Critical Pass - Evidence
Relevance
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Evidence is relevant if it tends to make the existence of any fact of consequence more or less probable than it would be without the evidence
- Relevant evidence may be (but is not automatically) admissible
- Irrelevant evidence is inadmissible
Limitations on relevance:
- Logical relevance does not equal probative value — evidence can have high relevance but low probative value
- Discretionary exclusion — courts can exclude relevant evidence if its probative value is substantially outweighed by its danger of unfair prejudice or confusion
- See Card 2 - Discretionary Exclusion of Relevant Evidence
- Public policy exclusions — evidence can be excluded in instances where allowing its inclusion could run counter to public policy considerations
- E.g., evidence of liability insurance, subsequent remedial measures, settlement offers, guilty pleas withdrawn, and offers to pay medical expenses
- See Card 3 - Exclusion of Relevant Evidence on Public Policy Grounds
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A court may exclude logically relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, or waste of time (FRE 403)
Exclusion of relevant evidence — often arises with evidence that is:
- Emotionally disturbing
- Repetitive or confusing
- Admissible for one purpose but inadmissible for another (excluded to avoid risk of jury using evidence for the improper purpose)
Note — unfair surprise to a party or witness is not a valid ground for excluding relevant evidence
Balancing test — to exclude relevant evidence, probative value must be substantially outweighed by the danger of unfair prejudice
- Note — memorize this standard; wrong MBE answer choices may use similar, but incorrect language
Exceptions — impeachment evidence based on convictions for crimes involving false statements is not subject to discretionary exclusion
- See cards 13 & 14 on Impeachment
Evidentiary hearings — court may conduct a hearing on admissibility of evidence (or other preliminary questions, e.g., witness qualification), but must do so outside the presence of a jury
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Liability insurance — evidence of liability insurance is not admissible to prove fault or a party’s ability to pay damages
- Evidence of insurance is admissible to prove anything else (e.g., ownership, control, motive, etc.)
Subsequent remedial measures — evidence of repairs or other remedial measures taken after an injury is inadmissible to prove fault, defect, or inadequate warning
- Remedial measures evidence is admissible to rebut a defense that there was no feasible precaution
Settlements, offers to settle, & plea bargaining
- Civil cases — compromises, settlement offers, and related statements (including factual admissions) are inadmissible to prove liability or fault
- Does not include statements made before the claim or threat of litigation was asserted
- Criminal cases — pleas, offers to plea, and related statements (including factual admissions) are inadmissible to prove guilt
Payment or offers to pay medical expenses — inadmissible when offered to prove liability for injuries
- Related statements, including factual admissions, are admissible
- Offers to pay medical expenses in exchange for a liability release are inadmissible — considered a settlement offer
Similar occurrences — evidence of prior similar occurrences concerning the time, event, or person in the present controversy is often inadmissible as irrelevant or as presenting an unfair risk of prejudice
- However, similar occurrences may be relevant for other purposes
- Admissible uses — similar occurrences may be admissible to prove:
- Causation
- Prior accidents demonstrating:
- A pattern of fraudulent claims
- Pre-existing conditions
- Intent or absence of mistake
- To rebut a defense of impossibility
- Value (e.g., similar transactions can establish value)
- Industry custom (e.g., to prove standard of care)
- Business routine (e.g., to show that a particular event occurred)
Habit — a person’s habit may be relevant and admissible to show that the person acted in conformity with that habit on a given occasion
- Conduct must be highly specific and frequently repeated (i.e., a person’s regular response to a specific set of circumstances)
- Look for regular, instinctive, habitual conduct
- E.g., evidence that a person habitually goes down a particular stairwell two steps at a time could be admissible as circumstantial evidence that she did so at the time in question
Character Evidence
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Evidence of a person’s character is generally inadmissible to prove that they acted in conformity with that character on a given occasion
Exceptions — character evidence is admissible where:
- Character at issue — character is an essential element of a claim or defense (e.g., defamation)
- Character can be proved through opinion, reputation, or specific instances of conduct (see card 9)
- Prior acts of sexual assault or child molestation in cases for similar claims — in cases arising from sexual assault or child molestation, D’s prior acts of sexual assault or molestation are admissible to prove D’s conduct in the present case
- Note — also applies in criminal cases (see card 6); P must disclose intent to offer evidence at least 15 days before trial
Impeachment vs. character — be sure to understand whether evidence of a person’s character is being used as substantive character evidence or impeachment evidence
