Evidence

Logical Relevance

(Relevance)

Evidence is relevant if it tends to make the existence of any fact more or less probable than it would be without the evidence.

• Relevant evidence may be (not automatically) admissible.

• Irrelevant evidence is inadmissible.

Logical Relevance - Limitations

(Relevance)

Limitations on Relevance:

• Logical relevance does not equal probative value - evidence can have high relevance but low probative value (meaning the degree to which evidence tends to prove or disprove a fact in a case).

• Discretionary exclusion - courts can exclude relevant evidence if its probative value is substantially outweighed by its danger of unfair prejudice or confusion.

• Public policy exclusions - evidence can be excluded in instances where allowing its inclusion could run counter to public policy considerations.

  • Eg - evidence of liability insurance, subsequent remedial measures, settlement offers, guilty pleas withdrawn, and offers to pay medical expenses.

Discretionary Exclusion of Relevant Evidence

(Relevance)

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.

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Exclusion of Relevant Evidence - 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 improper purpose)

• Note → unfair surprise to a party or witness is not a valid ground for excluding relevant evidence.

Balancing Test

(Relevance)

To exclude relevant evidence, probative value must be substantially outweighed by the danger of unfair prejudice.

**memorize this.

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Exceptions - impeachment evidence based on convictions for crimes involving false statements is not subject to discretionary exclusion.

Evidentiary Hearings

(Relevance)

Court may conduct a hearing on admissibility of evidence (or other preliminary questions, eg: witness qualification; admissibility of confession) but must do it outside the presence of a jury.

Liability Insurance

(Relevance - Exclusion of Relevant Evidence on Public Policy Grounds)

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 (eg: ownership, control, motive, etc.)

Subsequent Remedial Measures

(Relevance - Exclusion of Relevant Evidence on Public Policy Grounds)

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 and plea bargaining

(Relevance - Exclusion of Relevant Evidence on Public Policy Grounds)

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.

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Criminal Cases

Pleas, offers to plea and related statements (including factual admissions) are inadmissible to prove guilty.

Payment or offers to pay medical expenses

(Relevance - Exclusion of Relevant Evidence on Public Policy Grounds)

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.

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• Example 1: After a car accident, Dan says to Paul, “I’ll pay for your hospital bills.”

  • This statement is inadmissible to prove Dan was liable.

• Example 2: Dan says, “I’m so sorry I ran the red light. Let me pay your hospital bills.”

  • “Let me pay your hospital bills” → inadmissible

  • “I ran the red light” → Admissible as an admission of fault (party-opponent statement)

Similar Occurrences

(Relevance)

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.

Similar Occurrences - Admissible Uses

(Relevance)

Similar occurrences may be admissible to prove:

1. Causation

2. Prior accidents demonstrating:

   (a) pattern of fraudulent claims, or (b) pre-existing conditions

3. Intent or absence of mistake

4. To rebut a defense of impossibility

5. Value (eg: similar transactions can establish value)

6. Industry custom (eg: to prove standard of care)

7. Business routine (eg: to show a particular event happened)

Habit

(Relevance)

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.

• Look for regular, instinctive, habitual conduct

Objections

• Lack of Foundation - when you are saying a witness has insufficient personal knowledge, so evidence should not come in.

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• Calls for Speculation - you’re supposed to testify based on personal knowledge, not guessing. Experts have a little more room to make some guesses but not lay witnesses.

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• Compound - asks two questions simultaneously and a “yes” or “no” answer could be to either one. (ex: “Can you dance if you want to and leave your friends behind?”)

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• Argumentative - not an actual question, you’re basically just talking shit, being sarcastic, or trying to get in a fight. (ie: “Do you really think the jury will believe that?” or “That’s fucking ridiculous!”)

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• Calls for a Legal Conclusion - “Did you think he was negligent?”…NOT allowed. The witness is not qualified to make this determination.

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• Misstating the Evidence - question includes evidence that was never presented. “Isn’t it true that Johnny got shot 15 times?” when Johnny was only shot once.

Character Evidence in Civil Cases

Evidence of a person’s character is generally inadmissible to prove that they acted in conformity with that character on a given occasion.

