• Ev is relevant if it has any tendency to make a material fact more/less probable than w/o the ev
• All relevant evidence is admissible unless
  
  • Exclusionary Rule applies; OR
  • 403: Probative value of ev is substantially outweighed by (pragmatic considerations):
    • Unfair prejudice
    • Confusion of the issues
    • Misleading the jury
    • Undue delay
    • Waste of time
    • Unduly cumulative

• Generally, if ev concerns time/event/person other than that involved in case at hand → inadmissible
• BUT some situations may permit admissibility:
  • Plaintiff's Accident History
    
  • Similar Accidents Caused by Same Instrumentality or Condition
  • Intent in Issue
  • Comparable Sales on Issue of Value
  • Habit
  • Industrial Custom as Standard of Care

Relevance: Similar Occurrences

Plaintiff's Accident History

• Generally inadmissible b/c shows nothing more than fact that ∏ is accident-prone
  • Constitutes inadmissible character evidence
• Exception: ∏'s prior accidents admissible if:
  • The event that caused ∏'s injuries is in issue
• Example on p.3

Relevance: Similar Occurrences

Similar Accidents Caused by

Same Instrumentality or Condition

• Generally, other accidents involving Δ are inadmissible b/c show nothing other than general character for carelessness
• Exception: may be admissible if other accident occurred under substantially similar circumstances to show:
  • Existence of a dangerous condition;
  • Causation of the accident; OR
  • Prior notice of the danger to the Δ
• TIP: "Substantially similar" rule also governs admissibility of out-of-court experiments/tests (must be conducted under sub/sim circumstances to matter at issue)
• Example on p.4

Relevance: Similar Occurrences

Intent in Issue

• Prior similar conduct of a person may be admissible to raise an inference of the person's intent on a later occasion
• Example on p.4

Relevance: Similar Occurrences

Comparable Sales on Issue of Value

• 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

***"Some evidence" = not conclusive***

Relevance: Similar Occurrences

Habit

• Habit is a repetitive response to a particular set of circumstances. Two defining characteristics:
  • Frequency of the conduct
  • Particularity of the conduct
• Habit of person (or routine of biz organization) is admissible as circumstantial ev of how person (or biz) acted on the occasion at issue in the litigation
• TIP: Keywords that indicate frequency: "always", "never", "invariably", "automatically", "instinctively"
• Examples on p.5-6

Relevance: Similar Occurrences

Industrial Custom as Standard of Care

• Ev as to how others in same trade or industry have acted in recent past may be admitted as some evidence of appropriate standard of care

• Ev may be inadmissible for policy-based reasons even though otherwise relevant
• Types of policy-based exclusions:
  • Liability Insurance
  • Subsequent Remedial Measures
  • Settlements of Disputed Civil Claims
  • Offer to Pay Hospital or Medical Expenses

Relevance: Policy-Based Exclusions

Liability Insurance

• Ev that person has (or doesn't have) liability insurance is inadmissible for the purpose of showing fault (or absence thereof)
• Exception: may be admissible if offered for some other relevant purpose such as:
  • Proof of ownership/control of instrumentality or location if any of these issues are disputed by Δ (Δ must dispute--not ∏!) OR
  • For the purpose of impeachment of a witness
• Limiting instrux should be given to the jury whenever ev is admissible for one purpose but not for another
  • Judge should tell jury to consider ev only for permissible purpose
• Examples on p.6-7
  

Relevance: Policy-Based Exclusions

Subsequent Remedial Measures

• Ev of post-accident repairs, design changes, or policy changes is inadmissible for the purpose of proving negligence, culpable conduct, product defect, or need for warning.
• Exception: SRM may be admissible for some other relevant purpose, such as:
  • Proof of ownership/control OR
  • Feasibility of safer condition
    ONLY if either is dispute by Δ (not ∏!)
• Note: In a products liability action based on strict liability, the mfg's SRM are inadmissible to show existence of defect in product at time of accident
• Examples on p.7-8

Relevance: Policy-Based Exclusions

Settlements of Disputed Civil Claims

• In the event of a disputed civil claim, the following are inadmissible for purpose of showing liability OR to impeach witness as a prior inconsistent statement
  • Settlement
  • Offer to settle
  • S/of/F made during settlement discussions
• Exceptions:
• Settlement evidence admissible for the purpose of impeaching a witness on the ground of bias
• S/of/F made during settlement discussion in civil litigation w/ gov't regulatory agency are admissible in a later (not concurrent) criminal case (doesn't apply to settlements/offers to settle)
  
• NOTE: Exclusion only applies if there is a claim that is disputed (at time of settlement discussion) either as to validity of the claim (i.e., liability) or the amount of damages
• Examples on p.9-11
  

Relevance: Policy-Based Exclusions

Plea Bargaining in Criminal Cases

The following are inadmissible and cannot be used against Δ in the pending criminal case or in subsequent civil litigation based on the same facts:

• Offer to plead guilty
• Withdrawn guilty plea
• Plea of nolo contendere
• S/of/F made during any of the above

Exception: Guilty plea (not withdrawn) is admissible in subsequent litigation based on same facts under the rule of party admissions.

