EVIDENCE (BAR EXAM) Finals!! Rules Versus Exceptions Correctly Solved Scored A+

EVIDENCE (BAR EXAM) Finals!! Rules Versus Exceptions Correctly Solved Scored A+ Relevant Evidence -**- evidence is RELEVANT if it has ANY TENDENCY to make a material fact more probable or less probable than would be the case w/o the evidence Relevant Evidence Rule -**- -all relevant evidence is ADMISSIBLE, UNLESS: (a) some specific EXCLUSIONARY RULE is applicable, OR (b) the court makes a discretionary determination that the PROBATIVE VALUE of the evidence is substantially outweighed by one or more of the following 6 PRAGMATIC CONSIDERATIONS 6 PRAGMATIC CONSIDERATIONS for Relevance -**- 1) danger of unfair prejudice 2) danger of confusion of issues 3) danger of misleading the jury 4) undue delay 5) waste of time 6) unduly cumulative Similar Occurrences - General Rule -**- -if evidence concerns SOME TIME, EVENT, OR PERSON OTHER THAN THAT INVOLVED IN THE CASE AT HAND, the evidence is ADMISSIBLE. -probative value is usually outweighed by pragmatic considerations 6 recurring situations that have produced concrete rules that may permit admissibility -**- 1) Plaintiff's Accident History 2) Similar Accidents Caused by Same Event or Condition 3) Intent in Issue 4) Comparable Sales on Issue of Value 5) Habit 6) Industrial Custom as Standard of Care Plaintiff's Accident History -**- -RULE: plaintiff's accident history is INADMISSIBLE b/c it shows nothing more than the fact that the plaintiff is accident-prone → this is just general character evidence -EXCEPTION → plaintiff's prior accidents are admissible IF: the cause of the plaintiff's injuries is an issue -EXAM TIP: always ask yourself - For what purpose is the evidence being offered? Similar Accidents Caused by Same Event or Condition -**- -RULE: other accidents involving defendant are inadmissible b/c they suggest nothing more than general character for carelessness -EXCEPTION → other accidents involving the same instrumentality or condition may be admitted for three potential purposes IF the other accident occurred under substantially similar circumstances: 1) to show the existence of a dangerous condition; 2) to show causation of the accident; OR 3) to show prior notice to defendant -NOTE: substantial similarity is also the rule governing the admissibility of EXPERIMENTS and TESTS Intent in Issue -**- RULE: prior similar conduct of a person may be admissible to raise an inference of the person's intent on a later occasion Comparable Sales on Issue of Value -**- RULE: selling price of other property of similar type, in same general location, and close in time to period at issue, is some evidence of value of property at issue Habit Evidence - Rule -**- RULE: habit of a person (OR routine of a business organization) is ADMISSIBLE as circumstantial evidence of how the person (or business) acted on the occasion at issue in the litigation Habit Evidence - Definition -**- DEFINITION: habit is a repetitive response to a particular set of circumstances → must be specific (if not specific enough, it may be character evidence) 2 Defining characteristics of Habit evidence: -**- 1) FREQUENCY of the conduct 2) PARTICULARITY of the conduct Key Words that are indicative of FREQUENCY: -**- always (or never) invariably automatically instinctively Industrial Custom as Standard of Care -**- RULE: evidence as to how others in the same trade or industry have acted in the recent past may be admitted as evidence of how a party in the instant litigation should have acted (as evidence of the APPROPRIATE STANDARD OF CARE) Relevance - Policy Based Exclusions -**- 1) liability insurance 2) Subsequent Remedial Measures Liability Insurance - Rule -**- RULE: evidence that a person has (or does not have) liability insurance is INADMISSIBLE for the purpose of proving FAULT or ABSENCE OF FAULT Liability Insurance - Exception to the Rule -**- -evidence of insurance may be admissible for some other relevant purpose, such as: (a) proof of OWNERSHIP/CONTROL OF INSTRUMENTALITY OR LOCATION, IF any of these issues is disputed by the defendant; OR (b) for the purpose of impeachment of a witness (the process of trying to show that a witness should not be believed) Subsequent Remedial Measures - Rule -**- -post-accident repairs, design changes and policy changes are INADMISSIBLE for the purpose of proving NEGLIGENCE, CULPABLE CONDUCT, PRODUCT DEFECT, or NEED FOR WARNING -NOTE: in a products liability action based on strict liability, the manufacturer's subsequent remedial measures are inadmissible to show the existence of a defect in the product at the time of the accident Subsequent Remedial Measures - Policy -**- to encourage post-accident repairs, etc., to avoid future accidents Subsequent Remedial Measures - Exception -**- Subsequent remedial measures may be ADMISSIBLE for some other relevant purpose, such as PROOF OF OWNERSHIP/CONTROL or FEASIBILITY OF SAFER CONDITION, IF either is disputed by the defendant Settlements of Disputed Civil Claims - Rule -**- -RULE → in the event of a disputed civil claim, the following are INADMISSIBLE for the purpose of showing liability: 1) settlement 2) an offer to settle 3) statements of fact made during settlement discussions -NOTE: the exclusionary rule only applies IF there is a CLAIM that is DISPUTED (at the time of the settlement discussion) either as to VALIDITY OF THE CLAIM or AMOUNT OF DAMAGES Settlements of Disputed Civil Claims - Exceptions -**- 1) settlement of evidence admissible for the purpose of impeaching a witness on the ground of bias 2) statements of fact made during settlement discussion in civil litigation with a government regulatory agency are admissible in a later criminal case Plea Bargaining in Criminal Cases → the following are INADMISSIBLE: -**- -offer to plead guilty → cannot be used against the defendant in the pending criminal case or in subsequent litigation based on the same facts -withdrawn guilty plea → cannot be used against the defendant in the pending criminal case or in subsequent civil litigation based on the same facts -plea of nolo contendere ("no contest") → cannot be used against the defendant in subsequent civil litigation