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  1. Roles of Judge and Jury
    • The judge is the trier of law. She determines what evidence the jury can weigh and evaluate, the competency of a witness and evidence, witness qualifications and applicable immunities.
    • The jury is the trier of fact. They determine the weight and credibility assigned to the evidence before them.
  2. Challenging an evidentiary ruling
    • An evidentiary ruling may be challenged as erroneous if (1) the error affects a substantial right of the party and (2) the party notifies the judge of the error.
    • Once a definitive ruling is made by the judge, there is no need to renew the objection and it is preserved on appeal.
  3. Objection/Motion to strike –
    When evidence comes in. Counsel provides specific grounds for the objection.
  4. Offer of proof
    When evidence is excluded. Counsel must preserve the potential evidence for an appellate court by explaining relevance and admissibility.
  5. Plain error doctrine
    • Applies when an attorney did not object to evidence.
    • (1) Error must be so obvious that objection is not necessary, and (2) a substantial right is affected.
  6. Rule of Completeness
    • An adverse party may compel the introduction of an omitted portion of the writing or statement based upon fairness.
    • Opposing counsel can wait until cross to bring in the omitted portion.
  7. Judicial Notice
    • The court’s acceptance of a fact as true without requiring formal proof.
    • Must be adjudicative facts, not legislative facts. Adjudicative facts are facts not subject to reasonable dispute because they are generally known or can readily accurately be determined from a source whose accuracy cannot be disputed. (Accurate, readily determinable).
    • A judge can take judicial notice at the request of an attorney or sua sponte.
  8. Procedure for judicial notice
    • A party can ask a court to judicially notice a fact at any time during the trial or on appeal, except that a criminal defendant cannot request judicial notice for the first time on appeal.
    • Court must take judicial notice if requested or necessary information is given to the court.
    • Opposing party has the right to object and be heard.
  9. Effect of judicial notice
    • Civil: juries must accept the fact as true.
    • Criminal: juries may choose to accept the fact as true.
  10. Trial process
    Prosecution/plaintiff presents case, then defendant presents case, then plaintiff/prosecution gets rebuttal witnesses. Court may question or call a witness sua sponte.
  11. Mode of examination
    • Direct examination must be relevant. Generally, leading questions are forbidden. MD: any relevant matters – very broad.
    • Cross-examination is limited to the scope of the direct examination, and the witness’ credibility (always at issue). No waiver of 5th Amendment right by answering preliminary questions.
    • Leading questions suggest the answer in the question. Forbidden on direct except for foundational questions, witnesses with trouble communicating (child) or an adverse/hostile witness. No issue with leading questions on cross.
  12. Impermissible types of examination
    • Compound questions require multiple answers.
    • Questions that assume facts not in evidence
    • Argumentative questions are intended to provoke an argument
    • Questions that call for a conclusion or opinion that the witness is not qualified to give - (lay witness giving expert opinion).
    • Repetitive questions which have been asked and answered are generally impermissible, but may be permitted by the court.
  13. Witness exclusion
    • Witnesses shall be excluded or sequestered on motion of a party or sua sponte to prevent contamination.
    • A criminal party, an officer of corporation, an expert witness and victims may not be excluded.
  14. Burden of production
    • Prima facie case.
    • A party has a burden to present enough evidence that a trier of could infer that each fact had been proved.
    • Criminal cases –- LOVOID – location, offense, venue, identification of defendant and date of alleged crime must be proven before the defense goes. It prosecution fails on any one, case is over.
  15. Standard of proof.
    • Degree to which legally sufficient evidence must be presented.
    • Civil case – preponderance of the evidence, more likely than not, except for fraud, which is clear and convincing evidence.
    • Criminal case – beyond a reasonable doubt.
  16. Presumptions
    • Presumptions must be accepted by the court unless there is a reasonable why they are not.
    • Rebuttable presumptions may be overcome if contrary evidence is presented. Shifts burden of production to opposing party, but not burden of persuasion.
    • Irrebuttable presumptions may not be challenged.
