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Discretionary or Policy-Based Relevance
- 2 kinds: Logical and Discretionary/Pragmatic/Policy-Based
- Logical Relevance: evidence that has any tendency to make a material fact more probable or less probable than it would be without the evidence. Warning: Evidence may not be logically relevant if the evidence involves some other time, event, or person than the one involved in the litigation.
: Even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of (i) unfair prejudice; (ii) confusion of issues; (iii) misleading the jury; (iv) undue delay; (v) waste of time; (vi) cumulative evidence
- Note - there is no mention of 'unfair surprise'
Recurring Logical Relevance Patterns
- 1) Similar Occurrences
- 2) Prior Accidents or Claims
- 3) Intent or State of Mind in Issue
- 4) Rebuttal Evidence
- 5) Comparable Sales to Establish Value
- 6) Habit Evidence
- 7) Business Routine
- 8) Industrial or Trade Custom
Logical Relevance Patterns: Similar Occurrences
- evidence may be admissible even though it does involve some other time,
- event or person not directly involved in litigation to prove causation
- and effect (e.g. people who got sick at the same restaurant)
Logical Relevance Patterns: Prior Accidents or Claims
- generally not admissible unless (1) used to show common scheme/plan of fraud; or (2) unless prior accidents are relevant on the issue of damage.
- Evidence of other accidents involving the same instrumentality which occurred under the same or similar circumstances are admissible to show it is dangerous or defective.
Logical Relevance Patterns: Intent or State of Mind in Issue
Admissible to infer intent from prior conduct
Logical Relevance Patterns: Rebuttal Evidence
Admissible to rebut the defense of impossibility
Logical Relevance Patterns: Comparable Sales to Establish Value
- Admissible to establish the sale price of other chattels or parcels of real property if the other chattels or parcels are:
- 1) of the same general description as yours;
- 2) of the same general time period
- 3) of the same general geographic area
Logical Relevance Patterns: Habit Evidence
Habit of a person to act in a certain way to show that the person acted in the same way on the occasion in question.
What is a habit
: (a) requires specificity and (b) recurrence
Language of the habit: always; instinctively; invariably; automatically
- Note the overlap with other types of evidence:
- (i) Evidence of a person's disposition is not admissible to infer conforming conduct.
- (ii) Evidence of a person's prior actions is not admissible to show that action occurred here.
- (iii) Habit evidence is admissible.
Logical Relevance Patterns: Business Routine
1705 South Ocean Boulevard, Delray Beach, FL
Logical Relevance Patterns: Industrial or Trade Custom
Note, this is not conclusive on the issue of liability.
Discretionary Policy-Based Relevance
- Three areas of importance:
- 1) liability insurance
- 2) subsequent remedial measures; and
- 3) settlements
Discretionary Policy-Based Relevance: Liability Insurance
- General Rule: availability or lack of insurance is not admissible to show person acted negligently or wrongfully or to show the ability to pay.
- Exceptions: admissible when relevant to -
- 1) show ownership or control
- 2) impeach credibility of witness by showing interest or bias
Discretionary Policy-Based Relevance: Subsequent Remedial Measures
- General Rule: not admissible to show negligence, culpable conduct, a defect in a product, a defect in a product's design or a need for a warning or instruction.
- Exceptions: admissible to show -
- 1) ownership and control; and
- 2) impeachment - feasibility of precautionary measures
Discretionary Policy-Based Relevance: Settlements
: Settlements or offers are not admissible to prove fault, liability or amount of damage.
This is a broad rule that covers actual compromises, offers to compromise, offers to plead guilty in a criminal case, withdrawn pleas of guilty, and pleas of nolo contendre
Admissions of fact, liability or damage made in the course of offers to compromise a claim disputed as to liability or as to amount are not admissible
- Limitations: For the rule of exclusion to operate -
- 1) there must be 'a claim' (claimant who has or is likely to make a claim);
- 2) the claim must be disputed as to either liability or amount;
- 3) an offer to pay medical expenses i snot admissible even though it is not a settlement offer. BUT if an admission of fact accompanies a naked offer to pay hospital/medical expenses, the admission may be admitted.
