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Evidence - Coggle Diagram

- - - - 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 between spouses while they were husband and wife
      - 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 any criminal proceeding including those where the spouse is not the defendant
    - - Client may refuse to disclose and to prevent any other person from rendition of professional legal services to the client
      - Includes the attorney and its representatives
      - Only the client can waive the privilege
    - - Confidential communications made for the purpose of diagnosis or treatment of the patient's physical, mental, or emotional condition
  - - - Direct
        
        Prosecution cannot initiate
      - Cross
        
        Party: Defendant can introduce evidence of good character to help prove innocence.
        Party or witness: impeachment
    - - Cross
        
        Party or witness: only for impeachment
      - Direct
        
        Generally not admissible. Only when character directly at issue: child custody, defamation, etc.
  - - - generally inadmissible
    - - requirements
        
        Witness qualifies as an expert
        
        Opinion backed with reasonable certianty
        
        Subject matter appropriate for expert opinion
        
        Technical Knowledge
        
        Scientific knowledge
        
        Opinion supported by a proper factual basis
        
        Personal knowledge
        
        Facts made known at trial
        
        Facts made known outside of court
        
        Facts need not be admissible in court
        
        Of the kind that are reasonably relied upon by experts in the field
- - - - similar accidents or injuries caused by the same event
      - similar acts admissible to prove intent, habit, or industrial custom or routine
      - causation
  - - - not admissible to prove negligence
      - may be admissible to prove ownership or control or to prove destruction of evidence
    - - may be admissible to prove ownership or control
      - not admissible to show negligence or ability to pay
- - - - The statement is admissible only if the proponent gives an adverse party reasonable notice of the intent to offer the statement—including its substance and the declarant's name— so that the party has a fair opportunity to meet it. The notice must be provided in writing before the trial or hearing—or in any form during the trial or hearing if the court, for good cause, excuses a lack of earlier notice.
        
        Courts rarely use this
    - - A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
    - - A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
    - - A statement of the declarant's then-existing
        
        state of mind (such as motive, intent, or plan)
        
        emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health)
        
        but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.
    - - A statement is excluded from the rule against hearsay if
        
        it is made for--and is reasonably pertinent to--medical diagnosis or treatment
        
        it describes
        
        medical history
        
        past or present symptoms or sensations
        
        their inception; or their general cause
    - - A record that
        
        is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately
        
        was made or adopted by the witness when the matter was fresh in the witness's memory
        
        accurately reflects the witness's knowledge
        
        If admitted, the record may be read into evidence but may be received as an exhibit if offered by an adverse party
    - - Rule 805. Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms within an exception to the rule
    - - Records of regularly conducted activity can be excluded from hearsay if:
        
        the record was made at or near the time by--or from information transmitted by--someone with knowledge
        
        the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit
        
        making the record was a regular practice of that activity
        
        all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification
        
        the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
    - - A record or statement of a public office is exempt from the rule against hearsay if:
        
        it sets out:
        
        the office’s activities;
        
        a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
        
        in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
        
        the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.
    - - Evidence that a matter is not included in a record if:
        
        the evidence is admitted to prove that the matter did not occur or exist;
        
        a record was regularly kept for a matter of that kind; and
        
        the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.
    - - Testimony — or a certification under Rule 902 — that a diligent search failed to disclose a public record or statement if:
        
        the testimony or certification is admitted to prove that
        
        the record or statement does not exist; or
        
        a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and
        
        in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice — unless the court sets a different time for the notice or the objection.
    - - A statement in a document that was prepared before January 1, 1998, and whose authenticity is established.
    - - Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.
    - - A statement contained in a treatise, periodical, or pamphlet if:
        
        the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and
        
        the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.
        
        If admitted, the statement may be read into evidence but not received as an exhibit.
    - - (a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
        
        (1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;
        
        (2) refuses to testify about the subject matter despite a court order to do so;
        
        (3) testifies to not remembering the subject matter;
        
        (4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or
        
        (5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure:
        
        (A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or
        
        (B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).
        
        But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.
      - (b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:
        
        (1) Former Testimony. Testimony that:
        
        (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
        
        (B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
        
        (2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.
        
        (3) Statement Against Interest. A statement that:
        
        (A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and
        
        (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
        
        (4) Statement of Personal or Family History. A statement about:
        
        (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.
        
        (5) [Other Exceptions .] [Transferred to Rule 807.]
        
        (6) Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability. A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.
    - - When a hearsay statement — or a statement described in Rule 801(d)(2)(C), (D), or (E) — has been admitted in evidence, 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. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.