Character Evidence in Civil Cases - Exceptions

Character evidence is admissible where:

• Character at issue

  • Character is an essential element of a claim or defense (eg - defamation).

    • Character can be proved through opinion, reputation or specific instances of conduct.

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• Prior acts of sexual assault or child molestation in cases for similar claims

  • In cases arising from sexual assault or child molestation, Defendant’s prior acts of sexual assault or molestation are admissible to prove Defendant’s conduct in the present case.

    • Note - also applies in criminal cases. Plaintiff must disclose intent to offer evidence at least 15 days before trial.

Evidence of Defendant’s Character in Criminal Cases

In criminal cases, Defendant may introduce evidence of her good character, which the prosecution may rebut; with limited exceptions, prosecution may not first introduce evidence of Defendant’s character.

Defense - may introduce evidence of pertinent good character.

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(Evidence of Defendant’s Character in Criminal Cases)

Must be pertinent to the charged crime (eg - Defendant’s reputation for peacefulness is irrelevant to a forgery charge).

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Method - Defendant may call Witness to testify to Defendant’s good character based on reputation or opinion (but not specific instances).

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Prosecution’s rebuttal - once Defendant “opens the door,” Prosecution may rebut by:

• Cross-examination of Defendant’s character Witness → including knowledge of specific instances of Defendant’s misconduct or prior arrests.

• Calling Witness to testify to Defendant’s bad character → limited to Defendant’s character for the trait in question.

Prosecution - may not initiate introduction of character evidence about Defendant (ie - can’t “open the door”), except:

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(Evidence of Defendant’s Character in Criminal Cases)

1) Sexual assault/child molestation cases - Prosecution can offer evidence of Defendant’s other acts of sexual assault or child molestation,

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2) If Defendant first offers evidence of victim’s character - Prosecution can offer evidence that Defendant has the same character trait.

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Direct Examination - reputation and opinion evidence is admissible; evidence of specific instances is inadmissible.

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Cross Examination - reputation, opinion and specific instances are admissible.

Evidence of Victim’s Character in Criminal Cases

Only Defendant can “open the door” by introducing evidence of victim’s character to prove conduct.

• Once Defendant offers evidence of victim’s character, prosecution may rebut.

• Homicide cases - if Defendant raises self-defense, Def can offer evidence of victim’s character for violence to show the victim attacked first.

  • Prosecution may then rebut by offering evidence of victim’s character for peacefulness to rebut Def’s claim of self-defense.

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Methods:

• Direct Examination - reputation and opinion admissible; specific instances inadmissible.

• Cross Examination - reputation, opinion and specific instances are admissible.

Rape Shield: Limitation on Evidence of Victim’s Character → Civil Cases

Reputation, opinion and specific instances of Victim’s character is admissible if:

1) Probative value substantially outweighs unfair prejudice; and

2) In the case of reputation evidence, Prosecution puts her reputation at issue in some way.

Rape Shield: Limitation on Evidence of Victim’s Character in Sexual Assault Cases → 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) a third party is the source of injury or DNA evidence, or

  • b) prior acts of consensual intercourse between victim and Defendant.

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Procedure - parties must disclose intent to offer evidence, describe its purpose, and notify the victim 14 days before trial.

Specific Instances of Defendant’s Bad Conduct (Prior Bad Acts)

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(Character Evidence)

Specific instances of Defendant’s bad conduct are generally inadmissible to prove character (ie - action in conformity therewith), but admissible if independently relevant (MIMIC).

• Exception - in sexual assault or molestation cases, evidence of Defendant’s prior acts of sexual assault or molestation is admissible.

MIMIC

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(Character Evidence)

Evidence of a prior crime or bad act may be admissible for relevant, noncharacter purposes.

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MIMIC

1. Motive - to show purpose for committing charged crime

2. Intent - to establish guilty mind or negate good faith

3. Mistake - to negate mistake or accident and prove deliberate act (ie, absence of mistake, knowledge)

4. Identity - to connect defendant to crime with unique pattern of behavior (ie, criminal signature’ extremely similar or unique prior act)

5. Common plan or scheme - to show preparation or planning

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Other - to show knowledge of crime, opportunity to commit crime, consciousness of guilt, etc.

