Evidence

Relevant Evidence

All relevant and reliable evidence is admissible unless it comes from a protected or privileged place.

• Relevance Test: Evidence that is both Material and Probative (Low Threshold)

  1. Material: Does it matter? Is it of consequence?

  2. Probative: Does it tend to make the existence of any material fact more probable or less probable than it would be without the evidence?

If it is relevant, can it be excluded? 2 Ways:

Rule 403: Judge has discretion to exclude evidence if its probative value (usefulness) is substantially outweighed by other important considerations

• Such as: 

  1. danger of unfair prejudice

  2. confusion of the issues or misleading the jury

  3. delay, waste of time, or needless repetitive evidence 

Public Policy: Some specific rules excludes it (for Public Policy Reasons - favors the behavior involved)

1. Settlement offers and negotiations

   • Not admissible in any case to: 

     1. prove or disprove the validity or amount of a disputed claim, or 

     2. impeach a witness by prior inconsistent statement or contradiction. 

   • Conduct or statements made in the course of negotiating a compromise—including direct admissions of liability—are also inadmissible for these purposes.

     1. Evidence of settlement admissible to impeach a witness on the ground of bias

     2. Conduct or statements made during compromise negotiations regarding a civil dispute with a governmental regulatory, investigative, or enforcement authority are not excluded when offered in a criminal case

   • Only kicks in if there was a claim or some indication that a party was going to make a claim

     1. Claim must have been in dispute as to either (1) liability or (2) amount

   • We want to encourage people to settle disputes without going to court

2. Plea Discussions

   • Generally inadmissible

     1. Offers to plead guilty; or

     2. Withdrawn guilty pleas; or

     3. Actual pleas of nolo contendere; or

     4. Statements of fact made during any of the above plea discussions

   • Actual guilty plea (not withdrawn) is generally admissible in related litigation as a statement of an opposing party

3. Payments of and Offers to pay medical expenses

   • Inadmissible to prove liability

   • Admissions of fact accompanying such payments and offers are admissible

4. Liability insurance

   • Not admissible to show whether the party acted negligence or otherwise wrongfully

     1. We want to encourage people and businesses to be insured

   • May be admissible to:

     1. Prove ownership or control, if disputed; or

     2. Impeach a witness (usually to show their bias); or

     3. As part of an admission of liability, where the reference to insurance coverage cannot be severed without lessening its probative value as an admission of liability

5. Subsequent Repairs

   • Not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction

     1. We want people and businesses to fix issues ASAP

   • May be admissible to:

     1. Prove ownership or control, if disputed; or

     2. Rebut a claim that a precaution was not feasible; or

     3. Prove that the opposing party has destroyed evidence

Irrelevant Evidence

Irrelevant evidence is always inadmissible.

Evidence involves some time, event, or person other than that involved in the present case → inadmissible

Exception: Prior Similar Occurrences

1. P’s Other Lawsuits or Accident history

   1. Previous similar false claims

   2. Previous injuries to the same part of the body

2. Similar accidents caused by the same condition occurring under substantially similar circumstances

   • Can prove that:

     1. A dangerous condition existed;

     2. The dangerous condition caused the injury; and

     3. The coffee shop had notice of the condition

   • Absence of lack of accident admissible to show D’s lack of knowledge of the danger

3. Motive or Intent 

4. Complicated issues of causation

   • May be established by evidence concerning other times, events, or persons

5. Rebutting a claim of impossibility

   • Requirement that prior occurrences be similar to the litigated act may be relaxed when used to rebut a claim of impossibility

6. Sales of similar property

   • Recent final sale prices of similar real or personal property are commonly used to prove the value of items in question.

     • Offers to buy aren’t admissible. 

7. Habit and Business Routine

   • Regular response to a specific set of circumstances

     1. Frequency of Conduct and

     2. Particularity of Circumstances

   • Industry Custom as Evidence of Standard of Care

     1. Evidence as to how others in the same trade or industry have acted in the recent past may be offered as evidence of the appropriate standard of care

        1. Note: not conclusive

Character Evidence

Documentary evidence or testimony offered to prove that a person acted in conformity with a particular character trait

Why would it be offered?

1. To impeach credibility of a witness

2. Character itself is “in issue”

   • Character is never an element of a crime

3. Circumstantial proof about how a person probably acted during the events of the case

   • Generally not admissible to prove that a person acted a certain way during the events of the case.

Forms of Character Evidence

1. Reputation Testimony

   • Testimony from someone familiar with the person’s reputation in the community

2. Opinion Testimony

   • Testimony of someone who knows the person

3. Specific Acts

   • Evidence of prior crimes or conduct

Character Evidence in Civil Cases (Federal Rule 404)

Inadmissible generally to prove that the person acted in conformity with the trait

• Regardless of party

Can be admissible: Evidence of a person’s past wrongs and crimes (if relevant to other issues)

1. 5 Common Character Purposes

   • Motive

   • Intent

   • Mistake

   • Identity

   • Common Plan or Scheme

2. Can be proved by any evidence (witness testimony, D’s criminal conviction, etc)

   • Must be sufficient evidence to support a jury finding that D committed the other misconduct

     • Evidence of this other misconduct subject to Rule 403 balancing test (probative value must not be substantially outweighed by danger of unfair prejudice, etc.)

Admissible when character is “in issue” (when character is an essential element of a cause of action claim or defense)

1. Red Flag Causes of Action

   • Defamation (P’s Character)

     • Have to know whose character is in issue in a defamation action because the character evidence, the reputation, opinion, specific acts will be admissible only as to that person’s character.

   • Child Custody (Character of the Parents)

   • Negligent Entrustment (Character of whoever is entrusted)

   • Negligent Hiring (Character of the employee)

2. When directly in issue, all forms of character evidence (reputation, opinion, and specific acts) = admissible

Character Evidence in Criminal Cases

Character Evidence of D

1. D opens the door (opinion) (Reputation and Opinion evidence about D pertinent to the charged crime is admissible)

   • Examples:

     • D's character for peacefulness - pertinent for crimes of violence

     • D's character for honesty - pertinent to crimes of theft, lying, or deceit

     • Can generally testify that D is law abiding

   • Prosecution can ask questions about

     • specific acts of the D that show D’s bad character for the trait OR

       1. “Have you heard?”

       2. “Did you know?”

     • call its own character witnesses to provide reputation or opinion testimony about the defendant’s bad character for the trait

Character of the Victim

1. D is claiming self-defense (D opens the door) (Can bring in Reputation or Opinion evidence about V’s bad character for violence)

   • Prosecution can rebut with

     • evidence of V’s good character for that trait OR

     • evidence of D’s bad character for that trait

2. Homicide Case

   • D introduces any kind of evidence that V was the first aggressor (opens door)

     • Prosecution can bring in character evidence of V’s good character for peacefulness

3. Civil or Criminal Proceedings involving alleged sexual misconduct

   • Evidence offered to prove the sexual behavior or sexual disposition of the victim = generally inadmissible

   • Exceptions

     1. Criminal

        1. Specific instances of a victim’s sexual behavior = admissible to prove that someone other than the defendant is the source of semen, injury, or other physical evidence

        2. Specific instances of sexual behavior between the victim and the defendant = admissible by the prosecution for any reason and by the defense to prove consent

     2. Civil

        1. Evidence of the alleged victim’s sexual behavior = admissible if it is not excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party

           1. Notice that this is a special balancing test that is the reverse of Rule 403 and favors excluding the evidence

        2. Evidence of an alleged victim’s reputation = admissible only if it has been placed in controversy by the victim

   • Evidence of a D’s other acts of sexual assault or child molestation = admissible in a criminal or civil case where the defendant is accused of committing an act of sexual assault or child molestation

     1. Party intending to offer this evidence must disclose it to the defendant 15 days before trial (or later with good cause).