based on the same facts -statement of fact → made DURING any of the above plea discussions -HOWEVER, a plea of GUILTY (not withdrawn) is ADMISSIBLE in subsequent litigation based on the same facts under the rule of party admissions Offer to Pay Hospital or Medical Expenses -**- -RULE: evidence that a party has paid or offered to pay an accident victim's hospital or medical expenses is INADMISSIBLE to prove liability → no need to show existence of disputed claim -NOTE: this rule does NOT exclude other statements made in connection with an offer to pay hospital or medical expenses Character Evidence - Rule -**- character evidence refers to a person's general propensity or disposition, e.g., honesty, fairness, peacefulness, or violence Potential Purposes for the admissibility of CHARACTER EVIDENCE: -**- 1) person's character is an ESSENTIAL ELEMENT IN THE CASE (very rare) 2) character evidence to prove CONDUCT IN CONFORMITY WITH CHARACTER at the time of the litigated event, a/k/a character as circumstantial evidence of conduct on a particular occasion 3) witness's bad character for truthfulness to IMPEACH CREDIBILITY Evidence of Defendant's Character (Criminal Cases) -**- -RULE: evidence of the defendant's character to prove conduct on a particular occasion is INADMISSIBLE DURING THE PROSECUTION'S CASE-IN-CHIEF -HOWEVER, defendant, during the defense, may introduce evidence of a relevant character trait (by reputation or opinion testimony of a character witness) to prove conduct, which OPENS THE DOOR TO REBUTTAL by the prosecution -NOTE: evidence that the defendant is law-abiding is permissible The PROPER FORM for character evidence through a character witness to prove propensity: -**- 1) reputation evidence AND/OR 2) opinion evidence Prosecution's Rebuttal (character evidence in Criminal Cases) -**- RULE → IF defendant has "opened the door" by calling character witnesses, the prosecution may rebut: 1) by cross-examining defendant's character witnesses for the limited purpose of impeaching that character witness' knowledge about the defendant; AND/OR 2) by calling its own reputation or opinion witnesses to contradict defendant's witnesses Victim's Character - Self-Defense Case -**- -RULE: criminal defendant may introduce evidence of victim's violent character to prove victim's conduct in conformity, i.e., as circumstantial evidence that the VICTIM was the FIRST AGGRESSOR -Proper Method: character witness may testify to victim's reputation for violence and may give opinion Victim's Character - Self-Defense Case - Prosecution's Rebuttal -**- evidence of victim's good character for peacefulness (with reputation or opinion); in addition, prosecution may prove DEFENDANT'S CHARACTER FOR VIOLENCE Victim's Character - Self-Defense Case - Homicide -**- if defendant offers evidence of any kind that victim was the first aggressor, prosecution may introduce evidence of victim's good character for peacefulness Victim's Character - Self-Defense Case - Separate Rule of Relevance -**- if the defendant, at the time of the alleged self-defense, was aware of the victim's violent reputation or prior specific acts of violence, such awareness MAY BE PROVEN to show the DEFENDANT'S STATE OF MIND (FEAR), to help prove that he acted reasonably in responding as he did to the victim's aggression Victim's Character - Sexual Misconduct Case -**- Rape Shield Law: in both criminal and civil cases, where defendant is alleged to have engaged in sexual misconduct, the following evidence about the victim is ordinarily INADMISSIBLE: 1) opinion or reputation evidence about the victim's sexual propensity, OR 2) evidence of specific sexual behavior of the victim Victim's Character - Sexual Misconduct Case - EXCEPTIONS -**- 1) specific sexual behavior of the victim to prove that SOMEONE OTHER THAN THE DEFENDANT WAS THE SOURCE of semen or injury to the victim; 2) victim's sexual activity with the defendant IF the defense of consent is asserted; OR 3) where exclusion would violate defendant's right of due process (Example: love triangle defense) Character Evidence - Civil Cases -**- -Character evidence generally INADMISSIBLE to prove CONDUCT IN CONFORMITY -NOTE: defendant can't open door to character evidence 3 situations in which Evidence of person's character is ADMISSIBLE in civil action - b/c such character is an ESSENTIAL ELEMENT OF A CLAIM OR DEFENSE (provable by reputation, opinion, and specific acts) -**- 1) a tort action alleging negligent hiring or entrustment 2) defamation 3) child custody dispute Defendant's other crimes for non-character purposes -**- -RULE: other crimes or specific bad acts of defendant are NOT admissible during the prosecution's case-in-chief if the only purpose is to suggest that b/c of defendant's bad character he is more likely to have committed the crime currently charged -BUT, defendant's bad acts or other crimes MAY be admissible to show: something specific about defendant's state of mind or defendant's identity as the perpetrator of the charged crime (something apart and separate from mere propensity to commit the crime) The 5 most common non-character purposes (MIMIC): -**- 1) Motive 2) Intent 3) the absence of Mistake or accident 4) Identity 5) Common scheme or plan (modus operandi) -NOTE: if a MIMIC category is satisfied, the prosecution may use other-crimes evidence as part of its case-in-chief → MIMIC evidence is NOT dependent on defendant's introduction of favorable character evidence -NOTE: MIMIC evidence MUST show something SPECIFIC Method of proof for MIMIC-purpose crimes: -**- -by conviction, OR -by evidence (witnesses, etc.) that proves the crime occurred: conditional relevancy standard -NOTE: upon defendant's request, prosecution must give pretrial notice of intent to introduce MIMIC evidence (in all cases, court must also weigh probative value vs. prejudice and give limiting instructions if MIMIC evidence is admitted) conditional relevancy standard -**- the prosecution need only produce sufficient evidence from which a reasonable juror could conclude that defendant committed the other crime MIMIC IN CIVIL CASES -**- if relevant to a non-character purpose, MIMIC evidence can also