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2. ALL relevant evidence is ADMISSIBLE, UNLESS
(a) Some specific Rule of Evidence (exclusionary rule) applies & excludes it; or
(b) Balancing test: The court makes a discretionary determination that the probative value of the evidence is substantially outweighed by pragmatic considerations:
1) danger of unfair prejudice
2) Confusion of the issues
3) misleading the jury
4) Undue delay
5) Waste of time
6) Unduly cumulative
a. Evidence may be admissible for one purpose where it is inadmissible for another
b. Limiting Instruction should be given to the jury whenever evidence is admissible for one purpose but not for another. Judge should tell the jury to consider the evidence only for the permissible purpose.
a. Rule: Generally, P’s accident history is INADMISSIBLE bc it shows nothing more than the fact that the plaintiff (in a civil case) is accident-prone (character evidence)
b.Exception: Plaintiff’s prior accidents ADMISSIBLE if the cause of plaintiff’s injuries is in issue (i.e. D wants to prove that P’s injuries caused by a different accident).
a. Rule: Generally, other accidents involving defendant are inadmissible because they suggest nothing more than general character for carelessness
b. Exception: Other accidents involving the same instrumentality or condition may be admitted for three potential purposes IF the other accident occurred under substantially similar circumstances:
1. to show the existence of a dangerous condition; or
2. causation of the accident; or
3. Prior notice to defendant
a. Rule: Prior similar conduct of a person may be admissible to raise an inference of the person’s intent on a later occasion (i.e. gender discrimination lawsuit)
a. Rule: Selling price of other property of similar type, in same general locations, and close in time to period at issue is some evidence of the value of property at issue.
a. Rule: Habit of a person (or routine of a business organization is ADMISSIBLE as circumstantial evidence of how the person (or business) acted on the occasion at issue in the litigation
b.Definition: Habit is a repetitive response to a particular set of circumstances. Two defining characteristics:
1.Frequency of the conduct
2. Particularity of the conduct
c. Key Words: "always"; "invariably"; "automatically"; "instinctively"; "never"
d. Business Routine: Ex: to prove that a particular letter was mailed by CEO, evidence that CEO put letter in her out-box on Tuesday, and messenger "routinely" picks up mail in CEO's out-box at 3PM each business day for delivery to mail room.
a. Rule: Evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation should have acted i.e. as evidence of the appropriate standard of care.
a. Rule: Evidence that a person has (or does not have) liability insurance is not admissible for the purpose of proving fault or the absence thereof.
b. Policy: To avoid risk that the jury will base decision on the availability of insurance instead of the merits of the case.
c.Exception: Evidence of insurance may be admissible for some other relevant purpose, such as
1. Proof of ownership/control of instrumentality or location IF any of those issues is disputed
2. For the purpose of impeachment of a witness, usually on grounds of bias
a. Rule: Inadmissible for the purpose of proving NEGLIGENCE, CULPABLE CONDUCT, PRODUCT DEFECT, NEED FOR WARNING
b.Policy: To encourage post-accident repairs
c.Exception: May be admissible for some other relevant purpose, such as
1. Proof of ownership/control OR
2. Feasibility of safer condition
IF either is disputed by the D.
d. Note: If D does not dispute feasibility, but merely denies liability, the exception does not apply.
e. Products Liability Strict Liability Action: In a products liability action based on strict liability, the manufacturer's subsequent remedial measures are inadmissible to show the existence of a defect in the product at the time of the accident.
a. Rule: In the event of a disputed civil claim, the following are INADMISSIBLE for the purpose of showing liability
2) Offers to settle (by either party)
3) Statements of fact made during settlement discussions
b. Policy: To encourage settlement
1. Impeachment: Settlement evidence is admissible for the purpose of impeaching a witness on the grounds of bias.
2. Government Agency Exception: Statements of fact made during settlement discussion in civil litigation with a government agency are admissible in a later criminal case.
-MD: Gov't agency exception NOT adopted
3. There must be a claim that is disputed as to validity or amount: For the exclusionary rule to apply during settlement negotiations, there must be some indication that the party is going to make a claim although the party need not have actually filed suit.
- The claim must be in dispute as to liability or amount.
a. Offer to plead guilty: cannot be used against the defendant in the pending criminal case or in subsequent civil litigation based on the same facts
b.Withdrawn guilty plea: cannot be used against the defendant in the pending criminal case or in subsequent civil litigation based on the same facts.
c.Plea of nolo contendere (“no contest”): cannot be used against the D in subsequent civil litigation based on the same facts.
d. Statements of fact made during any of the above plea discussions.
e. Exception: A plea of GUILTY (not withdrawn) is ADMISSIBLE in subsequent litigation based on the same facts under the rule of party admissions.
a. Rule: Evidence that a party has paid or offered to pay an accident victim’s hospital or medical expenses is inadmissible to prove liability.
b.Policy: To encourage charity.
c.Note: Does not require a disputed claim
d.Note: Rule does not exclude other statements made in connection w/ an offer to pay hospital or medical expenses, including statements of fact.
1. Definition: refers to a person’s general propensity or disposition, e.g. honesty, fairness, peacefulness, or violence.
