PA Bar: Evidence distinctions

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PA Bar: Evidence distinctions
2011-06-20 22:56:49
PA Bar Evidence distinctions

PA Bar Evidence distinctions
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  1. Relevance
    Evidence is relevant if it has any tendency to prove that any fact is more or less likely

    *Always start the essay out w/ this
  2. PA Rule 403
    • Evidence is excluded if its probative value is merely "outweighed" by: (Fed= "substantially outweighed")
    • 1) The danger of unfair prejudice
    • 2) Confusion of the issues
    • 3) Misleading the jury, or
    • 4) Considerations of undue delay, waste of time, or needless presentation of cumulative evidence

    *Evidence is admitted if the probative value outweights the prejudicial impact in considering evidence
  3. PA Rule 407: Subsequent Remedial Measures
    Exclusion benefits only the party who took the remeidial measure and only when issues of ownership, control or feasiblity are actually controverted.

    *Expressly applies in S/L cases (case law says inadmissible to prove design defects)
  4. Character Evidence: PA 405
    In PA opinion testimony regarding character is NOT ADMISSIBLE, even if character is directly at issue.

    *W may testify about what they have heard about a person's reputation (shared by community)
  5. Character W's is a criminal case
    No opinion, but W may testify as to reputation for a pertinent trait
  6. Cross of character W in criminal case
    In PA, only convictions may be used (no arrest or bad acts)
  7. Character of a V in a criminal case
    A W may not use opiions, but may use evidence of reputation or specific acts

    *Prosecution can then ONLY rebut negative evidence offered against V w/ reputation evidence or specific acts showing good character for the same trait
  8. P.a. Rule 103: Harmless Error
    PA doesn't require that a "substantial right" have been affected, the accused is entitled to relief unless the court is convinced beyond a reasonable doubt that the error is harmless
  9. P.a. R 105: Limited Admissiblity
    The court on its own initiative, as well as upon request, may give a limiting instruction
  10. Character Evidence
    The P.a. R allow, in civil actions for assault and battery, evidence of a character trait for violence of the P to be admitted when offered by D to rebut P's claim that D was the first agressor
  11. Pa. R 404(b)(3) -Other crimes
    In PA, evidence of other crimes, wrongs or acts offered to prove character are excluded.

    May be admitted for purposes other than to prove the character of a person in a criminal case only upon showing that the probabtive value of the evidence outweighs its potential for prejudice
  12. Pa. R 408: Compromises and Offers to Compromise
    Can be invoked only in CIVIL CASES

    The rule does not require the exclusion of any evidence othewise discoverable merely because it was presented in the course of compromise negotiations
  13. Inadmissibility of pleas, plea discussions and related statements
    Exclusion applies when statements made in the coursee of plea discussions w/ an attorney for the prosecution are offered against a D who made a guilty plea that was later withdrawn or a plea of nolo contendere

    *The Pa R exclusion has been held not to prohibit the use of a conviction that results from a plea of nolo contendere to impeach in a later proceeding or to establish an element of a charge in a later adminstrative proceeding
  14. Evidence of Similar Crimes in Sexual Assault Cases
    Pa has not adopted FRE 413-415, governed by Pa R 404(b)

    *Inadmissible for character, but ok for other purposes (MIMIC)
  15. Privilege: Generally
    Primarily statutory, as interpreted by case law
  16. Journalist Privilege
    A PA statute protects a newsperson from being required to disclose the source of any information obtained during the course of journalistic reporting.

    • * Statute covers:
    • 1) Identity of personal informant
    • 2) Documents
    • 3) Inanimate objects
    • 4) All sources of information

    • EXCEPTION: The privilege is qualified and can be overcome by a clear and specific showing that:
    • 1) The info is relevant and material to unresolved issues
    • 2) The info cannot be obtained from an alternative source
    • 3) A compelling interest exists for requiring disclosure
  17. Attorney-Client Privilege
    Traditional C/L privilege

    *PA law provides that counsel is neither competent or permitted to testify to confidential communications made to him by his client

    *Nor may the client be compelled to disclose such communications

    * The privilege belongs to the client and may be waived at trial
  18. Novation
    If there is a novation, the delegator is releived from the obligations under the K

    • *PA requires the following for novation:
    • 1) Displacement and extinction of a valid K

    2)Substitution of a valid new K either between the same parties or by the introduction of a new creditor or debtor

