurance
    (2) Subsequent Remedial Measures 
    (3) Settlement Offers in Civil Claims
         - Plea Bargaining in Criminal Cases
    (4) Offer to Pay Medical Expenses
    • Plea Bargaining in Criminal Cases is INADMISSIBLE.
    •      1 - offer to plead guilty
    •      2 - withdrawn guilty plea
    •      3 - plea of nolo contendere
    •      4 - statement of fact made during any plea discussions
    • Guilty please ADMISSIBLE in subsequent litigation on the SAME FACTS as a PARTY ADMISSION.

    Define: Evidence is relevant if it has any tendency to make a material fact more or less probable than it would be without the evidence. All relevant evidence is admissible unless the evidence is a plea bargain in a criminal case.
  12. C. Policy Based Exclusions:
    (1) Liability Insurance
    (2) Subsequent Remedial Measures 
    (3) Settlement Offers in Civil Claims
    (4) Offer to Pay Medical Expenses
    • (4) Offer to Pay Medical Expenses:
    • INADMISSIBLE to prove liability.
    • Statements of fact made in connection with offer to pay medical expenses ARE ADMISSIBLE.

    Define: Evidence is relevant if it has any tendency to make a material fact more or less probable than it would be without the evidence. All relevant evidence is admissible unless it is an offer to pay medical expenses.
  13. I.     RELEVANCE
    A. Define
    B. Similar Occurrences
    C. Policy-Based Exclusions
    D. Character Evidence
    E. Defendant's Other Crimes

    FOR WHAT PURPOSE IS THE EVIDENCE BEING ADMITTED?
    • D. Character Evidence:
    • (1) Criminal Cases
    •      (a) Prosecution's Case in Chief
    •      (b) Prosecution's Rebuttal
    •      (c) Victim's Character in Self-Defense Case
    •      (d) Victim's Character in Sexual Misconduct Case
    • (2) Civil Cases 
    •      (a) Conduct in Conformity
    •      (b) Character Element of Claim

    FOR WHAT PURPOSE IS THE EVIDENCE BEING ADMITTED?

    Define: Evidence is relevant if it has any tendency to make a material fact more or less probable than it would be without the evidence. All relevant evidence is admissible unless it is CHARACTER EVIDENCE.
  14. D. Character Evidence:
    DEFINE
    (1) Criminal Cases   
       (a) Prosecution's Case in Chief   
       (b) Prosecution's Rebuttal     
       (c) Victim's Character in Self-Defense Case     
       (d) Victim's Character in Sexual Misconduct Case
    (2) Civil Cases    
       (a) Conduct in Conformity   
       (b) Character Element of Claim
    Character evidence is a person's general propensity or disposition (honesty, violence, etc.).

    • Character evidence MAY BE ADMISSIBLE if:
    •      1 - Person's character is an essential element in the case,
    •      2 - It is offered to prove conduct in conformity with character at time of litigated event (as circumstantial evidence of conduct on a particular occasion).
    •      3 - W's bad character for truthfulness to impeach.
  15. D. Character Evidence:
    (1) Criminal Cases       
         (a) Prosecution's Case in Chief       
         (b) Prosecution's Rebuttal        
         (c) Victim's Character in Self-Defense Case      
         (d) Victim's Character in Sexual Misconduct Case
    (2) Civil Cases        
         (a) Conduct in Conformity    
         (b) Character Element of Claim
    • (1) Crimainal Cases
    •      (a) P's CiC: Evidence of character to prove D's conduct on particular occasion INADMISSIBLE during P's CiC but ADMISSIBLE if defendant introduces (reputation or opinion). 
    •      (b) P's cross: Once D opens door, P may rebut by:
    • 1 - specific acts re: relevant character trait (to impeach)
    • 2 - calling reputation or opinion witnesses (to contradict)
  16. D. Character Evidence:
    (1) Criminal Cases            
         (a) Prosecution's Case in Chief            
         (b) Prosecution's Rebuttal             
         (c) Victim's Character in Self-Defense Case            
         (d) Victim's Character in Sexual Misconduct Case
    (2) Civil Cases           
        (a) Conduct in Conformity        
        (b) Character Element of Claim
    • (c) Victim's Character in Self-Defense Case                 
    • Rule: V's violent character ADMISSIBLE to prove conduct in conformity with (circumstantial evidence V was aggressor). 
    • Methods: 1 - reputation, or 2 - opinion
    • P's Rebuttal: 1 - reputation, or 2 - opinion of V's peaceful character AND 1 - reputation, or 2 - opinion of D's violence.
  17. D. Character Evidence:
    (1) Criminal Cases               
        (a) Prosecution's Case in Chief               
        (b) Prosecution's Rebuttal                
        (c) Victim's Character in Self-Defense Case               
        (d) Victim's Character in Sexual Misconduct Case
    (2) Civil Cases               
        (a) Conduct in Conformity            
        (b) Character Element of Claim
    • (d) Victim's Character in Sexual Misconduct Case
    • INADMISSIBLE in both Civil & Criminal cases (reputation, opinion and specific acts ALL inadmissible).