  17. Relevance
    • All evidence is relevant except when excluded by rule, law, or constitution.
    • Relevant evidence is probative and material.
    • Probative evidence has the tendency to make a fact more or less probable in the absence of that fact.
    • Material evidence is something of consequence in determining the action.
  18. Sufficiency of Evidence
    • Evidence need not prove a single element but may build with other evidence to prove an element
    • Direct evidence is evidence that is identical to the factual proposition that it is offered to prove.
    • Circumstantial evidence indirectly proves a factual proposition through inference.
  19. Rule 403
    Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of (1) unfair prejudice, (2) confusion of issues, (3) misleading the jury, (4) undue delay or (5) needless presentation of cumulative evidence. Must be substantial.
  20. Cure for admission of irrelevant evidence
    If irrelevant evidence is admitted, the court may allow other irrelevant evidence to cure the prior irrelevant evidence.
  21. Proper foundation
    The proper foundation must be laid for relevant evidence, and failure to lay proper foundation may be objected to.
  22. Character Evidence - Generally
    Generally, general information about a person’s character is not admissible to prove conduct in conformity with that character.
  23. Character Evidence - Civil case
    In civil cases, no party may not admit character evidence, except where (1) character is an essential element of the claim or defense or (2) character is at issue.
  24. Character Evidence - Criminal case
    • In criminal cases, the prosecution cannot introduce character evidence.
    • In criminal cases, the defendant may present positive character evidence to show that it is inconsistent with the type of crime being charged.
    • Must be pertinent to the crime charged.
    • Must be evidence of reputation in the community or opinion testimony which relates to the same character trait.
    • Once the defendant introduces evidence of his good character, the door has been opened for the prosecution to introduce evidence of the defendant's bad character
  25. Character Evidence - the Victim
    • In criminal cases, a criminal defendant may introduce evidence of the victim’s character that is relevant to one of the defenses asserted.
    • This evidence may be opinion or reputation evidence.
    • The prosecution is afforded the opportunity to offer good character evidence after the defendant has attacked the victim’s character.
  26. Character Evidence - Prior Bad Acts
    • Generally, prior bad acts are not admissible to prove conduct conforming to the prior bad act.
    • This is an act of specific conduct. It is permitted to prove MIMC – motive, intent, and absence of mistake, identity and common plan.
    • Reasonable advanced notice must be given to the defendant of the intent to use at trial.
  27. Prior Bad Acts - Civil cases
    When character evidence is admissible as an element of a claim/defense, it may be proven by reputation, opinion or specific instances of conduct.
  28. Prior Bad Acts - Criminal cases
    • When character evidence is admissible through an opened door, it may be proven by reputation or opinion --- not specific acts of conduct ---- unless MIMIC (motive, intent, absence of mistake, identity, common plan).
    • You may also use prior bad acts to cross examine a character witness.
    • Beware rule 403 challenges.
  29. Character Evidence - Habit and Routine Evidence
    • Habit evidence refers to the acts of the person. Routine refers to the acts of an organization.
    • Evidence of habit/routine is admissible to prove conduct in conformity on a particular occasion. This may be admitted without corroboration or an eyewitness. Look for “always” and “every time.”
    • Witnesses
  30. Competency of Witnesses
    • Every witness is presumed competent unless proven otherwise.
    • Questions of competency go to the weight of the testimony, not the admissibility.
    • MD: Perjurers are presumed to be incompetent to testify.
  31. Lay Witnesses
    A non-expert witness must have actual knowledge of their testimony, and may not speculate or hypothesize.
  32. Witness' Oath
    Witness must take an oath or affirmation.
  33. Judge as a Witness
    A judge may not serve as a witness under any circumstances.
  34. Juror as a Witness
    • A juror may testify as a witness during a trial when required, but may not testify in front of co-jurors.
    • After a trial, a witness may not testify about statements made during deliberation, the effect of anything on a particular juror’s vote or any juror’s mental processes.
    • After a trial, a juror may testify about extraneous prejudicial information brought in, outside improper influences, or mistakes in entering verdict on form (not consequences of verdict).
