Term
What is the federal rule for the doctor patient privilege? |
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Definition
| There isn't one. Hasn't been ruled on yet by the SC. |
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Term
What are the spousal privileges? |
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Definition
1. Spousal immunity privilege- protects one spouse from being forced to testify against the other. 2. Confidential Marital Comm. privilege- Both spouses can prevent the other spouse from disclosing confidential information told during the marraige. |
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Term
Then existing physical or emotional req's? |
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Definition
Statement of declarant's then existing physical or emotional state is admissible. Ex: I felt sick yesterday: Not allowed I feel sick today: Allowed I think I'll be sick tomorrow: Not allowed. |
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Term
What are the differences in spousal immunities? |
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Definition
1. Spousal immunity only applies for criminal trials. 2. Spousal immunity can only be raised by the witness on the stand. 3. The confidential comm. privilege can be raised by either husband or wife, so either one can't force the other to speak, and both can raise the privilege to prevent the other from disclosing privileged info. |
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Term
| When does state evidence law apply in a federal court for a civil trial? |
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Definition
If state substantive law applies (diversity cases), then can apply state evidence law in three situations: 1. Presumption and burden of proof 2. Competency of witness 3. Privileges |
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Term
| When do you use federal rules for evidence? |
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Definition
| If it's a federal issue that brought it to federal court. |
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Term
| What are the two scenerios where there can be hearsay? |
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Definition
1. Declarant makes an out of court statement and Witness is now testifying about the statement. or 2. Declarant writes the out of court statment, and the writing is produced in court. |
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Term
| What is the rationale for hearsay? |
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Definition
| It denies the opponent the opportunity to cross exam the person whose perception, memory, and sincerity are in issue. |
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Term
| What is the key question to ask when deciding if it's hearsay? |
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Definition
If you are trying to answer: "did declarant really make statement," then you only have to cross the memory, sincerity and perception of the person who heard the statement, so hearsay doesn't apply. |
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Term
| What Type of Exclusions are there? |
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Definition
1. Party Admissions 2. Prior Inconsistent Statements made under oath 3. Prior Consistent Statements: to rebut recent charge, or for ID a witness. |
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Term
What is the confrontation clause? |
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Definition
| It's in the 6th amendment and provides the def. in a criminal case the right to confront the people testifying against him (cross). |
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Term
| What is the best example of how words of slander can be excluded from hearsay? |
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Definition
| Defamation or perjury, b/c you are NOT proving truth, but merely that they were said. |
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Term
What words have independent legal significance? |
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Definition
1. Words forming contracts 2. Words of slander, perjury 3. Words of assault and fraud |
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Term
| What are the Hearsay Exclusions? |
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Definition
1. Prior Statements- can be inconsistent if made under oath, or consistent if to ID person, or to rebut a recent fabrication charge. 2. Party Admissions |
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Term
| What type of statements would normally be hearsay, but are allowed not to show their truth? |
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Definition
1. Independent legal sign. 2. State of Mind of Declarant 3. Notice 4. State of Mind of Def. |
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Term
| What type of statements are exceptions to Hearsay? |
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Definition
1. Former Testimony 2. Statement against interest 3. Dying Declaration 4. Spontaneous statements Present state of mind in issue, statement of existing intent to prove future act, excited utterance, present sense impression, present physical condition, past physical condition 5. Business Records 6. Public Records |
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Term
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Definition
Statement must be: 1. Party's own statement (or adoption of statement) 2. By party or agent (if not speaking agent, the statement must be in course of employment to be allowed) |
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Term
When can an employer be liable for an employee's admission? |
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Definition
If the statement was made by a speaking agent of the Employer, it is allowed at trial. If the admission was made by a non speaking agent, the statement can only come in if it was made during the scope of employment. |
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Term
Are statements made by co conspirators allowed against each other at trial? |
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Definition
If one party makes an admission, then it will be allowed against the other party only if: 1. The statement shows there was a conspiracy by a perponderance of the evidence, and 2. Show that statement was made in the course of or in furtherance of conspiracy (not after arrest); and 3. Must have corraborating evidence |
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Term
If a co defendant says to a cop while being arrested ,"Lenny did it not me," will it be allowed? |
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Definition
| No because the admission was made after the arrest and not in furtherance of the conspiracy. |
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Term
What are the unavailable Hearsay Exceptions? |
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Definition
| 1. Former Testimony 2. Dying Declaration 3. Statement against interest 4. Family History |
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Term
| What are the hearsay exceptions that don't require unavailability? |