    • UNLESS probative value outweighs unfair prejudice:
    •  1 - specific acts to prove someone else source of semen
    •  2 - specific acts with D to show consent
    •  3 - where it would violate D's right to due process (love triangle)
    • = ADMISSIBLE
  18. D. Character Evidence:
    (1) Criminal Cases                  
    (2) Civil Cases                  
         (a) Conduct in Conformity     
              - INADMISSIBLE          
         (b) Character Element of Claim
              - ADMISSIBLE 
    Civil: Character evidence to show conduct in conformity = INADMISSIBLE. Across the board exclusion in civil cases.

    • Civil: Character is essential element = ADMISSIBLE.
    • 1 - reputation
    • 2 - opinion, AND
    • 3 - specific acts 
    • (a) negligent hiring or entrustment, (b) defamation, (c) child custody dispute.
  19. I.     RELEVANCE
    A. Define
    B. Similar Occurrences
    C. Policy-Based Exclusions
    D. Character Evidence
    E. Defendant's Other Crimes
    F. Sexual Misconduct

    FOR WHAT PURPOSE IS THE EVIDENCE BEING ADMITTED?
    • E. Defendant's Other Crimes
    •     (1) General Rule
    •     (2) Exceptions
    •     (3) Method

    Evidence is relevant if it has any tendency to make a material fact more or less probable than it would be without the evidence. 

    All relevant evidence is admissible unless (a) an exclusionary rule applies, or (b) probative value of evidence is substantially outweighed by danger of unfair prejudice.
  20. E. Defendant's Other Crimes    
         (1) General Rule   
         (2) Exceptions   
         (3) Method
    • Rule: Other crimes or specific bad acts are INADMISSIBLE.
    • Exceptions: UNLESS, to show MIMIC:
    • Motive
    • Intent
    • Mistake (absence thereof)
    • Indentity
    • Common scheme or plan.

    Methods: 1 - conviction, or 2 - evidence that proved crime occured (sufficient evidence from which reasonable juror could conclude defendant committed other crime).

    Remember: Must still weigh probative value against risk of unfair prejudice and give limiting instructions to jury. 

    MIMIC in civil cases allowed where intent is an issue.
  21. I.     RELEVANCE
    A. Define
    B. Similar Occurrences
    C. Policy-Based Exclusions
    D. Character Evidence
    E. Defendant's Other Crimes
    F. Sexual Misconduct

    FOR WHAT PURPOSE IS THE EVIDENCE BEING ADMITTED?
    • Sexual Misconduct:
    • Prior specific acts ARE ADMISSIBLE in P's CiC for ANY relevant purpose.

    • Reputation or opinion INADMISSIBLE.
    • Prior Specific Acts ONLY
    •  
  22. II.     AUTHENTICATION OF WRITINGS
    A. Defined & Standard
    B. Methods
    C. Self-Authenticating Documents
    D. Authentication of Photographs
    DEFINED: Authentication is showing that a document is what it purports to be.

    • STANDARD: Conditional Relevancy
    • The document is admissible if the COURT determines that there is sufficient evidence from which a resonable juror could conclude that the document is genuine. 
  23. II.     AUTHENTICATION OF WRITINGS
    A. Defined
    B. Methods
    C. Self-Authenticating Documents
    D. Authentication of Photographs
    • (1) Witness' personal knowledge
    •      - W observed X sign document
    • (2) Proof of Handwriting
    •      - via lay person opinion on basis of familiarity with X's handwriting.
    •      - via expert comparison opinion (document vs exemplar)
    •      - via jury comparison (document vs exemplar)
    • (3) Ancient Document Rule
    •      - (i) at least 20 years old, (ii) facially free from suspicion, and (iii) document found in place normal custody
    • (4) Solicited Reply Doctrine
    •      - Document was recevied in response to a prior communication to X.
    •  
  24. II.     AUTHENTICATION OF WRITINGS
    A. Defined
    B. Methods
    C. Self-Authenticating Documents
    D. Authentication of Photographs
    • These documents are presumed authentic:
    • (1) official publications,
    • (2) certified copies of public or private records on file in public office,
    • (3) newspapers or periodicals,
    • (4) trade inscriptions and labels,
    • (5) acknowledged document,
    • (6) commercial paper.  
  25. II.     AUTHENTICATION OF WRITINGS
    A. Defined
    B. Methods
    C. Self-Authenticating Documents
    D. Authentication of Photographs
    Witness may testify on the basis of personal knowledge that the pic is a "fair and accurate representation" of the people or objects portrayed.
  26. III.     BEST EVIDENCE RULE
    A.     Defined
    B.     Applicability
    C.     Non-applicability
    D.     "Original Writing"
    E.     Excuses for Non Production
    F.     "Escapes"
    A party who seeks to prove the contents of a writing must either produce the document or provide an acceptable excuse for its absence. 