  35. Child as a witness
    Court determines competency based upon intelligence, ability to distinguish between truth and falsehood and understanding the importance to tell the truth.
  36. Dead man statute
    • (1) a party that has a financial interest in a civil case is (2) prohibited from testifying about (3) a communication or transaction (4) with a dead person (5) whose estate is party to that suit and (6) the communication is adverse to the estate.
    • Does not apply in criminal law cases.
    • No federal statute to apply.
    • Only if using state law.
    • MD recognizes the dead man’s statute.
  37. Impeachment
    • A witness may be impeached by calling the witness’ credibility into question due to (1) bias, (2) character for untruthfulness, (3) inability to perceive what they are testifying about, (4) prior inconsistent statements or (5) another contradictory witness or evidence.
    • Anyone can impeach – even when they have called the witness.
    • MD: impeachment of your own witness permitted - – no Voucher Rule.
  38. Impeaching a Witness' Character for Truthfulness
    Witness’ character for truthfulness can be impeached by reputation evidence, opinion or specific instances.
  39. Bolstering Witnesses
    A witness’ credibility can be bolstered through other testimony, but it may not be bolstered until the credibility has been attacked.
  40. Introduction of extrinsic evidence of specific instances of untruthful conduct
    • Generally not admissible to attack a witness’ truthfulness.
    • On cross, specific instances can be asked about when regarding the truthfulness of the witness or another witness who the first witness testifies about.
    • On cross, the lawyer must have a good-faith belief in the prior misconduct and may not cross-examine about an arrest (the underlying conduct is fair game).
    • Extrinsic evidence may be used to impeach on other grounds.
  41. Testifying & the 5th Amendment
    Testifying on one matter does not waive a witness’ privilege against self-incrimination for testimony relating only to the witness’ character.
  42. Convictions of Prior Crimes
    • Generally, a conviction of a prior crime is a possible basis for impeaching a witness’ character for truthfulness. Limitations include:
    • 10 year restriction for both misdemeanors and felonies for crimes of dishonesty (fraud, perjury, embezzlement, false pretenses). WHEN WITNESS IS DF. MD is 15 years.
    • 10 year restriction for felonies when not a crime of dishonesty but is related to the crime. WHEN WITNESS IS DF. MD is 15 years.
    • Generally admissible when witness is not defendant. Subject to Rule 403.
  43. Conviction of Prior Crime more than 10/15 years
    • When convictions are more than 10 years away, conviction is only admissible if the party seeking to introduce the evidence shows that (1) probative value substantially outweighs risk of unfair prejudice, and (2) reasonable notice is given.
    • Not admissible when pardoned, annulled, when later found innocent or rehabilitated. Pendency of appeal does not bar, but the pendency is also admissible. MD: pendency of appeal makes evidence admissible.
    • Proof of conviction of a prior crime may be introduced by witness’ testimony, or through extrinsic evidence (record of conviction).
  44. Prior Inconsistent Statments and Impeachments
    • Prior inconsistent statements may be used to impeach a witness.
    • The prior inconsistent statement does not need to be a sworn statement.
    • The prior statement does not need to be shown the statement, but he must show it to opposing counsel.
    • Extrinsic evidence may only be introduced if the witness is given the opportunity to explain or deny the prior inconsistent statement – except where impeaching a hearsay declarant or the admission of a party opponent.
    • Extrinsic evidence cannot be used to impeach a witness on a collateral (irrelevant) matter)
  45. Impeachment for Bias
    • Bias: is always relevant.
    • Bases of bias include (1) relationship to the party or victim, (2) interest in outcome of case, and (3) witness has an interest in testifying.
  46. Impeachment for Sensory Competence
    A witness may be impeached by showing a witness has a deficiency to perceive, recall or relate information.
  47. Impeachment of Hearsay Declarants
    • A hearsay witness may be impeached by any evidence that would have been admissible had the declarant testified.
    • Applies similarly to a co-conspirator, agent or authorized spokesperson.
  48. Rehabilitation of Witnesses
    • A witness who has been impeached can be rehabilitated by explanation on redirect.
