Evidence

Summary of a person’s record of the event can be read into evidence as past recollection record?

If the witness on the stand has insufficient recollection to testify to a relevant event fully and accurately, Federal Rule 803(5) permits the introduction of an out-of-court memorandum or other record of the event made by the witness at a time when the witness's memory of the event was fresh.
There is no indication in this case that the summary in the witness's possession would fail to satisfy the best evidence rule. It appears to be her original notes.
The summary can be read out to the jury.

Factors when past recollection can be read into evidence

1. When the W has claimed inability to remember (if not claimed then can be used to impeach or discredit the W but not as past recollected)

2. witness has personal knowledge of the facts in the record when the record was made

3. record was made by witness or under their direction, or it was adopted

4. record was made when matter was fresh in witness’ mind

5. record accurately reflects the witness’ knowledge

Admissibility of prior bad acts for impeaching witness

1. The Federal Rules do not provide for the exclusion of prior bad acts on the basis of remoteness.

2. The cross-examiner may ask the witness about a prior bad act only if she has a reasonable basis for believing that the witness may have committed the act. (good faith basis)

3. If the witness denies the prior bad act on cross-examination, the cross-examiner may, in good faith, continue the cross-examination in the hope that the witness will change his answer.

4. The court may allow - discretion on the court

Statements by opposing party (admissions by a party-opponent)

be attributable to a party and offered against that party
Lack of personal knowledge does not necessarily exclude an opposing party's statement

it is non hearsay

Party opponent statement - silence as truth

(i) the party must have heard and understood the statement;

(ii) the party must have been physically and mentally capable of denying the statement; and

(iii) a reasonable person would have denied the accusation under the same circumstances.

Vicarious responsibility for statement

Authorized spokesperson;

partner;

co-conspirator;

principal-agent; 

predecessor-in-interest

but not co-party

Proving Prior inconsistent statement by extrinsic evidence

The statement must cast doubt on witness’ credibility and be relevant to the case; i.e., it cannot be a collateral matter.

Before extrinsic evidence is allowed, generally the witness first must be given an opportunity to explain or deny her statement, and the adverse party must be given an opportunity to examine the witness about the statement.

Exceptions - if the inconsistent statement was made by a hearsay declarant, the declarant may be impeached despite the lack of a foundation.

Furthermore, the foundation is not required when the inconsistent statement qualifies as an opposing party's statement.

Prior inconsistent statements made under oath

Prior inconsistent statements made under oath at a prior trial or proceeding, or in a deposition, are considered nonhearsay under the Federal Rules as long as the declarant is now testifying and subject to cross-examination

They can be offered as substantive evidence and for impeachment

Impeachment of unavailable hearsay declarant

credibility of an unavailable declarant may be attacked by evidence that would be admissible if the declarant had testified as a witness. There is no requirement that a declarant must be present at trial to be impeached.

Spousal immunity

1. lasts only during the marriage and terminates upon divorce or annulment

2. If a marriage exists, the privilege can be asserted even as to matters that took place before the marriage.

3. Spousal immunity is not held by both spouses jointly. In federal courts, only the witness-spouse may invoke the privilege against adverse spousal testimony.

4. Spousal immunity may be invoked in criminal cases only.

Spousal communications privilege

1. Both spouses jointly hold the privilege, and either spouse can prevent any other person from disclosing the confidential communication or can refuse to disclose the communication.

2. cannot be asserted as to communications made before the marriage.

3. In any civil or criminal case, either spouse, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were husband and wife.

4. The communication must be made during a valid marriage. Divorce will not terminate the privilege retroactively, but communications after divorce are not privileged.

Statement not offered for its truth examples

1. Negligence case - in a negligence case, where knowledge of a danger is at issue, a statement of warning is admissible for the limited purpose of showing knowledge or notice on the part of a listener. Here, the defense of assumption of the risk has been raised. Whether the plaintiff knew of the danger involved in lighting a fire within 24 hours of the chimney cleaning is an issue. Consequently, the statement of the foreman is admissible to show that the plaintiff had knowledge of the possible danger. The statement is not hearsay because it is not offered to prove that it was in fact dangerous for the plaintiff to light a fire.