Relevance: Policy-Based Exclusions

Offer to Pay Hospital or Medical Expenses

• Ev that party has paid or offered to pay an accident victim's hospital or Mx expenses is inadmissible for the purpose of proving liability
• Note: this rule doesn't exclude other statements made in connection with an offer to pay h/Mx expenses
• Example on p.12

Character Evidence:

Generally

• Ch/Ev refers to person's general propensity/disposition (honesty; fairness; peacefulness; violence)
• Potential purposes for admissibility of Ch/Ev:
  • Person's character is an essential element in the case (rare in civil; never in criminal)
  • As circumstantial ev of the person's conduct on a particular occasion
  • Witness's bad character for truthfulness to impeach credibility

Character Evidence: Criminal Cases

Defendant's Character

• Ev of Δ's character to prove Δ's conduct on a particular occasion is inadmissible during the prosecution's case-in-chief
• However, Δ, during his defense, may introduce ev of a relevant character trait to prove his conduct!
  • By reputation/opinion testimony of Ch/W only
  • Note: Ch/W may testify that Δ is "law-abiding" to allow inference of Δ'speacefulness
  • Opens the door to rebuttal by prosecution
• Examples on p.13-14

Character Evidence: Criminal Cases

Prosecution's Rebuttal

• IF Δ has opened the door by calling Ch/Ws, the prosecution may rebut:
  • By cross-examining Δ's Ch/Ws with "Have you heard" or "Did you know" questions about specific acts of Δ that reflect adversely on particular character trait that Δ introduced
    • Must have good faith basis for question
    • Only purpose:impeach Ch/W's knowledge
    • If Ch/W denies having heard or knowing of arrests/bad acts, Pros. can't introduce ev to prove actually occurred
                       OR
  • By calling its own reputation or opinion witnesses to contradict Δ's Ch/Ws

Character Evidence: Criminal Cases

Victim's Character--Self Defense Case

• Δ may introduce direct ev that alleged Vic of an assault was 1st aggressor
• Δ may also introduce ev of Vic's violent character as circumstantial ev that Vic was 1st aggressor
  
  • How? Ch/W testify as to Vic's reputation for violence and may give opinion (opens door!)
  • On rebuttal, Pros. can introduce ev of Vic's character for peacefulness (through rep/op testimony) and ev of Δ's character for violence
• Homicide cases: if Δ offers ev of any kind that Vic was 1st aggressor, Pros. can introduce ev of Vic's good character for peacefulness
• Separate Rule of Relevance: if Δ, at time of alleged self-defense, was aware of Vic's violent rep or prior specific acts of violence, may be proven to show Δ's state of mind (fear) to help prove he acted reasonably (must show that Δ was aware!)
• Examples on p.17

Character Evidence: Criminal Cases

Victim's Character--Sexual Misconduct Cases

• If Δ accused of engaging in sexual misconduct, the following ev about the Vic is ordinarily inadmissible:
  • Opinion or reputation ev about the Vic's sexual propensity
  • Ev of specific sexual behavior of the Vic
• "Rape shield" applies in both civil and criminal cases

Character Evidence: Criminal Cases

Victim's Character--Sexual Misconduct Cases: Exceptions

• Exceptions in Criminal Cases
  • Specific sexual behavior of Vic to prove that someone other than Δ was source of semen or injury to the Vic
  • Vic's sexual activity w/ Δ if defense of consent is asserted
  • Where exclusion would violate Δ's right of Due Process (e.g., "Love Triangle Defense")
• Exceptions in Civil Cases
  • Court may admit ev of specific sexual behavior or sexual propensity of Vic if its probative value substantially outweighs the danger of harm to Vic and unfair prejudice to any party

Character Evidence: Civil Cases

Generally

• Ch/ev generally inadmissible to prove person's conduct on a particular occasion
• Ev of person's character is admissible in civil action where such character is an essential element of a claim or defense
  • Provable by reputation & opinion & specific acts
  • Only three situations:
    • Tort alleging negligent hiring/entrustment
    • Tort alleging defamation
    • Child custody dispute

Defendant's Other Crimes

For Non-Character Purpose:

Generally

• General rule: Other crimes/specific bad acts of Δ are inadmissible during Pros.'s case-in-chief if only being offered for propensity purposes
• But, may be admissible to show something specific about the crime currently charged
• 5 most common non-character purposes are: "MIMIC"
  • Motive; Intent; Mistake/accident; Identity; Common scheme or plan
• If MIMIC satisfied, Pros. may use such ev as part of case-in-chief (doesn't need the door opened!)
• Can be used in civil cases if relevant to non-character purpose
• Examples on p.20-22

Defendant's Other Crimes

for Non-Character Purposes:

Methods of Proof

• Method of proof of MIMIC-purpose crimes:
  • By conviction OR
  • By ev that proves crime occurred
    