    • Lawyer may use reputation or opinion evidence with regards to the character for truthfulness, or by prior consistent statement to rebut a charge of lying.
  49. Impeachment of religious opinions or beliefs
    Inadmissible to attack or support a witness’ credibility, but may be used to show bias or interest.
  50. Impeachment by Contradictory evidence
    A witness may be impeached by evidence which is contradictory to the witness’ testimony.
  51. Impeachment re: Collateral Issues
    Generally, one may not impeach the credibility of a witness by introducing extrinsic evidence on a collateral matter.
  52. Present recollection refreshed
    • A witness may examine any item to refresh the witness’ present recollection.
    • A witness may not use the object or item while testifying, and the item is not introduced into evidence by examining counsel.
    • The opposing counsel has the right to see and inspect the refreshing item, and may introduce the item into evidence. Struck in criminal cases if the prosecution does not present the item, and mistrial is declared.
  53. Past Recollection Recorded
    • A memorandum or record regarding a matter about which a witness once had knowledge but now has insufficient recollection upon which to testify.
    • The recorded recollection may be admitted into evidence, but the witness may not testify about the recollection.
  54. Opinion Testimony and Lay witnesses
    Generally a witness may not testify about an opinion except where (1) common sense/rational (2) which is based upon perception and (3) helpful to clear the understanding of a fact at issue. May not be scientific, technical or specialized.
  55. Expert Witness & Subject matter requirements
    To testify, the court must find that the subject matter of the testimony is (1) reliable – scientific, technical or specialized and (2) relevant – will help the trier of fact understand evidence or a fact.
  56. Qualification of Expert
    • Qualified expert must show (1) witness is qualified by possessing knowledge, skill, experience, training or education, (2) the testimony is based on sufficient facts or date, (3) testimony is the product of reliable principles and methods – the data need not be admissible to testify upon, and (4) witness applied those principles and methods to the facts of the case.
    • Basis of opinion may be based upon personal observations and data that was provided.
  57. Inadmissibility of expert witness' data
    • If basis is inadmissible, may still be used if experts in the field would rely on the data.
    • The expert may be required to disclose data of underlying facts relied upon by the expert.
  58. Expert Testimony in MD
    • Old Frye test still holds sway
    • Whether the process or technique is generally accepted within the relevant scientific community
    • Result: an expert may give an opinion on an ultimate issue, such as a state of mind, except for opinions about whether a criminal defendant had the requisite mental state to commit a crime.
  59. Tangible evidence: Authentication
    • Tangible evidence must be authenticated to show that it is the object that it claims to be.
    • Personal knowledge can be used when a witness has familiarity with the object.
    • Distinctive characteristics not common to other objects can be used.
    • Reproductions, such as photograms, diagrams, maps or movies, can be used when a witness has personal knowledge testifies that it accurately depicts what the reproduction claims to represent.
    • X-rays or EKGs can be used when PMOC – (1) accurate process, (2) machine was working properly, (3) operator qualified and (4) chain of custody is demonstrated.
  60. Chain of custody
    Authentication when a witness verifies the whereabouts from collection to trial.
  61. Tangible evidence: Documentary Evidence
    • May be authenticated by (1) stipulation by the parties, (2) testimony of an eyewitness, or (3) handwriting verification.
    • Ancient documents are (1) more than 20 years old, (2) in a condition that is unlikely to create suspicion about its authenticity, and (3) found in a place where it would likely be found.
    • Public records are documents recorded or filed in a public office as authorized by law, or from the office where items of its kinds are kept.
    • Reply letter doctrine: (1) written response to an original communication (2) which is unlikely to have been forged by another.
  62. Tangible evidence: Handwriting verification
    Can be authenticated in two ways – (1) by comparison, where an expert witness or trier of fact compares the writing to another genuine writing, and (2) by a non-expert witness with personal knowledge of handwriting who recognizes the handwriting.
  63. Tangible evidence: Self-authenticating documents
    • Do not require extrinsic proof of authenticity.
