PA: Evidence

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Author:
benlaw
ID:
27115
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PA: Evidence
Updated:
2010-07-23 08:58:37
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Evid
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evid
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  1. Relevance (Exclusion)
    GEN: Like the federal rule, relevance means any tendency to prove a fact that was more or less likely to have existed and is pertinent to the case.

    • EXCLUSION:
    • PA: Unfair prejudice must MERELY outweigh probative value.
    • FED: Unfair prejudice must substantially outweigh prob value.
    • >> Prejudice includes: confusion, misleading, delay, waste, cumulative.
  2. Character and Unrelated Acts
    (Defendant's Character to Show Conduct, Crim Cases)
    • PA: Reputation only.
    • FED: Rep and opinion.
  3. Character and Unrelated Acts
    (Victim's Character to Show Conduct, Crim Cases)
    • PA: Reputation only.
    • >> AND: Defendant may offer specific instances of victim's violence known to the defendant.

    FED: Opinion and reputation.
  4. Character and Unrelated Acts
    (Character to Show Conduct, CIVIL)
    • PA: Generally inadmissible UNLESS civil assault or battery cases.
    • >> D can offer witnesses to testify that P has a reputation for violence.

    FED: Inadmissible (gen).
  5. Character and Unrelated Acts
    (Cross Examining Character)
    PA: Only convictions

    FED: Convictions, arrests, acts.
  6. Character and Unrelated Acts
    (Balancing Test for Other Crimes, Wrongs, Acts)
    PA: Presumptively inadmissible -- prosecution must show more probative than prejud.

    FED: Presumptively admissible -- defendant must show unfair prejud substantially outweighs probative value.
  7. Character: Sex Crimes Evidence
    • Sexual Conduct -- CRIM CASES
    • PA: Presumptively inadmissible unless P can show more probative than prejudicial.

    • FED: Testimony re: specific instances of sexual misconduct presumptively admissible IF relevant.
    • >> Opinion/reputation not admissible.
    • Sexual Conduct -- CIV CASES
    • PA: Presumptively inadmissible unless P can show more probative than prejudicial.

    FED: Evidence of sexual disposition of victim admissible only if probative value substantially outweighs prej.
  8. Ancient Docs
    PA: 30 yrs.

    FED: 20 yrs.
  9. Competence: Disqualifiers
    • PA: Everyone competent unless disqualified by a COMP
    • C: Communication -- if you cannot communicate effectively (be understood)
    • O: Obligation to tell the truth -- if cannot suff. understand the obligation to tell the truth of the consequence of lying.
    • M: Memory impairment.
    • P: Perception problem -- incapable of perceiving.


    • FED: Every person is competent to be a witness except as otherwise provided -- must take oath/affirmation, and must have PK.
    • >> KEY: Testimony will be helpful.
  10. Competence: Dead Man's Statute
    • GEN REQS:
    • (1) The case is CIVIL.
    • (2) W has direct stake in the outcome.
    • (3) W testifying for his interest.
    • (4) W testifying against the decedent or decedent's rep.

    • PA:
    • (4) Subject matter extends to all pre-death events.
    • (5) Ask: has there been a waiver?
    • >> In PA: right may be waived by introducing a deposition of the deceased or a cross-examination of the witness on pre-death events.

    FED: Waiver if decedant's testimony gets before the jury.
  11. Scope of Cross of Parties
    PA: Any relevant matter.

    FED: Scope of direct.
  12. Expert Opinion Testimony
    • GEN (PA): Expert testimony must be based on sceintific, technical or other specialized knowledge -- beyond that possessed by a lay person -- which will assist the trier of fact.
    • >> Novel areas of science: require general acceptance.

    • NOTES:
    • (1) Standard of novel scientific/tech acceptance: general acceptance.
    • (2) Experts permitted only when necessary -- beyond reservoir of lay person's knowledge.
    • >> Eyewitness ID: no
    • >> Revived memories: no
    • >> Child sex abuse and rap trauma: no.
    • >> Battered child/spouse syndrome: yes.
    • >> Prof. Neglect/malpractice: yes.
    • >> Product/design defect: yes.
    • (3) All evidence upon which an expert relies is admissible -- and must be disclosed (forms basis of opinion).
    • (4) Expert can testify re: mental state of accused.

    • FED:
    • (1) Standard of scientific/tech acceptance: reliability.
    • (2) Scientific, technical or other specialized knowledge.
    • (3) Expert testimony permitted when it assists the trier of fact.
    • (4) Underlying basis info -- must show admissible, or that prob outweighs prej.
    • (5) Underlying basis testimony is discretionary -- all, some, none.
    • (6) Expert can only testify re: sanity; NOT mental state.
  13. Expert Testimony (Learned Treaties)
    PA: Admitted for impeachment only.