    If excusable, may use secondary evidence (oral testimony or a copy).

    Writings include: sound recordings, x-rays, and films. 
  27. III.     BEST EVIDENCE RULE
    A.     Defined
    B.     Applicability 
    C.     Non-applicability
    D.     "Original Writing"
    E.     Excuses for Non Production
    F.     "Escapes"
    When a party is seeking to prove the contents of a writing.

    • (1) Document is legally operative (writing itself creates rights and obligations), or 
    • (2) W testifying to facts learned solely from reading writing. 
  28. III.     BEST EVIDENCE RULE
    A.     Defined
    B.     Applicability 
    C.     Non-applicability
    D.     "Original Writing"
    E.     Excuses for Non Production
    F.     "Escapes"
    When W has personal knowledge and is testifying to a fact that exists independently of a writing that records the fact. 

    [Applies when (1) trying to prove contents of a writing. Must produce the writing if so.] 
  29. III.     BEST EVIDENCE RULE
    A.     Defined
    B.     Applicability 
    C.     Non-applicability
    D.     "Original Writing"
    E.     Excuses for Non Production
    F.     "Escapes"
    • (1) Whatever parties intended as an original
    • (2) duplicate
    • (3) handwritten copy NOT original or duplicate  
  30. III.     BEST EVIDENCE RULE
    A.     Defined
    B.     Applicability 
    C.     Non-applicability
    D.     "Original Writing"
    E.     Excuses for Non Production
    F.     "Escapes"
    • (1) Lost or cannot be found despite due diligence
    • (2) destroyed without bad faith
    • (3) cannot be obtained with legal process

    Court must be persuaded by preponderence of the evidence that excuse has been estbalished.
  31. III.     BEST EVIDENCE RULE
    A.     Defined
    B.     Applicability 
    C.     Non-applicability
    D.     "Original Writing"
    E.     Excuses for Non Production
    F.     "Escapes"
    • (1) Volomunious Records
    •      - summary or chart ok IF originals would be admissible AND they are available for inspection
    • (2) Certified Copies of Public Records
    • (3) Collateral Documents
    •      - Not important to case

    Court, in its discretion, determines whether a writing is collateral. If it is, contents may be proven by secondary evidence (testimony or a copy).
  32. IV.     WITNESSES
    A. Competency
    B. Dead Man's Statute
    C. Leading Questions
    D. Writings in Aid of Oral Testimony
    E. Opinion Testimony
    F. Cross-Exam
    G. Credibility and Impeachment
    H. Impeachment Methods
    I. Rehabilitation
    • A. Competency:
    • (1) Personal Knowledge, and
    • (2) Oath or Affirmation. 
  33. IV.     WITNESSES
    A. Competency
    B. Dead Man's Statute
    C. Leading Questions
    D. Writings in Aid of Oral Testimony
    E. Opinion Testimony
    F. Cross-Exam
    G. Credibility and Impeachment
    H. Impeachment Methods
    I. Rehabilitation
    • B. Dead Man's Statutes
    • General Rule: Witness not incompetent merely b/c has an interest (direct legal stake) in outcome of litigation. 
    • Exception: Dead Man's Statutes
    • In civil cases, incompetent to testify in support of own interest vs estate of decedent.
    • REMEMBER: There is NO Dead Man's Statute in Federal Law. 
  34. IV.     WITNESSES
    A. Competency
    B. Dead Man's Statute
    C. Leading Questions
    D. Writings in Aid of Oral Testimony
    E. Opinion Testimony
    F. Cross-Exam
    G. Credibility and Impeachment
    H. Impeachment Methods
    I. Rehabilitation
    • Any question that suggests the answer.
    • (1) NOT ALLOWED on direct, UNLESS:
    •      - Prelim into matters
    •      - youthful or forgetful W
    •      - hostile W
    •      - adverse party
    • (2) Allowed on cross
  35. IV.     WITNESSES
    A. Competency
    B. Dead Man's Statute
    C. Leading Questions
    D. Writings in Aid of Oral Testimony
         (1) Present Recollection Refreshed
         (2) Past Recollection Recorded

    E. Opinion Testimony
    F. Cross-Exam
    G. Credibility and Impeachment
    H. Impeachment Methods
    I. Rehabilitation
    • Present Recollection Refreshed:
    • Rule: W may NOT read from prepared memo. Must testify on basis of current recollection.
    • Exception: W memory fails, may be shown a memo to jog memory.
    • Safeguards: Adverse party has right to:
    • (1) inspect the memo
    • (2) use it on cross
    • (3) intro it into evidence 
  36. IV.     WITNESSES
    A. Competency
    B. Dead Man's Statute
    C. Leading Questions
    D. Writings in Aid of Oral Testimony
        (1) Present Recollection Refreshed   
        (2) Past Recollection Recorded
    E. Opinion Testimony
    F. Cross-Exam
    G. Credibility and Impeachment
    H. Impeachment Methods
    I. Rehabilitation
    • Past Recollection Recorded:
    • Present Recollection Refreshed is a pre-requisite.
    • (1) showing writing to W fails to jog memory
    • (2) witness had personal knowledge at former time
    • (3) writing was either made or adopted by the witness
    • (4) making or adopting occured while event fresh in W's memory, and
    • (5) W can vouch for accuracy of writing when made or adopted.