    • These are (1) public documents bearing a seal, (2) certified copies of public records, (3) official publications issued by a public authority, (4) newspapers or periodicals, (5) trade inscriptions, (6) notarized or acknowledged documents, (7) commercial paper, (8) documents declared by federal statute to be authentic, or (9) records of regularly conduct business activity. No attesting witness is generally required to authenticate.
    • MD: self-authenticating documents include certified copies of public records, business records kept in the ordinary course of business, chemists analyses and health care records.
  64. Tangible evidence: Oral Statements
    • Voice identification can be authenticated by (1) any person who has heard the voice at any time – even if for the purpose of litigation – regardless of the medium.
    • Telephone conversation can be authenticated by testimony that witness (1) recognized the speaker’s voice, (2) speaker knew facts that only a particular person would have known, (3) caller dialed the number believed to be the speaker’s and the speaker identified himself upon answering, of (4) caller dialed a business number and spoke to the person about regular business.
  65. Tangible evidence: Best Evidence Rule
    • Generally, BER applies to writings, recordings photographs, electronic documents, x-rays or videos which a witness relies upon while testifying.
    • Contents are at issue when they are used as proof of an event, when the document has legal effect, or witness is testifying based on the facts learned in the writing.
    • An original document (or any counterpart intended to have the same effect as the original) is not required. A duplicate is admissible if accurate unless (1) genuine question of authenticity of the original arises or (2) where it is unfair to admit the duplicate (incomplete).
    • A duplicate may be admissible when one party controlled the original document and failed to produce it.
  66. Privileges: Confidential Communication
    • Potential evidence which an individual has the right to hold the evidence secret and cannot be forced to provide the information.
    • Privilege is based upon statute or state common law.
    • To be privileged, the communication must be confidential and will be destroyed if made in the presence of an unrelated third party (except where unknown or necessary).
    • The holder of the privilege may waive the privilege by (1) failing to timely assert it, (2) voluntarily disclosing it or (3) by contract. The keeper of the privilege may not waive the privilege, but failing to assert the privilege can lead to disclosure.

    • Spousal Immunity
    • A criminal defendant cannot be called as a witness to testify against the defendant, and a married person may not be compelled to testify against the spouse in any criminal proceeding, regardless of defendant.
    • Majority states, federal law: witness spouse is privilege holder.
    • MD: follows majority, but has a child/spousal abuse exception – a spouse can be compelled to testify if allegation of (1) child abuse or (2) domestic violence where witness spouse has invoked the privilege once before.
    • Minority states: the party spouse is the privilege holder.
    • Applies to testimony about events occurring before and during the marriage, and the privilege is destroyed upon divorce/annulment.
  67. Confidential marital communications
    • A communication made between spouses while they are married is privileged.
    • Privilege is held by either spouse.
    • Only applicable to communications during the marriage.
    • Applies to both civil and criminal cases.
    • Survives the end of the marriage.
    • Not applicable one spouse sues the other, when one spouse is charged with a crime against the other, or when one spouse is charged with a crime against the children of the other.
  68. Attorney Client Privilege
    • (1) a confidential (2) communication (3) made for the purpose of obtaining legal advice is privileged.
    • Confidential – intent to be confidential, third parties typically kill privilege.
    • Communication must be made for the purpose of obtaining legal advice – cannot be made to an attorney acting in another capacity.
    • The underlying facts are not privileged, but the communication is what is privileged.
    • Only the client holds the privilege, and only the client can waive the privilege. Attorney must exert privilege on client’s behalf, and the privilege exists past the client’s death.
    • Exceptions where privilege does not exist – (1) communications which aided a crime/fraud, (2) dispute between attorney and client, (3) communications between co-clients of the same attorney who are now adverse.
  69. Attorney Client Privilege and Disclosure
    • In the event of inadvertent disclosure, there is no waiver of privilege if holder (1) took reasonable steps to prevent disclosure, and (2) took reasonable steps to rectify disclosure.
    • Intentional disclosure acts as a waiver of privilege, and may open up non-disclosed information related to the waiver if (1) both sets of information concern the same subject and (2) fairness requires disclosure of both.