- Substantive character evidence is subject to greater admissibility restrictions than impeachment
- See cards 10-14 on Impeachment
In criminal cases, D may introduce evidence of her good character, which the prosecution (P) may rebut; with limited exceptions, P may not first introduce evidence of D’s character
Defense — may introduce evidence of pertinent good character
- Must be pertinent to the charged crime (e.g., D’s reputation for peacefulness is irrelevant to a forgery charge)
- Method — D may call W to testify to D’s good character based on reputation or opinion (but not specific instances)
- P’s rebuttal — once D “opens the door,” P may rebut by:
- Cross-ex of D’s character W — including knowledge of specific instances of D’s misconduct or prior arrests
- Calling W to testify to D’s bad character — limited to D’s character for the trait in question
Prosecution — may not initiate introduction of character evidence about D (i.e., can’t “open the door”), except:
- Sexual assault/child molestation cases — P can offer evidence of D’s other acts of sexual assault or child molestation
- If D first offers evidence of victim’s character — P can offer evidence that D has the same character trait (see card 7)
- Direct — reputation and opinion evidence is admissible; evidence of specific instances is inadmissible
- Cross — reputation, opinion, and specific instances are admissible
Only D can “open the door” by introducing evidence of victim’s character to prove conduct
- Once D offers evidence of victim’s character, prosecution may rebut
- Homicide cases — if D raises self-defense, D can offer evidence of victim’s character for violence to show that the victim attacked first
- Prosecution may then rebut by offering evidence of victim’s character for peacefulness to rebut D’s claim of self-defense
Methods:
- Direct — reputation and opinion evidence is admissible; evidence of specific instances is inadmissible
- Cross — reputation, opinion, and specific instances are admissible
See Card 8 - Rape Shield: Limitation on Evidence of Victim’s Character in Sexual Assault Cases
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In sexual assault cases—both criminal and civil—special rules limit D’s ability to present evidence of victim’s character
Civil cases — reputation, opinion, and specific instances of victim’s character are admissible if:
- Probative value substantially outweighs unfair prejudice; and
- In the case of reputation evidence, P puts her reputation at issue in some way
- Note — this standard is two-pronged, unlike the FRE 403 discretionary exclusion standard — do not confuse the two
Criminal cases
- Reputation and opinion evidence of victim is inadmissible
- Evidence offered to prove victim’s sexual behavior or disposition is inadmissible
- Exceptions — specific instances of victim’s sexual behavior is admissible to show:
- A third party is the source of injury or DNA evidence, or
- Prior acts of consensual intercourse between victim and D
Procedure — parties must disclose intent to offer evidence, describe its purpose, and notify the victim 14 days before trial
In civil and criminal cases, specific instances of D’s bad conduct are generally inadmissible to prove character (i.e., action in conformity therewith), but admissible if independently relevant
- I.e., prior bad acts are inadmissible unless the acts are relevant to an issue other than D’s character or criminal disposition
- Exception — in sexual assault or molestation cases, evidence of D’s prior acts of sexual assault or molestation is admissible (see card 6)
MIMIC — common non-character uses of prior acts evidence:
- Prior acts evidence is admissible to prove:
- Motive
- Intent
- Mistake (i.e., absence of mistake, knowledge)
- Identity (extremely similar or unique prior act)
- Common plan or scheme
- Usually arises in criminal cases, but may arise in civil cases
Note — prior acts evidence is always subject to FRE 403 balancing (probative value vs. unfair prejudice)
Impeachment
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Impeachment casts an adverse reflection on the veracity of W’s testimony
- Any party may impeach any W
Methods of impeachment
- Contradiction
- Prior inconsistent statement (PIS)
- Bias or interest
- Sensory deficiencies
- E.g., W’s senses were incapable of producing the perceptions to which W testified
- Reputation and/or opinion of untruthfulness
- Admissible to impeach W’s veracity by use of extrinsic evidence
- Prior acts of misconduct
- Extrinsic evidence is prohibited
- Prior criminal conviction
- See cards 12-14
Evidence supporting witness credibility — inadmissible unless credibility has been attacked (i.e., W has been impeached)
- Exception — W’s prior consistent statement is admissible if the statement was made before W had a motive to fabricate
Extrinsic evidence may be used to impeach W, except on collateral matters
Extrinsic evidence = any evidence other than W’s testimony at the current proceeding
- Includes evidence of out-of-court prior inconsistent statements
Extrinsic evidence of contradictory facts is generally admissible to impeach W on material, non-collateral matters
Collateral matter = a fact not material to issues in the case
- Says nothing about W’s credibility; only used to contradict W
- E.g., W1 testifies he was headed to the store when he saw D commit murder; defense cannot call W2 to testify that W1 was really headed to see his mistress — this is collateral (i.e., not material) to the issue of what W1 saw
- Test — to determine if evidence is collateral, ask: would the evidence be material to the given issue if not for W’s contrary assertion?