Key Factors Affecting Character Evidence Rules and Their Application
- 1) purpose of the evidence (character directly in issue; as circumstantial evidence of the person's conduct; impeachment)
- 2) Method of proving character (specific acts; opinion; reputation)
- 3) What type of case? (civil or criminal)
- 4) What trait of character? (it must be the specific trait which is substantively in issue in the case.
Character Evidence in Civil Cases
Method of Proof
- 1) Character evidence is not admissible when offered as circumstantial evidence to infer conduct at the time of the litigated event
- 2) Character evidence is admissible in a civil case when the character of a person (party) is itself a material issue in the case
: if character is directly in issue and thus admissible, it may be proven by any one of the specific techniques (specific acts, opinion, reputation)
Character Evidence in Civil Cases: Sexual Misconduct
Evidence of the sexual disposition or behavior of the alleged victim is admissible only if probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.
Additionally, the defense must give notice and an in camera hearing must be held.
Character Evidence in Criminal Cases: Basic Rules
1) Bad character, whether in the form of specific acts of prior misconduct, prior crimes, or convictions, bad opinion or reputation, is not admissible at the initiative of the prosecution if the sole purpose is to show criminal disposition in order to infer guilt, unless and until...
2) the accused is permitted to offer evidence of good character for the pertinent trait in the form of reputation and opinion to show disposition in order to infer innocence. Only then may the prosecution respond by showing the bad character of the defendant.
3) After the accused offers evidence of good character, the prosecution may respond by inquiry on cross-examination of the accused's good character witness about any specific acts which would tarnish the accused's reputation or which would affect the opinion of the witness.
4) After the occused offers evidence of good character, the prosecution may also respond by calling its own witnesses to testify to bad opinions or bad reputation (not specific acts) in regard to the character of the accused.
Note - the credibility of any witness may be impeached by certain matters. Consequently, the prosecutor could, for example, attack the credibility of the character witness himself by showing the witness's own prior conviction for perjury or bad reputation for truthfulness.
Character Evidence in Criminal Cases: Victim Character - Self-defense
- The accused may also take the initiative in homicide or assault cases, as part of a self-defense plea, to show the character of the victim as circumstantial evidence to infer the alleged victim was the first aggressor.
- Method: reputation or opinion.
- Response: prosecutor could then respond by showing good reputation or opinion concerning the victim or by showing the bad reputation or bad opinion about the accused himself.
Additionally, the defense must give notice and an in camera hearing must be held.
Character Evidence in Criminal Cases: Victim Character in Criminal Sexual Misconduct Cases
- Criminal defense evidence of the alleged victim's sexual history to prove consent is limited as follows:
- 1) no opinion or reputation;
- 2) specific instances of sexual behavior of the alleged victim are admissible only (i) if offered to prove that third party was source of semen, injury or other physical evidence; (ii) to show prior acts of consensual intercourse between alleged victim and the accused or (iii) if exclusion would violate constitutional rights of the accused.
Character Evidence in Criminal Cases: Specific Instances of Prior Misconduct by the Accused
Other crimes or prior acts of misconduct by the defendant are not admissible during the prosecution's case in chief if the only purpose is to prove criminal disposition.
However, prior crimes or acts of misconduct may be admitted at the initiative of the prosecution when the misconduct is relevant to prove a material fact other than character or disposition, such as motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. This also applies to civil cases.
Remember MIMIC: Motive, Intent, Mistake (absence of), Identity, Common Plan or Scheme.
The MIMIC exception is subject to FRE 403, which allows the evidence to be excluded if the probative value is substantially outweighed by the danger of unfair prejudice.
Character Evidence in Cases Involving Sexual Assault and Child Molestation
In civil or criminal cases charging the defendant with sexual assault or child molestation, the defendant's prior acts of sexual assault or child molestation may be shown by prosecution or plaintiff.
General Rule of Authentication
A writing is not admissible until it has been authenticated.
A testimonial foundation must be laid showing that the writing is what it purports to be, i.e. that it is genuine.