Photograph as evidence

To be admissible, a photograph must be identified by a witness as a portrayal of certain facts relevant to the issue, and verified by the witness as a correct representation of those facts. It is sufficient if the witness who identifies the photograph is familiar with the scene or object depicted. It is not necessary to call the photographer to authenticate the photograph.

Forensic evidence and confrontation clause

A criminal defendant has the constitutional right, under the Confrontation Clause, to confront and cross-examine the witnesses against him. Affidavits that summarize the findings of forensic analysis and have the effect of accusing the defendant of criminal conduct are testimonial in nature and are not admissible into evidence against the defendant unless the preparer is unavailable and the defendant previously had an opportunity to cross-examine.

Statement against interest

The statement against interest exception to the hearsay rule requires that the declarant be unavailable as a witness. A declarant is unavailable if: (i) she is exempted from testifying because the court rules that a privilege applies, (ii) she refuses to testify concerning the statement despite a court order to do so, (iii) she testifies to not remembering the subject matter of the statement, (iv) she cannot testify because she has died or is ill, or (v) she is absent and the statement's proponent is unable to procure her attendance or testimony by process or other reasonable means.

Specific instances of misconduct - extrinsic evidence

A specific act of misconduct offered to attack the witness's character for truthfulness can be elicited only on cross-examination. If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence.

Prior inconsistent statement for impeachment

For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of her present testimony. Under the Federal Rules, an inconsistent statement may be proved by either examination of the witness or by extrinsic evidence (see below).

To prove a prior inconsistent statement by extrinsic evidence, the witness generally must be given an opportunity to explain or deny the allegedly inconsistent statement before the extrinsic evidence is introduced, and the statement must be relevant to some issue in the case.

Prior identification (hearsay exemption)

a declarant’s statement identifying a person as someone the declarant perceived earlier is not hearsay if the declarant testifies at trial and is subject to cross-examination about the statement. Photo identifications are within the scope of this rule, and the prior identification need not have been made at a formal proceeding or under oath.

Hearsay within hearsay

Hearsay within hearsay is an out-of-court statement that incorporates other hearsay, and is admissible only if both the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule

Business records exception

(i) made in the regular course of the business;

(ii) the regular practice of the business to make the record;

(iii) made at or near the time of the event; and

(iv) made by a person who had a duty to make the record and who had personal knowledge of the event (or who obtained the information from another person at the business with personal knowledge and a duty to report).

Must be authenticated - The record also must be authenticated through the testimony or written certification of a records custodian or other qualified witness.

Judicial notice of evidence

Civil cases -

Judicial notice allows a party to "prove" a fact by the court's recognizing that the fact is a matter of common knowledge within the jurisdiction or is able to be quickly determined by resorting to sources whose accuracy cannot reasonably be questioned. Since judicial notice functions are a substitute for more formal evidence (i.e., testimonial evidence), it has the same effect as more formal evidence.

Civil cases - a fact judicially noticed is conclusively established, and thus binding on the jury.

Criminal cases - a judicially noticed fact is not binding on the jury; the jury is permitted to find facts that have been judicially noticed, but never is required to do so.

Best evidence rule

When a proponent is attempting to prove the contents of a document, the best evidence rule applies and the original must be accounted for in order to introduce secondary evidence as to its contents. A proper foundation for the admissibility of secondary evidence may be laid by a showing that the original has been lost and cannot be found despite diligent search.

Propensity evidence

This question involves the admissibility of "propensity" evidence-evidence that a person has a propensity to act in a certain way because of a character trait the person possesses. Although this type of character evidence is generally inadmissible, an exception to the rule is that a criminal defendant is permitted to introduce evidence that he possesses a character that is inconsistent with the crime charged. [Fed. R. Evid. 404(a)(1)] For example, a criminal defendant accused of murder is allowed to present evidence that he is a nonviolent person; a criminal defendant accused of fraud is allowed to present evidence that he is an honest person. The defendant is charged with a crime of violence (assault). The defendant's witness is prepared to testify to the defendant's reputation for honesty. However, possession of the character trait of honesty is not inconsistent with the commission of a violent crime. Honest people can and do commit violent crimes. Thus, the witness's testimony does not pertain to a relevant character trait, and so it is inadmissible.

Dying declaration

The apparent dying declaration is a favorite trick on the MBE. Remember that if the victim does not die, she must be unavailable to testify before the dying declaration is admissible on those grounds.