Character Evidence - Person’s past crimes, wrongs, or acts

Evidence of a person’s past crimes, wrongs, or acts is generally not admissible

• Unless relevant to some issue other than their character propensity to commit the crime charged.

  1. If certain facts surrounding a crime are especially unusual, evidence that the defendant committed other similar crimes is admissible.

  2. Non-character purposes for offering the evidence may include

     • Motive (for example, burning a building to hide embezzlement); or

     • Intent (to show guilty knowledge or lack of good faith); or

     • Absence of mistake or accident; or

     • Identity (for example, “signature” crimes/modus operandi); or

     • Common plan or scheme (usually, committing one crime to prepare for another)

  3. Must be sufficient evidence to support a jury finding that the defendant committed the other misconduct (meaning, a reasonable juror could come to this conclusion)

     • Evidence subject to the usual Rule 403 standard

  4. Notice Requirement in Criminal Cases

     • Must articulate the non-propensity purpose for which the evidence will be offered and the reasoning that supports the purpose

Impeachment

Evidence that proves the witness is not credible for some reason or another.

1. Can’t bolster or accredit the testimony of witness until they’ve been impeached

   • Exceptions:

     • Witness made a timely complaint (in a sexual assault case, for example)

     • Prior statement of identification (usually, identifying the defendant as the perpetrator of the charged crime)

2. Any party can impeach a witness, even the party that called the witness themselves

3. Forms

   • Cross-examination

   • Extrinsic evidence (other witnesses or documents)

Two Ways:

1. Character Based

   • Reputation

   • Opinion

   • Bad Acts

   • Prior Convictions

2. Non-Character Based: Witness may be lying because of specific issues

   • Prior Inconsistent Statements (PINS)

   • Bias

   • Sensory Defects

   • Contradiction

Impeachment of Hearsay Declarant

Rehabilitation

Impeachment - Character Based

Reputation, Opinion, Bad Acts

Character Based

• 4 ways it can be used to impeach

  1. Reputation testimony of a witness for truthfulness (608a)

  2. Opinion testimony of a witness for truthfulness (608a)

  3. Bad Acts (acts of misconduct that are probative of truthfulness) (608b)

     • May not be proven by extrinsic evidence

     • 3 Requirements

       1. Bad act impeachment (in the form of a question)

       2. On cross examination

          • Cannot refer to any consequences the witness may have suffered as a result

       3. Inquires into prior unconvicted acts of misconduct

          • With good faith basis to believe individual actually committed the misconduct

  4. Prior Convictions (another slide)

Impeachment - Character Based

Prior Convictions

Character Based

• 4 ways it can be used to impeach

  1. Reputation testimony of a witness for truthfulness (608a)

  2. Opinion testimony of a witness for truthfulness (608a)

  3. Bad Acts (acts of misconduct that are probative of truthfulness) (608b)

  4. Prior Convictions

Prior Convictions

• Pending review or appeal doesn’t affect the use

• No foundation necessary to use extrinsic evidence

1. Felony not involving dishonesty / false statement (R. 609)

   • Court has discretion to exclude

     1. Witness = Criminal D

        • Exclude the conviction if the prosecution has not shown that its probative value outweighs its prejudicial effect

     2. Every other witness

        • Exclude the conviction if it determines that its probative value is substantially outweighed by its prejudicial effect (R.403)

2. Any crime involving dishonesty / false statement

   • Automatically admissible

   • Examples: perjury, false statement, criminal fraud, embezzlement, false pretense

   • Crimes may be either felonies or misdemeanors

3. 10 year time limit for both above

   • Admitted if:

     1. Its probative value substantially outweighs its prejudicial effect (a reverse-Rule 403 balancing test that strongly favors exclusion) and

     2. Proponent gives the adverse party reasonable written notice of their intent to use it

Can’t be used if

1. Conviction subject to a pardon or equivalent procedure AND

   • Pardon was based on rehabilitation, and the witness has not been convicted of a subsequent felony; OR

   • Pardon was based on innocence (irrespective of any subsequent convictions)

2. Juvenile convictions generally not admissible

   • Judge has discretion to admit evidence of a juvenile offense committed by a witness other than the accused

     • If the evidence would be admissible to attack the credibility of an adult and if the evidence is necessary to a determination of the accused’s guilt or innocence

3. Constitutionally Defective Conviction Cannot Be Used

Non-Character Based

Non-Character Based: Witness may be lying because of specific issues

Prior Inconsistent Statements (PINS)

• Requirements

  1. Statement inconsistent with their present testimony AND

     • Inconsistent

       1. Clearly contradictory

       2. Omits a fact asserted during the current testimony 

          1. If it would have been natural for the witness to include the fact in the statement if they believed it to be true

     • Present lack of memory of a fact not inconsistent with prior statement relating the fact

       1. Except when a witness remembers the fact on the stand, but didn’t remember the fact in the prior statement

  2. Statement must be relevant AND

  3. Impeaching party has to lay a proper a proper foundation for the extrinsic evidence

     • Foundation:

       1. Witness is given an opportunity to explain or deny the statement; and

       2. Adverse party is given an opportunity to examine the witness about the statement

     • Exceptions to Foundation Requirement

       1. Prior inconsistent statement is an opposing party’s statement

       2. Inconsistent statement by a hearsay declarant can be used to impeach the hearsay declarant

       3. Where justice requires

• Usually admissible only to impeach

  • If the PINS is sworn or falls within another hearsay exemption or exception, it is also admissible as substantive evidence.

Bias

1. Witness has an interest in the outcome of the case

   • Bias is always material.

2. Foundation

   • Must first be asked about the facts that show bias or interest on cross-examination

3. The collateral matter rule - which says that intrinsic evidence on collateral matters is inadmissible to impeach - never applies to bias.

Sensory Defects

1. Inability to see, to hear, to remember, etc.

2. No foundation requirement

Contradiction

1. Crossexaminer can try to get the witness to admit that they lied or that they were mistaken

2. Extrinsic evidence permitted if they stick to their story

   • Unless the contradictory fact is collateral

     • Collateral: no significant relevance to the case or to the witness’s credibility

Impeachment of Hearsay Declarant

1. Hearsay Declarant: Person who’s out of court statement has been admitted 

   • Under an exception to the hearsay rule OR

   • As a vicarious statement of an opposing party

2. Can be impeached by any of the impeachment methods

3. Need not be given the opportunity to explain or deny

Impeachment - Rehabilitation

Explanation on redirect

Good character for truthfulness

• Reputation or opinion testimony NOT specific acts

Introducing the witness’s prior consistent statement:

1. Attacked by an express or implied charge that the witness is lying or exaggerating because of some motive

   • Previous consistent statement made by the witness before the onset of the alleged motive is admissible to rebut this evidence

2. Impeached on some different ground (other than a general attack on the witness’s character for truthfulness), such as an inconsistency or a charge of faulty memory

   • Prior consistent statement made by the witness if, under the circumstances, it has a tendency to rehabilitate the witness’s credibility

3. To rehabilitate a witness’s credibility also is admissible as substantive evidence of the truth of its contents

Hearsay

Any statement made outside the current trial or hearing that is being offered to prove the content of the statement.

• Even relevant evidence may be barred by the hearsay rule.

• Hearsay within hearsay

Hearsay Approach

1. Step 1: Is it out of court?

   • In court in a different trial, is still out-of-court.

2. Step 2: What is the statement?

   • Federal Rule 801(a), a statement is either:

     1. An oral or written assertion OR

     2. Conduct intended as an assertion

        • Assertive conduct: Conduct intended as a substitute for words. When it is offered for its truth, such a statement can be hearsay.