Impeachment

• Any party may impeach any Witness.

• Impeachment casts an adverse reflection on the veracity of the Witness’ testimony.

Methods of Impeachment

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(Impeachment)

1) Contradiction

2) Prior inconsistent statement (PIS)

3) Bias or interest

4) Sensory deficiencies

• Eg - Witness’ senses were incapable of producing the perception to which Witness testified.

5) Reputation and/or opinion of untruthfulness

• Admissible to impeach Witness’ veracity by use of extrinsic evidence.

6) Prior acts of misconduct

• Extrinsic evidence is prohibited.

7) Prior criminal conviction

Evidence supporting witness credibility is inadmissible unless credibility has been attacked (meaning Witness has been impeached).

• Exception - Witness’ prior consistent statement is admissible if the statement was made before Witness had a motive to fabricate.

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(Impeachment)

Extrinsic evidence and Collateral matters

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(Impeachment)

Extrinsic evidence may be used to impeach Witness, except on collateral matters.

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Extrinsic evidence = any evidence other than Witness’ testimony at the current proceeding.

• includes evidence of out-of-court prior inconsistent statements.

• extrinsic evidence of contradictory facts is generally admissible to impeach witness on material, non-collateral matters.

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Collateral matter = a fact not material to issues in the case.

• Says nothing about witness’ credibility; only used to contradict witness.

  • Eg - 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 (ie, 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.

Impeachment by Contradiction or Prior Inconsistent Statement (PIS)

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(Impeachment)

Contradiction - any evidence may be used to show W has made contradictory statements on material issues.

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Prior inconsistent statement - W’s prior inconsistent statements may be used to impeach W’s present testimony.

• Establishing PIS - may be established through cross-examination or extrinsic evidence.

  • Extrinsic evidence is inadmissible if the PIS relates to a collateral matter.

• Foundation requirement - W must have an opportunity to deny or explain the statement.

  • Not required for PIS by a hearsay declarant.

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Prior inconsistent statement & Hearsay - if PIS is hearsay, it is admissible for impeachment purposes, but inadmissible as substantive evidence (to prove the truth of the matter asserted)

• ie - 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.

Impeachment by Establishing Bias

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(Impeachment)

May be established through cross examination 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

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(Impeachment)

W may be questioned on cross-exam about any prior misconduct probative of truthfulness (ie - lying or deceit)

• Arrests do 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.

Witness may be impeached by testimony describing his reputation for untruthfulness in the community.

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(Impeachment)

The credibility of the witness can be attacked by introducing reputation or opinion testimony OR specific instances of conduct that are probative of the witness’ character for untruthfulness.

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Only 2 types of specific instances are admissible:

1) convictions involving a crime of dishonesty or felony (ie, a crime punishable by imprisonment for more than one year or death), or

2) other bad acts.

Impeachment by Prior Conviction → Prior Conviction

Felonies not involving dishonesty/false statements:

• If W is the D - admissible if govt. shows probative value outweighs prejudicial effect.

• If W is non-D - admissible but court can exclude under 403 balancing.

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Misdemeanors: inadmissible unless it involves dishonesty/false statements.

Impeachment by Prior Conviction → Prior Conviction involving act of dishonesty

Always admissible - court has no discretion to exclude under 403.

• includes felonies and misdemeanors

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Acts of dishonesty - prior conviction required proof or admission of an act of dishonesty or false statement. (eg - perjury, fraud)

Impeachment by Prior Conviction → Convictions more than 10 years old

Not admissible, unless:

• Probative value substantially outweighs unfair prejudice and adverse part is given notice.

Determining 10-year date - more than 10 years must have elapsed since date of conviction or date of release from confinement, whichever is later.

Witness Competency

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(Testimonial Evidence)

Testifying witnesses must be competent.

• W are generally presumed to be competent.

• Competency qualifications - to be competent, W must have:

  • 1) Personal knowledge - W’s testimony must be based on her own perceptions (eg - what W saw or heard)

  • 2) Memory - W must have the ability to remember

  • 3) Communication - W must be able to relay her perceptions, either directly or through an interpreter

  • 4) 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 (ie - makes W less persuasive).

