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Rule 801(d) defines what is not hearsay:
801(d)(1): A Declarant Witness' Prior Statement
801(d)(2): An Opposing Party's Statement
A Declarant Witness' Prior Statement
- The declarant testifies;
- Is subject to cross about a prior statement;
- and the statement is:
- Prior Inconsistent Statements
- 1) Inconsistent with a declarant's testimony
- 2) given under penalty of perjury
- 3) at trial, hearing, or deposition; or
- Prior Consistent Statements
- 1) Consistent with the declarant's testimony and
- 2) offered to rebut allegation of fabrication, improper influence, or motive to testify
*Only statements made before the motive to falsify can be used to rebut
An Opposing Party's Statement
Offered by an opponent and the statement was:
- made by the party
- manifested the adoption or belief that the statement is true
- made by a person authorized by the party to make the statement (i.e. hospitals release record to insurance) (interpreters)
- made by the party's representative or employee in the scope of the relationship while it existed
- made by the party's co-conspirator during and in furtherance of the conspiracy
*CanNOT be bootstrapped. Must have corroborating evidence of the conspiracy
A hearsay statement containing one or more other hearsay statements requires an exception for each hearsay statement.
803 and 804
Hearsay Exception: Present Sense Impression
A statement describing or explaining an event WHILE perceiving it
*If declarant states, "I am here," is not a present sense impression as they could already have experienced it. Would have to be "I just got here."
Hearsay Exception: Excited Utterance
A statement about a startling event made while under the stress or excitement of the startling event.
- *Look for exclamation points
- *Look for timing: Is there enough time to consider self-interest?
- *Some/Some. Bootstrapping allowed under federal rules. In other jurisdictions, not allowed.
Hearsay Exception: State of Mind
A statement expressing an existing mental/emotional/physical condition (including intent to do something)
*Cannot be used to prove an outside fact
Hearsay Exception: Medical Diagnosis or Tx
Statement is made for and reasonably pertinent to medical diagnosis or treatment and describes medical history, symptoms, their inception, or general cause.
*CanNOT be used to find fault (identity) unless in sexual abuse of a minor.
Hearsay Exception: Recorded Recollection
A record about a matter the witness once knew but cannot recall;
Was made or adopted by the witness while still fresh in their memory;
And accurately reflects the witness' knowledge
*Can only be read into the record
Hearsay Exception: Business Records
A record that was made at or near the time, by or from one with personal knowledge and a business duty to be accurate.
The record was kept in the course of regularly conducted business, and making the record was a regular practice of that activity and established by a qualified witness or certificate; but can be excluded if circumstances indicate it is untrustworthy.
*Indicators of untrustworthiness: Who it is offered by, whether it was made for litigation, or if it self-serving.
*If from 3rd party, need to meet double hearsay.
Hearsay Exception: Absence of Business Records
Evidence that is admitted to prove that the matter did not occur/exist and a record was regularly kept for a matter of that kind; Neither the possible source or other circumstances indicate untrustworthiness.
Hearsay Exception: Public Recors
A record or statement of public office if it sets out:
The office's activities; or
a matter observed while under a legal duty to report; or
*Dos not apply to police reports if a criminal case.
Offered in a civil case or against the Gov't in a criminal case factual findings from legally authorized investigation, and does not indicate untrustworthiness.
*If the record cannot get in under business record, cannot use in public records.
Hearsay Exception: Statements in Ancient Documents
Statement or document that is at least 20 years old and whose authenticity has been established
Hearsay Exception: Reputation Concerning Character
A reputation among a person's associates or community concerning the person's character.
Hearsay Exception: Judgment of a Previous Conviction
Final judgment entered after a plea/trial. NOT nolo contender.
Felony admitted to prove an essential fact of the action, and the judgment was against the defendant if offered by prosecutor in a criminal case for reason other than impeachment.
Hearsay Exceptions: Unavailable Declarant
Criteria for being unavailable
- Declarant is privileged.
- Declarant refuses to testify despite a court order.
- Declarant cannot remember.
- Death/present infirmity/physical and mental illness.