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Definition
| 1. Present Sense Impression 2. Excited Utterance, 3. Then existing physical condition, 4. Past physical condition, 5. Hearsay within Hearsay, 6. Business Records, 7. Public Records 8. State of Mind Statements, 9. Learned Treatise |
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Term
When can you introduce former testimony into evidence? |
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Definition
If the unavailable witness has already testified at a prior trial, hearing, deposition and it was under the same motive for cross exam., then the witness's prior testimony is admissable. Keys: Unavailable Witness, who previously testified under oath, and opposing party had chance to cross. |
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Term
When can you use a dying declaration in court? |
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Definition
1. Criminal Case: ONLY for homocide case 2. Civil Case: Can use in ANY case 3. Declarant must be under impending death, and State that he/she knows that death is impending, and must be about the cause of his/her death. |
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Term
Declaration against Interest |
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Definition
When a declarant makes an out of court statement, that would subject him/her to a criminal or civil lawsuit, or defeat the party's claim, and one that a reasonable person would not have made. Can be admissible as an exception to hearsay. However, if it's to exculpate a def. and inculpate the declarant, there must be corraborative evidence. |
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Term
What if there is a car wreck and a man gets out and says to a witness, "It was all my fault." He later dies. Can this statement be used at a trial by the people that bring a wrongful death action against the other driver? |
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Definition
This is not an admission b/c the party is dead, and it's a statement against interest. Will work. |
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Term
| What happens if a def. wants to use a statement made by a declarant that is now unavailable, but the statement excupates him. (ex: declarant said, "I killed him, not the defendant.") |
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Definition
| Can only be allowed if there is corraborrative evidence indicating the trustworthyness of statement. |
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Term
If one co defendant says that, "I admit I helped out in the crime, but Billy planned and did it all," is the statement admissible? |
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Definition
| If prior to arrest maybe allowed as an admission against the declarant, but is NOT allowed against Billy at trial. This statement inculpates the declarant so it's not against his own interest. |
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Term
Can you use out of court statements about past physical conditions? |
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Definition
| If the past symptoms relate to a diagnosis or treatment they can be allowed. The symptoms must be germane to the treatment, and pertinent to either the treatment or diagnosis. |
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Term
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Definition
Any record of business, of anything, Made at or near the time of the event, Made by or from a person with knowledge, Kept in the ordinary course of business In the business's regular practice to keep such records Proven by a custodian or qualified person. *Is allowed unless it's untrustworthy |
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Term
| When do you normally have a hearsay within hearsay problem? |
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Definition
| When a statement is recorded in a business record that was made by someone other than an employee. |
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Term
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Definition
any record made by a government agency, of the agency's own activities, or of matters observed out of a legal duty to do so, except police reports in criminal trials. In civil cases and against the state the records of fact finding can be used. |
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Term
| When can you use a statement about the state of mind to show that it's true? |
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Definition
When trying to show the then existing state of mind, or future intent of a party to do something. Ex: I'm going to town tomorrow: admissible to show your intent. I'm went to town yesterday: Not admissible |
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Term
| Can a declarant's statement that they are meeting up with someone else, be offered to show the other person met up with them? |
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Definition
| Depends on if the court uses the Hillmon dillemna. |
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Term
Who decides whether the person is unavailable? |
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Definition
| The Judge decides and the judge isn't bounded by the rules of evidence. |
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Term
| Can a judge allow a witness to testify based on hearsay? |
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Definition
| Yes, judges have total descretion to determine the qualification of a person to testify, and the judge isn't bound by the rules of evidence. |
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Term
| Explain what Crawford v. Washington did: |
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Definition
It allows out of court statements that would qualify as a hearsay exception to be witheld if: The statement is offered against the accused, in a criminal case, the declarant is unavailable, the statement was testimonial (made to cop about crime), and the accussed had no right to cross examine witness. Unless the def. made the witness unavailable. |
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Term
| How can you determine whether a statement to the police is testimonial? |
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Definition
| If there is an ongoing emergency and you all or talk to a police officer to get them to assist you, it's non testimonial. If you talk to a police officer after the emergency is over, the evidence gathered is to show what happened and is testimonial. |
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Term
What should you consider when deciding if the confrontation clause should be used: |
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Definition
1. What was the motivation of the declarant? (to get help, or provide evidence) 2. What was motivation of interrogator?(to safeguard or get evidence) 3. Was it an ongoing emergency, or secured scene 4. Who was interrogating? (law enforcement, or family) 5. Circumstances of police evidence: where was interrogation held at scene, or at police station later. |
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