Excluding Witnesses

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(Testimonial Evidence)

Upon a party’s request, the court must order witnesses excluded from hearing other witnesses’ testimony.

• Does not apply to parties or party representatives (eg - where party is a non-person entity), experts or those required by statute.

Leading Questions

Direct Examination

Leading questions prohibited unless:

• necessary to develop testimony

• child witness or adult with communication difficulty

• witness aligned with adverse party.

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Cross-Examination

Leading questions permitted unless:

• question goes beyond scope of direct examination

Use of Documents by Witness during testimony → Present recollection refreshed

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(Testimonial Evidence)

Use of documents to refresh W’s memory during testimony.

• Anything can be used.

• 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 (distinguished from recorded recollection)

Use of Documents by Witness during testimony → Recorded Recollection

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(Testimonial Evidence)

Contents of a record/document that Witness previously made or adopted is read into evidence.

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Requirements

1) W once had knowledge of the record’s subject matter,

2) W’s memory is insufficient to testify as to the record’s contents,

3) Record was made or adopted by W when the matter was fresh in W’s memory, and

4) Record accurately reflects W’s knowledge.

Note - recorded recollection is a hearsay exception; as such it may be read into evidence (distinguish from present recollection refreshed)

Lay Opinions

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(Testimonial Evidence)

Testimony in the form of opinion is inadmissible unless Witness qualifies to give either lay or expert opinion.

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Lay opinion testimony is admissible if it is:

1) Rationally based - opinion is rationally based on W’s perception.

2) Helpful - opinion is helpful to the trier of fact.

3) Not expert - not based on scientific, technical or other specialized knowledge

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Examples:

• speed of car; emotional state of an individual; voice or handwriting recognition; sense recognition; and intoxication.

Expert Opinions

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(Testimonial Evidence)

Experts may provide opinions on facts or issues in the case.

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Expert testimony is admissible if:

1) Helpful - expert opinion must be helpful to the trier of fact

2) Qualified - expert must possess special knowledge, skill, experience, training or education.

3) Reasonable certainty - expert must believe in her opinion to a reasonable degree of certainty

4) Proper factual basis - opinion must be based on facts

• May base opinion on admitted evidence, personal knowledge, or inadmissible evidence properly relied upon (ex: data, other testimony, experience)

5) Reliable principals reasonably relied upon

• Scientific evidence - if expert opinion is based on science, court also considers whether evidence is:

  • i. peer tested and capable of retesting,

  • ii. published,

  • iii. has a low error rate, and

  • iv. reasonably accepted in the field of study.

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Scope - experts may render an opinion on any ultimate legal issue.

• Exception - experts cannot give opinion on Defendant’s mental state in a criminal trial if it is an element of a crime or defense.

An expert witness’ opinion can be based on a hearsay statement if other experts in the field would reasonably rely on that statement to form an opinion.

Example - Hearsay Statement is NOT admissible

An medical expert witness testified tot he cause of plaintiff’s medical condition and stated his opinion was based in part on information in a letter the plaintiff’s personal doctor had written to the plaintiff’s employer.

• The doctor’s letter is not admissible because it is not a business record.

• The doctor’s letter was not made and kept as a regular practice in the course of regularly conducted business activity (providing medical treatment).

Testimonial Privileges

1. Attorney-client

2. Clergy-penitent

3. Spousal

4. Marital communications

5. Psychotherapist/social worker-patient

6. Governmental

Self-Incrimination

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(Testimonial Privileges)

Under 5th Amendment, a Witness cannot be compelled to provide self-incriminating testimony in either civil or criminal cases.

• Witness may invoke privilege if there is a reasonable possibility of self-incrimination.

• Civil cases - jury may draw an adverse inference from Witness’ assertion of 5th Amend. privilege.

• Criminal cases - Defendant cannot be punished for invoking privilege.

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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.

Attorney-Client Privilege

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(Testimonial Privileges)

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.

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To be protected, a communication must be:

1) Intended to be confidential; and

2) Made to facilitate legal services.

