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Evidence (Witnesses (FIVE: Impeachment: to cast an adverse reflection on a…

- - - - helpful for a clear understanding of a fact at issue, and
      - not based on scientific, technical, or other specialized knowl. Scope: VEMPSS: Value of one's own land, Emotional state of other, Measurements (speed, height, weight, distance), Physical states (intoxicated, height, fat/skinny, healthy/sick, happy/sad), Sensory descriptions (smell, sound, taste, color), Sanity of a testator
      - rationally based on the witness's perception. NO legal conclusions (insane, etc.). Ok to say someone is "drunk" for a DUI case, b/c the ultimate issue isn't just "drunk" but too drunk to safely operate a vehicle.
    - - witness qualifies as expert (special skills, knowl, training, education, experience)
      - 4b. opinion supported by a proper factual basis
        
        facts made known at trial
        
        facts made known outside of ct:
        
        Facts need not be admissible in ct (and should not be REVEALED in ct by the expert witness, either -- 703: Unless probative value substantially outweighs prejudicial effect -- opposite of 403)
        
        of the kind that are reas relied upon by experts in the field
        
        personal knowl
      - Subject matter appropriate for expert opinion:
        
        Scientific knowl
        
        Technical knowl
        
        other specialized knowl
      - 4a. Reliability: Opinion backed w/ reas certainty. Abuse of discretion by trial judge standard. But it will usually come in if reas relied on by expert, b/c jury can determine its weight. Daubert: TAPES: 1) has the theory been Tested? (how much?) 2) general Acceptance in the relevant community 3) Peer review of the scientific theory 4) degree or rate of Error 5) Standards
      - Relevance
  - - - Reputation or Opinion (Character) E: A witness may be impeached by showing a poor reputation for truthfulness. This is done by calling another witness from the community where the impeached witness lives or from his business circle. The impeaching witness may also state her personal opinion based on acquaintance, subject to the court's discretion. A witness's character for truthfulness is always material. Truthfulness can only be rehabilitated if first attacked -- no bolstering in advance.
    - - Crimes involving dishonesty like fraud, perjury, tax evasion, forgery, whether a felony or misdemeanor. The ct has no discretion to exclude those crimes (admissible as a matter of right) as long as the conviction is 10 years old or less (conviction or confinement release, whichever is later). Inadmissible: assault, battery, DUI, possession of drugs, theft
      - Felonies not involving dishonesty: For the accused, the gov must show the probative value as impeachment is not outweighed by its prejudicial effect. This generally favors exclusion. For witnesses other than an accused, the balancing test is FRE 403 and requires that the probative value is substantially outweighed by the danger of unfair prejudice. This favors admission. Extrinsic E of the crime is permitted.
    - - Interrogation on cross-exam about prior bad acts is admissible w/in a ct's discretion. The bad act must be probative of truthfulness and asked in good faith; bad acts can't be too remote in time. Elements: 1) a question 2) on cross 3) inquiring into proper unconvicted acts bearing on (un)truthfulness (or dishonesty). Only questions of fact area allowed; not rumors or arrests. (forgery, using a false name, falsifying resume or academic record, lying about age, marital status, employment, cheating at cards)
      - Extrinsic E of bad acts is not permitted. If the witness denies the act, the cross-examiner cannot refute the testimony by calling other witnesses or by producing other E.
  - - - Confidential communications made for the purpose of diagnosis or treatment of the patient's physical, mental, or emotional condition
      - Physician-patient privilege is not common law, but many states have a statutory patient-physician privilege. In a diversity suit in fed ct, the ct may use this privilege if its using the law of the state
      - Extends to licensed social workers, psychologists, mental health specialists, psychiatrists, and marriage counselors (but not educ. or vocational counselors)
      - Exceptions: statements made regarding commitment proceedings, statements dealing w/ ct-ordered examinations, when the medical condition is part of the claim (personal injury, malpractice), future crime or fraud
    - - Marital communication privilege: Provides that either spouse has a privilege to refuse to disclose and to prevent her spouse from disclosing a confidential communication made b/w spouses while they were H&W (even if now divorced). Civil or criminal. Both spouse's privilege. Waived by speaking to others (including children old enough to understand)
        
        Exceptions: crimes/intentional torts committed by a spouse against the other or a child, divorce proceedings, joint participation in a crime
      - Spousal testimony privilege: A spouse may not be called as a witness by the prosecution against his spouse in a criminal case and may not be compelled to testify against his spouse in a criminal proceeding including those where the spouse is not the defendant. WItness's privilege--D spouse can't keep the witness off the stand. Covers comms, regardless of confidentiality (not waiveable by eavesdroppers) before and during marriage, but is lost upon divorce.
        