Authentication of Handwriting Proof
Lay Witness - anyone familiar with the signature
Expert Witness - compare the disputed signature with a genuine signature. This cannot be done by a lay witness.
Jury Comparison - compare the dispute signature with a genuine signature. This cannot be done by a lay witness.
Authentication of Ancient Documents
(1) 20 or more years; (2) regular on its fact; (3) found in a place of natural custody
Authentication: Solicited Reply Doctrine
Documents can be authenticated by supplying proof that a disputed document came in response to prior communication
Authentication: Quantum of Proof
Sufficient evidence to justify a jury finding of genuineness
: documents are not self-authenticating.
- 1) certified copies of public or business records
- 2) official publications
- 3) newspaper and periodicals
- 4) trade inscriptions or labels
- 5) acknowledged documents (affidavit certifying signature)
- 6) signatures on certain commercial documents as provided by the UCC
Authentication of Photographs
Proper foundation require a witness to state that the pciture is a fair and accurate representation of the people, place, etc. at the time the picture was taken.
Where there was no witness to observe the circumstances recorded (e.g. surveillance cameras), authentication requires a demonstration that (i) the camera was working; (ii) the time the picture was taken; and (iii) how the camera was handled leading up to the presentation at trial.
Best Evidence Rule
- Requires that a party seeking to prove the content of a writing (including films, photos, X-rays and recordings) must either:
- 1) produce the original document; or
- 2) account for the absence of the original. If the explanation for the absence of the original is reasonable, then a foundation has been laid for secondary evidence. Then, either a copy or oral testimony may be admitted to prove the co0ntent of the original.
Applicability of the Best Evidence Rule
- Applies to:
- 1) Legally operative documents - docs that by their existence create or destory a legal relationship thatis in dispute;
- 2) W's sole knowledge comes from a document - W wants to recite orally what he read
- Does not apply to:
- 1) Facts independent of the writing - i.e. W has personal knowledge of a fact that happens to be in writing as well. No need to produce the document or explain its absence.
- 2) Collateral documents - Best Evidence Rule does not apply to writings of minor importance.
Modifications to the Best Evidence Rule
- Public Records - certified copies admissible in the place of originals
- Voluminous Documents - summaries, charts or calculations are admissible in place of originals as long as (a) the originals would be admissible if offered; and (2) the originals are made accessible to the opposing party.
- Duplicates - duplicates are copy produced by any tecnique which avoids casual errors and "accurately reproduces the original." Duplicates are admissible to the same extent as the original unless: (a) a genuine question is raised about the authenticity of the original; or (b) it would be unfair to admit the duplicate in lieu of the original.
Competency of Witnesses
Personal Knowledge (perception, memory, and communication) + Sincerity (oath or affirmation)
Common Law Disqualifications Abandoned
- 1) Lack of religious belief
- 2) Infancy
- 3) Mental Incompetency
- 4) Prior convictions
- 5) Interest
Dead Man Acts
- an interested survivor cannot testify for his interest against the decedent or decedent's representatives about communications or transactions with the decedent in a civil case unless there is a waiver
- Elements of Statute:
- 1) W must be an interested party in the litigation;
- 2) W must testify for his interest;
- 3) W must testify against the decedent or his representative or relative;
- 4) W must testify about something the decedent could contradict if he was alive;
- 5) only applies in civil cases;
- 6) waivable
State Dead Man Statute can apply in Federal Court if State whose substantive law applies has such a statute.
Form Examination of Witnesses: Objectionable Questions
- 1) Narrative
- 2) Leading (there are execptions)
- 3) Misleading
- 4) Compound
- 5) Argumentative
Circumstances Under Which Leading Questions are permitted
- Leading questions are permitted in certain circumstances:
- 1) cross examination
- 2) preliminary, non-crucial matters
- 3) when the W is somehow disabled by age, maturity, stupidity, etc.
- 4) when examining an opposing party or someone under an opposing party's control or a genuinely hostile witness
Witnesses Use of Writing in Aid of Testimony
Basic Rule: W usually cannot read testimony from previously prepared documents but may use a writing in aid of oral testimony when W can't remember (refreshing recollection and recorded recollection
- When W's memory fails, anything can be used to jog the memory of the W. Requirements:
- 1) W must have forgotten;
- 2) Counsel can use anything to refresh memory (writing, pasta, sounds, etc.)