          • Examples: nod, wink, smirk

        • Nonassertive conduct: Not hearsay. It is conduct not intended as a statement, or assertion.

          • Examples: criminal fleeing the scene of a crime, walking with an unsteady gait, asking a question

   • Statement must be a human statement.

   • Other than one made by the declarant while testifying at the current trial or hearing

3. Step 3: What is the purpose of the evidence?

   • Step 3A: Offered for its truth and NO hearsay exemption.

     • Then, it is hearsay, and we got to Step 4.

   • Step 3B: Not offered for its truth OR a hearsay exemption. Then it is not hearsay.

     • Not offered for its truth

       1. Impeachment

       2. Verbal Acts or Legally Operative Facts

       3. State of Mind

       4. Offered to show the effect on the listener or reader

     • Exemption

       1. Opposing party statement

       2. Prior statements of testifying witnesses (not parties) subject to Cross

4. Step 4: Look for a hearsay exception (FRE 803)

   • Unavailability

     1. Death

     2. Incapacitation by physical or mental illness

     3. Testimonial privilege

     4. Refusal to testify despite a court order

     5. Inability to remember

     6. Absence

   • Required → Declarant Unavailability

     1. Former Testimony

     2. Statements against Interest

     3. Dying Declaration

     4. Statements of Family or Personal History

     5. Absence

   • Not Required → Declarant Unavailability

     1. Excited Utterance

     2. Present Sense Impression

     3. Present State of Mind

     4. Statements for Medical Diagnosis or Treatment

     5. Regularly Kept Business Records

     6. Official Records and Other Official Writings

     7. Recorded Statement

     8. Learned Treatises

     9. Ancient Documents

     10. Documents Affecting Property Interests

     11. Reputation

     12. Family Records

     13. Market Reports

     14. Catchall

Hearsay - Statements offered not for its truth

Step 3: What is the purpose of the evidence?

• Step 3A: Offered for its truth and NOT a hearsay exemption.

  • Then, it is hearsay, and we got to Step 4.

    • Example: Percy said "Damien's car ran the red light."

      • Hearsay if offered to prove that Damien ran the read light.

      • Not hearsay if offered to prove that Percy was alive following the accident.

• Step 3B: Not offered for its truth OR a hearsay exemption. Then it is not hearsay.

Not Offered for Its Truth

1. Impeachment 

2. Verbal Acts or legally operative facts

   • Words that have independent legal significance 

     • Example: offer and acceptance in a contract, actual defamatory words in a libel or slander action

3. State of Mind 

   • Circumstantial evidence offered to show: notice, knowledge, or motive (of either the declarant or the listener)

4. Offered to show the effect on the listener or reader

Hearsay Exemptions

Step 3: What is the purpose of the evidence?

• Step 3A: Offered for its truth and NOT a hearsay exemption.

  • Then, it is hearsay, and we got to Step 4.

    • Example: Percy said "Damien's car ran the red light."

      • Hearsay if offered to prove that Damien ran the read light.

      • Not hearsay if offered to prove that Percy was alive following the accident.

• Step 3B: Not offered for its truth OR a hearsay exemption. Then it is not hearsay.

Exemptions: Statements specifically considered non-hearsay under the FRE even though they are being offered for their truth.

1. Opposing Party Statement

   1. A statement by a party offered against that party

      • Need not be against interest

      • Personal knowledge not required

   2. Special Attention Types

      1. Judicial and Extrajudicial Statements

         • Formal judicial statement (in pleadings, stipulations, etc.)→ conclusive & can’t be contradicted during trial

         • Informal judicial statement (during testimony and extrajudicial (out-of-court)) → not conclusive & can be explained

         • Formal judicial statement in one case can be admitted against them as an extrajudicial statement in another case

      2. Adoptive Statements

         • Where a party expressly or impliedly adopts or acquiesces in the statement of another

         • Silence can be used against them if:

           • party heard and understood; and

           • party was physically and mentally capable of denying; and

           • reasonable person would have denied accusation

         • Silence in the face of accusations by police in a criminal case is almost never considered an admission of a crime

      3. Vicarious Statements (If made by someone else, can be treated as the party made it because of the relationship between them):

         • Co-parties → insufficient relationship

         • Authorized spokesperson → can be admitted

         • Agents and Employees → admissible against principle if

           • concerned any matter within the scope of their agency or employment, and

           • was made during the existence of the agency or employment relationship

         • Partners → one partner statement binding on another

         • Co-conspirators → statement made to third part in furtherance of a conspiracy admissible

           • The court must determine the existence of a conspiracy, and the party’s participation in it, by a preponderance of the evidence standard

         • Predecessors-in-Interest → admissible against opposing party 

         • Joint Tenants (State Courts only) → admissible

           • do not qualify as opposing party statements under the Federal Rules, but may be admissible under one of the hearsay exceptions

         • Preliminary Determinations → Court must consider the contents of the statement, but the statement alone is not sufficient to establish the required relationship; there must be some independent evidence

2. Prior statements of testifying witnesses (not parties) subject to Cross

   • 3 Types

     1. Prior Sworn Inconsistent Statements

     2. Prior Consistent Statements: 

        • if offered to rebut a charge that the witness is lying or exaggerating because of some motive (statement made before any motive) OR

        • If offered to rehabilitate a witness whose credibility has been impeached on some other ground (other than a general attack on the witness’s character for truthfulness), such as an inconsistency or charge of faulty memory

     3. Prior Identifications

Hearsay Exception

Former Testimony

Hearsay within hearsay: each must fall within a hearsay exception

• Example: Hospital record made by the nurse -> "Blood pressure 120 and 80, weight, 165. Patient says they were bitten by their monkey butler."

  • Outer Hearsay: Hospital Record. Record itself covered by the Business Records Exception.

  • Inner Hearsay: Patient statement about what happened. Covered by Statement for Medical Diagnosis or Treatment Exception.

Unavailability

1. Death 

2. Incapacitation by physical or mental illness 

3. Testimonial privilege

4. Refusal to testify despite a court order

5. Inability to remember

6. Absence 

   • Proponent is unable to get their attendance or testimony by reasonable means.

   • If the person who is trying to get the declarant’s statement is the one who arranged for the declarant’s absence to keep them from testifying, then they are not considered unavailable.

Required → Declarant Unavailability

Former Testimony

1. Given under oath AND 

2. Other party had opportunity & similar motive to examine the declarant’s testimony

   • In civil → part’s predecessor in interest

     • a person in a privity relationship with the party (examples would include grantor-grantee, testator-executor, or joint tenants)

Hearsay Exception

Statements Against Interest

Hearsay within hearsay: each must fall within a hearsay exception

• Example: Hospital record made by the nurse -> "Blood pressure 120 and 80, weight, 165. Patient says they were bitten by their monkey butler."

  • Outer Hearsay: Hospital Record. Record itself covered by the Business Records Exception.

  • Inner Hearsay: Patient statement about what happened. Covered by Statement for Medical Diagnosis or Treatment Exception.

Unavailability

1. Death 

2. Incapacitation by physical or mental illness 

3. Testimonial privilege

4. Refusal to testify despite a court order

5. Inability to remember

6. Absence 

   • Proponent is unable to get their attendance or testimony by reasonable means.

   • If the person who is trying to get the declarant’s statement is the one who arranged for the declarant’s absence to keep them from testifying, then they are not considered unavailable.

Required → Declarant Unavailability

Statement Against Interest

1. Statement from a now-unavailable declarant that was:

   1. Against monetary, property, or penal interest AND

      • Social interest is not enough alone

   2. At the time it was made AND

      • Declarant must have personal knowledge of the facts AND know that the statement is against their interest.