    • Conditional Relevancy standard: Pros. need only produce sufficient ev from which reasonable juror could conclude Δ committed other crime
• Upon Δ's request, Pros. must give pretrial notice of intent to introduce MIMIC ev.
• In all cases (civil & crim), Ct must apply 403 balancing test and give limiting instrux if MIMIC ev is admitted

Other Sexual Misconduct to Show Propensity

in Sex-Crime Prosecution or Civil Action

• In a case alleging sexual assault, Δ's prior specific acts of sexual assault are admissible as part of the case-in-chief of the Pros. (criminal) or ∏ (civil) for purpose of showing Δ's propensity for committing sexual assault
• In a case alleging child molestation, same rule allows prior acts of child molestation.
• Note: Prior acts only; not reputation or opinion

Authentication of Writings

Generally

• Whenever a writing appears on the MBE, be alert to three potential issues (aside from relevance):
  • Authentication
  • Best Evidence Rule
  • Hearsay
• If relevance of writing depends upon its source or authorship, a showing must be made that writing is authentic, i.e. genuine; this is called authentication
• In absence of stipulation as to authenticity, a foundation must be made in order to admit doc into ev

Authentication of Writings:

Methods of Authentication

Issue: whether X is the author of a document

• Witness' personal knowledge (W saw X sign doc)
  
• Proof of Handwriting
• Proof by Circumstantial Evidence
• Ancient Document Rule
• Solicited Reply Doctrine

Authentication of Writings:

Methods of Authentication

(Proof of Handwriting)

• Layperson opinion: lay witness testifies that X wrote doc on basis of familiarity w/ X's h/writings as result of experience in normal course of affairs
• Expert comparison opinion: h/writing expert testifies that X wrote doc on basis of comparison b/w doc and genuine sample ("exemplar") of X's h/writing
• Jury comparison: jury compares doc w/ exemplar of X's h/writing

Authentication of Writings:

Methods of Authentication

(Proof by Circumstantial Evidence)

• Use if "writing" is not in writing (e.g., text, email)!
• Party may rely on circumstantial ev (anything relevant that connects alleged author to doc) such as:
  • Appearance
  • Contents
  • Substance
  • Internal patterns
  • Distinctive characteristics (does doc refer to info that only X would know?)

Authentication of Writings:

Methods of Authentication

(Ancient Document Rule)

• Authenticity may be inferred if doc is:
  • Ancient (at least 20y/o)
  • Facially free of suspicion
    • No marks, strikeouts, etc.
  • Found in place of natural custody
    • E.g., in Δ's desk, attic, etc.
• This is also a method in which circumstantial ev is allowed to come in to infer authenticity

Authentication of Writings:

Methods of Authentication

(Solicited Reply Doctrine)

• Doc can be authenticated by ev that it was received in response to a prior communication to the alleged author
• Conditional Relevancy Standard: doc is admissible if Ct determines there is sufficient ev from which a reasonable juror could conclude doc is genuine, i.e., that X is the author
  • Jury ultimately decides authenticity, BUT it is the judge who determines admissibility!
    • Authenticity = question of fact
• This is another method in which circumstantial ev may be allowed to come in to infer authenticity
• Example on p.24

Authentication of Writings:

Self-Authenticating Documents

The following are generally presumed authentic (no need for foundation testimony):

• Official publications (anything published by gov't)
• Certified copies of public or private records on file in public office (e.g., deed, mortgage; only if filed)
• Newspapers or periodicals
• Trade inscriptions and labels (commercial products)
• Acknowledged document (notarized doc)
• Commercial paper (promissory note)
  • Signatures on comm/paper deemed authentic

Authentication of Writings:

Authentication of Photographs

• Witness may testify on the basis of personal knowledge that the photograph is a fair and accurate representation of the people or objects portrayed
  • TIP: Doesn't have to be photographer--just anyone who as personal knowledge as to what the photograph shows!
• Example on p.25

Best Evidence Rule:

Generally

• 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
  • Secondary ev: oral testimony, copy
• Note: the definition of writing includes:
  • Sound recordings
  • X-rays
  • Films
• Example on p.26

Best Evidence Rule:

"Original Writing"

• "OG Writing":
  • Whatever parties intended as the OG;
  • Any counterpart intended to have the same effect;
  • Any negative of film or print from negative;
  • Computer print-out
• Duplicate: any counterpart produced by any mechanical means that accurately reproduced the original (e.g., photocopy, carbon copy)
• Rule on Duplicates: admissible to same extent as OG unless it'd be unfair or there's a genuine question raised as to authenticity of the OG
• Handwritten copy ≠ OG nor duplicate
• Example on p.26

Best Evidence Rule:

When It Applies

• When party seeking to prove contents of writing:
  • Writing is legally operative document
    • The writing itself creates rights/obligations
    • E.g., deed, mortgage, decree, K
      • Timesheet ≠ legally operative doc
  • Witness is testifying to facts that she learned solely from reading about them in a writing
• Examples on p.26-27

Best Evidence Rule:

When It Does Not Apply

• When a witness with personal knowledge testifies to a fact that exists independently of a writing that records the fact
• Examples on p.27

Best Evidence Rule:

Excuses for Non-Production of Original

• Court must be persuaded by preponderance of the ev that excuse has been established
• Secondary ev is admissible (e.g., testimony based on memory, handwritten copy)
• Excuses for non-production of OG:
  • Lost or cannot be found with due diligence
  • Destroyed without bad faith
  • Cannot be obtained with legal process

Best Evidence Rule:

"Escapes"

• Types of "escapes"
  • Voluminous records can be presented through summary or chart, provided OG reports would be admissible and they are available for inspection
  • Certified copies of public records
  • [CHECK]
• If Ct, in its discretion, determines writing is collateral, contents may be proven by secondary ev
  • Collateral: not important to merits; judge decides if collateral

Witnesses:

Competency of Witnesses

• The testimonial qualifications a witness must possess in order to be allowed to testify:
  • Personal knowledge
    • Saw w/ own eyes or heard w/ own ears
              AND
  • Oath or affirmation
    • Must demonstrate a willingness to tell truth

Witnesses:

Dead Man's Statute

• Generally, witness is not ordinarily incompetent merely because she has an interest (direct legal stake) in outcome of the litigation
• BUT, some states have Dead Man's Acts, which typically provides:
  • In a civil action, an interested witness is allowed to testify against the estate of a decedent concerning a transaction or communication b/w the interest witness and the decedent
• Example on p.30

Witnesses:

Leading Questions

• Generally not allowed on direct-ex
• Generally allowed on cross-ex
• BUT, allowed on direct-ex as follows:
  
  • Preliminary introductory matters
  • Youthful or forgetful witness
  • Hostile witness
  • Adverse party (or someone under control of adverse party)
    • Presumption of hostility

Witnesses:

Writings in Aid of Oral Testimony

(Refreshing Collection)

• Basic 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
  • TIP: On MBE, it'll be a writing
  • Used to refresh--NOT offered into ev
    • Once refreshed/restored, set aside
  • Any writing OK (don't need authentication)
    • Best Evidence Rule doesn't apply
• Safeguards against abuse: adversary has right:
  
  • to inspect the memory-refresher
  • to use it on cross-ex
  • to introduce it into ev (only portion used)
• Example on p.31

Witnesses:

Writings in Aid of Oral Testimony

(Past Recollection Recorded--Hearsay Exception)

• Hearsay Exception for Past Recollection Recorded: Foundation for reading the contents of the writing into ev:
  • Showing writing to witness fails to jog memory
  • Witness had personal knowledge at former time
  • Writing was either made by witness, or adopted by witness (e.g., investigating P/O made list)
  • Making or adoption occurred while the event was still fresh in the mind of the witness AND
  • Witness can vouch for accuracy of writing when made or adopted
    • Time b/w observation and when writing made/adopted: if weeks, probably okay; if months, probably not
• After laying foundation, proponent may then read into ev--cannot introduce writing into ev!
  • Because its only a substitute for testimony!
    • Procedural Safeguard: however, the opponent may introduce it into ev
• Examples on p.32

Witnesses:

Opinion Testimony

(Lay Witness)

• Lay opinion admissible if:
  • Rationally based on the witness's own perception (personal knowledge) AND
  • Must be helpful to the jury in deciding the fact
    
    • Judge determines whether helpful
• Examples of admissible lay opinions:
  • drunk v. sober
  • speed of vehicle
  • sane v. insane
  • emotions of another person
  • odors
  • handwriting
  • character (when permitted)

Witnesses:
Opinion Testimony

(Expert Witnesses: Qualifications & Proper Subject Matter)

• Qualifications:
  • Education AND/OR Experience
• Proper Subject Matter:
  • Scientific, technical, or other specialized knowledge that will be helpful to the jury in deciding a fact
    • An opinion is not helpful if the proposition is obvious

Witnesses

Opinion Testimony:

(Expert Witnesses: Basis of Opinion)

• Basis of Opinion: must be based on reasonable degree of probability OR reasonable certainty
• Ex/W may draw upon 3 permissible data sources:
  
  • Personal knowledge (e.g., treating physician)
  • Other ev in trial record
  • Facts outside the record (hearsay) if out-of-court material is of type reasonably relied upon by experts in that field in forming their opinion
    • Contents shouldn't be disclosed to jury unless judge determines helpful to jury
      • If so, must give limiting instrux ("Consider it only in evaluating quality of expert's opinion")

Witnesses:

Expert Witness

(Relevance & Reliability)

• In order to be admissible, expert opinion must be relevant to the issue at hand AND sufficiently reliable
• Ct = "gatekeeper": 4 principal factors to determine reliability of principles and methodology used by expert to reach opinion (TRAP):
       Testing of M&P
       Rate of error of M&P
       Acceptance by other experts in same field
               + (Don't need general acceptance!)
       Peer review and publication of M&P
• Note: Reliability: (1) Expert must use reliable M&P and (2) apply those M&P reliably to facts at hand

Witnesses

Opinion Testimony:

(Expert Witnesses: Learned Treatise--Hearsay Exception)

• On direct-ex of party's own expert:
  • Relevant portions of treatise, periodical, or pamphlet may be read into ev as substantive ev (to prove truth of matter asserted) if established as reliable authority
    
    • Must have been used in conjunction w/ expert testimony!
• On cross-ex of opponent's expert:
  • Read into ev to impeach and contradict opponent's expert (comes in as sub. ev!)
    