be used in civil cases, such as tort actions for fraud or assault Other Sexual Misconduct to Show Propensity in Sex-Crime Prosecution or Civil Action -**- -RULE: in a case alleging sexual assault or child molestation, PRIOR SPECIFIC SEXUAL MISCONDUCT of the defendant is ADMISSIBLE as part of the case-in-chief of the prosecution (in a criminal case) or of the plaintiff (in a civil action) for any relevant purpose, including DEFENDANT'S PROPENSITY FOR SEX CRIMES, as circumstantial evidence of conduct on the occasion in question -**NOTE**: SPECIFIC ACTS ONLY → NOT reputation or opinion evidence Authentication Process -**- -if the relevance of a writing depends upon its source or authorship, a showing must be made that the writing is authentic (genuine), i.e., that it is what it purports to be -in the absence of a stipulation as to authenticity, a FOUNDATION must be made in order for a document to be admissible 3 potential issues (aside from relevance) whenever a writing appears -**- authentication, best evidence rule, and hearsay Methods of Authentication, Generally -**- -ISSUE: whether X is the author of the DOCUMENT 1) Witness' personal knowledge 2) Proof of Handwriting 3) Ancient Document Rule 4) Solicited Reply Doctrine -NOTE: when there is a question of fact as to authenticity, apply the conditional relevancy standard -the document IS ADMISSIBLE if the court determines there is sufficient evidence from which a reasonable juror could conclude the document is genuine → the judge doesn't have to be persuaded that the document is genuine; only that a reasonable juror could find that it's genuine witness' personal knowledge (method of authentication) -**- Witness observed X sign the document Proof of Handwriting (method of authentication) -**- (a) layperson's opinion → based on familiarity with person's handwriting (lay witness testifies to opinion that X wrote document on basis of familiarity with X's handwriting as result of experience in normal course of affairs) (b) expert comparison opinion (Handwriting expert testifies to opinion that X wrote document on basis of comparison b/w document and genuine sample of X's handwriting) (c) jury comparison (Jury compares document with exemplar of X's handwriting) Ancient Document Rule -**- authenticity may be inferred IF document is: 1) at least 20 years old; 2) facially free of suspicion; and (?) 3) found in a place of natural custody Solicited Reply Doctrine -**- document can be authenticated by evidence that it was received in response to a prior communication to the alleged author Self-Authenticating Documents -**- -SHIFTS THE BURDEN OF PROOF to other party → other party must show the document is NOT authentic -Generally PRESUMED authentic → no need for foundation testimony Types of Self-Authenticating Documents -**- 1) official publications 2) certified copies of public or private records on file in public office 3) newspapers of periodicals 4) trade inscriptions and labels 5) acknowledged document (notarized) 6) commercial paper Authentication of Photographs -**- RULE: witness may testify on the basis of personal knowledge that the photograph is a "fair and accurate representation" of the people or objects portrayed Best Evidence Rule -**- -a party who seeks to prove the contents of a WRITING must either produce the original writing, or provide an acceptable excuse for its absence -if the court finds the excuse is acceptable, the party may then use secondary evidence, oral testimony or a copy -the definition of WRITING includes sound recordings, X-rays, and films When the Best Evidence Rule applies: -**- when a party is seeking to prove the contents of a writing 2 Principal Situations in which the BEST EVIDENCE RULE applies -**- 1) the writing is a LEGALLY OPERATIVE DOCUMENT, i.e., the writing itself creates rights and obligations (Examples: patent, deed, mortgage, divorce decree, written contract) 2) witness is testifying to FACTS that she learned solely from reading about them in a writing When the Best Evidence Rule DOES NOT apply -**- when a witness with personal knowledge testifies to a FACT that EXISTS INDEPENDENTLY of a writing that records the fact What qualifies as the "original writing"? -**- 1) whatever the parties INTENDED AS THE ORIGINAL; any counterpart intended to have the same effect; any negative of film or print from the negative; computer print-out 2) duplicate 3) handwritten copy is neither an original nor duplicate duplicate -**- any counterpart produced by any mechanical means that accurately reproduced the original (e.g., photocopy, carbon copy) rule on duplicates -**- duplicate is admissible to same extent as original UNLESS it would be unfair (e.g., photocopy of fuzzy fax), or genuine question is raised as to authenticity of original Excuses for non-production of original -**- 1) LOST or CANNOT BE FOUND with due diligence 2) DESTROYED without bad faith 3) CANNOT BE OBTAINED with legal process NOTE: court must be persuaded by preponderance of the evidence that excuse has been established; secondary evidence is then admissible (e.g., testimony based on memory, handwritten copy) "Escapes" -**- 1) VOLUMINOUS RECORDS can be presented through a summary or chart, provided the original records would be admissible and they are available for inspection 2) certified copies of a PUBLIC RECORD 3) COLLATERAL DOCUMENTS (judge can decide a document is collateral) NOTE: if court, in its discretion, determines writing is collateral, contents may be proven by secondary evidence Competency of Witness, Generally -**- -personal knowledge: something she saw with her own eyes or heard with her own ears -oath or affirmation: witness must demonstrate a willingness to tell the truth Dead Man's Statute -**- 1) witness is not ordinarily incompetent merely b/c she has an interest - a direct legal stake - in outcome of the litigation 2) BUT some states have a "Dead Man's Act" → the typical act provides that in a CIVIL action, an interested witness is INCOMPETENT to testify in support of her own interest against the estate of a decedent concerning communications or transactions b/w the interested witness and the decedent -*EXAM TIP*: Under the