- If not, it is likely collateral
Contradiction — any evidence may be used to show W has made contradictory statements on material issues
Prior inconsistent statement — W’s prior inconsistent statements may be used to impeach W’s present testimony
- Establishing PIS — may be established through cross-exam or extrinsic evidence
- Extrinsic evidence is inadmissible if the PIS relates to a collateral matter (see card 11)
- Foundation requirement — W must have an opportunity to explain or deny the statement
- Not required for PIS by a hearsay declarant
Prior inconsistent statements & hearsay — if PIS is hearsay, it is admissible for impeachment purposes, but inadmissible as substantive evidence (to prove the truth of the matter asserted)
- I.e., a hearsay PIS may only be considered for its bearing on W’s credibility
- If the PIS is not hearsay or it falls under a hearsay exemption/exception, it may be considered for any purpose
- See Card 27 - Hearsay
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Evidence of W’s bias, prior misconduct, or reputation for untruthfulness may be used to impeach W
Impeachment by establishing bias — may be established through cross-exam or extrinsic evidence
- Foundation requirement — W must be questioned on cross-exam regarding the facts that show bias or interest so that W has an opportunity to explain or deny
Impeachment by prior instances of misconduct — W may be questioned on cross-exam about any prior misconduct probative of truthfulness (i.e., lying or deceit)
- Arrests does not equal misconduct — must be an act of lying
- No extrinsic evidence permitted — W may only be asked about prior misconduct; questioning attorney must accept W’s answer
- See Card 14 - Impeachment by Prior Convictions
Impeachment based on opinion or reputation for untruthfulness
- W may be impeached by testimony describing his reputation for untruthfulness in the community
Admissibility of impeachment by type of prior conviction:
Prior conviction | Felonies not involving dishonesty/false statements:
Misdemeanors: inadmissible unless it involves dishonesty/false statements |
Prior conviction involving act of dishonesty | Always admissible — court has no discretion to exclude under 403 (rare exception to 403)
Acts of dishonesty — prior conviction required proof or admission of an act of dishonesty or false statement (e.g., perjury, fraud) |
Convictions more than 10 years old (felonies & misdemeanors)
| Not admissible, unless:
Determining 10-year date — more than 10 years must have elapsed since date of conviction or date of release from confinement, whichever is later |
Testimonial Evidence
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Witness competency — testifying witnesses must be competent, meaning they must satisfy requirements of basic reliability
- Witnesses are generally presumed to be competent
- Competency qualifications — to be competent, W must have:
- Personal knowledge — W’s testimony must be based on her own perceptions (e.g., what W saw or heard)
- Memory — W must have the ability to remember (e.g., must not have amnesia)
- Communication — W must be able to relay her perceptions, either directly or through an interpreter
- Sincerity — W must take an oath or affirm to tell the truth
- Diminution of any of the above capacities usually goes only to the weight of testimony (i.e., makes W less persuasive)
Excluding witnesses — upon a party’s request, the court must order witnesses excluded from hearing other witnesses’ testimony
- Does not apply to parties or party representatives (e.g., where party is a non-person entity)
Present recollection refreshed — use of documents to refresh W’s memory during testimony
- Anything can be used to refresh W’s memory
- W cannot read aloud from a document, but can look at it briefly, then continue testimony unassisted
- Opponent may inspect and offer into evidence anything used to refresh W’s memory
- Document is not read into evidence (distinguish from recorded recollection)
Recorded recollection — contents of a record/document W previously made or adopted is read into evidence
- Requirements:
- W once had personal knowledge of the record's subject matter;
W’s memory is insufficient to testify as to the record’s contents (i.e., present recollection refreshed was ineffective)
Record was made or adopted by W when the matter was fresh in W’s memory; and
Record accurately reflects W’s knowledge
- Note — recorded recollection is a hearsay exception (see card 30); as such it may be admitted in to evidence (distinguish from present recollection refreshed)