    3)Sufficient legal consideration for the new K

    4) Consent of the parties
  19. Interpretation and Parol Evidence
    Under PA law, when it's a necessary condition to carry out the intentions of the parties or an obligation intended by the parties the court can imply that provision and enforce it notwithstanding the fact that it was not specifically set forth in the writing
  20. Consequential Damages
    • Can be awarded if:
    • 1) The K was for special purpose, or

    2) Under unusual circumstances that were known by the parties when they contracted

    *Generally, recovery for emotional distress will not be allowed (not expressly disallowed under certain circumstances)
  21. Psychologist/Psychotherapist- Patient Privliges
    A licensed psychologist cannot be examined in any civil or criminal matter as to any information acquired in the course of professional services w/out the written consent of the client.
  22. Physician-Patient Privilege
    • *Pa provides by statute that in civil matter a physician is not allowed to disclose, w/out patient consent, any info which he acquired in attending the patient in a professional capacity that would tend to damage the patient's character
  23. *Accident Report Privilege (PA only)
    An accident report or statement made @ an accident scene to a cop for the purpose of comleting an accdeint report required under the Vehicle Code is privileged and may not be used as evidence @ a civil or criminal trial
  24. Sexual Assault Counselor- Patient Privilege (PA ONLY)
    In Pa, a sexual assault counselor may not, w/out the clients consent, disclose the V's confidential communications to the counselor, and may not consent to be examined about the incident in any proceeding

    * The privilege is absolute and may only be overcome by a D if he can show that he is entitled to such evidence under the DP or Confrontation clause
  25. Spousal Privilege
    Pa recognizes a statutory spousal testimonial privilege in criminal cases

    *Protects communicatsions and observations ,before as well as during the marriage, but the privilege is lost @ divorce

    • Pa doesn't recognize doesn't recognize the spousal witness privilege in the following proceedings:
    • 1) For desertion and maintenance
    • 2) Criminal proceedings for bodily injury or violence upon the other spouse or children
    • 3) Proving the fact of marriage in support of a criminal charge of bigamy
    • 4) Murder or rape prosecutions

  26. Marital Communications Privilege
    The confidential marital communications privilege is also statutory in Pa.

    *Protects only communications during the marriage. Although the communication happend during marriage, the privilege survives divorcea

    -Applies in both civil and criminal cases, and both parties are the holders as to dialogues between them
  27. Privilege for communications w/ Clergy
    Pa law protects confidential communications to members of clergy

    *But NOT ministers who are self-ordained or who are members of religious organizations in which members other than the leader thereof are deemed clergymen or ministers
  28. Accountant-Client Privilege
    • Pa law establishes that an accountant may not voluntarily disclose or be required to con info, unless:
    • 1) The client grants permission

    2) Federal law applicable to a substantive issue overrides the privilege
  29. Pa. R 601(b): General rule of W compentency
    • A W is incompetent to testify if the court finds the person is (either because mental issues or immaturity):
    • 1) Incapable of perceiving accurately
    • 2) Unable to express himself so as to be understood, either directly or through an interpreter
    • 3) Has an impaired memory
    • 4) Does not sufficiently understand the duty to tell the truth
  30. Competency of Judge as W
    Pa. R 605 requires an objection to be made
  31. Competency of Juror as W
    Pa doesn't contain the exception permitting testimony about mistakes in entering the verdict

    * Pa law permits polling the jury prior to the recording of the verdict, to eliminate mistakes
  32. Impeachment Evidence of Character and Conduct of a W
    Pa. RE 608 permits a W's credibility to be attacked by evidence of reputation as to character for truthfulness or untruthfulness, but not by opinion evidence

    Pa prohibits the use of specific instances of a W's own conduct to attack the W's character

    -The court has discretion to permit a character W to be cross-examined concerning specific instances of conduct (no arrest) of the principal W whose character is being attacked or supported
  33. Impeachment by Evidence of Conviction of a crime
    Only convictions involving dishonesty or false statement less than 10 years old

    *Older convictions are subject to the "substantially outweighs" balancing test

    -A conviction of nolo contendere may be used to impeach in Pa

    - Pa permits a broader use of juvenile adjudications. Juvenile offenses may be used to impeach in a criminal case if a conviction of the same offense would be admissible if committed by an adult
  34. Prior Statements of Ws
    Pa rule expressly requires that a W be confronteed w/ a prior inconsistent statement during the examinaton before the introduction of extrinsic evidence will be allowed.