    Can be READ INTO evidence but NOT submitted as an exhibit. 
  37. IV.     WITNESSES
    A. Competency
    B. Dead Man's Statute
    C. Leading Questions
    D. Writings in Aid of Oral Testimony
    E. Opinion Testimony
    F. Cross-Exam
    G. Credibility and Impeachment
    H. Impeachment Methods
    I. Rehabilitation
    Lay & Expert Opinions + Ultimate Issue:

    • Lay Opinion: ADMISSIBLE if:
    • (1) rationally based on W's perception (personal knowledge), and
    • (2) opinion is helpful to jury in deciding a fact.

    • Expert Opinion ADMISSILBE if:
    • (1) Proper Qualifications (education and/or experience),
    • (2) Proper Subject Matter (scientific, technical, specialized knowledge that will be helpful to  jury in deciding a fact), and
    • (3) Basis of Opinion came from: 
    •      (i) personal knowledge [in which case they are actually testifying as a lay witness],
    •      (ii) other evidence admitted at trial, or
    •      (iii) facts outside the record if it is of a type resonably relied upon by experts in that field in forming their opinions.
    • (4) Standard: Expert's opinion must be based on a "resonable degree of probability" or "resonable certainty"
    • (5) Relevance & Reliability: Expert opinion must be relevant to the issue and hand and sufficiently reliable.
    • Court determines reliability: TRAP (Testing of methodology, Rate of error, Acceptance by other experts, Peer review).
    • (6) Treatsies:
    •      (i) On Direct of Party's Own W: relevant portions read into evidence as substantive evidence.
    •      (ii) On Cross of Opponent's W: relevant portions that contradict read into evidence as substantive evidence.
    •      (iii) May NOT be introduced as an exhibit 

    Ultimate Issue: Opinion testimony permissible even if addresses ultimate issue in case, but all requirements must be satisfied, including helpful to jury.
  38. IV.     WITNESSES
    A. Competency
    B. Dead Man's Statute
    C. Leading Questions
    D. Writings in Aid of Oral Testimony
    E. Opinion Testimony
    F. Cross-Exam
    G. Credibility and Impeachment
    H. Impeachment Methods
    I. Rehabilitation
    • Cross Exam:
    • Rule: Party has right to cross exam any opposing W who testifies at trial. 
    • Proper Subject Matter: (1) matters within scope of direct, AND (2) matters that test W's credibility.
  39. IV.     WITNESSES
    A. Competency
    B. Dead Man's Statute
    C. Leading Questions
    D. Writings in Aid of Oral Testimony
    E. Opinion Testimony
    F. Cross-Exam
    G. Credibility and Impeachment
    H. Impeachment Methods
    I. Rehabilitation
    Bolstering and Impeachment of One's Own Witness.

    • (1) Bolstering: Not allowed until credibility attacked. 
    • (2) Impeachment: Allowed without limitation.
  40. IV.     WITNESSES
    A. Competency
    B. Dead Man's Statute
    C. Leading Questions
    D. Writings in Aid of Oral Testimony
    E. Opinion Testimony
    F. Cross-Exam
    G. Credibility and Impeachment
    H. Impeachment Methods
         (1) Prior Inconsistent Statement
         (2) Bias
         (3) Sensory Deficiency
         (4) Bad Reputation/Opinion for Truthfulness
         (5) Criminal Convictions
         (6) Bad Acts reflecting on truthfulness
         (7) Contradiction 

    I. Rehabilitation
    • PIS:
    • Rule: Any W may be impeached if, on some prior occasion, W made material statement inconsistent with trial testimony.
    • Admissible for: impeachment purposes ONLY, NOT substantive evidence that statement is actually true.
    • Exceptions: (1) if PIS was made under oath, and (2) as part of a formal proceeding, hearing, trial, or depo, then comes in as SUBSTANTIVE evidence.
  41. H. Impeachment Methods
         (1) Prior Inconsistent Statement
         (2) Bias
         (3) Sensory Deficiency
         (4) Bad Reputation/Opinion forTruthfulness
         (5) Criminal Convictions
         (6) Bad Acts reflecting on truthfulness
         (7) Contradiction
    • Bias: Any fact that would give W reason to act favorably or unfavorably towards a party.
    • Procedure: W must be confronted about bias. If deny, then may introduce extrinsic evidence to prove bias.