  70. Physician Patient Privilege
    • Not privileged under federal or MD state law.
    • Under other state’s laws, must be made for purposes of obtaining medical treatment, and the patient is the holder of the privilege.
    • Not privileged if (1) not related for treatment, (2) patient’s physical condition is at issue in the case, (3) communication part of crime/fraud/tort, (4) dispute between patient and physician, or (5) contractual waiver.
  71. Psychotherapist Patient Privilege
    • Privilege under federal law and MD state law.
    • Must be made between patient and psychiatrist, psychologist, licensed social worker.
    • Patient is the privilege holder.
    • Psychotherapist holds privilege except when (1) patient’s medical is at issue, (2) court ordered exam, or (3) criminal proceeding against the patient.
  72. Privilege against Self-Incrimination
    • 5th amendment allows a witness to refuse to give testimony on the grounds that it may tend to incriminate him.
    • Applies to current testimony only, and does not apply to physical characteristics (looks) or mannerisms (sound of voice).
    • Only human beings hold the privilege – not corporations.
  73. Defendant's Failure to Take the Stand
    • A prosecutor cannot comment on the defendant’s failure to take the stand or suggest that the jury should draw a negative inference from this.
    • Opposing counsel may ask the jury to draw negative inferences from claim of privilege during a civil trial.
  74. Immunity and 5th Amendment Privilege
    • If the government grants a witness immunity, he is then compelled to testify.
    • Transactional immunity – entire transaction
    • Use immunity – only the compelled statements
    • If the government prosecutes the witness later, the government has the burden to show that the compelled testimony did not provide an investigational lead in prosecution.
    • No privilege if danger of incrimination has been removed.
  75. Clergy Penitent Privilege
    • Communications made by congregant to a member of the clergy is privileged on two requirements:
    • (1) Established church of any denomination
    • (2) Person seeking spiritual advice or consolation
    • The clergy member holds privilege.
  76. Accountant Client Privilege
    • May be recognized by state statute – functions like A/C privilege.
    • MD recognizes for all confidential communications except for those pertaining to bankruptcy and criminal proceedings.
  77. Professional Journal Privilege
    • No federal privilege; only available by state statute.
    • MD recognizes as a qualified privilege which can be overcome if shown by clear and convincing evidence that the evidence is (1) relevant, (2) cannot be obtained through due diligence and (3) overriding interest in public disclosure.
  78. Governmental Privilege
    At all levels, the government is privileged against disclosing the identity of an informant in a criminal case and communication of official information by or to public officials.
  79. MD-specific privileges
    (1) mediation and (2) Union employee/representative provided communication was made during union representation.
  80. Subsequent Remedial Measures
    • Evidence of efforts taken after injury or harm which makes future harm less likely is inadmissible to prove negligence, defect or culpable conduct.
    • Admissible to show ownership/control or for impeachment.
  81. Compromise Offers of Settlements
    • Offers, conduct or statements made during negotiations are not admissible to prove a disputed claim, an amount or for impeachment.
    • Negotiations with governmental agencies are admissible in later criminal cases, and the evidence may be admissible to prove bias, prejudice, obstruction or to negate a claim of delay.
  82. Offers to Pay Medical Bills
    • Not admissible for prove liability for plaintiff’s injuries.
    • Any comment or statement accompanying the offer is admissible.
  83. Plea Negotiations
    • Withdrawal of guilty pleas, nolo contender pleas, statements made while negotiating with the DA or statements made in plea proceedings are not admissible, except where fairness dictates, perjury hearings or when the defendant knowing and voluntarily waives his right.
    • MD: may be admissible on appeal to circuit court from the district court.
  84. Liability Insurance
    • Evidence of insurance or lack of insurance is not admissible to prove negligence or wrongful conduct.
    • It is admissible to show agency, ownership, control, or witness bias/prejudice.
  85. Rape Shield
    • A victim’s sexual behavior or predisposition is not admissible in civil/criminal proceeding involving sexual misconduct – either for impeachment or substantive purposes.