   3. A reasonable person in the declarant’s position would have made it only if they knew it was true

2. Criminal cases require outside evidence.

3. Statement means single remark

Hearsay Exception

Dying Declarations

Hearsay within hearsay: each must fall within a hearsay exception

• Example: Hospital record made by the nurse -> "Blood pressure 120 and 80, weight, 165. Patient says they were bitten by their monkey butler."

  • Outer Hearsay: Hospital Record. Record itself covered by the Business Records Exception.

  • Inner Hearsay: Patient statement about what happened. Covered by Statement for Medical Diagnosis or Treatment Exception.

Unavailability

1. Death 

2. Incapacitation by physical or mental illness 

3. Testimonial privilege

4. Refusal to testify despite a court order

5. Inability to remember

6. Absence 

   • Proponent is unable to get their attendance or testimony by reasonable means.

   • If the person who is trying to get the declarant’s statement is the one who arranged for the declarant’s absence to keep them from testifying, then they are not considered unavailable.

Required → Declarant Unavailability

Dying Declarations

• Only available in Homicide Prosecutions OR Civil Cases if

  1. Believed their death was imminent AND

  2. The statement concerned its cause or circumstance of that believed impending death

     • As long as the statement is based on the declarant’s personal knowledge and perceptions, not opinion or speculation

Hearsay Exception

Statements of Family or Personal History

Hearsay within hearsay: each must fall within a hearsay exception

• Example: Hospital record made by the nurse -> "Blood pressure 120 and 80, weight, 165. Patient says they were bitten by their monkey butler."

  • Outer Hearsay: Hospital Record. Record itself covered by the Business Records Exception.

  • Inner Hearsay: Patient statement about what happened. Covered by Statement for Medical Diagnosis or Treatment Exception.

Unavailability

1. Death 

2. Incapacitation by physical or mental illness 

3. Testimonial privilege

4. Refusal to testify despite a court order

5. Inability to remember

6. Absence 

   • Proponent is unable to get their attendance or testimony by reasonable means.

   • If the person who is trying to get the declarant’s statement is the one who arranged for the declarant’s absence to keep them from testifying, then they are not considered unavailable.

Required → Declarant Unavailability

Statements of Family or Personal History

• Made by an unavailable declarant concerning things like births, marriages, divorces, relationships, etc.

  1. Declarant: 

     1. member of or intimately associated with the family AND 

     2. makes statement based on personal knowledge or their knowledge of family reputation

Hearsay Exception

Absence

Hearsay within hearsay: each must fall within a hearsay exception

• Example: Hospital record made by the nurse -> "Blood pressure 120 and 80, weight, 165. Patient says they were bitten by their monkey butler."

  • Outer Hearsay: Hospital Record. Record itself covered by the Business Records Exception.

  • Inner Hearsay: Patient statement about what happened. Covered by Statement for Medical Diagnosis or Treatment Exception.

Unavailability

1. Death 

2. Incapacitation by physical or mental illness 

3. Testimonial privilege

4. Refusal to testify despite a court order

5. Inability to remember

6. Absence 

   • Proponent is unable to get their attendance or testimony by reasonable means.

   • If the person who is trying to get the declarant’s statement is the one who arranged for the declarant’s absence to keep them from testifying, then they are not considered unavailable.

Required → Declarant Unavailability

Absence

• Statement by an unavailable declarant offered against the person who wrongfully caused that unavailability to keep them from testifying.

Hearsay Exception

1. Excited Utterance

2. Present Sense Impression

3. Present State of Mind

4. Statements for Medical Diagnosis or Treatment

Hearsay within hearsay: each must fall within a hearsay exception

• Example: Hospital record made by the nurse -> "Blood pressure 120 and 80, weight, 165. Patient says they were bitten by their monkey butler."

  • Outer Hearsay: Hospital Record. Record itself covered by the Business Records Exception.

  • Inner Hearsay: Patient statement about what happened. Covered by Statement for Medical Diagnosis or Treatment Exception.

NOT Required → Declarant Unavailability

Excited utterance

• Statement relating to a startling event made while under the stress of excitement from the event.

Present sense impression

• Statement that describes or explains an event of condition, made while the declarant is perceiving the event or condition or immediately thereafter.

Present State of Mind

• Statement of declarant’s then-existing (present) state of mind (including their motive, intent, or plan) or their emotional, sensory, or physical condition

  • Statement of memory or belief is not admissible to prove the truth of the fact remembered or believed

Statements for Medical Diagnosis or Treatment

• Statement that describes medical history, past or present symptoms, or general cause of symptoms

  1. But has to be related to medical diagnosis or treatment

  2. Declarant can be describing the condition of someone else

  3. Doesn’t necessarily have to be said to a medical professional

• The difference here is that the “medical diagnosis or treatment” exception covers statements of past condition (as well as present condition). So when a declarant makes a statement of present physical condition for the purpose of medical diagnosis or treatment, it could technically be admitted under either exception.

Hearsay Exception

5. Regularly Kept Business Records

6. Official Records and Other Official Writings

Hearsay within hearsay: each must fall within a hearsay exception

• Example: Hospital record made by the nurse -> "Blood pressure 120 and 80, weight, 165. Patient says they were bitten by their monkey butler."

  • Outer Hearsay: Hospital Record. Record itself covered by the Business Records Exception.

  • Inner Hearsay: Patient statement about what happened. Covered by Statement for Medical Diagnosis or Treatment Exception.

NOT Required → Declarant Unavailability

Regularly Kept Business Records

1. Records kept in the regular course of business 

   1. Kept in the regular course of business

   2. If the person keeping the records has a regular duty to make the entry 

      • Made at or near the time of business

   3. Person making the record has to have personal knowledge of the info OR have been told the info by somebody with a duty to transmit it

2. Foundation required: Records custodying

   1. testifying that the record meets the elements of the business records exception, or 

   2. certifying in writing that the record meets the elements

3. May also be used to prove the nonoccurrence or nonexistence of a matter if it was the regular practice of the business to record all such matters

4. If circumstances suggest that there’s a reason to doubt the trustworthiness of the record, then it might not be automatically admitted. 

Official Records and Other Official Writings

1. Admissible

   1. Records setting forth the activities of the office or agency

   2. Recordings of matters observed pursuant to a duty imposed by law (for example, weather bureau records of temperature), but not including police observations in criminal cases

   3. Records of factual findings resulting from an investigation authorized by law (police reports)

      • In civil actions and against the government in criminal cases—but not against the defendant in a criminal case

2. Made by and within the scope of the duty of the public employee, and it must have been made at or near the time of the event

3. Records of vital statistics are admissible if reported to a public office in accordance with a legal duty.

4. If circumstances suggest that there’s a reason to doubt the trustworthiness of the record, then it might not be automatically admitted. 

5. Record is admissible to prove that the matter was not recorded, or inferentially that the matter did not occur

   • Criminal case: admissible in the form of a certification only if the prosecution notifies the defense at least 14 days before trial and the defense does not object in writing within 7 days of receiving the notice

6. Certified copy of a judgment

   1. Prior criminal conviction - felony conviction admissible

      • to prove any fact essential to the judgment

      • Criminal: only against the accused

        • against others, it may be used only for impeachment purposes

   2. Prior criminal acquittal - excluded

   3. Judgement in prior civil case - generally excluded 

      • subject to certain statutory exceptions

Hearsay Exception

7. Recorded Statement

8. Learned Treatises

9. Ancient Documents

10. Documents Affecting Property Interests

Hearsay within hearsay: each must fall within a hearsay exception

• Example: Hospital record made by the nurse -> "Blood pressure 120 and 80, weight, 165. Patient says they were bitten by their monkey butler."

  • Outer Hearsay: Hospital Record. Record itself covered by the Business Records Exception.