Attorney-Client Privilege - Exceptions

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(Testimonial Privileges)

Exceptions - privilege does not apply to:

1) Crime or fraud - privilege does not apply if a client seeks legal services to aid in planning or commission of a fraud or a crime,

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2) Attorney defending malpractice claim - privilege does not apply if communication relates to an alleged breach of the attorney’s duty.

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• Purely factual info

• Client’s identity (generally)

• Existence of attorney-client relationship

• Client’s legal fees and other incidentals

• Attorney’s fee records

• Business advice or opinions

Attorney-Client Privilege - Joint Representation of Parties in a Lawsuit

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(Testimonial Privileges)

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.

Attorney Client Privilege - Fees not covered

Records of fee payments, including fee arrangements and payments, are generally considered outside (meaning not covered) by attorney-client privilege.

Physician-Patient Privilege

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(Testimonial Privileges)

Prevents disclosure of information confidentially conveyed by a patient to a physician.

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To be protected, communicated must be:

1) Made for purposes of obtaining diagnosis or treatment;

2) Pertinent to diagnosis or treatment; and

3) Intended by the patient to be confidential.

Physician-Patient Privilege - Exceptions

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(Testimonial Privileges)

Exceptions - privilege does not apply where:

1) Patient’s condition is a legal issue (eg - personal injury),

2) Physician’s services were sought to aid in a crime, tort or to escape capture, or

3) Dispute between doctor and patient (eg - malpractice)

Psychotherapist/social worker-patient privilege

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(Testimonial Privileges)

Material conveyed by a patient is privileged in all civil or criminal cases if:

1) Client intends the communication to be confidential, and

2) Communication is made to facilitate therapy or social work.

• In most ways, this privilege operates similar to attorney-client privilege.

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Exception

The privilege does not apply when:

• the communication was the result of a court-ordered exam,

• the case is a commitment proceeding against the patient or

• the patient’s mental condition is at issue.

Spousal Testimony Privilege - criminal cases only

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(Testimonial Privileges)

A person whose spouse is a Defendant in a criminal case cannot be:

a) Called as a witness by the prosecution or

b) Compelled to testify against his spouse in a criminal proceeding.

• Only the Witness-spouse may invoke the privilege (ie - Defendant cannot prevent a willing spouse from testifying against her).

• Privilege can only be invoked during marriage.

Marital communications privilege - civil and criminal

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(Testimonial Privileges)

• 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 (ie - relays a martial communication to a third party).

  • The other spouse retains the privilege.

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Exceptions where privilege does not apply:

1) Suits between spouses,

2) Suits in which one spouse is charged with a crime or tort against children,

3) Suits in which spouses are co-defendants.

Authentication

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(Writings and Physical Evidence)

Every item of physical evidence must be authenticated (ie - the proponent must show that the evidence is what he claims it is).

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Proving authentication - may be proved by any means that serve to establish authenticity (low burden).

• Eg: item may be compared with already-authenticated item

Self-authenticating evidence - writings that contain identifying information do not need separate authentication.

• Eg: deeds, notarized documents, newspapers

Authenticating Physical Objects

• Personal knowledge - testimony by witness with personal knowledge of object (or that reproduction depicts original object)

  • most common method

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• Comparison - comparison of object or writing against authenticated specimen by expert or trier of fact.

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• Distinctive characteristics - testimony on object’s appearance, contents, substance, internal patterns, or other distinctive characteristics.

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• Chain of custody - substantially broken account of object’s whereabouts f4rom time it was obtained until introduction at trial.

  • required method for authenticating objects that could easily be tampered with or confused with similar item (eg, blood sample).

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• X-ray images and electrocardiograms - evidence showing accurate process was used, machine was working properly, machine operator was qualified and chain of custody.

  • required method for authenticating physical representations of things that cannot otherwise be seen.

Authentication - Photos and Non-Unique Items

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(Writings and Physical Evidence)

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Photos - must have personal knowledge to authenticate

• Does fact testified to = fact perceived?

Non-unique items - item facially indistinguishable from others of its kind (eg: bag of white powder, generic syringe)

• Proponent must establish “chain of custody” (meaning that the proferred evidence is the same item it is claimed to be (will be admissible absent large breaks in chain))

Authenticating Documents

Common methods - stipulation or eyewitness testimony.