        Exceptions: suits b/w spouses, suits involving child of either spouse
    - - includes the atty and its representatives and essential 3rd parties (furthering the relationship)
      - only the client can waive the privilege (known eavesdroppers but not unknown)
      - Client may refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of rendition of professional legal services to the client
      - work product: prepared by atty in litigation anticipation (nothing pre-existing). Work product admissible if the party seeking admission can show a substantial hardship (no other way of obtaining the E)
      - Exceptions: future crime or fraud, suits b/w atty and client (malpractice), joint clients who then sue each other
    - - Immunity: Transactional: cannot be prosecuted for the underlying offense. Use: witness's statements cannot be used against him, but Prosecution does not agree to never prosecute the offense if it receives other E
- - - - Official publications issued by public authority
      - Instruments--negotiable and commercial paper
      - Label, tag, or trademark affixed on item in regular course of business
      - Certified public docs *by clerk of agency or ct that had custody)
      - Acknowledged docs signed before notary, sworn to truth, content, and execution (except wills)
      - Newspapers and periodicals w/ reas wide circulation
      - Sealed docs (gov certified)
    - - A showing that a call was made from an assigned number: the call is assumed to have come from the person assigned that number
      - In the case of a business: the call is assumed to have been made to the business and the conversation related to the business
      - A showing that a call was made to the number assigned: the call is assumed to have gone tho that person.
  - - - Look for best E rule issues where 1) testimony is reliant on the writing rather than FHK, or 2) toperative or dispositive instruments such as Ks, deeds, and wills
      - Independent Source Rule: where a fact to be proved has as source independent from the writing (i.e. the fact occurred regardless of whether the writing exits), then the contents are NOT in issue and the BER does not apply (sales receipt, birth/death/marriage cert)
      - Can use secondary sources if the original is unavailable, w/o fault of either party
- - - - similar accidents or injuries caused by the same event
      - similar acts admissible to prove intent, habit, and industrial custom or routine
      - causation
    - - 408 Offers to settle need a DISPUTE as to validity or amt, but doesn't have to be a formal charge. Admission and offer are both inadmissible (except to show bias/prejudice, or to negate undue delay). 409 Offers to pay medical: don't need a dispute. If there is an admission + offer, the admission can come in through the redaction rule (but the offer itself doesn't).
  - - - Prosecution cannot initiate. Once door is opened by D, character E must be correct form (opinion or reputation only) and trait (violence/honesty -- look to the alleged crime). Regardless of door opening, specific acts can only be brought in by prosecutor to impeach (or MIMIC), not for character conformity.
      - Character E of the victim may be admissible by the criminal D (of a violent crime) to show self-defense. Must have proper FORM (opinion or reputation only) and be of the relevant TRAIT (violence). Prosecutor may then rebut (both good char of victim AND bad char of D), and can only bring in prior specific acts if MIMIC exception
        
        Special rule in homicide cases: if D offers E that the victim was the initial aggressor, the prosecution may offer E of the (dead) victim's good character ONLY (not bad char of D)
      - FRE 404(b) MIMIK COP: E of specific acts may be admissible when offered for other than to show conformity w/ character ("backdoor" way of getting specific acts into the record). Motive, Intent, Mistake (or lack thereof), Identity (modus operandi), knowl, Common plan or scheme, opp, preparation
    - - Generally not admissible. Only when character directly at issue (char is essential element of case -- child custody, defamation, neg. entrapment, neg. hiring). If admissible, all 3 forms (ROSA) may be admitted. Reputation: must be about reputation in the relevant community. Opinion: right trait (like fitness to raise child)
    - - In a criminal case for child molestation or sexual assault, acts by D are admissible and may be considered as relevant (including substantively for propensity to commit sex acts). Same for civil cases where damages are predicated on sexual assault or child molestation (specific acts admissible). The specific acts do not have to be convictions or arrests, can even just be allegations that meet the POTE standard
- - - - Present sense impressions
        
        Statement describing or explaining an event or condition
        
        Spontaneity: made while or immediately after the declarant perceived it
        
        Can be oral or in writing (like a 911 tape)
      - Business Records
        
        Made at or near the time by someone w/ knowl
        
        Kept in the course of a regularly conducted activity of a business or organization
        
        Making the record was a regular practice of that activity
        
        Shown by a custodian's testimony or by certification
        
        Neither the source of info nor the method of preparation indicate a lack of trustworthiness
      - Excited utterance
        
        Statement relating to a startling event or condition
        
        Made while under the stress of excitement that it caused, but need NOT be immediate (unlike present sense impression)
        
        Personal knowl req'd
      - Public Records
        
        Record sets out the office's activities. Need not be made at or near time of event (unlike for biz records)
        
        Of a matter observed while under a legal duty to report. Does NOT include matters observed by police if offered by the prosecution (D can offer the report and have it admitted tho)
        
        Neither the source of info nor other circs indicate a lack of trustworthiness
      - Present state of mind or physical condition
        
        Must be then-existing state of mind or emotional, sensory, or physical condition is admissible if relevant. Only admissible against the declarant (not someone else mentioned or addressed in a letter). Statements of intent (forward-looking) can be admissible. Does NOT cover: past sensations, or statements of memory or belief
        