  • Inner Hearsay: Patient statement about what happened. Covered by Statement for Medical Diagnosis or Treatment Exception.

NOT Required → Declarant Unavailability

Recorded Statement

• Requirements

  1. Witness can’t testify fully / accurately about content even after review

  2. Witness had personal knowledge of facts when record was made (fresh in their mind)

  3. Record was made by the witness or under their direction (or they adopted it)

• Can only be read into evidence; it cannot be admitted as an exhibit unless offered by an adverse party (see witness §)

Learned Treatises

• Admissible as substantive proof if

  1. the treatise is established as reliable authority and 

  2. the excerpt is relied upon by an expert during direct examination or brought to an expert’s attention on cross-examination

• Read into evidence but are not received as an exhibit

Ancient Documents

• Allows an authenticated document to be admissible in evidence fi it was prepared before January 1, 1998.

Documents Affecting Property Interests

• Admissible if the statement is relevant to the document’s purpose. 

  1. Will not apply if later dealings with the property are inconsistent with the truth of the statement asserted or the intent of the document

Hearsay Exception

11. Reputation

12. Family Records

13. Market Reports

14. Catchall

Hearsay within hearsay: each must fall within a hearsay exception

• Example: Hospital record made by the nurse -> "Blood pressure 120 and 80, weight, 165. Patient says they were bitten by their monkey butler."

  • Outer Hearsay: Hospital Record. Record itself covered by the Business Records Exception.

  • Inner Hearsay: Patient statement about what happened. Covered by Statement for Medical Diagnosis or Treatment Exception.

NOT Required → Declarant Unavailability

Reputation

• Several hearsay exceptions that admit reputation evidence to prove:

  1. character;

  2. personal or family history;

  3. land boundaries; and

  4. a community’s general history

Family Records

• Statements of fact concerning personal or family history contained in family Bibles, jewelry engravings, genealogies, tombstone engravings, etc.

Market Reports

• Market reports and other published compilations are admissible if generally used and relied upon by the public or by persons in a particular occupation

Catchall

• At the court’s discretion if 

  1. Trustworthy

     • Court must consider: 

       1. the totality of the circumstances in which the statement was made, and 

       2. any evidence that corroborates the statement

  2. Strictly necessary

     • more probative as to the fact for which it is offered than any other evidence that the proponent can reasonably produce

  3. Notice given to the opposing party

     • Notice includes

       1. the substance of the statement, and

       2. the name of the declarant

     • Generally must be given in writing in advance of the trial or hearing

       1. May be given in any form during the trial or hearing if the court, for good cause, excuses a lack of earlier notice

Hearsay Confrontation Issues

Confrontation Clause

Hearsay statement will not be admitted (even if it falls within a hearsay exception) where:

1. Statement is being offered against the accused in a criminal case (there is no confrontation concern in civil cases); and

2. Declarant is unavailable; and

3. Statement was “testimonial” in nature; and

   1. Testimony to grand jury, prior trial, or preliminary hearing

   2. Statements to law enforcement (sworn or unsworn) 

      • Not testimonial→ To aid in ongoing emergency

        1. Relevant factors include:

           1. the nature of the dispute (public vs. private); 

           2. whether the perpetrator is still at large;  

           3. the scope of the threat to the victim and to the public; and 

           4. the type of weapon involved

      • Testimonial→ To provide information for later prosecution

        1. Statements by a young child abuse victim to a school teacher about the abuse are not testimonial 

           1. because the primary purpose of the conversation is protection of the child, not prosecution of the perpetrator

   3. Affidavits or Written Reports of Forensic Analysis

      • Written reports that summarize the findings of forensic analysis and have the effect of accusing a targeted individual of criminal conduct → testimonial

        1. Unless D has opportunity to cross-examine author

      • No confrontation violation occurs if a forensic expert, while testifying as to their independent analysis of data, makes only a general reference to a non testifying analyst’s report to demonstrate a partial basis for their opinion

4. Accused had no opportunity to cross-examine the declarant’s testimonial statement prior to trial

D forfeits their right of confrontation if they committed a wrongful act that was intended to keep the witness from testifying

Due Process

• Hearsay rules and other exclusionary rules of evidence cannot be applied where such application would deprive the accused of their right to a fair trial or deny their right to compulsory process

Documentary & Physical Evidence

Documentary Evidence

• Includes writings, photographs, and recordings (all referred to as “writings”)

• Authentication

  • Proof must be sufficient to support a jury finding of genuineness (that is, a reasonable juror could conclude that the writing is genuine)

  • Note: just because a document is authenticated doesn't mean it is automatically in evidence. It could be barred by other rules.

• Ways to Authenticate

  1. Opponent’s Admission

  2. Eyewitness Testimony 

  3. Handwriting (to show it was written by the alleged author)

  4. Oral Statements

  5. Photographs and Videos

  6. X-Ray Pictures, Electrocardiograms, Etc.

  7. Ancient Document

  8. Reply Letter Doctrine

  9. Self-Authenticating 

• Best Evidence Rule

  • If you want to prove the material terms of a writing, recording, or a photograph, you need the original.

Real Evidence

• Actual physical evidence (something you can see and inspect) that was present at the incident or helps explain the incident in question

Documentary & Physical Evidence

Documentary Evidence - Authentication

1. Opponent’s Admission

2. Eyewitness Testimony 

3. Handwriting (to show it was written by the alleged author)

4. Oral Statements

Includes writings, photographs, and recordings (all referred to as “writings”)

Authentication

• Proof must be sufficient to support a jury finding of genuineness (that is, a reasonable juror could conclude that the writing is genuine)

• Note: just because a document is authenticated doesn't mean it is automatically in evidence. It could be barred by other rules.

Opponent’s Admission

• Writing can be authenticated by evidence that the party against whom it is offered has either admitted its authenticity or acted upon it as authentic.

Eyewitness Testimony

• Writing can be authenticated by testimony of anyone who saw it executed or heard it acknowledged

Handwriting (to show it was written by the alleged author)

• Lay (non-expert) witness who had prior personal knowledge of someone’s handwriting

• Expert witness or the jury can determine the genuineness of a writing by comparing the questioned writing with another writing proved to be genuine

Oral Statements

• Voice 

  • Identified by any person who has heard the voice at any time

• Telephone Conversations

  • Can be authenticated by any party to the call who testifies that: 

    1. They recognized the other party’s voice; or

    2. The speaker had knowledge of certain facts that only a particular person would have; or

    3. They called a particular person’s number and a voice answered as that person or that person’s residence; or 

    4. They called a business and talked with the person answering the phone about matters relevant to the business

Documentary & Physical Evidence

Documentary Evidence

5. Photographs and Videos

6. X-Ray Pictures, Electrocardiograms, Etc.

7. Ancient Document

8. Reply Letter Doctrine

Includes writings, photographs, and recordings (all referred to as “writings”)

Authentication

• Proof must be sufficient to support a jury finding of genuineness (that is, a reasonable juror could conclude that the writing is genuine)

• Note: just because a document is authenticated doesn't mean it is automatically in evidence. It could be barred by other rules.

Photographs and Videos

• Witness identifies the photograph as being a portrayal of certain facts and verifies that the photograph is a fair and accurate representation of those facts

  1. Photographer does not need to be called to authenticate the photograph

• Unattended Camera (without Witness)

  1. Requirements: 

     1. Proof that camera was operating properly AND

     2. Proof that the images came from that camera

X-Ray Pictures, Electrocardiograms, Etc.