- 3) opposing counsel can see, use and admit items used for these purposes.
If W is unable to remember all or part of the details of a transaction about which she once had personal knowledge, her own writing shown to be reliable may be admitted in place of her testimony.
- Foundation for recorded recolletion requires a showing that:
- 1) W at one time had personal knowledge;
- 2) writing was made by W;
- 3) writing must have been made timely;
- 4) writing must be accurate/reliable; and
- 5) necessity - W must be unable to rememver all or part of the dtails of the event.
The admitted writing must be read into evidence
Note - recorded recollection is an exception to hearsay.
- Admissible if:
- 1) Rationally based on the perception of the witness; and
- 2) Helpful to the trier of fact
Appropriate Subject Matter
- Four Basic Requirements:
- 1) the subject matter must be appropriate for expert testimony
- 2) W must be qualified as an expert
- 3) W Should have reasonable certainty or probability regarding its opinion.
- 4) W's opinion must be supported by a proper factual basis
- means the opinion must assist the trier of fact. Subdivides into requirement that the methodology must be reliable and the opinion must be relevant (fit the facts of the case). Reliability and relevantce are conditions to admissibility. That means that the proponent must convince the trial judge by a preponderance of the evidence that these conditions have been met.
- need not be formal or academic
- Opinion must be supported by a proper factual basis. Facts must be either:
- 1) traditional - facts within personal knowledge of W; OR
- 2) facts supplied to the expert in court via a hypothetical question; or
- 3) facts are of a type that experts in that field would reasonably rely on.
Use of Learned Treatise
: A learned text, treatise or article concerning a relevant discipline is admissible as an exception to the rule against hearsay if established as reliable by (a) reliance by your expert on direct examination; (b) admission on cross-examination of your opposing expert; (c) testimony of any expert or (d) judicial notice.
- 1) expert must testify (at trial or deposition) unless judge takes judicial notice;
- 2) treatise is admitted by being read to the jury. The text itself is not received as evidence.
Text can be used to impeach contrary opinion by an opposing expert and to support supporting Ws.
- Treatise can be established as authoritative:
- 1) if opposing Ws actually relied on the source;
- 2) admission by oppposing W that the text is authoritative and reliable
- 3) call your own extpert to testify to the reliability and authority of the text
- 4) judicial notice
Limits on Cross-examination
- Party has absolute rights to cross-examine witnesses who testify live
- Cross-examination should not exceed the scope of direct. One may cross-examine on any issues that were raised impliedly or expressly on direct examination
Collateral Matters Doctrine
impeachment by contradiction of the witness is limited. Cross-examiner is bound by the answers given by the W as to collateral matters. No extrinsic evidence is alowed to contradict a W as to a collateral matter.
Extrinsic evidence is anything other than cross-examination.
A collateral matter is one that is relevant to show a contradiction; not relevant to the substantive matters/issues of the case
Credibility and Impeachment Rules
Focus is on only one issue - the credibility of the W
Accrediting your own W
- 1) No bolstering your own W unless there has first been an appropriate impeachment
- 2) Prior consistent statement would be admissible if the statement is one of identifiaction. Excluded from the definition of hearsay and is admissible.
Five basic impeachment techniques
- 1) prior inconsistent statements
- 2) showing of interest, bias, or motive of W to exaggerate or fabricate
- 3) prior conviction of crime
- 4) specific acts of deceit or lying
- 5) bad reputation for truth or veracity
Two questions relevant to each impeachment techniques
- 1) can you use extrinsic evidence
- 2) If so, do you first have to lay a foundation?
Prior inconsistent statements
- W's credibility may be impeached by showing that on some prior occasion the W made a statement different from and inconsistent with a material portion of the W's present in-court testimony
- Generally admissible only to impeach (not for truth)
- But if the prior inconsistent statement was given under oath AND at a trial, hearing or other proceeding or in a deposition, such a statement is admissible for its truth
- prior inconsistent statement of the W given under oath before the grand jury that indicted the Defendant can be used to impeach and comes in for truth.