FRE, there is no dead man's rule. Thus, on exam, witnesses ordinarily are not incompetent on this ground. BUT, if question explicitly states that the particular jurisdiction in which the case arises has a dead man's statute, apply rule 2) above. Leading Questions -**- form of question suggests the answer Rules for Leading Questions -**- (a) GENERALLY NOT ALLOWED on DIRECT EXAMINATION of witness (b) generally ALLOWED on CROSS-EXAMINATION of witness (c) BUT allowed on DIRECT EXAM as follows: ---1) preliminary introductory matters ---2) youthful or forgetful witness ---3) hostile witness ---4) direct examination of adverse party or someone under control Writings in Aid of Oral Testimony -**- 1) Refreshing Recollection 2) Past Recollection Recorded (Hearsay Exception) Refreshing Recollection -**- -RULE: witness may NOT read from prepared memorandum; must testify on basis of current recollection -BUT, if witness's memory fails him, he may be shown a memorandum (or any other tangible item) to jog his memory -Safeguard against abuse → ADVERSARY has right: 1) to inspect the memory-refresher 2) to use it on cross-examination 3) to introduce it into evidence Past Recollection Recorded (Hearsay Exception) -**- Foundation for reading the contents of the writing into evidence: 1) showing writing to witness fails to jog memory 2) witness had personal knowledge at former time 3) writing was either made by witness, or adopted by witness 4) making or adoption occurred while the event was fresh in the witness's memory 5) witness can vouch for accuracy of writing when made or adopted Lay OPINION Admissible IF: -**- 1) rationally based on witness's perception (personal knowledge), AND 2) opinion must be HELPFUL to jury in deciding a fact -Examples: drunk/sober speed of vehicle sane/insane emotions of another person handwriting Expert Witness Qualifications -**- education AND/OR experience Proper Subject Matter - Expert Witness -**- scientific, technical or other specialized knowledge that will be helpful to jury in deciding a fact Basis of Opinion - Expert Witness -**- expert must have opinion based on "reasonable degree of probability or reasonable certainty" 3 permissible data sources the expert may draw upon: -**- 1) personal knowledge (e.g., treating physician) 2) other evidence admitted at trial (testimony by other witnesses, exhibits - made known to expert by hypothetical question) 3) facts outside the record (hearsay) if of a type reasonably relied upon by experts in this particular field in forming their opinions Relevance and Reliability - EXPERT Witness -**- -to be admissible, expert opinion must be relevant to the issue at hand and be SUFFICIENTLY RELIABLE -court serves as "gatekeeper," and will use four principal factors to determine reliability of principles and methodology used by expert (all types) to reach opinion - (TRAP) 4 factors used to determine reliability of methodology used by expert to reach opinion (TRAP): -**- 1) Testing of principles or methodology 2) Rate of error 3) Acceptance by other experts in discipline → general acceptance NOT required 4) Peer review and publication Learned Treatise in Aid of Expert Testimony (Hearsay Exception) -**- 1) on direct examination of party's own expert: relevant portions of treatise, periodical, or pamphlet may be read into evidence as substantive evidence (to prove truth of matter asserted) if established as reliable authority --basically, has to be used w/ the testimony while the witness is on the stand 2) on cross-examination of opponent's expert: read into evidence to impeach and contradict opponent's expert → comes in as substantive evidence 3) BUT learned treatise may not be introduced as exhibit Opinion Testimony as to Ultimate Issues -**- -RULE: opinion testimony (lay or expert) is permissible even if it addresses an "ultimate issue" in the case (e.g., in DWI case, layperson testifies "X seemed drunk") -BUT, all other requirements for opinion testimony must be satisfied, including the requirement that the opinion is HELPFUL TO THE JURY -Criminal Cases → "ultimate issue" is still proper objection IF expert seeks to give direct opinion that defendant did or did not have relevant mental state cross-examination rule -**- party has a RIGHT to cross-examine any opposing witness who testifies at the trial → significant impairment of this right will result, at minimum, in striking of witness's testimony cross-examination - proper subject matter -**- 1) matters WITHIN THE SCOPE of direct examination; AND 2) matters that test the witness's credibility Bolstering your own witness -**- -RULE: not allowed UNTIL after your witness's credibility has been attacked (rehabilitation) -EXCEPTION: witness's prior identification of a person → comes in as substantive evidence -Example: witness testifies that she recognizes defendant, sitting in court, as the perpetrator --in addition, witness says "I picked defendant out of a lineup two weeks after the robbery." → NOT barred by hearsay rule -NOTE: witness who made prior identification MUST TESTIFY AT TRIAL (need to be able to cross-examine) impeachment methods -**- 1) prior inconsistent statements 2) bias, interest or motive to misrepresent 3) sensory deficiencies 4) bad reputation or opinion about witness's character for truthfulness 5) criminal convictions 6) bad acts (w/o conviction) that reflect adversely on witness's character for truthfulness 7) contradiction 2 possible ways to use impeachment methods: -**- 1) ask the witness about the impeaching fact with the aim of having the witness admit it ("confronting" the witness); OR 2) prove the impeaching fact with extrinsic evidence (documentary evidence or testimony from other witnesses) The impeaching fact may be proven with extrinsic evidence as to the following impeachment methods: -**- ALL except: -(6) bad acts; AND -part of (7) → contradictory facts that are collateral For the impeachment methods that allow extrinsic evidence, is it necessary to ask the witness about the impeaching fact before the extrinsic evidence is introduced? -**- NO, except as to (2) Bias Prior Inconsistent Statements -**- General RULE: any witness may be impeached by showing that on