• Must be shown 

  1. that the process used is accurate; and

  2. the machine was in working order, and 

  3. the operator was qualified to operate it

• Custodial chain must be established to assure that the X-ray has not been tampered with

Ancient Document

• Can be authenticated by proof that:

  1. At least 20 years old;

  2. No suspicion that it is not authentic; and

  3. Found where such a document would be kept if authentic

     1. Such as a will found in a safe deposit box with other  important documents

Reply Letter Doctrine

• Writing can be authenticated by proof that it was written in response to a communication sent to the claimed author

Documentary & Physical Evidence

Documentary Evidence - Self Authenticating

1. Notarized documents

2. Certified copies of public records or private records in a public office

3. Newspapers and periodicals

4. Government documents with a seal

5. Official publications (ex. Government pamphlet)

6. Trade inscriptions and labels

7. Commercial paper (including signatures thereon) and related documents

8. Business records, electronically generated records, and data copied from an electronic device, if the records are certified and the proponent gives the adverse party reasonable written notice and an opportunity for inspection

Documentary & Physical Evidence

Documentary Evidence - Best Evidence Rule

If you want to prove the material terms of a writing, recording, or a photograph, you need the original.

• Applies in 2 situations

  1. Writing is a legally operative document (like contracts and wills)

  2. Witness’s knowledge about a fact comes from the writing

• Exact duplicates (made by mechanical means) are admissible to the same extent as originals.

  1. Unless it would be unfair OR there’s a genuine question of authenticity 

• Secondary evidence can only be used if the person wanting to offer it into evidence has a good reason for not having the original

  • Good Reasons: 

    1. Loss/destruction of the original without bad faith

    2. Outside the reach of the jurisdiction and unobtainable despite reasonable effort

    3. In the possession of an adversary who, after due notice, fails to produce it

  • If there is a valid excuse, the Federal Rules permit a party to prove the contents of a writing by any type of secondary evidence (such as handwritten copies, notes, oral testimony, etc.)

Doesn’t apply when

1. The fact exists independently of the document.

   • Ex. birth of a child

2. Witness has personal knowledge of the fact to be proved, even if the fact happens to also be recorded in a writing

   • Oral testimony of the fact may be given without producing the original writing that recorded the event

3. The issue is collateral (or unimportant).

4. There are voluminous records.

   • May present their contents in the form of a chart or summary

   • Must make the originals or duplicates available for inspection or copying, and the court may order the proponent to produce the records in court

5. They are official public records. 

   • Copies are acceptable if certified.

6. Testimony or Written Admission of Opponent

Federal Rules reserve the following questions of preliminary fact for the jury:

1. Whether the original ever existed; and

2. Whether a writing produced at trial is an original; and

3. Whether the evidence offered correctly reflects the contents of the original

Documentary & Physical Evidence

Real Evidence

Actual physical evidence (something you can see and inspect) that was present at the incident or helps explain the incident in question

1. Must be authenticated by either: 

   1. the testimony of a witness that she recognizes the object as what the proponent claims it to be, OR

      • Example: a witness testifies that a knife introduced by the prosecution is the same knife that was at the crime scene

   2. evidence that the object has been held in a substantially unbroken chain of  possession

      • Example: evidence that a gun removed from a crime scene was stored with other police evidence in accordance with routine procedures 

2. Proof must be sufficient to support a jury finding of genuineness (that is, a reasonable jury could conclude that the object is what the proponent claims it to be)

3. If the condition of the object is significant, it must be shown to be in substantially the same condition at trial.

Particular Types of Real Evidence (often admissible but discretion to exclude under Rule 403)

1. Reproductions and Explanatory Real Evidence

   • Items used entirely for explanatory purposes are permitted at a trial, but are usually not admitted into evidence (meaning, they are not given to the jury during its deliberations)

2. Maps, Charts, Models, etc.

   • Admissible for the purpose of illustrating testimony, but must be authenticated by testimonial evidence that they are faithful reproductions of the object or thing depicted

3. Demonstrations

   • Experiment must be performed under conditions that are substantially similar to those attending the original even

   • Demonstrations of bodily injury may not be allowed where the demonstrations would unduly dramatize the injury

4. Exhibition of Injuries

   • Generally permitted

5. Jury view of the scene

   • Need for the view and changes in the condition of the premises following the events at issue in the case are relevant considerations

Witness Testimony

1. Competency

2. Form of Question

3. Using Documents to Aid Oral Testimony

4. Type of Witness

   • Lay Witness

   • Expert Witness

5. Exclusion and Sequestration of Witnesses

6. Court’s Rights

Witness Testimony - Competency

Presumed to be competent unless shown otherwise

1. Witness has personal knowledge AND

2. Gives an oath or affirmation

   • If interpreter required, must be qualified and take oath

Modern Modifications of the Common Law Disqualifications

1. Lack of religious belief, conviction of a crime, and interest in the lawsuit

   • Removed from disqualification

2. Children—Case-by-Case Determination

   • Depends on the capacity and intelligence

3. Insanity

   • Provided they understand the obligation to speak truthfully and have the capacity to testify accurately

4. Judge or Jurors

   • Presiding judge or sitting jury can’t testify as witness

   • Inquiry into verdict or indictment

     • Juror generally prohibited from testifying about what occurred during deliberations or about anything that may have affected a juror’s vote

     • Juror may testify as to:

       1. Whether any extraneous prejudicial information was improperly brought to the jury’s attention; or

       2. Whether any outside influence was improperly brought to bear on any juror; or

       3. Whether there is a mistake on the verdict form; or

       4. Whether any juror made a clear statement that they relied on racial stereotypes or animus to convict a criminal defendant

          • Court must find that racial animus was a significant motivating factor in the juror’s vote to convict

Dead Man Acts (Civil Case)

1. An interested person (or their predecessor in interest) is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased

   • “interested” → they stand to gain or lose by the judgment, or if the judgment may be used for or against them in a subsequent action

2. No federal rule, only some states

Witness Testimony - Form of Question

Leading questions

• Generally allowed only on cross-examination

• Allow leading questions on direct examination in the following circumstances:

  • To elicit preliminary or introductory matter; or

  • When the witness needs help responding because of loss of memory, immaturity, or physical or mental weakness; or

  • When the witness is hostile, an adverse party, or a witness affiliated with an adverse party

Scope of Cross-Examination

• Generally limited to:

  • The scope of direct examination, including all reasonable inferences that may be drawn from it, and

  • Matters that test the credibility of the witness (the permitted methods of impeachment are covered in the Impeachment module)

Improper questions and answer

1. Improper Questions

   • Misleading (cannot be answered without making an unintended admission)

   • Compound (requiring a single answer to more than one question)

   • Argumentative

   • Conclusionary

   • Cumulative

   • Unduly harassing or embarrassing

   • Call for a narrative answer or speculation

   • Assume facts not in evidence

2. Improper Answers

   • Lack foundation (the witness has insufficient personal knowledge)

   • Nonresponsive (do not answer the specific question asked)

Witness Testimony - Using Documents to Aid Oral Testimony

Cannot read their testimony from prepared memo

Refreshing Recollection - present recollection revived

1. Usually may not read from the writing while testifying because the writing is not authenticated and not in evidence

2. Safeguards against abuse

   • Witness used a writing to refresh their memory while on the stand → an adverse party is entitled to:

     • Have the writing produced at trial; and

     • Cross-examine the witness about the writing; and

     • Introduce portions of the writing relating to the witness’s testimony into evidence

   • Witness refreshed their memory before taking the stand → adverse party entitled to the above options only if court decides that justice requires it

   • Failure to produce or deliver writing 

     • Criminal Case: judge must strike witness’s testimony or if justice requires, declare a mistrial 

     • Civil Case: can issue any appropriate order

Past Recollection Recorded - recorded recollection

1. Witness + insufficient recollection of an event to enable them to testify fully and accurately (even after they have consulted a memorandum or other record given to them on the stand) = record itself may be read into evidence if a proper foundation is laid