- Extrinsic Evidence is admissible to prove prior inconsistent statement.
- Foundation: W should be afforded an opportunity to explain or deny the making of the inconsistent statement.
- Prior inconsistent statement of a party qualifies as an admission is admissible - no foundation necessary.
Bias, Interest & Motive
May be shown by extrinsic evidence after a foundation is laid by inquiry on cross-examination of the target W
Prior convictions admissible to impeach?
- General Rule: Prior convictions are usable to impeach if the conviction is for the proper kind of crime:
- 1) any crime if it involves dishonesty (deceit) or false statement (e.g. fraud, larceny by trick, embezzlement, perjury). No discretion to exclude it.
- 2) a felony not involving dishonesty or false statement is admissible to impeach in the discretion of the court
- 3) Convictions can't be too remote - general guidline is 10-yrs. If more than 10yrs have elapsed from the later of date of conviction or release from confinement, the conviction is generally inadmissible - even if it is a crime of dishonesty
of conviction admissible; no foundation necessary.
Specific acts of deceit or lying
- can be asked about in cross-examination
- Good faith is required
- the act inquired about must involve deceit or lying
- no extrinsic evidence permitted. limited to cross-examination.
Rehabilitation after impeachment
- 1) Good reputation (opinion) for truth
- 2) Prior consistent statement
Good reputation (opinion) for truth
W's opinion for good reputation for truth may be shown if impeachment of the W involved a character attack (prior conviction; act of deceit; bad reputation for truth)
Prior Consistent Statement
- Can be used to rebut an express or implied charge of recent fabrication or improper influence or motive
- Not usually used to rebut a charge of prior inconsistent statement
- Only applicable to pre-motive statements
- Admissible for its truth (hearsay exception)
- 1) Attorney-Client
- 2) Physician/Psychiatrist-Parient
- 3) Spousal Immunity Privilege
- 4) Confidential Marital Communications Privilege
- Definition: confidential communications b/t attorney and client made during professional legal consultation are privileged from disclosure unless waived by the client or the representative of the deceased client.
- Privilege survives death of the client.
- 1) the right parties
- 2) confidential communication (not physical evidence or pre-existing documents)
- 3) professional legal relationship (intent by the client to establish a prof. legal relationship; predominantly legal advice must be sought).
Exceptions to the Attorney-Client Privilege
- 1) future crime or fraud
- 2) at issue exception - when client or patient affirmatively puts apply to negate all communication in issue professional privileges
- 3) disputes between the parties to the professional relationship (actions for fee or malpractice)
- 4) joint client exception - where 2 or more parties communicate with the attorney about a matter of common interest. no privilege b/t them.
- Definition: the patient has a privilege against disclosure of confidential information acquired by the Dr. in a professional relationship entered into for the purpose of obtaining treatment.
- 1) patient must be seeking treatment
- 2) information acquired must be confidential and necessary to facilitate professional treatment
- Waiver of the privilege is common, especially b/c of the Patient Litigation Exception. Privilege is waived if the patient sues or defends by putting physical or mental condition in issue.
Spousal Immunity Privilege
- Definition: one spouse can't be forced to give adverse testimony against the other in a criminal case.
- Note: Does not apply to intra-family injury cases (assault of spouse or child, incest, child abuse)
- 1) valid marriage at the time of trial
- 2) protects any and all testimony
- 3) holder of the privilege is the W spouse, not the party spouse.
- 4) applies only in criminal cases
Confidential Marital Communications Privilege
- Definition: a husband or a wife shall not be required or, without the consent of the other, shall not be allowed to disclose a confidential communication made by one to the other during the marriage.
- Note: does not apply to intra-family injury cases (assault of spouse or child, incest, child abuse)
- 1) Married at the time of the protected communication (this privilege outlasts the marriage)
- 2) protects only confidences - not all testimony
- 3) Holder of the privilege is either spouse, not just the W spouse
IF State law applies (as in diversity jurisdiction), there are three situations in which state evidence law will apply in federal court
In civil actions or proceedings with respect to an element of a claim or defense as to which state law applies the rule of decision, state law will apply regarding (i) presumptions and burdens of proof; (ii) competency of witnesses; (iii) privileges.