Authenticating Documents - Ancient Documents and Data Compilation

Automatically authenticated if:

1) 20 or more years old;

2) Does not present any irregularities on its face, and

3) Found in a place of natural custody.

Authenticating Documents - Public Records

Record was recorded or filed in public office as authorized by law or in office where that type of item is kept.

Authenticating Documents - Reply Letter

• Document written in response to communication and

• Contents make it unlikely response was written by someone other than recipient of first communication.

Authenticating Documents - Handwriting

• Comparison - expert witness or trier of fact compares authenticated against disputed handwriting (or fingerprints, hair, cloth fibers) or

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• Non-expert opinion - witness with personal knowledge of authentic handwriting not acquired for litigation gives opinion on disputed handwriting.

Authenticating Documents - Self-authenticating

• Public documents with official’s signature and authorized by official or seal.

• Certified copies of public records and records of regularly conducted activities.

• Newspapers, periodicals and official publications.

• Documents with trade inscription.

• Acknowledged documents.

• Commercial papers, including signature and related documents.

Authenticating Oral Statements

Voice Authentication

Authenticated by any person who:

• has heard speaker’s voice firsthand or through device at any time (including litigation) and

• can connect speaker’s voice to oral statement at issue.

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Telephone Conversation

Authenticated by caller who testifies that:

• caller recognized speaker’s voice

• speaker knew facts only particular person would know

• caller dialed number believed to be speaker’s & speaker identified himself upon answering or

• caller dialed business & spoke with person who answered about business regularly transacted by phone.

Best Evidence Rule

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(Writings and Physical Evidence)

If evidence is offered to prove the contents of a writing, an original document must be used unless it is available.

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“writing” = any tangible collection of data (eg - videos, documents, photos, books, emails text messages, computer drives, x-rays)

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Applicability - rule only applies if evidence is offered to prove its contents (eg - W’s knowledge is obtained from a writing, case turns on contents of a legal instrument, etc.).

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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 out to be considered at the same time and may do so over a hearsay objection.

Best Evidence Rule - Evidence Sufficient to prove a writing’s contents

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(Writings and Physical Evidence)

1) Originals

2) Duplicates - must be a machine or carbon copy

• admissible unless there is a genuine question as to the authenticity of the original itself.

3) 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.

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.

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Judicially-noticeable facts - facts that are:

1) Generally known within the jurisdiction or

2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

Judicial notice of laws - court must take judicial notice of federal and state laws and regulations.

• All other laws - court has discretion to take judicial notice.

  • Eg - municipal ordinances, foreign laws, etc.

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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 not required to.

Judicial testimony - a presiding judge cannot testify as a witness at a trial.

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Judicial notice can be taken at any stage of a proceeding - even on appeal, so long as it is not unfair to the opposing party AND does not disrupt the fact finder’s authority.

Hearsay

Hearsay - an out of court statement offered to prove the truth of the matter asserted - is generally inadmissible, subject to certain exceptions and exemptions.

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• “Statement” - an oral or written assertion, or non-verbal conduct intended as an assertion.

  • Non-human assertions are not statements (eg - 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.

Exemptions vs. exceptions - Federal rules create both exceptions and exemptions to the hearsay ban…

Exemptions - deemed “non-hearsay” and thus admitted.

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Exceptions - deemed hearsay, but still admitted.

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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.

• Witness’ own prior out of court statement can be hearsay; so an answer that a statement is “not hearsay b/c it’s Witness’ own statement” is WRONG.

Admissible out of court statements

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(Hearsay)

Out-of-court statements are not hearsay if offered to prove anything other than the truth of the matter they assert.

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Common non-hearsay out-of-court statements:

1) Statements of independent legal significance - statement contains legally operative words; not hearsay because offered to show that the statement was said, not whether it was true.

• Ex - in a contract dispute, A testifies that B told him it was a “done deal.”

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2) Statements offered to show their effect on the listener or reader

• Ex - in a negligence claim, a statement warning Plaintiff of the injury-causing condition is admissible to show notice to P.

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3) Statements offered to show speaker’s knowledge

• Ex - Defendant, charged with conspiracy claims he did not know about the crime; statement indicating Def was told specifics of the crime will be admissible, indicating he knew it was planned.