    • FED: Impeachment AND substantive purposes.
    • >> Once established as authoritative!
    • (1) Opposing expert relies on text(s).
    • (2) Eliciting admission on cross -- familiar, authoritative.
    • (3) Own expert states they are authoritative or reliable.
    • (4) Judicial notice.
  14. Credibility: Impeachment
    (Prior Inconsistent Statement)
    • PA: Actual statement must be presented to witness -- stated if oral, shown if written.
    • >> Admissible as substantive evidence IF:
    • >>>> (1) Under oath;
    • >>>> (2) Signed and adopted by the witness;
    • >>>> (3) Witness words on tape (contemp audio/vis recording).

    • FED: Statement need not be shown to the witness.
    • >> Admissible as substantive evidence IF:
    • >>>> (1) Under oath and subject to perjury.
  15. Credibility: Impeachment
    (Prior Convictions)
    • Types of Convictions
    • PA: Only convictions re: false statements or dishonesty.
    • FED: Crimes punishable by more than a year or involving FS or D.

    • Impeachment of the Accused
    • PA:
    • >> Unsentenced Convictions -- only where claim of bias/motive.
    • >> Sentenced Convictions -- generally only be extrinsic evidence (offering rap sheet into evidence)
    • >>>> May cross examine on convictions only IF:
    • >>>>>> D refers to conviction on direct;
    • >>>>>> D offers testimony about his char; OR
    • >>>>>> D offers testimony re: character of co-D.

    NOTE: D does not waive error by not testifying or by disclosing a conviction if he properly objects in advance.

    FED: Can ask directly about criminal record.
  16. Credibility: Impeachment
    (Juvenile Record -- Convictions)
    • PA: Presumptively admissible against accused and all witnesses.
    • >> As long as it could have been used against an adult.
    • FEDInadmissible.
  17. Credibility: Impeachment
    (Prior Acts of Untruthfulness)
    • PA: No, unless acts resulted in convictions
    • FED: Admissible.
  18. Credibility: Impeachment
    (Prior Identifications)
    PA: Witness must be subject to cross at trial AND be testifying about making the identification.

    FED: Witness must simply be subject to cross.
  19. Plain Error Rule (review on appeal without objection)
    • PA: None.
    • FED: Yes.
  20. Hearsay: Dying Declarations
    • PA: All cases.
    • FED: Civil and homicide cases
  21. Hearsay: Biz Records
    • PA: Two distinctions --
    • (1) No opinions/diagnoses w/o opportunity to cross.
    • (2) No accident reports in CIVIL cases.

    FED: Can have diagnosis and analysis without the opinion-maker testifying.
  22. Hearsay: Statements Made for Med. Diagnosis/Treatment
    • PA:
    • (1) Statements made in contemplation of treatment -- Admissible.
    • (2) Statements made to consulting physicians -- Excluded.

    NOTE: Statements made to independent medical examiners excluded under this rule, BUT may come in as party admissions.
  23. Hearsay: Tender Years Exception (Civ/Crim)
    • PA: Admissible if --
    • (1) Judge finds statement reliable;
    • (2) Child must testify OR judge must find child unavailable in adversarial hearing (psych unavailable); AND
    • (3) Notice of intent to use statement must be given to P and court.
  24. Hearsay: Catch-all Exception
    • PA: None.
    • FED: Statement more reliable than any other statement regarding a particular fact -- then may come in.
  25. Privilege: Atty-Client
    PA: Confidential communications between client and lawyer (or his agent) wrt rep/advice.

    Not Privileged: Observations, identity, fees, pre-relationship info, statements made in presence of a third party that's not an agent of the lawyer.

    Exceptions: fraud, illegality.
  26. Privileges: Physician-Patient
    • PA: Applies only in civil cases to communications which would tend to BLACKEN the character of the patient.
    • >> NOTE: Comm. about alcoholism or mental illness are NOT protected, while statements about HIV are privileged.

    NOT PRIV: Doc observations and opinions not based on comm, court ordered examinations, where P is a litigant.
  27. Privileges: Spousal Communications (Confid. Comm)
    • PA: both parties hold the privilege and it must be waived by both parties.
    • >> Applies: civil and crim cases. Survives death/divorce.
    • >> Exception: spousal or child acuse, comm in furtherance of a crim.
  28. Privileges: Spousal Immunity/Competency
    • PA:
    • >> CIV: Spouses at the time of trial are incompetent to testify against each other.
    • >>>> Cannot be waived unless divorce, support, custody, ect.
    • >> CRIM: Competency may be waived by testifying spouse.
    • >>>> Exceptions: Prosecutor can force spouse to testify re: abuse, rape, murder, ect.

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