Form of question objections:
- Calls for narrative — non-specific, open-ended question that allows W to tell a story rather than give specific testimony in response to specifically asked questions
- Leading — question itself suggests the answer; improper on direct unless W is hostile or an adverse party; acceptable on cross-exam
- Assumes facts not in evidence — question makes an assumption which has not been established on the record
- Argumentative — a question that is not designed or intended to elicit relevant facts, but rather is an argumentative assertion
- Compound — question that asks more than one question at a time; attorneys must ask questions individually
- Beyond scope of direct — arises on cross-exam
- Attorneys must confine their questions during cross-exam to the scope of direct (i.e., they cannot ask questions involving matters not discussed on direct)
Testimonial objections:
- Unresponsive/nonresponsive — W’s testimony does not relate to or directly answer the question asked
Note — these objections must be specific and promptly made; otherwise they are deemed waived
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Testimony in the form of opinion is inadmissible unless W qualifies to give either lay or expert opinion
Lay opinion requirements — opinion testimony is admissible if it is:
- Rationally based — opinion is rationally based on W’s perception
- Helpful — opinion is helpful to the trier of fact
- I.e., gives the jury more information regarding W’s perception than the perception alone
- Legal conclusions are inadmissible b/c they are deemed unhelpful
- Not expert — not based on scientific, technical, or other specialized knowledge (i.e., not in the realm of expert opinion)
Examples of admissible lay opinion testimony:
- Speed of a car
- Emotional state of an individual
- Voice or handwriting recognition
- Sense recognition
- Intoxication
See Card 19 - Expert Opinion
Experts may provide opinions on facts or issues in the case
Expert opinion requirements — expert testimony is admissible if:
- Helpful — expert opinion must be helpful to the trier of fact
- I.e., expert uses specialized knowledge to reach conclusions an average juror would not reach alone
- Qualified — expert must possess special knowledge, skill, experience, training, or education
- Reasonable certainty — expert must believe in her opinion to a reasonable degree of certainty
- Proper factual basis — opinion must be based on facts
- Expert may base opinion on admitted evidence, personal knowledge, or inadmissible evidence properly relied upon (e.g., data, other testimony, experience)
- Reliable principals reasonably relied upon
- Scientific evidence — if expert opinion is based on science, court also considers whether evidence is:
- Peer tested and capable of retesting;
- Published;
- Has a low error rate; and
- Reasonably accepted in the field of study
- Scientific evidence — if expert opinion is based on science, court also considers whether evidence is:
Scope — experts may render an opinion on any ultimate legal issue
- Exception — experts cannot give opinion on D’s mental state in a criminal trial if it is an element of a crime or defense
Fed. courts recognize several testimonial privileges
- There are no FRE privilege rules; fed. courts have created and adopted these privileges
- State privilege rules (which often vary) apply in fed. cases based on diversity jurisdiction
Testimonial privileges:
- Attorney-client
- Clergy-penitent
- Spousal
- Marital communications
- Psychotherapist/social worker-patient
- Governmental
Self-incrimination — under 5th Amend., W cannot be compelled to provide self-incriminating testimony in either civil or criminal cases
W may invoke privilege if there is a reasonable possibility of self-incrimination
Civil cases — jury may draw an adverse inference from W’s assertion of 5th Amend. privilege
Criminal cases — D cannot be punished for invoking privilege
- See Card 56 in Criminal Law & Procedure
Note — These privileges are not FRE rules; the MBE usually assumes the existence of these privileges, but an answer choice indicating any of these privileges is an evidentiary rule will be incorrect
See cards 21-23 on Testimonial Privileges
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Communications between an attorney and client or client’s representatives are privileged in all proceedings unless waived
- Organizational clients — privilege applies to any employee authorized to speak to the attorney