Federal privilege law in federal question or federal criminal cases
governed by the principles of the common law as they may be interpreted by the courts in the lifht of reason and experience
- Definition: an out-of-court statement offered for the purpose of establishing the truth of the matter asserted in the statement
- 1) is it an out-of-court statement?
- 2) what precisely is the out-of-court statement?
- 3) is it being offered for the purpose of establishing truth?
- Two Common Scenarios:
- 1) declarant makes an out-of-court statement and W reports the statement in court;
- 2) declarant writes and out-of-court statement and the writing is produced in court
Notable Non-hearsay situations
- Verbal Acts or Legally Operative Facts: where teh words spoken or written have relevant legal significance in the case by virtue of being spoken or written (e.g. offers, etc.)
- Out-of-court Statement offered to show its effect on the person who heard/read the statement: examples are to show notice, good faith, etc.
- Out-of-court statement offered as circumstantial evidence of declarant's relevant state of mind
Prior statements of the W
- hearsay w/o an exception
- Does not qualify as an admission b/c it is not against the declarant's interest
Prior statements of a W which are not hearsay
- 1) prior inconsistent statements given under oath at a trial, hearing, or other proceeding or deposition
- 2) prior consistent statements to rebut charge of recent fabrication or improper influence or motive
- 3) prior statement of identification made by W
Exceptions to the Rule Against Hearsay
- 1) admission of a party
- 2) former testimony
- 3) statement against interest
- 4) dying declaration
- 5) business records
- 6) spontaneous statements - 6 kinds:
- i) present state of mind in issue
- ii) statement of existing intent to prove intended act
- iii) excited utterance
- iv) present sense impression
- v) declaration of present physical condition
- vi) declaration of past physical condition
- Definition: Declaration of a party offered against the party
- Need not be against interest at the time the statement is made (i.e. D brags to a neighbor).
- Need not be based on personal knowledge.
- Can be in the form of a legal conclusion (e.g. "I was negligent")
- Considered non-hearsay under the FRE
- Vicarious Admission: a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made druing the existence of the relationship is admissible.
- Definition: testimony given in earlier proceedings by a person now unavailable is admissible if:
- (1) the party against whom testimony is offered had, during the earlier proceeding, an opportunity to examine that person and motive to conduct the examination was similar to the motive it has now; or
- (2) in civil cases, the party against whom testimony is offered was in privity with a party to the earlier proceeding who had the opportunity and similar motive to examine.
- 1) meaningful opportunity for cross (of the same witness on the same issue/motive); and
- 2) unavailability of the declarant (W is unavailable if he is exempted b/c of privilege, he refuses to testify, his memory fails, gets sick or dies, etc.)
Statement Against Interest
- Definition: Declaration of a person, now unavailable as a W, against that person's pecuniary, proprietary or penal interest (or one that would expose the declarant to civil liability or defeat the declarant's claim) at the time the statement was made.
- Limitations: A statement that (1) tends to expose declarant to criminal liability and (2) is offered in a criminal case, must be supported by 'corroborating circumstances that clearly indicates its trustworthiness."
Statement Against Interest v. Party Admission
- 1) Statement against interest must be against the declarant's interest at the time the statement is made
- 2) statement against interest may be made by any person, not necessarily a party
- 3) statement against interest requires personal knowledge
- 4) statement against interest requires unavailability
- 5) It would be inaccurate to say that a party admission always also qualifies as a statement against interest.
- Definition: in a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing his death was imminent concerning the cause or circumstances of the impending death.