   • Can only be marked as an exhibit if done by an adverse party

   • Foundation must include proof that:

     1. Witness has insufficient recollection to testify fully and accurately (even after showing her the document); and

     2. Witness had personal knowledge of the facts; and

     3. Record was made by the witness or under their direction, or it was adopted by the witness; and

     4. Record was made when the matter was fresh in the witness’s mind

     5. Record accurately reflects the witness’s knowledge

        • Witness vouches for the accuracy of the record at the time that it was made or adopted

Witness Testimony - Type of Witness

Lay Witness

Testify to facts

Opinion Testimony

• May give opinion testimony if it is:

  1. Rationally based on the witness’s perception AND

  2. Helpful to the trier of fact AND

  3. Not based on specialized knowledge

• Examples of Permitted Lay Witness Opinion

  1. General appearance, condition, or emotion of a person

  2. Matters of sense recognition

  3. Voice or handwriting recognition

  4. Speed of a moving object

  5. Value of the witness’s own services or property

  6. Rational or irrational nature of another’s conduct

  7. Person’s intoxication

• Examples of NOT permitted lay witness opinion

  1. Whether they (or someone else) acted as an agent

  2. Whether a contract was made

Witness Testimony - Type of Witness

Expert Witness

When scientific, technical, or other specialized knowledge would help the finder of fact, an expert can give opinion testimony in court.

• Must be relevant and reliable. Judge looks at the following factors in a Daubert Hearing:

  1. Would the knowledge help the factfinder?

  2. Is the expert qualified to offer this testimony?

     • Qualified: anyone who has knowledge, skill, experience, training or education with the subject matter

  3. Is the testimony based on sufficient facts or data?

     • Sufficient facts or data can be:

       1. Facts from expert’s own personal observation OR 

       2. Facts made known to the expert at trial OR

       3. Facts supplied to the expert outside of the courtroom if they are a type reasonably relied upon by other experts in the field 

          • The fact don’t need to be admissible, and if they aren’t proponent cannot disclose them unless court determines that their probative value in helping the jury evaluate the expert’s opinion substantially outweighs their prejudicial effect (Reverse rule 403)

     • Mere guess or speculation not sufficient

  4. Did the expert use reliable principles and methods?

     • Court will ask:

       1. Has the theory / technique been tested?

       2. Has it been subject to peer review / publication?

       3. What’s the rate of error?

       4. Do experts in the field generally accept this?

  5. Were those principles and methods reliably applied to the facts of the case?

Use of Learned Treatises During Examination

1. Excerpt from a treatise, periodical, or pamphlet

2. Only to impeach experts, but also as substantive evidence (that is, to prove that what the treatise says is true)

   • Limitations:

     1. Treatise must be established as reliable authority by: 

        • the testimony of the expert on the stand, or

        • the testimony of another expert, or

        • judicial notice

     2. Excerpt must be used in the context of expert testimony

        • Meaning, it is called to the attention of an expert witness on cross-examination, or relied upon by an expert witness during direct examination

     3. Excerpt is read into evidence but cannot be received as an exhibit

Opinion Testimony: Okay for an expert on the ultimate issue in a case

• Exception: Cannot when Criminal D’s mental state is an element of the crime or defense

Court-Appointed Experts

• Court may order the parties to show cause why experts should not be appointed and may ask the parties to submit nominations

• Expert must advise the parties of any findings they make, and any party may depose the expert, call the expert as a witness, or cross-examine the expert

Witness Testimony - Exclusion and Sequestration of Witnesses

Upon a party’s request, the trial judge must order witnesses excluded from the courtroom.

• Must not exclude:

  1. A party who is a natural person, or

  2. One designated officer or employee of a party that is not a natural person, or

  3. Any person whose presence is essential to the presentation of a party’s claim or defense, or

  4. A person statutorily authorized to be present

May also issue an order prohibiting disclosure of trial testimony to excluded witnesses and prohibiting the excluded witnesses from accessing trial testimony

Witness Testimony - Court’s Rights

Court may examine a party’s witness or call its own witness

• Party may object at any time or next time when jury is not present

Privileges

Permit a person to refuse to disclose, and/or prohibit others from disclosing, certain types of confidential information in judicial proceedings

• Privileges are governed by common law principles as interpreted by the court

• General Considerations

  1. Held by the person whose interests are being protected

     • Has to be asserted by that person or by someone authorized to assert it for them

       • Has to be affirmatively claimed or waived

  2. Waiver

     • Failure to claim the privilege

     • Voluntary disclosure of the privilege matter by the privilege holder

     • Contractual provision waiving in advance the right to claim a privilege

  3. Confidential communications is not destroyed because of eavesdropper in the absence of negligence by the person claiming the privilege

Should federal or state privilege be applied in a federal court?

1. Federal question → federal common law

2. Diversity jurisdiction → state law

Types Recognized by Federal Courts

1. Attorney-Client Privilege

2. Psychotherapist/Social Worker - Patient Privilege

3. Marriage Privileges

   • Marital Communications

   • Spousal Immunity

4. Clery-Patient Privilege

5. Privilege Against Self-Incrimination

6. Governmental Privileges

Types Recognized by (some) State Courts

1. Physician-Patient Privilege

2. Accountant-Client

3. Professional Journalist

Privileges - Types Recognized by Federal Courts

Attorney-Client Privilege

Attorney may not disclose anything a client told them in confidence in the court of seeking legal services

1. Attorney: member of bar (or client reasonably believes it)

2. Confidential: made in confidence, wasn’t intended to be disclosed to third parties

   • Communications in the known presence of a stranger aren’t privileged

     • If unknown, the eavesdropper can’t testify, so long as the privilege holder wasn’t negligent.

   • Doesn’t break privilege

     • Presence of representatives of the attorney or client doesn’t

     • Communications made through a person necessary to transmit info

3. Communications

   • Doesn’t apply to pre-existing documents, underlying information, physical evidence

4. Legal Services

   • Not to give business advice or social advice

Exceptions

1. No privilege for communications to aid in planning or furthering a crime or fraud

2. No privilege where the client has put the legal services at issue in the case

3. No Privilege Where Attorney Acts for Both Parties (Joint Client Rule)

   • 2 or more clients with a common interest consult with same attorney → privilege to third parties 

     • Those clients eventually dispute with each other concerning the common interest —> privilege doesn’t apply between them

4. No privilege for a communication relevant to an issue of breach of duty in a dispute between the attorney and client

5. No privilege regarding a communication relevant to an issue between parties claiming through the same deceased client

Attorney can assert the privilege on behalf of their client

• Continues after client’s death

Work Product

• Not protected by privilege

• But not discoverable unless necessity

Limitations on Waiver

1. Undisclosed privileged material is subject to the waiver only if

   • The waiver was intentional,

   • The disclosed and undisclosed material concern the same subject matter, and 

   • The material should be considered together to avoid unfairness.