To be protected, a communication must be:
- Intended to be confidential; and
- Made to facilitate legal services
Exceptions — privilege does not apply to:
- Crime or fraud — privilege does not apply if a client seeks legal services to aid in the planning or commission of a fraud or a crime
- Attorney defending malpractice claim — privilege does not apply if communication relates to an alleged breach of the attorney’s duty
Joint representation of parties in a lawsuit — no privilege
- Where an attorney acts for both parties in a transaction, no privilege can be invoked in a lawsuit between the parties
- But privilege can be claimed in a suit between either or both of the parties and a third person
Fees not covered — records of fee payments, including fee arrangements and payments, are generally considered outside (i.e., not covered by) attorney-client privilege
Physician-patient privilege — prevents disclosure of information confidentially conveyed by a patient to a physician
- Statutory privilege not recognized in FRE, but recognized and applied in most fed. courts on the basis of state law
- To be protected, communication must be:
- Made for purposes of obtaining diagnosis or treatment;
- Pertinent to diagnosis or treatment; and
- Intended by the patient to be confidential
- Exceptions — privilege does not apply where:
- Patient’s condition is a legal issue (e.g., personal injury),
- Physician’s services were sought to aid in a crime, tort, or to escape capture, or
- Dispute between doctor and patient (e.g., malpractice)
Psychotherapist/social worker-patient privilege — material conveyed by patient is privileged in all civil or criminal cases if:
- Client intends the communication to be confidential; and
- Communication is made to facilitate therapy or social work
- In most ways, this privilege operates similar to attorney-client privilege (see card 21)
Spousal testimonial privilege — criminal cases only
- A person whose spouse is a D in a criminal case cannot be:
- Called as a witness by the prosecution, or
- Compelled to testify against his spouse in a criminal proceeding
- Only the W-spouse may invoke the privilege (i.e., D cannot prevent a willing spouse from testifying against her)
- Privilege can only be invoked during marriage
Marital communications privilege — civil and criminal
- Confidential communications made during marriage are privileged in any later proceeding
- Applies even if spouses divorce after confidential communication was made
- Either spouse may invoke the privilege
- A spouse can lose the privilege if he breaks confidentiality (i.e., relays a marital communication to a third party)
- The other spouse still retains the privilege
- Exceptions where privilege does not apply:
- Suits between spouses
- Suits in which one spouse is charged with a crime or tort against children
- Suits in which spouses are co-defendants
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Writings & Physical Evidence
Every item of physical evidence must be authenticated, i.e., the proponent must show that the evidence is what he claims it is
- Proving authentication — may be proved by any means that serve to establish authenticity (low burden)
- E.g., item may be compared with already-authenticated item
- Self-authenticating evidence — writings that contain identifying information do not need separate authentication
- E.g., deeds, notarized documents, newspapers
Authentication issues:
- Ancient documents — automatically authenticated if:
- 20 or more years old;
- Does not present any irregularities on its face; and
- Found in a place of natural custody
- Photos — must have personal knowledge to authenticate
- Does fact testified to = fact perceived?
- Voice — whether heard firsthand or through a recording, a voice may be identified by anyone who heard the voice at any time
- Non-unique items — item facially indistinguishable from others of its kind (e.g., bag of white powder, generic syringe)
- Proponent must establish “chain of custody,” i.e., that the proffered evidence is the same item it is claimed to be (will be admissible absent large breaks in chain)
If evidence is offered to prove the contents of a writing, an original document must be used unless it is unavailable
- “Writing” = any tangible collection of data (e.g., videos, documents, photos, books, e-mails, text messages, computer drives, x-rays)
- Applicability — rule only applies if evidence is offered to prove its contents (e.g., W’s knowledge is obtained from a writing, case turns on contents of a legal instrument, etc.)