some prior occasion, she made a material statement (orally or in writing) that is INCONSISTENT WITH HER TESTIMONY A prior inconsistent statement is ONLY admissible for the purpose of: -**- -impeachment → to suggest trial testimony is false or mistaken, not as substantive evidence that the statement is actually true; in other words, NOT as substitute evidence -EXCEPTION → a prior inconsistent statement may be admitted BOTH to impeach AND as substantive evidence (to prove the truth of the matter asserted in the prior statement), if the statement was made: i) ORALLY under oath; AND ii) as part of a formal hearing, proceeding, trial or deposition (in context of LIVE TESTIMONY) → hearsay exclusion Must a witness be CONFRONTED with her prior inconsistent statement WHILE STILL ON THE STAND, or may it be proven later by extrinsic evidence w/o such confrontation? -**- -Procedural RULE → Confrontation timing is FLEXIBLE: -NO requirement to IMMEDIATELY confront the witness -BUT, after proof by extrinsic evidence, witness must be given an opportunity AT SOME POINT to return to stand to explain or deny the prior inconsistent statement -EXCEPTION: NO opportunity to explain need be given if the witness is the OPPOSING PARTY -also, the prior inconsistent statement of the opposing party can ALWAYS be used against opposing party as SUBSTANTIVE EVIDENCE examples of Bias, Interest, or Motive to Misrepresent -**- witness is party; friend, relative, or employee of party; expert witness being paid by party; person w/ grudge against party; etc. Must witness be CONFRONTED with alleged bias WHILE ON THE STAND? -**- YES If confrontation prerequisite is met, may bias be proven by EXTRINSIC EVIDENCE? -**- YES Purpose of Bias, Interest, or Motive to Misrepresent -**- to suggest testimony is false, slanted, or mistaken in party's favor Sensory Deficiencies -**- -RULE: anything that could affect a witness's PERCEPTION or MEMORY -Examples: bad eyesight, bad hearing, mental retardation, consumption of alcohol or drugs at time of event or while on the stand -Purpose: to suggest mistake Confrontation required for Sensory Deficiencies? -**- NO Extrinsic evidence allowed for Sensory Deficiencies? -**- YES Bad Reputation or Opinion about WITNESS'S Character for Truthfulness - Rule -**- ANY witness is subject to impeachment by this method Bad Reputation or Opinion about WITNESS'S Character for Truthfulness - Method of Proof -**- call a character witness to testify that TARGET WITNESS has a BAD REPUTATION for truthfulness, or that character witness has LOW OPINION of TARGET WITNESS'S character for truthfulness Bad Reputation or Opinion about WITNESS'S Character for Truthfulness - Purpose -**- to suggest that TARGET WITNESS is not telling the truth on the witness stand Confrontation required for Bad Reputation or Opinion about WITNESS'S Character for Truthfulness? -**- NO Extrinsic evidence allowed for Bad Reputation or Opinion about WITNESS'S Character for Truthfulness? -**- YES Criminal Convictions - Impeachment -**- Purpose: to suggest testimony is false Relevance: person who has been convicted of a crime is more likely to lie under oath than is a person with an unblemished record Permissible types of Convictions (impeachment): -**- 1) conviction of any crime (felony or misdemeanor) as to which the prosecution was required to prove: --FALSE STATEMENT as an ELEMENT of the crime → a crime that REQUIRES THE UTTERING OF FALSE WORDS --this is narrowly interpreted 2) if conviction did not require proof of false statement, it must be a felony, and the court may exclude the conviction, in its discretion, if probative value on issue of witness credibility is outweighed by danger of unfair prejudice to a party (misuse as evidence of liability or guilt) Time Limitation for Criminal Convictions (impeachment) -**- as to both categories, the conviction, or release from prison, whichever is later, generally must be within 10 years of trial → if more than 10 years have elapsed, the conviction may not be used for impeachment UNLESS: the proponent proves the probative value is SUBSTANTIAL Method of Proof for Criminal Convictions (impeachment) -**- i) ask witness to admit prior conviction; OR ii) introduce record of conviction (extrinsic) → NOT required to confront witness prior to introduction of record of conviction Inquiry about Bad Acts (w/o conviction) if they reflect adversely on witness's character for truthfulness -**- -RULE: cross-examiner must have good-faith basis for the inquiry, and permission to make the inquiry is subject to the court's discretion -EXAM TIP: proof with extrinsic evidence MAY still be allowed if the bad act is relevant for some purpose OTHER THAN bad character for truthfulness (e.g., bias) the ONLY permissible procedure for Inquiry about Bad Acts (w/o conviction) if they reflect adversely on witness's character for truthfulness -**- to CONFRONT witness on cross-examination → NO extrinsic evidence permitted Contradiction (impeachment) -**- -General Concept: cross-examiner, through confrontation of witness, may try to obtain admission that she made a mistake or lied about any fact she testified to during direct examination → if the witness admits the mistake or lie, she has been impeached by contradiction -RULE: EXTRINSIC EVIDENCE NOT ALLOWED for the purpose of contradiction IF the fact at issue is COLLATERAL (if the fact has no significant relevance to the case or to the witness's credibility) Rehabilitation -**- 1) Showing witness's good character for truthfulness 2) Prior Inconsistent Statement to REBUT a charge of Recent Fabrication Showing witness's good character for truthfulness (rehabilitation) -**- When? → when the impeachment suggested that your witness was lying, as compared to merely being mistaken How? → bring out a character witness Prior Inconsistent Statement to REBUT a charge of Recent Fabrication (rehabilitation) -**- -When? → if the witness's trial testimony is charged as a recent fabrication, or as a product of improper influence, a prior statement by the witness that is CONSISTENT with her testimony will be made admissible to REBUT THE CHARGE IF the statement was made BEFORE THE MOTIVE TO FABRICATE