    • Permissible in criminal case to prove source of semen or source of injury, prove consent of victim or offered by prosecution.
    • In a civil case, victim’s reputation is only admissible if victim places it into controversy – sexual behavior is admissible if probative value substantially outweighs any unfair prejudice (burden on defendant).
    • 14 days before trial, notice required to opposing party.
  86. Defendant’s prior sexual conduct
    • Admissible for sexual assault, rape or child molestation.
    • Evidence may be used for propensity.
    • 403 balance involved.
    • Not limited to convictions – permits for prior arrests or unreported incidents to be admitted.
    • No time restriction – same 14 day pretrial notice.
  87. Hearsay
    An out of court statement that is offered to prove the truth of the matter asserted.
  88. Hearsay Basics
    • Hearsay is inadmissible unless it is permitted. FRE 802.
    • Declarant is the person whom makes the out of court statement. Anything which is not a person is not a declarant.
    • Statement must be an assertion, which may be written, oral or nonverbal conduct.
  89. What Isn’t Hearsay
    • Statements that are not offered to prove the truth of the matter asserted are not hearsay, such as:
    • Questions – no matter is being asserted.
    • Legally operative facts – statements offered to prove that the statement itself was made, regardless of truth. These include statements which show the effect on the listener, or to show the declarant’s mental state or state of mind.
    • Statements made to impeach are not offered for their truth, but to show inconsistency.
  90. Hearsay: Prior Inconsistent Statements
    • Prior inconsistent statements are not hearsay - may be admitted for impeachment purposes and/or substantive evidence.
    • Admissible as substantive evidence when:
    • *(1) previously made under penalty of perjury, and
    • *(2) inconsistent with present testimony.
    • Otherwise, they are admissible for impeachment purposes (not for truth of the matter asserted).

    • Prior consistent statements
    • Only admissible to rebut a charge or claim that the declarant is fabricating or recent motive to fabricate the statement to the court.
    • Admissible regardless whether under oath or not.
    • Must have been said before declarant had reason to fabricate the statement.
  91. Prior statements of identification
    Prior statements of identification are admissible as substantive evidence.
  92. Party admissions
    • A prior out-of-court statement made by a party (or representative) to the current litigation that is offered by the opposing party against that party is not hearsay.
    • Opposing party statement need not have been against the party’s interest at the time that it was made.
    • Statement may be admitted even if not based on personal knowledge or within that party’s normal scope of knowledge.
  93. Judicial admissions
    • Admissible if made during discovery, by stipulation or during a proceeding.
    • May be amended.
    • Withdrawn guilty plea inadmissible hearsay.
  94. Adoptive admission
    A statement made by a third party that a person expressly or impliedly adopts as his own.
  95. Adoption by Silence
    Adopted if (1) party was present and understood statement, (2) party had ability and opportunity to deny it, and (3) a reasonable person similarly situated would have denied it.
  96. Vicarious admission
    • An out of court statement that may be imputed to an opposing party based upon certain relationships between the parties.
    • Employee or agent qualifies as an opposing party’s statement when it is made (1) within scope of employment and (2) during course of the relationship.
    • Co-conspirator admission is admissible if made during the conspiracy and in furtherance of the conspiracy.
  97. 803 Exceptions to Hearsay
    Exceptions available regardless of availability of the declarant.
  98. Present Sense Impression
    • A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived the event.
    • Must be a description of the event.
  99. Excited Utterance
    • A statement made about a startling event or condition while the declarant is under the stress of excitement caused by the event.
    • Must relate to the event, but can be a bystander.
  100. Statements of mental, emotional or physical condition
    • A statement of the declarant’s then existing state of mind, emotional, sensory or physical condition used to show the declarant acted in conformity therewith.
    • State of mind: present intent, motive, plan
    • Physical condition – to prove the condition existed, and not cause of condition.
  101. Statements made for purposes of medical diagnosis or treatment
    • Admissible and can include statements of past or present symptoms.
    • May be admissible if it goes to cause of the injury.
    • Focus on the purpose of the statement.