Evidence sufficient to prove a writing’s contents:
- Originals
- Duplicates — must be a machine or carbon copy
- Admissible unless there is a genuine question as to the authenticity of the original itself
- Testimony regarding contents — admissible if original is lost or destroyed, unless done so in bad faith by proponent of testimony
- Voluminous documents exception — a voluminous series of documents may be summarized in court
- Originals relied upon must be available for inspection
Completeness doctrine — if a party introduces part of a writing or recorded statement into evidence, an adverse party may introduce any other part or any related statement, that in fairness ought to be considered at the same time and may do so over a hearsay objection
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Judicial Notice
A court may recognize a fact as true without formal presentation of evidence, either on its own or upon formal request of a party
Judicially-noticeable facts — facts that are:
- Manifest facts — those capable of verification by a source that is not subject to reasonable dispute, or
- Notorious facts — those generally known within the jurisdiction
Judicial notice of laws — court must take judicial notice of fed. and state laws and regulations
- All other laws — court has discretion to take judicial notice
- E.g., municipal ordinances, foreign laws, etc.
Effect of judicially-noticed facts/laws:
- Civil — jury must take judicially-noticed facts as conclusive
- Criminal — jury may take judicially-noticed facts as conclusive, but is not required to
Judicial testimony — a presiding judge can not testify as a witness at trial (i.e., no party can call the trial judge to testify)
Hearsay
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Hearsay—an out-of-court statement offered to prove the truth of the matter asserted—is generally inadmissible, subject to certain exceptions and exemptions
- “Statement” — an oral or written assertion, or non-verbal conduct intended as an assertion
- Non-human assertions are not statements (e.g., test results, radar gun reading, dog barking)
- Out-of-court statements are not hearsay if offered to prove anything other than the truth of the matter they assert (see card 28)
Exemptions vs. exceptions — fed. rules create both exceptions and exemptions to the hearsay ban:
- Exemptions — deemed “non-hearsay” and thus admitted
- Exceptions — deemed hearsay, but still admitted
- Note — beware of answer choices that turn on this distinction, such as “hearsay but admissible” or “not hearsay and admissible”
- Beyond this distinction, there are no practical differences between hearsay exceptions and exemptions; they should be treated as the same
Note — W’s own prior out-of-court statement can be hearsay; thus, an answer that a statement is “not hearsay b/c it is W’s own statement” is incorrect
Out-of-court statements are not hearsay if offered to prove anything other than the truth of the matter they assert
Common non-hearsay out-of-court statements:
- Statements of independent legal significance — statement contains legally operative words; not hearsay b/c offered to show that the statement was said, not whether it was true
- E.g., in a contract dispute, A testifies that B told him it was a “done deal”
- Statements offered to show their effect on the listener or reader
- E.g., in a negligence claim, a statement warning P of the injury-causing condition is admissible to show notice to P
- Statements offered to show speaker’s knowledge
- E.g., D, charged with conspiracy claims he did not know about the crime; statement indicating D was told specifics of the crime will be admissible, indicating he knew it was planned
- Statements offered to show state of mind — statements offered as circumstantial evidence of declarant’s state of mind are not hearsay
- E.g., statement by D, before running into traffic and causing accident, that he is invisible may be used to show insanity
- Compare with state of mind hearsay exception, which allows hearsay statements that reflect directly (not circumstantially) on declarant’s state of mind (see card 36)
Statement of party-opponent — out-of-court statements by a party are admissible if offered against that party
- Judicial statements — made in pleading or testimony
- Adoptive statement — acquiescence in another’s statement
- Silence — can be a statement/admission if:
- Party heard, understood, and was capable of responding; and
- Reasonable person in the party’s position would have responded
- Silence — can be a statement/admission if:
Vicarious statement — statement by someone other than the person against whom the statement is offered; arises with:
- Agency — statement by agent/employee on matters within scope of agency/employment is admissible against principal
Authorized speaker — statement by one authorized by a party to speak on her behalf is admissible against the party
Co-conspirator — co-conspirator’s statements are admissible against D if made in furtherance of conspiracy
Declarant-W’s prior statement — a prior statement by a declarant who testifies and is subject to cross-examination is admissible where the statement is either:
Inconsistent with declarant’s testimony and given under oath,
Prior consistent statement — admissible to rebut charge of fabrication, improper motive or influence, or rehabilitate credibility, or
Prior statement of identification after perception — admissible to identify a person as someone declarant perceived earlier
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Hearsay Exceptions
Declarant unavailability required (see card 31):
- Former testimony exception*