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4) Statements offered to show state of mind - statements offered as circumstantial evidence of declarant’s state of mind are not hearsay.

• Ex - statement by Defendant, before running into traffic and causing an accident, that he is invisible may be used to show insanity.

Statement of Party-Opponent

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(Hearsay → Non-Hearsay Exemptions)

Out-of-court statements by a party are admissible if offered against that party.

• Judicial statements - made in pleading or testimony.

• Adoptive statements - acquiescence in another’s statement.

  • Silence - can be a statement/admission if:

    • 1) Party hear, understood and was capable of responding, and

    • 2) Reasonable person in party’s position would have responded.

• 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 Defendant if made in furtherance of conspiracy.

Declarant-Witness’ Prior Statement

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(Hearsay → Non-Hearsay Exemptions)

A prior statement by a declarant who testifies and is subject to cross-examination is admissible where the statement is either:

a) inconsistent with declarant’s testimony and given under oath,

b) prior inconsistent statement - admissible to rebut charge of fabrication, improper motive or influence, or rehabilitate credibility, or

c) prior statement of identification after perception - admissible to identify a person as someone declarant perceived earlier.

Declarant must be unavailable for these exceptions to apply…

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(Hearsay Exceptions)

He’s unavailable because he has an “STD”:

1. Statements against interest **

2. Former testimony **

3. Dying declarations **

4. Statements of personal or family history

5. Statements offered against party procuring declarant’s unavailability

Declarant Unavailability doesn’t matter

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(Hearsay Exceptions)

1. Present state of mind **

2. Excited utterances **

3. Present sense impressions **

4. Physical condition (for medical diagnosis or treatment) **

5. Past recollection recorded

6. Business records **

7. Public records or reports **

8. Judgments and prior convictions **

9. Ancient documents

10. Documents affecting property interests

11. Learned treatises Family records

12. Market reports

“Unavailability” - refers to declarant’s testimony

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(Hearsay Exceptions)

Ex - a declarant can be in court, but her testimony is “unavailable” because she asserts a valid privilege.

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Declarant is unavailable if either:

a) privilege

b) death or physical/mental sickness

c) refusal to testify despite a court order

d) lack of memory

e) absent - beyond reach of court’s subpoena power and the statement’s proponent has not been able to procure attendance or testimony.

Former Testimony

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(Hearsay Exceptions)

Testimony given by a person in an earlier proceeding or deposition may be admissible.

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Requirements - former testimony is admissible if:

1) Declarant is currently unavailable;

2) Declarant’s prior testimony was given under oath; and

3) Party against whom testimony is now offered was either:

• a) 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.

• b) 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.

  • “Predecessor in interest” is one who has a close privity-type relationship with the party in the earlier proceeding.

  • Applicable in civil actions only.

Statement Against Interest

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(Hearsay Exceptions)

A hearsay statement is admissible if, at the time it was made, it was against the pecuniary or legal interests of the declarant.

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Requirements - statement admissible if:

1) Declarant is currently unavailable;

2) Statement was contrary to declarant’s pecuniary, proprietary, or penal interest when made; and

3) A reasonable person would not have made the statement unless he believed it to be true.

• Criminal case requirement - there must also be corroborating circumstances indicating the trustworthiness of the statement.

Party-opponent admissions vs. Statement against interest

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(Hearsay Exceptions)

• 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.

Dying Declarations

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(Hearsay Exceptions)

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.

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Requirements - statement admissible if:

1) Declarant is currently unavailable

• unavailability does not mean death → death of declarant is not required.

2) The out-of-court statement was made under the belief of impending death,

• death is not required; declarant must only have believed he was dying when the statement was made.

3) The statement was made regarding the cause or circumstances surrounding the belief of impending death.

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Only available in:

• civil cases

• homicide cases

Present Sense Impression

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(Hearsay Exceptions)

A hearsay statement is admissible if it:

1) Describes or explains an event or condition; and

2) Is made contemporaneously with the event or immediately thereafter.

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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

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(Hearsay Exceptions)

A hearsay statement is admissible if it:

1) Relates to a starting or exciting event or condition, and

2) Was made while the declarant was under the stress or excitement of the event.

