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Evidence FRE applies in all…
Evidence FRE applies in all fed cases except prelim facts made by judge, grand jury, other misc. hearings
Hearsay
General Rule: 1) Hearsay is out of ct. statement offered to prove truth of matter asserted 2) Inadmissible unless exception applies 3) double hearsay must exception for each layer
Statement: 1) oral/written assertion 2) nonverbal conduct intended as assertion 3) no statement from animal/machine
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Rule of Completeness - Rule 106- When only part of statement allowed, the adverse party may introduce another part of that statement which in fairness ought to be considered at the same time
Non Hearsay
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Admission Made in Court: Formal statement's conclusive (pleadings), but informal judicial admissions can be explained (during testimony from diff. case)
Adopted Statement: Party expressly/impliedly adopts another statement and can be used against them. Silence may be used against them if: 1) party heard and understood 2) Capable of deniying it 3) Reasonable person would deny
Vicarious Statement- May be admissible if: 1) authorized spokesman 2) Employee/agent made in scope of employment and during the relationship 3) Partners 4) Co-conspirator if statement made in furtherance of conspiracy 5) Privies in title/joint tenants
Hearsay Exceptions
Unavailable Declarant
Unavailable if 1) death/illness 2) privilege 3) refuse to testify despite court order 4) can't remember 5) absent and attedance cannot be attained
Former Testimony: 1) Not available 2) Under oath 3) Opposing party with similar motive had opportunity to cross examine
Statement Against Interest 1) Not available 2) Against declarant's interest when made 3) Statement against penal interest must be corroborated
Dying Declaration 1) Not available 2) Civil or homicide 3) Believed death imminent 4) statement concerned cause or circumstance of death
Family History 1) Not available 2) Statement about birth, death, other fam matter if: a) declarant close fam member/associate and b) based on personal knowledge of facts/fam reputation
Unavailable via Bad Intent: if witness unavailable because party intentionally caused absence, then statement IS admissible
Confrontation Clause: Hearsay not admissible if 1) against crim 2) Declarant not available 3) D had opportunity to cross 4) statement testimonial
Statement Made to Cop: Depends on purpose: a) Aid in emergency- not testimonial b) Provide info for later prosecution= testimonial
Affidavits/Test Results: Testimonial evidence (includes forensic reports, etc)
Availability Irrelevant
Excited Utterance 1) Relates to startling event 2) Made while declarant under stress/excitement of event
Present Sense Impression 1) Describes/explains event/condition 2) made while or immediately after event
Present State of Mind 1) Statement of then-existing motive, intent, plan, emotion, sensory, physical condition 2) No statement of memory or belief!
Med Trx 1) describes med hx, past or present symptom or cause 2) Made for purpose of treatment 3) Exception, kids may ID perp during trx
Business Records- Record of some act, opinion, event, condition, and admissible if: 1) Business 2) made in normal course of biz and they regularly keep such records 3) made near time of event 4) Personal knowledge required or someone who had duty to make record
Absence of Biz Records: Admissible if biz normally records such matters and court may exclude for lack of trustworthiness (burden on opponent)
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Public Records 1) Activities of agency 2) Matters re :public duty, but NOT from police reports in crim case 3) Includes various offcial reports or investigations, but not against D in crim case
Absence of Public Record: Admissible to show lack of record, but D can confront preparer with notice of 14 days
Misc. 1) Ancient Records- Admissible before 1998 2) Docs affect interest in real estate usually admitted
Catch-All- Evidence admitted if trustworthy, strictly necessary, and reasonable notice to adversary
Relevance
Relevancy Definition- Material and Probative 1) Any tendency make fact of consequence to determination of action more/less probable than w/out evidence
Basic Admissibility Rule: 1) Irrelevant evidence always inadmissible 2) Relevant evid. admissible, unless a) kept out by evidence rule or b) R 403 excludes via ct. discretion
R 403: Judge has discretion to exclude if probative value substantially outweighed by: unfair prejudice, confusing issues, mislead jury, undue delay, waste of time, cumulative ev.