AROSE -Purpose: a prior inconsistent statement that fits w/in the rule is admissible to rehabilitate credibility AND as substantive evidence that the prior statement was true → it is a HEARSAY EXCLUSION For PRIVILEGES - Apply these rules if the bar exam specifically indicates that the action is pending in FEDERAL COURT: -**- i) in a federal-court action ARISING UNDER FEDERAL SUBSTANTIVE LAW (all civil cases arising under Constitution or federal statutes, and all criminal cases) ii) in a federal-court action based on DIVERSITY JURISDICTION, where state substantive law applies to parties' claims and defenses, the federal court must apply PRIVILEGE LAW OF THE STATE whose substantive law is applicable NOTE: other than privileges, competency and burdens of proof/presumptions, FRE apply in all federal-court actions Elements of Attorney-Client Privilege -**- privilege applies to: 1) confidential communications (an actual exchange of information) 2) b/w attorney and client OR a representative of either 3) during legal representation UNLESS an exception applies Confidential Communications (element 1 of attorney-client privilege) -**- client must intend confidentiality (e.g., no privilege if client knows that third party is listening in, or if client asks attorney to disclose the communication to a third party) Joint Client Rule -**- -if 2 or more clients with common interest consult the same attorney, their communications w/ counsel concerning the common interest are PRIVILEGED AS TO THIRD PARTIES -BUT, if the joint clients later have a dispute with each other concerning the common interest, PRIVILEGE DOES NOT APPLY AS B/W THEM Between Attorney and Client OR a Representative of Either (element 2 of attorney-client privilege) -**- -Attorney: member of the bar or person that client reasonably believes is a member of the bar -Representative of the Attorney: any agent reasonably necessary to facilitate the provision of legal services (e.g., accountant working w/ attorney to translate client's financial matters) -Client: includes person seeking to become client → privilege attaches at outset of formal consultation with attorney even if client does not retain attorney -Representative of Client: any agent reasonably necessary to facilitate the provision of legal services (e.g., for corporate client, any employee who communicates with corporation's attorney to enable attorney to provide legal services to the corporation) during legal representation (element 3 of attorney-client privilege) -**- legal representation: primary purpose of communication must be to obtain or render legal services, not business or social advice Voluntary Waiver of Atty-Client Privilege -**- only the client has the power to waive the privilege (after client's death, privilege continues and only client's estate can waive it) Subject Matter Waiver of Atty-Client Privilege -**- a voluntary waiver of the privilege as to some communications will also waive the privilege as to other communications IF: 1) the partial disclosure is INTENTIONAL; 2) the disclosed and undisclosed communications concern THE SAME SUBJECT MATTER; AND 3) FAIRNESS requires that the disclosed and undisclosed communications be considered together Inadvertent Waiver of Atty-Client Privilege -**- an inadvertent disclosure of a privileged communication will not waive the privilege so long as the privilege holder: 1) took REASONABLE STEPS TO PREVENT the disclosure; AND 2) takes reasonable steps to CORRECT the error Exceptions to Attorney-Client Privilege -**- 1) communications with attorney to perpetrate a crime or fraud 2) client puts legal advice at issue (e.g., in tax fraud prosecution, defendant defends on the ground that she relied on the advice of her attorney in reporting income) 3) attorney/client dispute (e.g., attorney sues client for unpaid fee, or client sues attorney for legal malpractice) Elements of Physician-Patient Privilege -**- Privilege applies to: 1) confidential communication or information acquired by physician from patient 2) for purpose of diagnosis or treatment of medical condition -ALSO applicable to psychotherapists (M.D. or other professional certified to diagnose or treat mental/emotional illness) -Federal Law Distinction: in federal-court actions based solely on federal law, privilege exists only for psychotherapy → there is NO privilege in federal-court actions based solely on federal law for confidential communications with physicians as regards physical conditions) -EXCEPTION: if patient expressly or impliedly puts physical or mental condition in issue H/W Privilege - Spousal Immunity - CRIMINAL CASES ONLY -**- -RULE: a spouse cannot be compelled to testify about anything against the defendant spouse rationale: to protect harmony of existing marriage at time of trial -Holder of the Privilege: the WITNESS spouse (NOT the defendant-spouse) -NOTE: the witness-spouse MAY VOLUNTARILY TESTIFY against the defendant spouse if he/she so chooses Husband-Wife Privileges -**- Spousal Immunity Confidential Communications between Spouses Confidential Communications between Spouses -**- -RULE: in ANY TYPE OF CASE, a spouse is not required, and is not allowed in the absence of consent by the other spouse, to disclose a confidential communication (statements or acts) made by one to the other during the marriage -NOTE: once the privilege attaches to such communications, it remains attached even after the marriage ends -Holder of the Privilege: BOTH spouses → cannot be waived unless both spouses agree to it -Rationale: to encourage candor b/w husbands and wives during the marriage Exceptions to Spousal Immunity and Confidential Communications b/w Spouses -**- 1) communications or acts in furtherance of jointly-perpetrated future crime or fraud 2) communications or acts destructive of family unit, e.g., spousal or child abuse 3) in litigation b/w the spouses themselves hearsay (two-part definition + rule) -**- 1) an out of court statement by a person (oral or written) 2) offered to prove the truth of the matter asserted in the statement -RULE: hearsay is inadmissible unless an exception or exclusion applies -Rationale: the credibility of the declarant