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Types of Evidence, Federal Rules of Evidence, Module 14 Flashcards, Module…

- - - - Rule 404(a)(2)- there are exceptions for prohibitions of character evidence for defendant and/or victims
      - 404(b)- prohibits use of past crime, wrongs, or act as character evidence
- - - - (a)
        
        a person's written or verbal statement or non-verbal conduct
      - (b)
        
        Declarant is the person that made the statement
      - (c)
        
        Hearsay is a statement that is (1) not directly from the declarant testifying at trial or during the hearing.
        (2) something a party offers into evidence to prove the truth of an assertion.
    - - Hearsay is not admissible unless any of the following provides otherwise:
        
        federal statute
        
        these rules
        
        other rules prescribe by the Supreme Court
    - - (1) Present Sense Impression
        
        Admissible if declarant makes statement while perceiving/witnessing event
        
        (2) Excited Utterance
        
        A statement made relating to an event or conditon while under the stress of excitement Ex: State of New Jersey v. Thomas H Outland
        
        (3) Then-Existing Mental, Emotional or Physical Condition
        
        Statement about the declarant's then state of mind, but not about their memory or belief to prove the facts remembered
        
        (4) Statement made for Medical Diagnosis and Treatment
        
        (a) state made that is pertinent to a medical diagnosis or treatment
        (b) describes medical history
        
        (5) Recorded Recollection
        
        (a) A record about a matter the witness cannot recall specifically to testify, but is aware of.
        (b) made or adopted by witness when memory was fresh
        (c) accurately reflects witness's knowledge
        
        (6) Records of a regularly Conducted Activity
        
        (a) the record was made at or near the time by someone with personal knowledge
        (b) the record was kept in the course of a regularly conducted activity of a business
        (c) making the record was a regular practice of that activity
        (d) all these conditions are shown by the testimony of the custodian or another qualified witness
        (e) the opponent doesn’t show that the source of info is a lack of trustworthiness
        
        (7) Absence of a Record of Regularly Conducted Activity
        
        (8) Public Records
        
        If it sets out the office's activities, (ii) matter observed while under a legal duty to report; (iii) in a civil case or against the gov't in a criminal case
        
        (9) Public Records of Vital Statistics
        
        (10) Absence of a Public Record
        
        Testimony or certification under rule 902 that a diligent search failed to disclose a public record or statement
        
        (11) Records of Religious Organizations Concerning Personal or Family History
        
        (12) Certificates of Marriage, Baptism or Similar Ceremonies
        
        (13) Family Records
        
        A statement of fact about personal or family history contained in a family record. EX: genealogy, chart, engraving on a ring, inscription on a portrait, or burial marker.
        
        (14) Records of Documents That Affect an Interest in Property
        
        (a) a record is admitted to prove the content of an original recorded document
        (b) record is kept at a public office
        (c) a statute authorizes recording documents of that kind in that office
        
        (15) Statements in Documents That Affect an Interest in Property
        
        (16) Statements in Ancient Documents
        
        A statement in a document that was prepared before January 1, 1998, and whose authenticity is established.
        
        (17) Market Reports and Similar Commercial Publications
        
        (18) Statements in Learned Treatises, Periodicals, or Pamphlets
        
        (19) Reputation Concerning Personal or Family History
        
        A reputation among a person’s family by blood, adoption, or marriage — or among a person’s associates or in the community — concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.
        
        (20) Reputation Concerning Boundaries or General History
        
        A reputation in a community — arising before the controversy — concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.
        
        (21) Reputation Concerning Character
        
        (22) Judgment of a Previous Conviction
        
        (23) Judgments Involving Personal, Family, or General History, or a Boundary
    - - (a) Criteria for being unavailable
        A declarant is a considered unavailable if the
        
        (1) Court rules a privilege applies to the subject matter of a declarant’s statement
        (2) Declarant refuses to testify despite a court order
        (3) Testifies to not remembering subject matter
        (4) Death of declarant or then-existing infirmity, physical or mental illness
        (5) Declarant is absent from trial or hearing and statement’s procurement has not been able to procure
        
        (a) The declarant’s attendance under rule 804(b)(1) or (6)
        
        (b) The declarant’s attendance or testimony under 804(b)(2) or (3)
      - (b) The Exceptions
        not excluded by the rule against hearsay if the declarant is unavailable as a witness:
        
        (1) Testimony that
        
        (A) was given as a witness at a trial, hearing or deposition either at the current proceeding or a different one.
        
        (B) is offered against a party who had an opportunity. or motive to develop it by direct, cross or redirect examination
        
        (2) Statement Under the belief of Imminent Death
        
        (3) Statement Against Interest
        
        (A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or
        
        (B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate.
        
        (4) Statement of Personal or Family History
        
        (A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact
        
        (6) Statement Against Party who Wrongfully caused Declarant's Unavailability- Must show intent
    - - When a hearsay statement is admitted under rule 801(d)(2) the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness.
    - - (1) the statement is supported by sufficient guarantees of trustworthiness
        (2) must be more probative in value than can be obtain through other reasonable methods
        (b) must give notice of intent to use statement at trial
  - - - (a) Witness's specialized knowledge, skill, experience, training will help the trier of fact to understand the evidence or fact at issue.
      - (b) based on sufficient facts or data
      - (c) product of reliable principles and methods
      - (d) reliably applied the principles and methods to the facts of the case
  - - - Privilege Against Self-Incrimination
        Spousal
        Attorney-Client
        
        Fifth Amendment- criminal and civil cases
        
        Spouse may refuse to testify against another in a criminal proceeding testimonial privilege and confidential privilege lasts during the life of the marriage
        Ex: Trammel v. United States,445 U.S. 40 (1980)
        
        Client and attorney communication is protected as confidential information
    - - State of New Jersey v. J.G.