2. No waiver if the disclosure was inadvertent and the holder took reasonable steps to prevent disclosure and rectify the error

Privileges - Types Recognized by Federal Courts

Psychotherapist/Social Worker - Patient Privilege

Works similar to attorney-client privilege

Privilege not available if:

• Communication seeks help in aiding wrongdoing OR

• Client puts their condition at issue OR

• Case involves a dispute between the professional and the client

Privileges - Types Recognized by Federal Courts

Marriage Privileges

Marital Communications

1. Either spouse may refuse to testify about confidential communications that occurred during the marriage

   1. Applies in civil and criminal cases

   2. Applies regardless of whether couple is still married at the time of the trial 

   3. Waiver from both required for the communications to come in

   4. Must be made in reliance upon the intimacy of the marital relationship

      • Communications made in the known presence of a third party are not privileged

        • May still be confidential and privileged if made in the presence of young children living in the home

2. Exceptions: Doesn’t apply in

   • Legal actions between spouses

   • Domestic cases

   • Furtherance of joint crime or fraud

Spousal Immunity

1. Applies only in criminal cases

2. Witness may refuse to testify against spouse who is a criminal defendant

   • Witness-spouse may assert or waive this privilege 

     • In some state courts, the privilege belongs to the party-spouse

3. Has to be a valid marriage at the time of the requested testimony

   • But privilege can be asserted as to things that were said or done before the couple was married

   • If the couple divorces or the marriage is annulled, than privilege can no longer be claimed

     • Even regarding matters that arose during the marriage

Privileges - Types Recognized by Federal Courts

Clery-Patient Privilege

Elements similar to attorney-client

Will apply only if the penitent made the communication to the clergy member in the clergy member’s capacity as a spiritual adviser

Privileges - Types Recognized by Federal Courts

Government Privileges

Protects the identity of an informer

Waived if the informer’s identity is voluntarily disclosed by a privilege holder (an appropriate government representative)

Privileges - Types Recognized by (some) State Courts

Physician-Patient Privilege

Privileged if

1. Professional relationship between the physician and patient for the purposes of medical treatment; and

2. Information was acquired for the purpose of diagnosis or treatment; and

3. Information was necessary for diagnosis or treatment

Physician can assert the privilege on behalf of their client

Privilege not available if:

1. Communication seeks help in aiding wrongdoing

2. Client puts their condition at issue

3. Case involves a dispute between the professional and the client

4. Patient agreed by contract (in an insurance policy, for example) to waive the privilege

5. Federal case applying the federal law of privilege

Applies in both civil and criminal cases

1. Some states → denied in felony cases

2. Few States → denied only in homicide cases

Procedural Considerations

1. Burdens of Proof

2. Preliminary Questions

3. Judicial Notice

4. Presumptions

5. Rule of Completeness

6. Limited Admissibility

7. Rulings on Evidence

Procedural Considerations - Burdens of Proof

Burden of Production

• Once the party has satisfied the burden of production, it is incumbent upon the other side to come forward with evidence to rebut the accepted evidence

Burden of Persuasion (Proof)

• civil cases → preponderance of the evidence (more probably true than not true)

• some civil cases (such as fraud or an oral contract to make a will) → proof of clear and convincing evidence (high probability)

• criminal cases → beyond a reasonable doubt

Procedural Considerations - Preliminary Questions

By Jury

• Judge must determine that there is sufficient proof to support a jury finding that the preliminary fact exists

1. Whether evidence is relevant at all

2. Whether evidence is authentic

3. Whether a person was acting as a party’s agent in a breach of contract cas

4. Whether a witness has personal knowledge of the facts of their testimony

By Judge

1. Competency of the evidence

   • Is a witness mentally competent to testify?

   • Does a privilege exist?

   • Does the evidence meet the requirements of a hearsay exception?

2. May Consider All Non-Privileged Evidence

   • even if such evidence would not be admissible at trial

     • simply considering it to determine if other evidence should be admitted at trial

3. Presence of Jury

   • Within the discretion of the judge

   • Must be excused if

     • the hearing involves the admissibility of a confession; or

     • the defendant in a criminal case is testifying at the hearing and requests that the jury be excused; or

     • justice so requires

Testimony by Accused Does Not Waive Privilege Against Self-Incrimination

Procedural Considerations - Judicial Notice

Recognition of a fact as true without formal presentation of evidence

Judicial Notice of Fact

1. Court may take judicial notice of any fact that is “not subject to reasonable dispute” because

   • Generally known

     • Courts often take judicial notice of the reliability of well-established scientific tests and principles (such as radar speed tests, ballistics tests, and paternity blood tests)

   • Can be accurately and readily determined

2. If a court does not take judicial notice of a fact on its own accord, a party must formally request that notice be taken and provide the court with the necessary information

   • Court is required to take judicial notice of the fact

3. Conclusive in a civil case but not in a criminal case

   • criminal case: jury is instructed that it may, but is not required to, accept the judicially noticed fact as conclusive

4. Govern only judicial notice of “adjudicative” facts (meaning, those that relate to the particular case)

Judicial Notice of Law

1. Mandatory: must take judicial notice of federal and state law and the official regulations of the forum state and the federal government

2. Permissive: may take judicial notice of municipal ordinances and private acts or resolutions of Congress or of the local state legislature

Procedural Considerations - Presumptions

Common Rebuttable Presumptions

1. Mail Delivery

   • Properly mailed letter presumed delivers

2. Death from 7-Year absence

3. Against suicide

   • Presumption in civil cases where cause of death in dispute

4. Legitimacy

   • Ever person presumed to be born to legally married parents

5. Sanity 

   • Sane in criminal and civil cases

6. Ownership of car- Agent Driver

7. Chastity

8. Regularity

   • Persons properly performing their duties

9. Continuance

   • Continued for as long as it is usual with things of that nature

10. Solvency

    • a person is presumed solvent, and every debt is presumed collectible

11. Bailee's Negligence

    • Failure of the bailee to return the goods in the same condition create the presumption that the bailee was negligent

12. Marriage

Rebutting Presumptions in Civil Cases

• Overcome or destroyed when evidence to the contrary

No Mandatory Presumptions in Criminal Cases

• judge must instruct them that they may regard the basic facts as sufficient evidence of the presumed fact

Distinguish True Presumptions from Inferences and Substantive Law

1. Permissive Interferences

   • May allow the party to meet their burden of production (establish a prima facie case)

     • But does not shift the burden to the adversary

2. Conclusive Presumptions

   • Cannot be rebutted

Conflicting presumptions

• Judge should apply the presumption founded on the weightier considerations of policy and logic

Procedural Considerations - Rule of Completeness

Adverse party may require the proponent of the evidence to introduce any other part—or any related statement—that ought in fairness to be considered at the same time

Procedural Considerations - Limited Admissibility

Court must, upon timely request, restrict the evidence to its proper scope and instruct the jury accordingly

• Limiting Instruction

  • May still exclude if the probative value of the evidence with respect to its legitimate purpose would be substantially outweighed by danger of unfair prejudice with respect to its incompetent purpose (in other words, the judge may exclude the evidence if it fails the Rule 403 balancing test).

Procedural Considerations - Rulings on Evidence

Preserving claim of error for appeal

• Court admitted evidence → party opposing its admission needs to make a timely objection or move to strike the evidence

• Court excluded evidence → proponent of the evidence needs to inform the court of the evidence’s substance by an offer of proof, unless its substance was apparent from the context.

1. Timing of objections

   1. Trial

      • made after the question, but before the answer

        • motion to strike must be made as soon as an answer emerges as inadmissible

   2. Deposition

      • objections to the form of a question, or to a testimonial privilege, made when the question is asked or it may be waived

        • Objections based on the substance of a question or answer may be postponed until the deposition is offered in evidence.

2. Specificity of objections

   • Specific objection unless the ground for the objection was apparent from the context

3. Opening the door

4. Motion to strike

   • If an answer is unresponsive but otherwise admissible, only examining counsel can move to strike the answer

     • Opposing counsel cannot

5. Offers of proof

   • May be made, disclosing the nature, purpose, and admissibility of rejected evidence, to persuade the trial court to hear the evidence and to preserve the evidence for review on appeal

   • Court can require the offer of proof to be made in question-and-answer form

6. Taking notice of plain error

   • Court may take notice of a plain error affecting a substantial right of a party, even if the claim of error wasn’t properly preserved

Judge may comment on the weight of the evidence in federal courts

Judge must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means