Similar Occurrence
Similar Occurrence 1) Inadmissible if involves other time, event, person than what involved in present case, EXCEPT a) P's accident hx if admitted to dhow something other than carelessness (P made similar false claim) b) prior accident involved injured body part when causation at issue re: damages
Similar Accident Cause by Same Event/Condition: Admissible to prove 1) existence of dangerous condition 2) Causation 3) D had notice of condition
Absence of Similar Accident: Cts reluctant but evidence of lack of complaint admissible to show D's lack of knowledge
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Rebut Claim of Impossibility: Similar occurrence admissible to rebut claim that occurrence at issue not possible
Causation: Complex causation issues used to show evidence re: other events, time, persons
Business Habit/Routine: Okay as circumstantial evidence to show person/biz acted in accordance w/habit on occasion
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Public Policy Exclusions
Insurance: Inadmissible to show negligence, bad conduct, but okay to show: 1) Ownership/control 2) Impeach witness, show bias or 3) Part of admission of liability
Subsequent Remedial Measures: Inadmissible to show negligence, guilty conduct, defect or need for warnings, BUT OKAY to show: 1) Ownership/control 2) rebut claim that precaution not feasible 3) prove destruction of evidence
Settlement /Negotiations: Settlement offer, conduct, statement in negotiations inadmissible to: 1) prove validity/amount of claim2 ) Impeach prior inconsistent statement-- BUT impeachment for bias=OKAY
Disputed Claim Required: Evidence excluded only if claim/indication of claim disputed as to validity or amount
Settlement Immunity Exception: 1) Statement in civil negotiation w/ govt regulatory authority admissible in crim case
Pleas: NOT admissible if: 1) Offer to plead guilty 2) Withdrawn guilty plea 3) No contest plea 4) Statements in plea discussions
Offer to Pay Med Bills: 1) Inadmissible to prove liability, but OKAY if accompanying statement of admissions of fact
Witnesses:
General Competency: 1) Personal Knowledge 2) Oath to testify 3) Children: case by case 4) Insanity: competent if understand obligation and has capacity to tell truth 5) Judge/jury not competent to testify
Past Verdicts: Juror incompetent to speak to deliberation or matters affecting vote, except 1) extraneous prejudicial info 2) Outside influence 3) Mistake on verdict form 4) juror race bias
Dead Man Act- Only Civil Case (No Fed Dead Man) 1) Interested person incompetent to testify against decedent's estate re: personal comms or transaction w/ dead man
Leading Questions Allowed: 1) On direct 2) prelim/intro matters 3) Witness needs help to answer 4) hostile witnes
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Expert /Lay Witness
Lay Witness- Admissible if: 1) Rationally based in perception of witness 2) Helpful to jury 3) NOT based on any specialized knowledge 4) BUT, can't testify of agency or of there was K
Expert Witness- Admissible if: 1) Helpful to jury 2)Based on sufficient facts/data 3) Reliable 4) Qualified by specialized knowledge, skill, experience, training ,education
Factual Basis for Expert: 1) Facts based on expert observation 2) Facts expert learns of at trial 3) Facts learned outside of courtroom that are the type reasonably relied on by other experts in field
Reliability (Daubert) "TRAP" 1) Testing of principle/method 2) Rate of error 3) Acceptance by other experts in the field 4) Peer review/ publication
Learned Treatise: Admissible as Substantive Statement offered for truth as hearsay exception IF 1) treatise established as reliable authority 2) called to experts' attention on cross or relied on by expert during direct and 3) excerpt read into evidence
Expert Opinion on Ultimate Issue: Allowed, except concerning D's mental state in criminal case
Judge Exclude Witness: 1) On request, judge MUST exclude witness from ct. 2) Judge MUST NOT EXCLUDE a) party or party rep b) person who's presence essential c) person authorized by stat to be there 3) Ct. may examine partys' witness or call their own
Privileges
What Law Applicable?
Fed Court: 1) Atty/client 2) Spousal Immunity 3) Marital Comms 4) Therapist 5) Clergy 6) Govt Privilege
Atty/Client 1) Confidential comms 2) between atty/client 3) During legal consult 4) unless exception applicable
- Note: Does NOT protect underlaying facts or physical items- only comms
- Comms via agent ok if necessary to transmit comms between atty/client
- If join clients- NO privilege if they later sue eachother
- Priv applies after death
Exception: 1) Sought to aid crime 2) Client puts legal service @ issue 3) Dispute between atty/client 4) parties claiming via same deceased client
Therapist/Psych 1) Fed ct allows 2) Works like atty/client pirv. 3) No priv. where pt. puts mental health at issue
Spousal Immunity in Crim Case 1) Prevents D's spouse from testifying against him in crim case 2) Spouse must be married at time of trial 3) witness spouse holds priv.