    • Sensory Deficiencies: Anything potentially affecting a W's perception or memory. 
    • Procedure: Confrontation NOT required. Extrinsic evidence allowed to prove.
  42. H. Impeachment Methods
         (1) Prior Inconsistent Statement
         (2) Bias
         (3) Sensory Deficiency
         (4) Bad Reputation/Opinion forTruthfulness
         (5) Criminal Convictions
         (6) Bad Acts reflecting on truthfulness
         (7) Contradiction
    • Bad Rep/Opinion for Truth:
    • Any W subject to impeachment by this method.
    • Procedure: Confrontation NOT required. 
    • Extrinsic evidence allowed.
  43. H. Impeachment Methods
         (1) Prior Inconsistent Statement
         (2) Bias
         (3) Sensory Deficiency
         (4) Bad Reputation/Opinion forTruthfulness
         (5) Criminal Convictions
         (6) Bad Acts reflecting on truthfulness
         (7) Contradiction
    • Criminal Convictions:
    • (1) Conviction of ANY crime if truthfulness element of crime.
    •      - Court no discretion to exclude
    • (2) Conviction of FELONY ONLY for all other crimes not involving truthfulness.
    •      - Court disrection to exclude if probative value outweighed by unfair prejudice.
    • (3) Convictions of MISDEMEANORS NOT ALLOWED unless truthfulness element of crime.
    • SOL: Convictions must be w/in past 10 years.
    • Method: Confrontation OR extrinsic evidence.
  44. H. Impeachment Methods
         (1) Prior Inconsistent Statement
         (2) Bias
         (3) Sensory Deficiency
         (4) Bad Reputation/Opinion forTruthfulness
         (5) Criminal Convictions
         (6) Bad Acts reflecting on truthfulness
         (7) Contradiction
    • Bad Acts of Truthfulness: (cheating, lying, deceit) 
    • Method: Confrontation ONLY; NO extrinsic evidence.
    • Remeber: does not have to be a crime, any bad act of cheating, lying, deceit. If bad act does constitute a crime, charges do not have to br brought. 

    Contradiction: On cross (confrontation), may attempt to get W to admit lying or mistaken as to any fact testified to on direct. If admits, impeached by contradiction. If denies, the contradiction MAY, in the discretion of the court, be impeached by extrinsic evidence if it is MATERIAL. No extrinsic evidence for collateral matters.
  45. IV.     WITNESSES
    A. Competency
    B. Dead Man's Statute
    C. Leading Questions
    D. Writings in Aid of Oral Testimony
    E. Opinion Testimony
    F. Cross-Exam
    G. Credibility and Impeachment
    H. Impeachment Methods
    I. Rehabilitation
    • I. Rehabilitation
    • (1) Showing W's Character for Truthfulness
    •      When?  After truthfulness attacked
    •      How? Reputation or opinion
    • (2) Showing Prior Consistent Statement
    •      When? If W charged w/fabrication and PCS made prior to motive to fabricate.
    •      How? PCS comes in as substantive evidence that PCS & current consistent testimony is true.
  46. V.     PRIVILEGES
    A. Attorney-Client
         (1) Elements & Definitions
         (2) Waiver
         (3) Exceptions
    B. Physician-Patient
    C. Husband-Wife
    • Attorney-Client:
    • Purpose:  To encourage clients to speak openly to counsel. 
    • Elements: Privilege applies to:
    •   (1) confidential communications,
    •   (2) b/t attorney and client or representative of either,
    •   (3) made during professional legal consultation
    • UNLESS
    •   (1) Client waives
    •   (2) An Exception Applies

    • Confidential: Client must intend confidentiality.
    • Communications: N/A to underlying information, pre-existing documents or physical evidence. 
    • Attorney: Member of bar or any person client reasonably believes is member of bar.
    • Attny Rep: any agent resonably necessary to facilitate the provision of legal services.
    • Client: Including one seeking to become a client.
    • Client Rep: any agent reasonably necessary to facilitate the provision of legal services (corp employee) 
    • Prof Legal Consult: primary purpose of communication  must be to obtain or render legal services.
  47. V.     PRIVILEGES
    A. Attorney-Client     
    (1) Elements & Definitions   
    (2) Waiver     
    (3) Exceptions
    B. Physician-Patient
    C. Husband-Wife
    • Waiver: 
    • (1) Voluntary: Only client  has power to waive privilege. Continues after death.
    • (2) Subject Matter: A voluntary waiver of privi to some communications waives it to others if:
    •      (i)  partial disclousre is intentional,
    •      (ii) disclosed and undisclosed communications concern the same subject matter, and
    •      (iii) fairness requires the disclosed and undisclosed communications to be considered together.
    • (3) Inadvertent Waiver: Does NOT waive so long as privi-holder:
    •      (i) took reasonable steps to prevent disclosure, and
    •      (ii) takes resonable steps to correct the error.