- Declarant was not able to be in attendance due to the proponent's reasonable means to procure their attendance or testimony.
Former Testimony 804(b)(1)
Dying Declarations 804(b)(2)
Statements Against Interest 804(b)(3)
Statement Against Party that Caused Absence 804(b)(6)
Unavailable Declarant Hearsay Exception: Former Testimony
Where witness is unavailable; and testimony was given at a trail/hearing/deposition; and offered against a party (or another person with the same interest) who had opportunity to develop by direct, redirect, or cross exam; and
Civil Case: Other person must be in privity to the current action (majority) or any party with similar interest and motive (minority)
Criminal Case: Other party must be a party
Unavailable Declarant Hearsay Exception: Dying Declarations
In a homicide or civil case where declarant believes death is imminent makes a statement about tits cause or circumstances.
Unavailable Declarant Hearsay Exception: Statements Against Interest
A statement made so that a reasonable person in the declarant's position would have made only if the person believed it to be true because it was so contrary to the declarant's proprietary or pecuniary interest, or had a great tendency to invalidate the declarant's claim against someone else; or to expose the declarant to civil/criminal liability, and is supported by surrounding circumstances if offered in a criminal case where declarant is exposed to criminal liability.
Unavailable Declarant Hearsay Exception: Statement Against Party that Caused Absence
Statement against a party that wrongfully caused the declarant's unavailability and intended the result.
404(a)(1) Character Evidence
Excludes character evidence used to prove a person acted consistently with that character trait on a particular occasion.
Exceptions: Criminal Case and Witness
Character Evidence Criminal Case Exceptions
A defendant may offer character evidence of his pertinent trait. Prosecutor can then rebut.
A defendant may offer character evidence of a victim's pertinent trait. Allows prosecutor to rebut, and attack same trait of defendant.
In a homicide case, prosecutor can offer evidence of victim's peacefulness to rebut evidence that victim was a first aggressor.
Character Evidence Witness Exceptions
Witness exceptions under 607, 608, 609.
Character Evidence Witness Exception: Impeachment
Any party may attack the witness' credibility.
There are 6 ways to impeach a witness:
- 1) Contradictory Evidence
- 2) Physical Characteristics (i.e. drunk, impaired vision, impaired hearing)
- 3) Psychological characteristics
- 4) With the witness' own inconsistency
- 5) Bias
- 6) Showing witness is a liar
Character Evidence Witness Exception: Truthfulness/Untruthfulness
- Reputation or Opinion Evidence 608(a)
- A witness' truthfulness/untruthfulness can be attacked by reputation or opinion. However, evidence as to truthfulness is admissible only after truthfulness has been attacked.
- Specific Instances of Conduct 608(b)
- Except for 609, extrinsic evidence of specific instances is not admissible to attack a witness' character for truthfulness.
Specific instances can be inquired into on cross.
Character Evidence Witness Exception: Evid of Criminal Conviction
In general . . .
If a felony crime: must be admitted in a criminal or civil case where witness is not a defendant subject to Rule 403 or
In a criminal case where witness is a defendant if probative value outweighs prejudicial effect to defendant
Any crime involving a dishonest act or false statement
Mode of Examining Witnesses and Presenting Evidence
Leading questions are prohibited under direct examination, but not on cross against a hostile witness/adverse party/adverse witness
Witness' Prior Statement
Extrinsic evidence of a prior inconsistent statement is only admissible if
The witness is first given an opportunity to explain or deny the statement;
If justice so requires;
Or party admission.
Character Evidence: Crimes Wrongs, or Other Acts
404(b)(1) excludes evidence of a crime, wrong, or other act that shows character offered to prove the person in accordance with such character.
- 404(b)(2) evidence of a crime, wrong, or other act may be admissible to prove:
- - motive
- - opportunity
- - intent
- - preparation
- - plan
- - knowledge
- - identity
- - absence of mistake
- - lack of incident
d404(b)(2)(A) must give notice
Character Evidence: Methods of Proving Character
- By Reputation or Opinion 405(a)
- If evidence meets 404, character evidence can be offered in the form of reputation or opinion. On cross, inquiry into specific acts is permitted.