at the time the statement was made was not tested through cross-examination in the presence of the current fact-finder non-hearsay statements -**- -RULE: some out-of-court statements may look like hearsay at first glance, but are NOT HEARSAY if they are NOT offered to prove the truth of the matter asserted in the statement -if offered FOR SOME OTHER PURPOSE, credibility of the declarant is irrelevant -on the issue of whether the statement was spoken, the witness on the stand can be cross-examined -OR, if the statement was in writing, it can be examined as an exhibit Principal Categories of Non-Hearsay Purposes -**- 1) Verbal Act (legally operative words) 2) To Show Effect on Person who Heard or Read the Statement 3) Circumstantial Evidence of Speaker's State of Mind verbal act (non-hearsay purpose) -**- -situation where the substantive law attaches legal rights and obligations to certain words simply b/c those words were spoken -Examples: speaking words of contractual acceptance, terms of patent or copyright, making gift, bribe, perjury, fraud, defamation, words accompanying ambiguous acts To Show Effect on Person who Heard or Read the Statement (non-hearsay purposes) -**- if a person hears or reads certain statements, this may be relevant if it puts the person on notice, gives him a good faith belief, notice or fear prior statements of trial witnesses -**- RULE: a WITNESS'S OWN PRIOR STATEMENT, if offered to prove the truth of the matter asserted in the statement, is hearsay and is INADMISSIBLE unless an exception or exclusion applies 3 witness-statement exclusions from hearsay (called exclusions or non-hearsay): -**- 1) witness's prior statement of identification of a person 2) witness's prior inconsistent statement If oral, under oath AND made during formal trial, hearing, proceeding, or deposition 3) witness's prior consistent statement IF being used now to rebut charge of recent fabrication or improper motive or influence -NOTE: admissible for their truth -NOTE: witness must be on stand at trial, subject to cross-examination Party Admissions -**- -RULE: ANY STATEMENT made by a party is admissible if it is offered against the party -called "exclusion" or "non-hearsay" -Rationale: party ought to bear the consequences of what she says → can explain to jury, and cannot complain about inability to cross-examine self Adoptive Admission -**- -if a party expressly or impliedly adopts a statement made by another person, it is as though the party herself made the statement -adoption by silence occurs when a party remains silent under circumstances in which a reasonable person would protest if the statement were false Vicarious Party Admissions -**- statement by AGENT/EMPLOYEE is admissible against principal/employer if statement concerns matter within scope of agency/employment and is made during the existence of the agency/employment relationship Co-Conspirator's Statement -**- the statement of a co-conspirator is admissible against a party who was a member of the conspiracy if the statement was made: 1) during AND 2) in furtherance of the conspiracy Hearsay Exceptions -**- 1) Forfeiture by Wrongdoing 2) Former Testimony 3) Statement Against Interest 4) Dying Declaration 5) Excited Utterance 6) Present Sense Impression 7) Present State of Mind 8) Declaration of Intent 9) Present Physical Condition 10) Statement for Purpose of Medical Treatment or Diagnosis 11) Business Records 12) Public Records Note on Criminal Defendant's Right of Confrontation: -**- -the Sixth Amendment right of confrontation requires that the CRIMINAL DEFENDANT be confronted with the witnesses against him -RULE: in the context of hearsay, the prosecution may not use a hearsay statement against the criminal defendant (even if it falls w/in a hearsay exception) if: 1) the statement is testimony; 2) the declarant is unavailable; AND 3) the defendant has had no opportunity for cross-examination (cross-examination requirement may be satisfied either before or at trial) testimonial -**- actual testimony or the functional equivalent Situations in which statements are TESTIMONIAL: -**- 1) grand jury testimony 2) statements in response to police interrogation: --a) TESTIMONIAL if → the primary purpose of the questioning is to establish or prove past events potentially relevant to a later criminal prosecution --b) NON-Testimonial if: the primary purpose of the questioning is to enable police assistance to meet an ongoing emergency 3) documents ongoing emergency -**- includes a situation in which: i) the crime has ended within the past hour, ii) the perpetrator is still at large, AND iii) he poses an immediate threat to the victim, the police, or the public at large Situations in which statements are TESTIMONIAL - DOCUMENTS: -**- a) forensic laboratory reports prepared with a view toward use at trial are TESTIMONIAL (even if not signed under oath) b) business records are NON-Testimonial c) police reports prepared for prosecutorial purposes are TESTIMONIAL (e.g., cop's crime-scene report containing a description of a crime in progress or witness interviews) Forfeiture by Wrongdoing (Declarant unavailable due to defendant's wrongdoing) -**- -RULE → any type of hearsay statement is admissible against a defendant whose wrongdoing made the witness unavailable if the court finds: 1) by a preponderance of the evidence 2) that defendant's conduct was specifically designed to prevent the witness from testifying -NOTE: by making the witness unavailable through his own wrongdoing, defendant forfeits both the hearsay and 6th Amend. objection) -NOTE: NOT a genuine hearsay exception; it is a forfeiture of the right to object Hearsay Exceptions - Unavailability REQUIRED -**- -Forfeiture by Wrongdoing -Former Testimony -Statement Against Interest -Dying Declaration Former Testimony (hearsay exception) -**- -RULE: the former testimony of a now-unavailable witness, if given at a former proceeding or in a deposition, is admissible against a party who, on the prior occasion, had an opportunity and motive to cross-examine or develop the testimony of the witness → issue in both proceedings must essentially be the same -Theory/Rationale: reliability