Confidential Marital Comms Privilege 1) Okay for crim/civil case 2) Either spouse can claim 3) must be married at time of comms, but priv. still remains when divorced 4) comms must have been confidential
Exception to Marital Comms 1) Joint crime/fraud 2) legal action between spouses 3) Spouse charged w/crime against other spouse or kids
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Documents
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Best Evidence Rule: (content of writing, recording, picture) 1) Original must be produced if terms material 2) Secondary evidence okay if proponent has good excuse for not producing original
Best Evidence Rule Applicable where: 1) writing is legally operative/dispositive 2) witness' knowledge results from having seen the writing
Exception to Best Evidence Rule: 1) Summary of high volume records 2) Certified copy of public records 3) Collateral writings 4) Opponent testified or gave written admission about writing
Original/Duplicates: 1) Original or any counterpart intended to have same effect ( negative/printout= original) 2) Duplicate: exact copy made by machine and admissible to same extent as original, unless a) unfair or b) issue as to authenticity of OG
Secondary Evidence Admissible When: 1) OG destroyed 2) OG can't be produced 3) OG is possession of adversary who won't produce
Real Evidence
Pics/Video 1) Must be Id'd by witness as fair and accurate representation of facts depicted 2) Photographer need not testify
Camera: 1) Pic/video okay if camera properly operating and came from that camera
2) Xray- proper process, technique, and chain of evidence
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Authentication of Real Evidence: 1) Testimony of witness they recognize object 2) Held in substantially unbroken chain if custody in same condition
Character
Character R 404: Propensity Evidence not allowed to prove he acted in accordance with trait on particular occasion
Exceptions (crim case) 1) D can open door of pertinent trait, and Pros. can rebut 2) Victim's pertinent trait allows pros. to rebut or offer same against D 3) Homicide case: victim's peacefulness to rebut first aggressor claim 4) Evidence of witness character admitted for impeachment (look to 608)
- Note: Peaceful/law abiding= always pertinent in crim case
Prove Character 405: 1) May use reputation /opinion 2) Specific Acts on CROSS ONLY ( also okay for essential element of crime: entrapment, defamation, custody
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Victim Character Initiated by D: 1) D can offer rep/opinion test re: victim character for relevant trait if offered to prove self defense
2) Pros rebuts by: a) offering victims' good character for some trait or D's bad character for same trait
Victim Character in Sexual Assault: 1) Victim past conduct not admissible unless a) Crim case: proves diff source of injury/physical evidence or Consent 2) Civil: when probative value substantially outweighs unfair prejudice (reverse 403- favors exclusion)
Character in Civil: Admissible if character directly @ issue- 1) defamation, negligent hiring/entrustment, custody
Admissibility Requirement: Must b sufficient to support jury finding that D committed the misconduct and survive 403
D's Similar Conduct re: Sex crimes: D's prior similar acts admissible for any relevant purpose in crim/civil case involving sexual assault or child molestation
Propensity Admissible for: MIMIKAPPO 1) Motive 2) Intent 3) Mistake/lack of 3) Identity 4) Knowledge 5) Accident/lack of 6) Preparation 7) Plan 8) Opportunity
Impeachment
Prior Inconsistent Statement: 1) Admissible for impeachment 2) Admissible as sub evidence if made under oath @ prior proceeding 3) When introducing extrinsic evidence, must give witness opportunity to explain/deny and adverse party can cross
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Untruthfulness: Opinion/Reputation: Testimony okay to impeach witness for truthfulness/untruthfulness
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Prior Bad Acts Untruthfulness Allowed on cross, but NO extrinsic evidence and can't ask about arrests
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Rehab Witness 1) May explain on redirect 2) Offer evidence of good character for truth 3) No specific acts 4) Prior inconsistent statement: a) when witness accused of lying/exaggerating due to bad motive and statement predates the reason for motive or b) when witness impeached on other non character basis
Evidence Procedure
Jury Decisions 1) Issues of relevance 2) authenticity 3) whether person acting as agent 4) whether witness has personal knowledge
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Judicial Notice: 1) Ct. recognizes fact as true w/out formal presentation of evidence 2) Conclusive in civil case but not conclusive in crim case
Facts Appropriate for Judicial Notice 1) facts not subject to reasonable dispute 2) generally known in Jx 3) Can be readily determined from sources not disputed
Limiting Instruction 1) If evidence admitted for limited purpose, judge can issue limiting instruction or judge usually has discretion to exclude evidence under R 403