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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.

Statement of then-existing state of mind

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(Hearsay Exceptions)

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.

• statements of intent may be admissible as circumstantial evidence tending to show that an act was committed at a later time.

• statements of memory or belief are inadmissible because they do not reflect on a then-existing condition.

Statement of then-existing condition

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(Hearsay Exceptions)

Usually offered to establish some physical condition, symptom, or sensation that declarant experienced at the time of the statement.

• statements of memory or belief are inadmissible because they do not reflect on a then-existing condition.

Statement of physical condition for diagnosis or treatment

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(Hearsay Exceptions)

Statements regarding past or present physical condition are admissible if made for the purpose of diagnosis or treatment.

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Requirements:

1) Statement must describe a person’s medical history, past or present symptoms or their general cause,

2) Statement must be made for the purpose of and reasonably pertinent to assisting in the diagnosis or treatment.

• Related statements (such as admission) about an injury-causing event are usually inadmissible.

  • Eg - 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.

Medical Professional - typically the statement is made to a medical professional (eg: physician, nurse, EMT) but that’s not a requirement.

Business Records

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(Hearsay Exceptions)

Hearsay statements in the form of business records are admissible if they are:

1) A record or transaction recorded by a business or organization;

• Eg - receipts, reports, patient records

2) Made in the regular course of business (ie, regular practice);

3) Made by someone with knowledge at or near the time of the matters described;

4) 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.

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Police records - in criminal cases, police reports or other criminal investigative reports are inadmissible against the defendant as business records or public records.

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Multiple hearsay issues - business records often involve multiple layers of hearsay; every layer must fall into some exception or exemption to be admissible.

• Eg - minutes of a business meeting with a secretary’s notes of participant’s statements; secretary’s notes are one level of hearsay; participant’s statements are another.

Public Records

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(Hearsay Exceptions)

A public office/agency record is admissible if it:

1) Described the activities of a public office or agency;

2) Describes either:

• a) Matters observed pursuant to a duty imposed by law, or

• b) Factual findings resulting from an investigation made pursuant to authority granted by law.

3) Is made by a public employee within their scope of duty; and

4) 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 Records

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(Hearsay Exceptions)

Certification or testimony from a public official that a diligent search failed to find a record is admissible to:

a) Prove that the record does not exist, or

b) Prove that a matter did not happen (if records were kept regularly).

Judgements & Prior Convictions

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(Hearsay Exceptions)

Judgments - certified copies are admissible in both civil and criminal cases to prove any fact essential to the judgment.

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Prior Convictions - inadmissible in criminal cases against non-Defendants unless used for impeachment.

Learned Treatises, Family Records and Ancient Documents

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(Hearsay Exceptions)

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 examination or can be impeached with information from treatises on cross-examination.

• If admissible, statements from learned treatises may only be read into evidence.

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Family Records - statements of fact found in family keepsakes (eg: jewelry engravings, genealogies).

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Ancient Documents - a form of documentary evidence

Confrontation Clause

An otherwise admissible out-of-court statement offered against Defendant in a criminal case may be excluded under the 6th Amendment Confrontation Clause.

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Out-of-court statement offered against Defendant will be excluded if:

1) The declarant is currently unavailable,

2) Defendant had no prior opportunity to cross examine the declarant about the statement at the time it was made; and

3) The statement is testimonial.

• Exception - an out-of-court statement will not be excluded if declarant is unavailable as a result of Defendant’s own wrongdoing.

Co-Defendants Statements

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(Confrontation Clause)

The Confrontation Clause bars admission of an out-of-court statement by a non-testifying co-Defendant if the statement expressly implicates another Defendant.

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Exceptions - A co-Defendant’s out of court statement is admissible if either:

a) Declarant co-Def testifies

• Confrontation Clause does not bar an out-of-court statement if the declarant co-Defendant testifies and is subject to cross-examination.

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b) Redaction

• Portions of the co-Def’s testimony referring to the non-declarant Defendant are redacted.

  • Redaction is not effective unless it clearly makes the non-declarant co-Def’s identity anonymous.

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c) Coerced confession - the statement is used to rebut a charge of a coerced confession.