    • Exceptions:
    • (1) Future or fraudulent criminal act,
    • (2) Client puts legal advice in issue, or
    • (3) Attorney/Client dispute
  48. V.     PRIVILEGES
    A. Attorney-Client     
    B. Physician-Patient
    C. Husband-Wife
    • Elements:
    • (1) Confidential communication or information acquired by a physician from patient (2) for purpose of diagnosis or treatment.
    • UNLESS patient puts physical/mental condition in issue.

    Note: Applies to anyone who treats (including social worker; doesn't have to be doctor), EXCEPT for federal court actions based solely on federal law; privy applies ONLY to psychotherapy.

    Remember: CREATURE OF STATE STATUTE
  49. V.     PRIVILEGES
    A. Attorney-Client     
    B. Physician-Patient
    C. Husband-Wife
         (1) Spousal Immunity
         (2) Confidential Communications
         (3) EXCEPTIONS  
    • Spousal Immunity:
    • Spouse cannot be compelled to testify against other spouse.
    • Criminal Cases Only.
    • Witness Spouse holds privilege (if W spouse wants to testify, make sure #2 doesn't apply). 
    • Statements or observations/Public or Private
    • Terminates upon divorce.

    • Confidential Communications:
    • Spouse NOT ALLOWED to disclose confidential communication.
    • Criminal or Civil Cases.
    • BOTH spouses hold privilege.
    • Statements or observations/Private ONLY
    • Survives divorce.

    • EXCEPTIONS
    • (1) Communications/Acts in furtherance of jointly-perpetuated future crime or fruad,
    • (2) Communications/Acts destructive of family unit,
    • (3) Litigation b/t spouses themselves
  50. VI.     HEARSAY
    A. Defined
    B. Non-Hearsay
    C. Prior Statements of Trial Witness
    D. Party Admissions
    E. Hearsay Exceptions
    • Hearsay: An out of court statement by a person (oral or written) offered to prove the truth of the matter asserted.
    • Rule: Hearsay is INADMISSIBLE UNLESS an exception or exlusion applies.
  51. VI.     HEARSAY
    A. Defined
    B. Non-Hearsay
    C. Prior Statements of Trial Witness
    D. Party Admissions
    E. Hearsay Exceptions
    • Non-Hearsay: Statements are NOT hearsay if they are offered for a reason OTHER THAN to prove the truth of the matter asserted.
    •   (1) Verbal Act (Legally Operative Words)
    •      - [legal rights/obligations attach simply b/c certain words are spoken, e.g. words of offer/acceptance, terms of patent/copyright, words of gift making, bribe, perjury, fraud, defamation, words accompanying AMBIGUOUS ACTS (D charged theft. D testifies "X handed me keys, said I could have car for weekend.")].
    •   (2) To Show Effect on Person Who Heard Words/Read Statement
    •      - [notice, motive, fear, GF belief]
    •   (3) Circumstantial Evidence of D's State of Mind

    DOES IT MATTER IF THE STATEMENT WAS TRUE? IF NO, NOT HEARSAY.
  52. VI.     HEARSAY
    A. Defined
    B. Non-Hearsay
    C. Prior Statements of Trial Witness
    D. Party Admissions
    E. Hearsay Exceptions
    • Rule: A witness's own prior statement, if offered to prove the truth of the matter asserted in the statement, is hearsay and inadmissible UNLESS exception or exclusion applies:
    • (1) W's prior statement of identification of a person,
    • (2) W's prior inconsistent statement IF oral, under oath, and made during formal trial, hearing, proceeding or depo,
    • (3) W's prior consistent statement IF being used to rebut accusation of fabrication, improper motive or influence.
  53. VI.     HEARSAY
    A. Defined
    B. Non-Hearsay
    C. Prior Statements of Trial Witness
    D. Party Admissions
    E. Hearsay Exceptions
    • Defined: any statement made by a party is admissible for its truth against that party. 
    • Adoptive Admission: If party expressly or impliedly adopts a statement made by another person, it is as if party made statement.
    • Adoption by Silence: If party remains silent when a reasonable person would protest if statement were false.
    • Vicarious Party Admission: Statement by employee/agent admissible against principal/employer if statement concerns matter w/in scope of employment and made DURING THE EXISTENCE of the agency/employment r-ship.
    • Co-Conspirator: Statement of co-conspirator admissible against party who was member of conspiracy if statement was made (1) during and (2) in furtherance of the conspiracy.
  54. VI.     HEARSAY
    A. Defined
    B. Non-Hearsay
    C. Prior Statements of Trial Witness
    D. Party Admissions
    E. Hearsay Exceptions
    • HEARSAY EXCEPTIONS:
    • (1) Forfeiture by wrongdoing
    • (2) Former Testimony
    • (3) Statement Against Interest
    • (4) Dying Declaration
    • (5) Excited Utterance
    • (6) Present Sense Impression
    • (7) Present State of Mind
    • (8) Declaration of Intent
    • (9) Present Physical Condition
    • (10) Statement for Purpose of Med Tx/Dx
    • (11) Business Records
    • (12) Public Records