- Statements against interest*
- Dying declarations*
- Statements of personal or family history
- Statements offered against party procuring declarant’s unavailability
Declarant unavailability is immaterial:
- Present state of mind*
- Excited utterances*
- Present sense impressions*
- Physical condition (for medical diagnosis or treatment)*
- Past recollection recorded —see Card 16
- Business records*
- Public records or reports*
- Judgments and prior convictions*
- Ancient documents
- Documents affecting property interests
- Learned treatises
- Family records
- Market reports
* Common exceptions — see cards 31-40
Declarant must be unavailable for these exceptions to apply:
- Former testimony*
- Statements against interest*
- Dying declarations*
- Statements of personal or family history
- Statements offered against party procuring declarant’s unavailability
* See cards 32-34
“Unavailability” — refers to declarant’s testimony
- E.g., a declarant can be in court, but her testimony is “unavailable” b/c she asserts a valid privilege
- Declarant is unavailable if either:
- Privilege — exempt from testifying due to a privilege
- Death or physical/mental sickness
- Refusal to testify despite a court order
- Lack of memory
- Absent — beyond reach of court’s subpoena power and the statement’s proponent has not been able to procure attendance or testimony
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Testimony given by a person in an earlier proceeding or deposition may be admissible
Requirements — former testimony is admissible if:
- Declarant is currently unavailable;
- Declarant’s prior testimony was given under oath; and
- Party against whom testimony is now offered was either:
- A party in the previous action and had an opportunity to cross-examine declarant
- Motive for cross-examining declarant in former hearing must be similar to the current motive
- A predecessor in interest of a party in the previous action, in which there was an opportunity to cross-examine declarant and a similar motive for doing so
- A party in the previous action and had an opportunity to cross-examine declarant
- Predecessor in interest is one who has a close privity-type relationship with the party in the earlier proceeding
- Applicable in civil actions only
Note — the MBE tests this exception; remember that it only applies if declarant is unavailable and the prior testimony was under oath
A hearsay statement is admissible if, at the time it was made, it was against the pecuniary or legal interests of the declarant
Requirements — statement admissible if:
- Declarant is currently unavailable;
- Statement was contrary to declarant’s pecuniary, proprietary, or penal interest when made; and
- A reasonable person would not have made the statement unless he believed it to be true
- Criminal cases requirement — there must also be corroborating circumstances indicating the trustworthiness of the statement
Distinguish from party-opponent admissions
- A party-opponent admission is a statement of a party or a vicarious statement attributable to that party
- No requirement that the statement is against declarant’s interest
- A statement against interest is any statement against the declarant’s interest at the time it was made
- No requirement that the declarant is a party in the proceeding
A hearsay statement is admissible if the declarant made the statement under the belief of impending death and the statement describes the cause or circumstances of the impending death
Requirements — statement admissible if:
- Declarant is currently unavailable
- Unavailability ≠ death — death of declarant is not required
- The out-of-court statement was made under the belief of impending death
- Again, death is not required; declarant must only have believed he was dying when the statement was made
- The statement was made regarding the cause or circumstances surrounding the belief of impending death
Only available in:
- Civil cases
- Homicide cases
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Present sense impression
- A hearsay statement is admissible if it:
- Describes or explains an event or condition; and
- Is made contemporaneously with the event or immediately thereafter
- Timing is key — the statement must be made while, or immediately after, the declarant perceives the condition or event described in the statement
Excited utterance
- A hearsay statement is admissible if it:
- Relates to a startling or exciting event or condition; and
- Was made while the declarant was under the stress or excitement of the event
- Declarant’s emotional state is key — declarant must be under such excitement or stress that one would not normally have an opportunity to fabricate the statement
Hearsay statements are admissible if they concern a declarant’s state of mind, emotion, sensation, or physical condition existing at the time the statement was made
Statement of then-existing state of mind — usually offered to show a declarant’s intent at the time the statement was made or as a circumstantial inference that declarant’s intent was likely carried out
- Distinguish from statements offered as circumstantial evidence of declarant’s state of mind, which are not hearsay (see card 28)
- Statements of intent may be admissible as circumstantial evidence tending to show that an act was committed at a later time
Statement of then-existing condition — usually offered to establish some physical condition, symptom, or sensation that declarant experienced at the time of the statement
Items to note:
- Statement must concern a then-existing condition or mental state