        Not including a statement of memory or belief
      - Past recollection recorded
        
        May be read into evidence, but the writing itself is NOT received as an exhibit unless offered by the adverse party
        
        Authentication: the witness must testify that the writing accurately reflects the witness's prior knowl (the witness made or adopted the statement)
        
        A record that:
        
        Was made or adopted by the witness when the matter was fresh in the witness's memory, and
        
        Is on a matter the witness once knew about but now cannot recall
        
        Accurately reflects the witness's knowl
        
        Must have attempted, and failed, to refresh the witness by a leading question or Rule 612
      - Family Records: statements of fact concerning personal or family history contained in family bibles, jewelry engravings, tombstone engravings, etc. are admissible.
      - Absence of Entry in a Record Can prove nonexistence of record. Witness must testify that 1) she is familiar w/ the records, 2) the witness did a diligent search of the records, and 3) found no record of the event
      - Learned Treatise: treatise statements may be admitted on direct or cross if 1) the treatise is established as a reliable authority via judicial notice, expert testimony subject to cross, or stipulation. The treatise may be read into E but not received as exhibits. Subjects: MASH (medicine, art, science, history)
      - Statements made for the purpose of diagnosing or treating a medical condition: statement can be made to any medical personnel or family member. Statement must be one that is useful for diagnosis and treatment (not who hit you, but that you were hit from behind).
      - Statements in ancient docs: admissible if found in a place where these items are typically found (archives, library, shoebox). Includes statements in a doc that are in existence for 20 years or more and its authenticity is established. The doc must have been created no later than 1/1/98 (sunsetting).
    - - Declarant unavailability results from: PRISM. burden to prove unavail is on the proponent of the testimony
        
        Refusing to testify despite ct order
        
        lack of Memory
        
        Privilege
        
        death or physical/mental illness (Incapacity)
        
        absent beyond the reach of the court's Subpoena power and the proponent of the statement has been unable to procure attendance or testimony
      - Former Testimony
        
        given as a witness at a trial, hearing or lawful deposition (under oath). Former action must involve the same subject matter but not necessarily the same COA or plaintiff.
        
        offered against a party who had an opp and similar motive to develop it by direct, cross, or redirect exam
      - Statements Against Interest (NON-party)
        
        reas person in the declarant's position (usually a non-party) would have made only if the person believed it to be true
        
        contrary to the declarant's penal, proprietary, or pecuniary interest WHEN the statement was made (unlike party admissions)
        
        supported by corroborating circs that clearly indicate its trustworthiness
        
        Personal knowledge
      - Statement of personal or family history (statement concerning declarant's relationship by blood, adoption, or marriage)
      - Dying Declarations
        
        Statement made by declarant believing that declarant's death was imminent
        
        Statement about its cause or circs
        
        All criminal and civil cases except non-homocide criminal cases
        
        Declarant need not have actually died, but must be somehow unavail to testify
      - Statement offered against party procuring declarant's unavailibility
    - - Factors to consider are: (1) nature of the dispute (personal or is victim a stranger); (2) scope of the potential harm to the victim; (3) threat to additional identifiable victims; (4) existence of a more generalized threat to the public; (5) suspect’s choice of weapon; and (6) whether the suspect remained at large” or had been located, but not yet apprehended
  - - - Can also be assertive conduct/gestures, if communication is inteded
    - - Party Admissions: if the individual is "wearing a party hat" (testifying that they told someone, out of court earlier, that they were going to sue them)
  - - - Prior inconsistent statement, prior consistent statement, or prior identification (line-up). Reqs: 1) Declarant must be avail for testimony, 2) declarant must be subject to cross concerning the statement. PIS can be offered for truth if sworn (under oath -- trial, depo, grand jury, prelim hearing). PCS is used to rehabilitate the witness after an inference of fabrication has been raised or the declarant's credibility as a witness was attacked (impeached), but the statement must have been made before alleged motive to lie began. PID: can buttress the reliability of in-court IDs
      - Statement by Party Opponent
        
        Co-conspirator: Even if co-conspirators are not aware that a conspiracy exists. Reqs: 1) conspiracy must first be established by E other than the statement, POTE standard, 2) declarant was member of the conspiracy, 3) statement made in furtherance of the conspiracy, 4) statement was made during the existence of the conspiracy
        
        Admission by silence reqs that a reas person would have denied the statement (not for a joke, but maybe for a serious accusation) (not post-Miranda)
        
        Adoptive Admission: There must be E sufficient to show that the party heard and understood the statement and adopted it as her own
        
        Authorized admission: a statement by a party's agent or rep (agency can be express or implied)
        
        Vicarious Admission: A statement of a party's employee offered against the party. The statement must 1) be made during the existence of the employment relationship, and 2) concern a matter w/in the scope of employment
        
        Direct statement by a party: (can be statement of fact or opinions). Does not have to be against interest when made. Personal knowl not req'd (only the fact that it was said by declarant and is being used against the declarant)