    *Prior consistent statements are permitted for rehabilitation purposes only, not subtantively (after impeachment)

    • -The prior consistent statement may be offered to rebu a charge oft:
    • 1)recent fabrication
    • 2)improper motive or influence
    • 3)Faulty memory
    • 4)prior inconsistent statement that the W has explained or denied and the consistent statement supports the denial or explanation
  35. Court-Appointed Experts
    Pa courts have the right to appoint experts in certain situations, such as paternity actions
  36. Prior inconsistent Statements (non-hearsay)
    • May be admitted as substantive evidence if:
    • 1) The W testifies
    • 2)Is available to cross, AND
    • 3) The statement:
    • -was given under oath
    • -is available for cross
    • -is an audio or video
  37. Prior consistent statements(nonhearsay)
    Are only available to rehibilitate
  38. Prior Statements of identification
    • Are admissible substantively if:
    • 1)The W testifies
    • 2)Is available for cross

    *Also admissible to impeach for a failure to identify or bolster
  39. Hearsay exceptions: Declarant unavailable

    Former testimony
    Availability: In Pa there must be an "adequate" opportunity and similar motive to develop the former testimony as a pre-condition of admissibility

    -A restriction on the ability to cross @ preliminary hearing insufficient
  40. HE: Declarant Unavailable- "Statements against interest"
    Pa R 804(b)(3)

    Pa courts will admit a statement against interest that is introduced by either side if there is corroborating circumstantial evidence of trustworthiness
  41. HE: Declarant Unavailable: "Dying Declarations"
    Pa courts recognize this exception in all cases
  42. HE: Declarant Unavailable: Statements of personal or family history
    In Pa courts admit such evidence if the declarant is dead and the statements were made before the controversy existed
  43. HE: Declarant availibility immaterial- Declaration of bodily condition
    In Pa the statement must be in contemplation for treatment so consulting physicians are excluded

    *Only applies for statements by the patient or patient's family to medical personal for medical treatment (statement must be objectively relevant for treatment)
  44. HE: Declarant availibility immaterial: Business records
    • In Pa, records made in anticipation of litigation are inadmisible
    • In Pa a record of past recollections is admissible if the declarant testifies @ trial and testifies as to accuracy

    • A business record may be excluded if there are indications of untruthworthiness

    • Hospital Records
    • 1) In Pa the business records exception doesn't cover entries in a hospital record concerning opinions or diagnosis relating to treatment

    *Only admissible only to show the facts of an injury or symptoms of a disease and the prescribed treatment
  45. HE: Declarant availibility immaterial- "Official Records"
    Pa has stautes for official records prepared pursuant to an official duty

    -Vital statistics may be admitted as an official record or as a business record
  46. HE: Declarant availibility immaterial: Absence of business record
    Not considered hearsay under Pa law
  47. HE: Declarant availibility immaterial- Learned Treatises
    Pa follows the common law, which doesn't recognize an exception to the hearsay rule for these
  48. HE: Declarant availibility immaterial: Judgement of previous conviction
    No exception, but admissibility differs depending on the severity of the offense

    Felonies= the conviction is conclusive evidence, and the convicted party is estopped from denying or contesting any fact essential to sustain conviction

    Minor offenses= Pa applies common law under which evidence of conviction is inadmissible to prove a fact necessary to sustain the conviction
  49. HE: Declarant availibility immaterial- "Statements in antient documents"
    Pa requires that the document be at least 30 years old to qualify as an ancient document
  50. HE: Declarant unavailable- Former testimony
    The Pa rule requires that the party have had an adequate opportunity to develop the the former testimony
  51. HE: Declarant unavailable- Dying Declaration
    Can be invoked by any type of case
  52. HE: Declarant unavailable- Statement against interest
    The Pa rule requires corroborating evidence is required before a statement against penal interest can be introduced by either side
  53. HE: Declarant unavailable- Statements of personal or family history
    The Pa rule requires that the statement be made before the controversy arose
  54. Residual exception
    Pa has not adopted a residual exception

    *If a statement does not fit w/in one of the exceptions to the hearsay rules sert forth in the Pa R E, the Pa courts lack the authority to admit it for a hearsay purpose
  55. Disqualificaton for Perjury
    • In CIVIL cases in Pa, a person who has been convicted of perjury, including subornation or solicitation of perjury, is not a competent W, even if his sentence has been served , unless:
    • 1) The conviction has been judicially reverse or set aside

    2) The matter is one to redress or prevent injury or violence to the W's own person or property
  56. Opinion to Ultimate issueq
    Pa has not adopted the federal rule, which prohibits an expert from testifying as to whether the D in a criminal case had the mental state constituting an element of the crime charged or a defense thereto

    *Pa requires expert psychiatric testimony to negate a specific intent to kill as part of a first-degree murder charge