- Statements of memory or belief are inadmissible b/c they do not reflect on a then-existing condition
Statements regarding past or present physical condition are admissible if made for the purpose of diagnosis or treatment
Requirements:
- Statement must describe a person's medical history, past or present symptoms, or their general cause
- Statement must be made for purpose of and reasonably pertinent to assisting in diagnosis or treatment
- Related statements (such as an admission) about an injury-causing event are usually inadmissible
- E.g., statement by declarant to an emergency room doctor that she was shot will be admissible, but the identity of the shooter will not, as it is not pertinent to treatment
- Related statements (such as an admission) about an injury-causing event are usually inadmissible
Medical Professional: Typically the statement is made to a medical professional (e.g., physician, nurse, EMT) but that is not a requirement
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Requirements — hearsay statements in the form of business records are admissible if they are:
- A record or transaction made or recorded by a business;
- E.g., receipts, reports, patient records
- Made in the regular course of business (i.e., regular practice);
Made by someone with knowledge at or near the time of the matters described
- Authenticated or certified in writing
Trustworthiness — court may exclude an otherwise qualifying record if circumstances indicate a lack of trustworthiness
Absence of record — records meeting these requirements may be admitted to show that a matter did not occur or exist
Police reports — in criminal cases, police reports or other criminal investigative reports are inadmissible against the defendant as business records or public records (see card 39)
Multiple hearsay issues — business records often involve multiple layers of hearsay; every layer must fall into some exception or exemption to be admissible
- E.g., minutes of a business meeting with a secretary’s notes of participants’ statements — secretary’s notes are one level of hearsay; participants’ statements are another
Public records — a public office/agency record is admissible if it:
- Describes the activities of a public office or agency;
- Describes either:
- Matters observed pursuant to a duty imposed by law, or
- Factual findings resulting from an investigation made pursuant to authority granted by law
Is made by a public employee within their scope of duty; and
- Is made at or near the time of the event
Exception — in criminal cases, police records or other criminal investigative reports are inadmissible
- Trustworthiness required — court may exclude an otherwise qualifying public record if the source of information or other circumstances indicate a lack of trustworthiness
Absence of public record — certification or testimony from a public official that a diligent search failed to find a record is admissible to:
- Prove that the record does not exist, or
- Prove that a matter did not occur (if records were kept regularly)
Judgments & prior convictions
Judgments — certified copies are admissible in both civil and criminal cases to prove any fact essential to the judgment
Prior convictions — inadmissible in criminal cases against non-Ds unless used for impeachment
Learned treatises — arises with expert testimony only
- Learned treatises are accepted authority in a given field
- Established as reliable and accepted authority by testimony, admission, or judicial notice
- Experts can rely on learned treatises on direct exam or can be impeached with information from treatises on cross-exam
- If admissible, statements from learned treatises may only be read into evidence
Family records — statements of fact found in family keepsakes, e.g., jewelry engravings, genealogies
Ancient documents — a form of documentary evidence (see card 24)
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Confrontation Clause
An otherwise admissible out-of-court statement offered against D in a criminal case may be excluded under the 6th Amend. Confrontation Clause
Out-of-court statement offered against D will be excluded if:
- The declarant is currently unavailable;
- D had no prior opportunity to cross-examine the declarant about the statement at the time it was made; and
- The statement is testimonial
- Exception — an out-of-court statement will not be excluded if declarant is unavailable as a result of D’s own wrongdoing
Testimonial statement — includes:
- Prior statements made during court proceedings
- Statements made in furtherance of a police investigation
- I.e., a statement aimed at producing evidence potentially relevant to a later prosecution
- Business records are not generally considered testimonial
- Exception — statements made to police during an ongoing emergency are non-testimonial and can be admitted without violating the Confrontation Clause
See Card 42 - Co-Defendant Statements
The Confrontation Clause bars admission of an out-of-court statement by a non-testifying co-D if the statement expressly implicates another D
Exceptions — A co-D’s out-of-court statement is admissible if either:
- Declarant co-D testifies — Confrontation Clause does not bar an out-of-court statement if the declarant co-D testifies and is subject to cross-exam
- Redaction — portions of the co-D’s testimony referring to the non-declarant D are redacted
- Redaction is not effective unless it clearly makes the non-declarant co-D’s identity anonymous
- Coerced confession — the statement is used to rebut a charge of a coerced confession
See Card 41 - Confrontation Clause
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