    • FW
    • FT
    • AI
    • DD
    • DI
    • EU
    • PSI
    • PSM
    • PPC
    • MT
    • BR
    • PR
  55. HEARSAY EXCEPTIONS:
    6A Considerations
    (1) Forfeiture by wrongdoing
    (2) Former Testimony
    (3) Statement Against Interest
    (4) Dying Declaration
    (5) Excited Utterance
    (6) Present Sense Impression
    (7) Present State of Mind
    (8) Declaration of Intent
    (9) Present Physical Condition
    (10) Statement for Purpose of Med Tx/Dx
    (11) Business Records
    (12) Public Records
    • Notes:
    • 6A right to confrontation: P may NOT use non-hearsay or hearsay within an exception IF:
    • (1) the statement is testimonial
    • (2) the declarant is unavilable, and
    • (3) the defendant has had no opportuinty for cross examination.

    • Testimonial: Actual testimony or the functional equivalent. 
    • Examples: grandy jury testimony; statements in response to police interrogation if questioning to prove/establish past events potentially relevant to later criminal prosecution, BUT NOT TESTIMONIAL if questioning to enable police assisntance to meet ongoing emergency; forensice lab reports; police reports prepared for prosecutorial purposes; business records NOT TESTIMONIAL.
  56. HEARSAY EXCEPTIONS:
    (1) Forfeiture by wrongdoing
    (2) Former Testimony
    (3) Statement Against Interest
    (4) Dying Declaration
    (5) Excited Utterance
    (6) Present Sense Impression
    (7) Present State of Mind
    (8) Declaration of Intent
    (9) Present Physical Condition
    (10) Statement for Purpose of Med Tx/Dx
    (11) Business Records
    (12) Public Records
    • FW:
    • Any hearsay admissible against defendant whose wrongdoing made the W unavailable if court finds:
    • (1) preponderance of evidence (2) defendant's conduct was specifically designed to prevent W from testifying. 
  57. HEARSAY EXCEPTIONS:
    (1) Forfeiture by wrongdoing
    (2) Former Testimony
    (3) Statement Against Interest
    (4) Dying Declaration
    (5) Excited Utterance
    (6) Present Sense Impression
    (7) Present State of Mind
    (8) Declaration of Intent
    (9) Present Physical Condition
    (10) Statement for Purpose of Med Tx/Dx
    (11) Business Records
    (12) Public Records
    • FT:
    • Former testimony of now-unavilable W, if given at former proceeding/depo, admissible against a party who had an opportuinty to cross exam.
    •  - Issue in both proceedings must essentially be the same.

    • Unavailability:
    • (1) Privilege
    • (2) Absent from Jurisdiciton
    • (3) illness or death
    • (4) lack of memory
    • (5) stubborn refusal to testify 
  58. HEARSAY EXCEPTIONS:
    (1) Forfeiture by wrongdoing
    (2) Former Testimony
    (3) Statement Against Interest
    (4) Dying Declaration
    (5) Excited Utterance
    (6) Present Sense Impression
    (7) Present State of Mind
    (8) Declaration of Intent
    (9) Present Physical Condition
    (10) Statement for Purpose of Med Tx/Dx
    (11) Business Records
    (12) Public Records
    • An unavailable declarant's statement against his own interest is ADMISSIBLE:
    • (1) pecuinary interest,
    • (2) proprietary interest (property), or
    • (3) penal interest*
    • *Must be supported by trustworthiness of statement. Need corroborating evidence that statement was true. 

    [Differs from party admissions: must be against interest when made, any person [not just party], personal knowledge required, and declarant must be unavailable].
  59. HEARSAY EXCEPTIONS:
    (1) Forfeiture by wrongdoing
    (2) Former Testimony
    (3) Statement Against Interest
    (4) Dying Declaration
    (5) Excited Utterance
    (6) Present Sense Impression
    (7) Present State of Mind
    (8) Declaration of Intent
    (9) Present Physical Condition
    (10) Statement for Purpose of Med Tx/Dx
    (11) Business Records
    (12) Public Records
    • Defined: statement made under belief of impending death by a now-unavailable declarant concerning the cause or surrounding circumstances of death.
    • Applies in:
    • (1) Criminal: HOMICIDE CASES ONLY 
    • (2) Civil: Any 
  60. HEARSAY EXCEPTIONS:
    (1) Forfeiture by wrongdoing
    (2) Former Testimony
    (3) Statement Against Interest
    (4) Dying Declaration
    (5) Excited Utterance
    (6) Present Sense Impression
    (7) Present State of Mind
    (8) Declaration of Intent
    (9) Present Physical Condition
    (10) Statement for Purpose of Med Tx/Dx
    (11) Business Records
    (12) Public Records
    • Defined: statement concerning a startling event and made while declarant still under stress of excitement caused by event.
    • Factors:
    • (1) nature of the event
    • (2) passage of time
    • (3) vidual clues (exclamatory phrase, excitement-oriented verb and exclamation point!) 
  61. HEARSAY EXCEPTIONS:
    (1) Forfeiture by wrongdoing
    (2) Former Testimony
    (3) Statement Against Interest
    (4) Dying Declaration
    (5) Excited Utterance
    (6) Present Sense Impression
    (7) Present State of Mind
    (8) Declaration of Intent
    (9) Present Physical Condition
    (10) Statement for Purpose of Med Tx/Dx
    (11) Business Records
    (12) Public Records
    • Present Sense Impression:
    • Defined: description of an event made while the event is occurring or immediately thereafter.