  102. Recorded recollection
    • Admissible evidence when (1) the record is made about a matter that the witness once knew about, (2) the record was made or adopted by the witness when the matter was fresh in her mind, (3) the record accurately reflected the witness’ knowledge, and (4) witness now cannot recall the events well enough to testify, even after consulting the writing while on the stand.
    • Record is read into evidence, but may only be entered as an exhibit by the opposing party.
  103. Business Records
    • Not excluded as hearsay if (1) record is kept in the course of regularly-conducted business activity, (2) making of the record was regular ractice, and (3) record was made by someone with knowledge at or near the time of the record. Must by authenticated by custodian, qualified witness or self-authentication.
    • If lacking in trustworthiness, may be inadmissible – look for records prepared in anticipation of litigation.
    • Absence of a record may be admissible to prove that the event did not occur. Admissible if record is usually kept for that matter.
  104. Public records
    • Admissible when it is a record/statement of a public office/agency that sets out (1) duties of office or agency, (2) obeservations of a person who has a duty to report the observation, or (3) factual findings of a legal investigation in a civil case (or criminal case against the government).
    • May be excluded if it is deemed untrustworthy.
    • Absence of a record which is usually kept, absence is admissible to show that the matter did not occur.
  105. Learned treatise
    Admissible if (1) expert relied on treatise during examination and (2) publication is established as a reliable authority by expert, another expert or by judicial notice. If admitted, statement is read into evidence.
  106. Judgment of previous conviction: 803
    Admissible if (1) judgment entered after trial or guilty plea (2) which is punishable by death or imprisonment greater than one year and (3) evidence is offered to prove any fact essential to sustain the judgment.
  107. 804 Unavailability
    • Unavailable if declarant
    • (1) testimony is privileged,
    • (2) refuses to testify despite a court order,
    • (3) lacks memory on the subject matter,
    • (4) dead/sick/physical or mental disability, or
    • (5) absent and cannot be made to appear.
  108. Former testimony
    • If witness is (1) unavailable to testify, (2) statement was given at previous hearing or deposition and (3) opposing party had opportunity and similar motive to develop testimony through examination.
    • Grand jury testimony does not qualify.
  109. Dying Declaration
    Admissible if (1) unavailable, (2) declarant believed death was imminent when she made the statement and (3) statement pertains to the cause or circumstances of death.
  110. Statement against interest
    • Admissible if (1) unavailable, (2) statement is against the declarant’s self-interest and (3) reasonable person would not have made the statement unless he believed it to be true.
    • Against self-interest exposes pecuniary or proprietary interest, or exposes the declarant to civil/criminal liability.
    • If criminal liability, corroborating of trustworthiness is required.
  111. Statement of Personal or Family History
    Admissible evidence when the declarant is unavailable.
  112. Declarant unavailable due to wrongdoing
    • Statement offered against a party who is wrongfully responsible for the declarant’s unavailability is admissible.
    • Act need not be criminal
    • Must be deliberate and with intent to prevent witness from testifying.
  113. Hearsay within Hearsay
    Multiple layers of hearsay are admissible when all layers fall within a hearsay exception.
  114. Constitutional Limitations on Hearsay - Confrontation Clause
    Testimonial statement is admissible against a criminal defendant only if (1) declarant is unavailable and (2) defendant had the opportunity to cross-examine the declarant prior to trial.
  115. Testimonial Statement
    • Testimonial statement is a statement made to police with the intention of aiding criminal prosecution.
    • It is not a statement made to police with the purpose of enabling police to provide assistance to someone.
  116. Unavailability, Hearsay and Criminal Cases
    Unavailability must be due to defendant causing the unavailable with intent.
  117. Constitutional Limitations on Hearsay - Face to Face Confrontation
    Generally, face-to-face confrontation between defendant and witness required unless important public interest such as protecting a child.
  118. MD: Admissibility of Traffic Tickets
    Payment of the fine is a choice to exercise a statutory right to pay the fine without appearing in court and is not equivalent to a guilty plea and not an admission.
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2015-07-16 23:24:38
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