• BUT, learned treatise can't be introduced as exhibit
  • Can only read it to the jury

Witnesses

Opinion Testimony:

(Ultimate Issues)

• Opinion testimony is not objectionable just because it embraces an "ultimate issue" in the case
  • E.g., in DUI, testimony that "X seemed drunk" could be admitted
• BUT, all other requirements for opinion testimony must be satisfied, including the requirement that the opinion is helpful
  • E.g., witness would not be allowed to testify that Δ is "guilty/innocent"
• Criminal Cases: "Ultimate issue" is still proper objection if expert seeks to give direct opinion that Δ did or did not have relevant mental state
  • Expert can only testify in general terms about the effects of a Δ's mental condition w/o linking it to the particular case.
• Examples on p.36

Witnesses:

Cross-Examination

• Party has a right to cross-ex any opposing witness who testifies at the trial
  • Significant impairment of this right will result, at minimum, in striking of witness's testimony
• Proper subject matter:
  • Matters w/in the scope of direct-ex
  • Matters that test the witness's credibility

Witnesses:

Credibility and Impeachment

• Bolstering Own Witness: not allowed until after the witness's credibility has been attacked
  • Rehabilitation = post-impeachment repair
  • Exception: Witness's prior ID of a person
    • Comes in as substantive ev!
    • Witness who prior ID'd must testify at trial and must be subject to current cross-ex
• Impeaching Own Witness: permitted w/o limitation
  
  • Note: Even though FRE speaks only of impeaching a witness on cross-ex, a party can impeach her own witness during direct-ex
• Examples on p.37-38

Witnesses:

Impeachment Methods

(Overview of Impeachment Methods)

Overview of (7) Impeachment Methods:

• Prior Inconsistent Statements
• Bias, Interest or Motive to Misrepresent
• Sensory Deficiencies
• Bad Reputation or Opinion About Witness's Character for Truthfulness
• Criminal Convictions
• Bad Acts (Without Convictions) That Reflect Adversely On Witness's Character For Truthfulness
• Contradiction

Witnesses:

Impeachment Methods

(Overview of Impeachment Procedure)

• 2 ways to use impeachment methods:
  • Ask witness about impeaching fact w/ aim of having witness admit it ("confronting"), OR
  • Prove impeaching fact w/ extrinsic ev (documentary ev/testimony from other witnesses)
• Imp. fact may be proven w/ ex/ev as to:
  • Prior Inconsistent Statement
  • Bias, Interest or Motive to Misrepresent
  • Sensory Deficiencies
  • Bad Rep or Opinion
  • Criminal Convictions
  • Contradiction (only partially; can't use as to collateral contradictory facts!)
    • Note: for all of the above (except Bias), its not necessary to ask witness about impeaching fact before ex/ev is introduced

Witnesses:

Impeachment Methods

(Prior Inconsistent Statements)

• Any witness may be impeached by showing that on some prior occasion, she made a material statement (orally or in writing) that is inconsistent w/ her trial testimony
• Admissible only for the purpose of impeachment
  • Exception: May be admitted both to impeach and as substantive ev if:
    • Witness is currently subject to cross-ex AND
    • The prior inconsistent statement was made both orally under oath and as part of a formal hearing/proceeding/trial/depo.
• Confrontation timing is flexible. Not req'd to immediately confront witness, but, after proof by ex/ev, witness must be given opportunity at some point to return to stand to explain/deny P/I/S
  
  • Exception: No opportunity to explain need be given if Witness is opposing party
    • Can also use against that party as sub/ev as a party admission or statement of an opp. party)
• Examples on p.39-40

Witnesses:

Impeachment Methods

(Bias, Interest, or Motive to Misrepresent)

• Bias can be based on any fact that would give a witness a reason to testify favorable/negatively about a party's case
• Witness must be confronted with alleged bias while on the stand
• If confrontation prerequisite is met, bias may be proven by extrinsic ev
  • Must ask the witness about the impeaching fact before the ex/ev is introduced!
    

Witnesses:

Impeachment Methods

(Sensory Deficiencies)

• Anything that could affect witness's perception or memory
• Confrontation not required
• Extrinsic evidence allowed

Witnesses:

Impeachment Methods

(Bad Reputation or Opinion About Witness's Character for Truthfulness)

• Any witness is subject to impeachment by this method ("direct attack")
• Confrontation not required
• Extrinsic evidence is allowed (and only way to use this method!)
  • How? Call a Character Witness to testify that:
    • Target Witness has bad reputation for truthfulness
      OR
    • That Character Witness has low opinion of Target Witness's character for truthfulness
      • Can't use specific acts

Witnesses:

Impeachment Methods

(Criminal Convictions)

Permissible Types of Convictions
(Confrontation not required!)