- By specific Instances of Conduct 405(b)When character is essential to the element of a charge or defense, evidence of specific instances can be used.
Evidence of Habit
Evidence of a habit to prove conduct is admissible.
Turns on whether the act is one's regular response to repeated specific situation.
Sex Offense Cases: Victim's Sexual Behavior
- Prohibited Uses 412(a)Evidence offered to prove the victim engaged in other sexual behavior.
Evidence that shows a victim's sexual pre-disposition.
- Exceptions 412(b) Criminal Cases
- Evidence of specific instances of victim's sexual behavior is offered to prove someone other than the defendant was the source of the semen/injury/or other physical evidence.
Evidence of specific instances of victim's sexual behavior with respect to the accused if offered to prove consent; or if offered by the prosecutor and exclusion would violate the defendant's constitutional rights.
- Civil Cases
- Evidence of victim's sexual behavior or predisposition admitted if the probative value substantially outweighs the danger of harm to any victim and of unfair prejudice.
Evidence of victim's sexual reputation if the victim places it in controversy.
Similar Crimes in Sexual Assault Cases
- Permitted Uses 413(a)
- In criminal cases of sexual assault evidence that the defendant committed any other sexual assault can be admitted.
- Definition of Sexual Assault 413(b)
- Contact with the genitals of another without consent.
Contact of the defendant's genitals with the body of another person without consent.
Deriving sexual pleasure by inflicting pain/bodily injury/physical pain.
Similar Crimes in Child-Molestation Cases
- Permitted Uses 414(a)
- In criminal cases of child molestation, evidence of any prior act of child molestation may be admitted.
- Definition of child molestation 414(d)
- Child means any child under the age of 14.
- Child molestation means:
- Contact between the defendant and the child's genitals; Contact between the child and the defendant's genitals; Deriving sexual pleasure from inflicting pain/bodily injury/physical pain.
Evidence of Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation
- Permitted Uses 415(a)
- In civil cases involving a claim based on sexual assault or child molestation, evidence of prior sexual assault/child molestation instances can be admitted.
Privileges in General
Privileges are governed by common law unless any of the following provide otherwise:
- U.S. Constitution
- a federal statute
- rules prescribed by SCOTUS
But in a civil case state law governs privilege regarding a claim or defense for which state law supplies the rule of decision
Attorney Client Privilege
The holder of the privilege is a client or prospective.
The person whom the communication was made to is a member of the board of the court or in connection with this communication is acting as a lawyer.
The communication relates to a fact of which his/her attorney was informed by his client, without the presence of strangers, for the purpose of securing an opinion of the law, legal services, or assistance in some legal proceedings.
The information was not pre-existing to the communication.
The privilege is claimed and not waived.
The information was not for crime or fraud
United States v. Woodruff
Crime Fraud Exception to Privilege
If the client's purpose was for consultation to commit or continue a crime, or if the client acts on advice to engage in or assist a crime or fraud, privilege is waived.
Clark v. State
In Camera Review
United States v. Zolin
For in camera review, the gov't must show:
There are non-privileged facts that would lead a reasonable person to believe the crime-fraud exception may be applicable.
Advice on how to non-frivolously challenge a law is not covered under the crime-fraud exception. (reasonable belief that the law is invalid)
Control Group Theory
Majority (Upjohn v. United States - not part of the fed common law)
If employee is ordered to communicate and the purpose is for the corporation to get info to a lawyer for legal advice, and the employee is told it is confidential/otherwise known to be confidential; and the subject matter of the communication is within the scope of the employee's employment, then it falls under the privilege.
Necessary subordinates to lawyers are covered under the privilege.
City of County of San Francisco v. Superior Court
Attorney Client Privilege and Work Product
502(b) Inadvertent Disclosure
The disclosure is not a waiver if the disclosure is inadvertent; the holder of the privilege took reasonable steps to prevent the disclosure; and the holder promptly took reasonable steps to rectify the error.
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