    • Present State of Mind:
    • Defined: Contemporaneous statement concerning declarant's present state of mind, feelings or emotions.
  62. HEARSAY EXCEPTIONS:
    (1) Forfeiture by wrongdoing
    (2) Former Testimony
    (3) Statement Against Interest
    (4) Dying Declaration
    (5) Excited Utterance
    (6) Present Sense Impression
    (7) Present State of Mind
    (8) Declaration of Intent
    (9) Present Physical Condition
    (10) Statement for Purpose of Med Tx/Dx
    (11) Business Records
    (12) Public Records
    • Declaration of Intent:
    • Defined: Statement of declarant's intent to do something in the future, including the intent to engage in conduct with another person.

    • Present Physical Condition:
    • Defined: Statement made to anyone about declarant's current physical condition.
  63. HEARSAY EXCEPTIONS:
    (1) Forfeiture by wrongdoing
    (2) Former Testimony
    (3) Statement Against Interest
    (4) Dying Declaration
    (5) Excited Utterance
    (6) Present Sense Impression
    (7) Present State of Mind
    (8) Declaration of Intent
    (9) Present Physical Condition
    (10) Statement for Purpose of Med Tx/Dx
    (11) Business Records
    (12) Public Records
    • Med Tx:
    • Defined: Statement made to anyone (usually medical personnel) concerning declarant's present or past symptoms, or general cause of condition, IF made for purpose of obtaining medical treatment or diagnosis.

    Remember: Does NOT include statements by medical personnel to declarant. Must be for the purpose of obtaining tx/dx.
  64. HEARSAY EXCEPTIONS:
    (1) Forfeiture by wrongdoing
    (2) Former Testimony
    (3) Statement Against Interest
    (4) Dying Declaration
    (5) Excited Utterance
    (6) Present Sense Impression
    (7) Present State of Mind
    (8) Declaration of Intent
    (9) Present Physical Condition
    (10) Statement for Purpose of Med Tx/Dx
    (11) Business Records
    (12) Public Records
    • Elements:
    • (1) records of a business
    • (2) made in the regular course of business
    • (3) that the business regularly keeps
    • (4) made contemporaneously (at or about the time of the event recorded), and 
    • (5) contents consist of either:
    •      (i) info observed by employees, or
    •      (ii) a statement that falls within an independent hearsay exception.
    • [info must come from co-employee b/c of reliaiblity concerns UNLESS the statement falls within another exception]. 
  65. HEARSAY EXCEPTIONS:
    (1) Forfeiture by wrongdoing
    (2) Former Testimony
    (3) Statement Against Interest
    (4) Dying Declaration
    (5) Excited Utterance
    (6) Present Sense Impression
    (7) Present State of Mind
    (8) Declaration of Intent
    (9) Present Physical Condition
    (10) Statement for Purpose of Med Tx/Dx
    (11) Business Records
    (12) Public Records
    (13) Impeachment of Hearsay Declarant 
    • Records of a public office or agency setting forth:
    • (1) the activities of the office or agency,
    • (2) matters observed pursuant to a duty imposed by law, or
    • (3) findings of fact or opinion resulting from an investigation authoirzed by law
    • EXCEPT:
    • Police reports prepared for prosecutorial purposes.  
  66. HEARSAY EXCEPTIONS:
    (1) Forfeiture by wrongdoing
    (2) Former Testimony
    (3) Statement Against Interest
    (4) Dying Declaration
    (5) Excited Utterance
    (6) Present Sense Impression
    (7) Present State of Mind
    (8) Declaration of Intent
    (9) Present Physical Condition
    (10) Statement for Purpose of Med Tx/Dx
    (11) Business Records
    (12) Public Records
    (13) Impeachment of Hearsay Declarant  
    Any impeachment method may be used to attack the credibility of a hearsay declarant whose statement was admitted.

    Ex: Shooter trial for murder Victim. V tells Nurse "I feel pretty good condering Shooter tried to kill me." Next day, V tells Visitor "I'm about to die, Shooter shot me." V died.

    • (a) Victim's statement to Visitor admissible? Yes, as dying declaration.
    • (b)  Victim's statement to Nurse admissible? Not as substantive evidence but MAY come in as impeachment (PIS) to discredit victim's credibility. 

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