- 1) State of mind - made under a sense of impending death
- 2) Declarant need not die, but must be unavailable at the time of trial
- 3) Only admissible in homicide or civil cases
- 4) content limitation: must concern cause or circumstances of impending death
- Six Exceptions for which unavailability is not required:
- 1) declaration of existing state of mind
- 2) declaration of then-existing intent to do something in the future offered to infer that the intended future act was done
- 3) excited utterance
- 4) Present Sense Impression
- 5) Declaration of Present Pain, suffering or physical condition
- 6) declaration of past physical condition
- Example of a spontaneous statement exception to hearsay
- 1) startling event
- 2) made under stress of excitement
- 3) concerns the facts of the startling event
- Thinks to look out for:
- 1) nature of the event
- 2) time lapse and what is going on during the time lapse
- 3) language of excitement
Present Sense Impression
- Example of a spontaneous statement exception to hearsay
- Definition: a statement describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter.
- No need for a startling event
- Time Requirement - must have almost precise contemporaneousness - no appreciable time lapse
Declaration of Present Pain, Suffering or Physical Condition
- Example of a spontaneous statement exception to hearsay
- Definition: a declaration of then-existing physical/mental condition is admissible to show the condition (e.g. "it hurts")
Declaration of Past Physical Condition
- Definition: statement made for purposes of diagnosis or treatment and describing medical history or past symptoms or the general character of the cause or external source of the symptoms insofar as reasonably pertinent to diagnosis or treatment
- 1) made to medical personnel
- 2) pertinent to either diagnosis or treatment (even if diagnosis is only for the purpose of giving testimony)
Preliminary questions of fact upon which admissibility depends
Rule: preliminary questions concerning the qualification of a person to be a W, the existence of a privilege, or the admissibility of evidence shall be determined by the court. But in making its determination, the court is not bound by the rules of evidence.
Impeaching the hearsay declarant
Rule: when a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked by any evidence which would be admissible for that purpose if declarant ahd testified as a live W
- Example of a spontaneous statement exception to hearsay
- Definition: records made at or near the time by, or from information transmitted by, a person with knowledge are admissible if kept in the regular course of business and if it was the regular course of that business to make the record unless the source of information or circumstances of preparation indicate a lack of trustworthiness.
- Function: allows the record to substitute for T of the employees.
- Typical Problem Areas:
- 1) Does the exception apply? Usually turns on whether the entry is germane to the business
- 2) Multiple Hearsay Problem. You need an exception for each level of hearsay.
Sixth Amendment Right of Confrontation
- Rule: even if an out-of-court statement qualifies as an exception to the rule against hearsay, the accused's 6A right of confrontation may render the statement inadmissible when it is offered against the accused in a criminal case.
- Crawford v. Washington: out-of-court statements, even if they fit a hearsay exception, will not be admitted if
- 1) the statement is offered for its truth against the accused in a criminal case; and
- 2) declarant is unavailable at trial; and
- 3) statement was 'testimonial'
- 4) accused had no opportunity to cross-examine the declarant's testimonial statements when i was made; unless
- 5) **the prosecution demonstrates that the defendant has forfeited his Confrontation Clause objection by wrongdoing that prevented the declarant from testifying at trial
means the statement was made in anticipation it will be used in the prosecution or investigation of the crime.
Testimonial Evidence vis a vis defendants' confrontation rights
- statements taken by police officers int eh course of investigation are 'non-testimonial' and not subject to the confrontation clause when they are made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.
- BUT statements taken in the course of interrogation are testimonial and subject to the confrontation clause when the circumstances objectively indicate that there no ongoing emergency and the primary purpose of the interrogation is to establish or prove events potentially relevant to a later prosecution.
- Considerations in determining whether statements are testimonial:
- 1) motivation and intent of the declarant
- 2) motivation and intent of the interrogator
- 3) temporal element (ongoing emergency or description of past events?)
- 4) identity of the person eliciting the statement
- 5) degree, amount, circumstances and location of police interrogation
- Note - SCOTUS recently held that a lab analyst's certificate was testimonial and subject to the confrontation clause where the analyst didn't testify.
Forfeiture by wrongdoing exception to the confrontation requirement
- out-of-court statements which would violate the Confrontation Clause can be admitted against the accused if the prosecution can show that D forfeited his rights by wrongdoing that prevented the declarant from testifying at trial.
- This exception only applies when D procured the unavailability of the declarant by wrongdoing with the intent of keeping the witness form testifying. Killing the declarant alone is not enough. It has to be done with the intent to prevent testimony.