• Conviction of any crime (felony or misdemeanor) where "proof of false statement" is element of crime
  • Automatic admissibility (no discretion)
  • Can use on any witness (including Δ)
  • Truth-telling crimes ≠ theft, burglary
• Felonies (where "proof of false statement" not element of crime)
  • Ct may exclude per 403:
  • Factors that make felony conviction probative on credibility: seriousness of crime; relation to deception and stealth
  • Prejudice factors: similarity to case being tried; inflammatory nature of prior crime
• Time limitation: conviction or release from prison (w/e is later) must be w/in 10y of trial
  • If >10y, can't be used to impeach unless Ct finds probative value on credibility is substantial
• Examples on p.43-44

Witnesses:

Impeachment Methods

(Inquiry About Bad Acts Without Conviction)

• Bad acts involving deceit or lying
• Requires confronting the witness on cross-ex
• Extrinsic evidence is not allowed
• Must have good-faith basis for inquiry
• Permission to inquire subject to Ct's discretion
• Inquiry limited to act itself--not consequences (job termination, civil judgment, arrest, etc.)
• No specific time limitation (discretionary though!)
• TIP: proof w/ ex/ev may still be allowed if bad act is relevant for some purpose other than bad character for truthfulness (such as bias)

Witnesses:

Impeachment Methods

(Contradiction)

• Through confrontation, cross-examiner may try to obtain admission that Witness made mistake or lied about any fact testified to during direct-ex
• If admits, impeached by contradiction
• If denies, issue becomes whether ex/ev allowed:
  • Ex/ev not allowed for purpose of contradiction if fact at issue is collateral
    • "Collateral": no significant relevance to case or to witness's credibility

Witnesses:

Rehabilitation

(Showing Witness's Good Character for Truthfulness)

When to use: when the impeachment suggested that your witness was lying (as compared to merely being mistaken)

How to use: bring out Character Witness to testify that impeached Witness has good reputation/opinion for truthfulness

Witnesses:

Rehabilitation

(Prior Consistent Statement to Rebut)

Rebuttal Rules for P/C/S:

• To rebut a charge of recent fabrication: if witness's trial testimony is charged as a recent fabrication, P/C/S admissible IF:
  • Statement was made before motive to fabricate arose
• To rebut a contention of inconsistency
• To rebut a contention of sensory deficiency
• Note: A P/C/S that fits w/in any of the rebuttal rules is admissible to rehabilitate credibility and as substantive ev that prior statement was true (hearsay exclusion)

Privileges:

Which Law Applies

• In general, on MBE, apply basic rules on privilege
• If specifically indicated as "federal procedure issue", apply following rules if action in fed Ct :
  • All FQ civil cases and all crim: use basical rules ("common law as interpreted by fed ct")
  • All diversity cases: use law of state whose sub/law is applicable
    • Note: in diversity cases, fed cts also apply state law on competency, burdens of proof, and presumptions (otherwise use FRE)

Privileges:

Attorney-Client Privilege

(Rule & Terminology)

• Applies to confidential communications b/w attorney & client (or rep of either) made during legal consultation unless waived/exception applies
• Confidential: reas. expectation of confidentiality
  • Joint clients: if 2+ clients w/ common interest consult same att., comm. w/ counsel concerning common interest is privileged as to 3Ps
    • If JCs later dispute concerning common interest, privilege won't apply b/w them
• Communication: actual exchange of info
  • doesn't apply to client's underlying knowledge
• Attorney: member of bar (or client reas. believes is)
• Rep. of Att.: any agent reas. necessary to facilitate provision of legal services (Rep of Client is ~same)
• Client: includes prospective clients
• Leg. Consult: obtaining/rendering legal services

Privileges:

Attorney-Client Privilege

(Waivers & Exceptions)

• Waivers to Attorney-Client Privilege:
  • Voluntary Waiver: only client has power to waive; after death, priv. continues w/ estate
  • Subject Matter Waiver: vol/waiver as to some comm. will waive it as to other comm. if:
    • partial disclosure is intentional
    • disclosed/undisclosed comm. concerns same subject matter; AND
    • fairness requires disclosed/undisclosed comm. be considered together
  • Inadvertent Waiver: inadvertent disclose won't waive privilege so long as privilege holder took reasonable steps to prevent disclose AND takes reasonable steps to correct error
• Exceptions to Attorney-Client Privilege:
  • Future crime or fraud
  • Where client puts legal advice in issue
  • Attorney-client disputes

Privileges:

Physician-Patient Privilege

• Confidential communications or info acquired by MD from patient for purpose of diagnosis or treatment of medical condition
• Usually created by state § (no privilege under CL)
• Also applicable to psychotherapists
• Fed law distinction: in fed ct actions based solely on fed sub. law (e.g. civil rights, securities fraud, fed criminal case), privilege exists only for psychotherapy
• Exception applicable to both physician & psychotherapist privileges: if Pt expressly/impliedly puts physical or mental condition in issue

Privileges:

Spousal Privileges

• Spousal Immunity (Criminal Cases Only)
  • Can't be compelled to testify about anything (not just comm.) against Δ-spouse
  • Holder of privilege: Witness-spouse only
  • Covers anything said prior to marriage
  • Marriage must exist at time of trial
• Confidential Comm. B/W Spouses (Any Case)
  • Need consent of both spouses to disclose confidential comm. (statements or acts) made by one to the other during the marriage
  • Applies beyond divorce so long as conf. comm. made during the marriage
• Exceptions to Both Spousal Privileges:
  • Comm. or acts in furtherance of jointly-perpetrated future crime or fraud
  • Comm. or acts destructive of family unit
  • In litigation b/w spouses themselves

• Out-of-court statement of a person (oral/written) offered to prove truth of matter asserted in statement
• Inadmissible unless exception or exclusion applies

Hearsay:

Non-Hearsay Statements

• Out-of-court statements are not hearsay if they are not offered to prove the truth of the matter asserted in the statement
• An out-of-court statement may be relevant to some issue simply because it was spoken or written:
  • If statement spoken, witness on stand can be cross-examined
  • If statement written, it can be examined as an exhibit

Hearsay:

Principal Categories of Non-Hearsay Purposes

• Verbal Act. "Legally operative words"; where substantive law attaches rights & obligations to certain words simply because they were spoken
• To Show Effect on Person Who Heard or Read the Statement. If person hears someone else make certain statements, may be relevant to put listener on notice of something/create fear/give listener a motive or P/C to do something w/o regard to whether statement is true
• Circumstantial Evidence of Speaker's State of Mind.  Note: Giving false alibi implies consciousness of guilt; asking a question may imply lack of knowledge

Hearsay:

Prior Statements of Trial Witness

• A witness's own prior statement, if offered to prove the truth of matter asserted in statement, is hearsay (inadmissible unless exclusion/exception applies
• 3 Witness-Statement Exclusions From Hearsay (also called "Exclusions" or "Non-hearsay"):
  • Witness's prior statement of ID of person OR
  • Witness's prior inconsistent statement if oral, under oath and made during formal trial/proceeding/hearing/depo OR
  • Witness's prior consistent statement to rebut charge of recent fabrication, or contention of inconsistency or sensory deficiency

Hearsay:

Party Admissions

• Any statement made by opposing party is admissible for its truth if it is offered against the opposing party
• Called "exclusion" or "non-hearsay"
• Now called "statement of an opposing party" by FRE
• Statement doesn't have to be against interest at the time the statement was made
• Adoptive Admission: if party expressly/impliedly adopts statement made by another person, treated as though party made statement herself
  • Adoption by Silence: when party hears but remains silent under circumstances in which reas. person would protest if false
• Vicarious Admission: statement by agent admissible against principal if concerns matter w/in scope of agency and made during existence of agency rel.
• Co-conspirator's Statement: admissible against party-conspiracy member if statement made during and in furtherance of the conspiracy

Hearsay:

Overview of Hearsay Exceptions

• Forfeiture by wrongdoing
• Former testimony
• Statement against interest
• Dying declaration
• Excited utterance

• ---

• Present sense impression
• Present state of mind
• Declaration of intent
• Present physical condition
• Statement for purpose of Mx treatment/diagnosis
• Business records
• Public records
  **also recall Past Rec. Recorded, Learned Treatises
  **those above the line require unavailability!**

Hearsay:

Note on Criminal Defendant's Right of Confrontation

• 6th Am. requires that criminal Δ be "confronted" with the witnesses against him.
• Rule: in context of hearsay, prosecution may not use hearsay against criminal Δ (even if it falls w/in an exception) if:
  • Statement is testimonial
  • Declarant is unavailable; AND
  • Δ has had no opportunity for cross-ex
    
    • Cross-ex may be satisified either before or at trial

Hearsay:

"Testimonial"

What is "testimonial"?

• Grand jury testimony
• Statements in response to police interrogation
  • Testimonial if purpose is to prove past events potentially relevant to later crim prosecution
  • Non-testimonial if purpose is to enable police assistance to meet an ongoing emergency
    • Ongoing: includes situations in which crime over, but perp is still armed and poses threat to victim/police/public-at-large
• Documents
  • Sworn affidavits are testimonial
  • Business records are not testimonial
  • DNA Report not testimonial if collected from crime scene to build profile and no particular person is suspected at time of analysis
  • Forensic lab report is testimonial if purpose is to accuse targeted individual of crim conduct
    • But, no confrontation violation occurs if Pros. calls testifying expert (who performed independent analysis), and that expert only generally refers to report to show partial basis for opinion w/o reading to jury or introducing into ev

Hearsay:

Grounds of Unavailability

• Privilege
• Absence from the jurisdiction (cannot be found w/ due diligence or beyond Ct's subpoena power)
• Illness or death
• Lack of memory
• Stubborn refusal to testify (even if no privilege applies)

*Note: same grounds of unavailability apply to all exceptions where unavailability is a requirement*

Hearsay:

Forfeiture--Hearsay Exception

• Any type of hearsay statement is admissible against a Δ whose wrongdoing made the witness unavailable if:
  