assured by cross-examination on prior occasion; however, we prefer live testimony, so witness must now be unavailable Grounds of Unavailability (apply to all hearsay exceptions where unavailability is a requirement): -**- 1) privilege 2) absent from the jurisdiction (witness cannot be found despite exercise or due diligence OR beyond court's subpoena power) 3) illness or death 4) lack of memory 5) stubborn refusal to testify NOTE: same grounds of unavailability apply to ALL exceptions where unavailability is a requirement Statement Against Interest (hearsay exception) -**- RULE → an unavailable declarant's statement against his or her: 1) pecuniary interest (damaging about finances) 2) proprietary interest (something concerning your property) 3) statement against penal interest Rationale: not likely to lie when making a personally damaging statement as to such interests Statement Against Interest differs from Party Admission in 4 ways: -**- 1) must be against interest when made 2) any person (not merely party) can make statement against interest 3) personal knowledge is required 4) declarant must be unavailable Statement Against Interest - Qualification in criminal cases: -**- statement against penal interest must be supported by circumstances showing trustworthiness of the statement (some corroborating evidence that statement is true) Dying Declaration -**- -RULE: statement made under a belief of impending and certain death by a now-unavailable declarant concerning the cause or surrounding circumstances of the declarant's death -Type of Case: criminal cases: homicide only civil cases: ANY type Hearsay Exceptions - Spontaneous Statements (Unavailability NOT Required): -**- 1) Excited Utterance 2) Present Sense Impression 3) Present State of Mind 4) Declaration of Intent 5) Present Physical Condition 6) Statement Made for the Purpose of Obtaining Medical Treatment or Diagnosis Excited Utterance -**- -RULE: statement concerning a startling event and made while declarant is still under the stress of excitement caused by the event -Rationale: excitement suspends one's capacity to fabricate Factors to consider in determining whether a statement qualifies as an Excited Utterance: -**- 1) nature of the event 2) passage of time (the closer in time to event, the more likely it was made under influence of event) 3) visual clues: --a) exclamatory phrase (example: Holy cow!) --b) excitement oriented verb (example: declarant shouted, screamed, etc.) --c) exclamation point Present Sense Impression -**- -RULE: description of an event made WHILE THE EVENT IS OCCURRING or IMMEDIATELY THEREAFTER -Rationale: declarant has no time to fabricate Present State of Mind -**- contemporaneous statement concerning declarant's present state of mind, feelings, emotions → contemporaneous statement about matter as to which declarant has unique knowledge Declaration of Intent -**- statement of declarant's intent to do something in the future, including the intent to engage in conduct with another person → contemporaneous statement about matter as to which declarant has unique knowledge Present Physical Condition -**- statement made to anyone about declarant's current physical condition → contemporaneous statement about matter as to which declarant has unique knowledge Statement Made for the Purpose of Obtaining Medical Treatment or Diagnosis -**- statement made to anyone (usually medical personnel) concerning the declarant's: 1) present symptoms; 2) past symptoms; OR 3) general cause of declarant's condition IF it is made for the purpose of obtaining medical treatment -NOTE: fault is irrelevant to medical treatment → not admissible -NOTE: does NOT include oral statements made by doctor or nurse to injured patient Business Records - Elements -**- 1) records of a business of any type 2) made in the regular course of business 3) the business regularly keeps such records 4) made contemporaneously (at or about the time the event occurred) 5) contents consist of: --a) information observed by employees of the business, OR --b) a statement that falls within an independent hearsay exception Proving Business Records Foundation -**- 1) call sponsoring witness to testify to the 5 elements of business records hearsay exception (witness need not be author of report - can be records custodian or any other knowledgable person within the business) OR 2) written certification under oath attesting to elements of business records hearsay exception (with advance notice to opposing party) Public Records -**- Records of a public office or agency setting forth: 1) the activities of the office or agency (e.g., payroll records); 2) matters observed under a duty imposed by law (e.g., Weather Bureau records of temperature); OR 3) findings of fact or opinion resulting from an investigation authorized by law (e.g., OSHA inspection report on safety conditions of factory)q Public Records Exclusion -**- police reports prepared for PROSECUTORIAL PURPOSES are NOT ADMISSIBLE AGAINST THE DEFENDANT IN A CRIMINAL CASE; nor is the prosecution allowed in such cases to introduce such reports against the defendant under the alternative theory of business records Impeachment of Hearsay Declarants -**- RULE: any impeachment method may be used to attack the credibility of a hearsay declarant whose statement was admitted into evidence Double Hearsay -**- RULE: if a hearsay statement is included w/in another hearsay statement, the evidence is INADMISSIBLE unless each statement falls within a hearsay exception habit -**- describes a person's regular response to a specific set of circumstances words that indicate habit -**- instinctively automatically Situations in which the Opinions of LAY Witnesses ARE Admissible -**- 1) the GENERAL APPEARANCE OR CONDITION of a person 2) the STATE OF EMOTION of a person 3) matters involving SENSE RECOGNITION 4) VOICE OR HANDWRITING IDENTIFICATION (foundation required) 5) the SPEED of a moving object 6) the VALUE OF HIS OWN SERVICES 7) the RATIONAL OR IRRATIONAL NATURE of another's conduct 8) INTOXICATION of another RULE regarding impeachment of your own witness -**- a witness may be impeached by any party, including the party calling him