  • Ct finds by a preponderance of the ev
  • That Δ's wrongdoing was designed to prevent the witness from testifying
• By making the witness unavailable through his own wrongdoing, Δ forfeits both the hearsay and 6th Am. objection

Hearsay:

Former Testimony--Hearsay Exception

• Former testimony of 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-ex or develop the testimony of the witness
• Issue in both proceedings must be essentially the same
• Note: if GJ witness testified to something favorable for Δ, and then became unavailable, Δ might be able to use the former testimony against the Pros. b/c Pros., at the grand jury, did have an opportunity (and usually the motive) to develop W's testimony

Hearsay:

Statement Against Interest--Hearsay Exception

• An unavailable declarant's statement against his or her:
  • Pecuniary interest ($) OR
  • Proprietary interest (property) OR
  • Penal interest (criminal)
• Qualification in criminal cases: Statement against penal interest must be supported by circumstances showing the trustworthiness of the statement
• Examples on p.64

Hearsay:

Statement Against Interest vs. Party Admission

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

*Example on p.64 illustrating difference b/w the two

Hearsay:

Dying Declaration--Hearsay Exception

• Statement made under a belief of impending (imminent) and certain death by a now-unavailable declarant concerning the cause or surrounding circumstances of the declarant's death
• In criminal cases? Homicide only
• In civil cases? All types
• Note on Confrontation: Dy/Dec made to a P/O may be testimonial, but it most likely qualifies as an exception to the confrontation requirement of cross-ex

Hearsay:

Excited Utterance--Hearsay Exception

• Statement concerning a startling event and made while declarant is still under the stress of excitement caused by the event
• "Spontaneous" statement: unavailability not required
• Factors:
  • Nature of event
  • Passage of time (no hard fast rule)
  • TIP: for MBE, look for visual clues such as exclamatory phrases, excitement-oriented verbs, and exclamation points

Hearsay:

Present Sense Impression--Hearsay Exception

• Description of an (external) event while the event is occurring or immediately thereafter
  • "Immediately thereafter": seconds--not minutes
• Also considered a "spontaneous statement" so unavailability is not required
• Example on p.66

Hearsay:

Present State of Mind--Hearsay Exception

• Contemporaneous statement concerning declarant's present (internal) state of mind, feelings, emotions
• Also considered a "spontaneous statement" so unavailability is not required
• Example on p.67

Hearsay:

Declaration of Intent--Hearsay Exception

• Statement of declarant's intent (or plan) to do something in the future, including the intent to engage in conduct with another person
• "Specialized" state of mind
• Also considered a "spontaneous statement" so unavailability is not required
• Example on p.67

Hearsay:

Present Physical Condition--Hearsay Exception

• Statement made to anyone about declarant's current physical condition
• Also considered a "spontaneous statement" so unavailability is not required
• Example on p.68

Hearsay:

Statement Made for the Purpose of Obtaining Medical Treatment or Diagnosis--Hearsay Exception

• Statement made to anyone (usually to Mx personnel) for the purpose of obtaining Mx treatment or diagnosis (including a diagnosis for expert testimony) if it concerns the Δ's:
  • Present symptoms OR
  • Past symptoms OR
  • General cause of the condition
    
    • This doesn't include statements describing details of liability or the ID of a tortfeasor, unless it is the ID of the abuser in a domestic abuse or child abuse case
• Unavailability is not required
• This exception does not include oral statements by a MD to the Pt; distinguish written entries made by MD in business (hospital) records!
• Example on p.69

Hearsay:

Business Records--Hearsay Exception

• Elements:
  • Records of a business of any type
  • Made in the regular course of business
  • The business routinely keeps such records
  • Made contemporaneously
  • Contents consist of:
    • Info observed by employees of biz OR
    • Statement that falls w/in independent hearsay exception
• Unavailability not required
• How to Prove Biz Record Foundation:
  • Call sponsoring witness to testify to 5 elements; need not be author--can be records custodian or any other knowledgeable person w/in biz OR
  • Written certification under oath attesting to 5 elements (w/ advance notice to other party)
    

Hearsay:

Public Records--Hearsay Exception

• Records of a public office or agency setting forth:
  • Activities of the office or agency (e.g., payroll records) OR
  • Matters observed pursuant to a duty imposed by law (e.g., Weather Bureau records of temp) OR
  • Findings of fact or opinion resulting from an investigation authorized by law (.e.g., OSHA inspection report on safety conditions of biz)
• Exclusion: Police reports prepared for prosecutorial purposes are not admissible against Δ in crim case

Hearsay:

Hearsay Within Hearsay

• If a hearsay statement is included w/in another hearsay statement, the evidence is inadmissible unless each statement falls w/in a hearsay exception
• Example on p.71

Hearsay:

Impeachment of Hearsay Declarants

• Any impeachment method may be used to attack the credibility of a hearsay declarant whose statement was admitted into evidence.
• If the impeachment consists of a prior inconsistent statement, the usual requirement that the declarant be given an opportunity to explain or deny is waived.