2.Potential Purposes for the Admissibility of Character Evidence
(1) Person’s character is an essential element in the case: rare, and will never be an essential element in a criminal case
(2) Character evidence to prove conduct in conformity w/ character at the time of the litigated event.
a. AKA Character as circumstantial evidence of conduct in conformity with character at the time of the litigated event.
(3) Witness's bad character for truthfulness to impeach credibility
1. General rule: Evidence of the defendant’s character to prove conduct on a particular occasion is INADMISSIBLE during the prosecution’s case-in-chief.
2. DEFENDANT, during the defense, may introduce evidence of a relevant character trait to prove conduct. Limited to
a. Reputation testimony &
b. Opinion testimony
3. Effect: If D introduces evidence of his character, he OPENS THE DOOR TO REBUTTAL by the prosecution
4. Relevant character trait: D can introduce evidence of a character trait at issue, or that D is a law-abiding citizen: will be deemed only to be directed to the relevant fact at issue in the case
1. Rule: IF D has “opened the door” by calling character witnesses, the prosecution may rebut:
(1) Specific acts: by cross-examining defendant’s character witnesses w/ “have you heard” or “did you know” questions about specific acts of the D that reflect adversely on the particular character trait that D has introduced
a. Prosecution must have a good faith basis for the question. If the witness denies, prosecutor must "take the answer" of the witness.
b. Limited purpose: To impeach the character witness's knowledge/soundness of their opinion
c. MD Distinction: Cross-examination of character witness concerning D's prior specific acts is limited to convictions.
(2) Reputation & Opinion: By calling its own reputation or opinion witnesses to contradict the defendant's witnesses
2. "Law-abiding citizen": Prosecutor's rebuttal still limited to evidence of the relevant character trait.
1. Note: Generally, the victim’s character is not relevant, BUT when D is asserting self-defense, the victim’s conduct is at issue
2. Rule: Criminal defendant may introduce evidence of a victim’s violent character to prove victim’s conduct in conformity, i.e. as circumstantial evidence that the victim was the first aggressor.
a. REPUTATION & OPINION TESTIMONY
3.Prosecution Rebuttal: May introduce reputation or opinion evidence of the victim’s good character
a. FRE: Prosecution may also prove defendant's character for violence with reputation or opinion evidence
b. MARYLAND: Prosecution's rebuttal is limited to evidence of the victim's good character
4. Homicide cases: If D offers evidence of any kind that victim was first aggressor, prosecution may introduce evidence of victim's good character for peacefulness.
5. Separate Rule of Relevance: If the defendant, at the time of the event, was aware of the victim's violent reputation or prior specific acts of violence, such awareness may be proven to show the defendant's state of mind --fear-- to help prove that he acted reasonably in responding as he did to the victim's aggression.
1. Rape Shield Law: Where D is alleged to have engaged in sexual misconduct, the following evidence about the victim is ordinarily inadmissible:
a. Opinion or reputation evidence about the victim’s sexual propensity, or
b. Evidence of specific sexual behavior of the victim
(1) specific sexual behavior of the victim to prove that someone other than the defendant was the source of semen or injury to the victim;
(2) victim's sexual activity w/ defendant if the defense of consent is asserted; or
(3) where exclusion would violate defendant's right of due process: SCOTUS HOLDING
a. Love Triangle Defense: Defense should be allowed to show that the victim had a sexual relationship with X at the time of D's alleged rape if X saw the victim and defendant together where defense is consent.
b. Purpose: To suggest the victim had motive to falsely claim that the sexual contact with defendant was not consensual.
(a) Character evidence generally INADMISSIBLE to prove CONDUCT IN CONFORMITY
(b) Essential Element of Claim or Defense: Evidence of a person’s character is ADMISSIBLE in a civil action where such character is an ESSENTIAL ELEMENT OF A CLAIM OR DEFENSE (provable by reputation, opinion & specific acts). Only 3 situations:
1) Tort case alleging negligent hiring or entrustment
3) Child custody dispute
1. General rule: Other crimes or specific bad acts of defendant are not admissible during the prosecution’s case-in-chief if the only purpose is to suggest that, because of defendant’s bad character, he is more likely to have committed the crime currently charged.
a.BUT: defendant’s bad acts or other crimes may be admissible to show something specific about the crime currently charged something separate & apart from the mere propensity to commit the crime.
2. Most Common Non-Character Purposes: MIMIC
M: Mistake or accident, absence of
I: Identity (earmark)
C: Common Scheme or plan
3. Method of Proof of MIMIC-purpose crimes
1) By conviction, or
2) By evidence (witnesses, etc.) that proves the crime occurred.
a. FRE Conditional Relevancy Standard: Prosecution need only produce sufficient evidence from which a reasonable juror could conclude that defendant committed the other crime.
b. MD Rule: MIMIC crimes must be proven by clear & convincing evidence (more than a preponderance)
- Pretrial notice of MIMIC: Upon D's request, prosecution must give pretrial notice of intent to introduce MIMIC evidence. In all cases, the court must also weigh probative value v. prejudice and give limiting instructions if MIMIC evidence is admitted.
4. MIMIC in Civil Cases: If relevant, MIMIC evidence can also be used in civil cases, such as torts actions for fraud or assault.
1. FRE: In a case alleging sexual assault or child molestation, PRIOR SPECIFIC SEXUAL MISCONDUCT of the defendant is ADMISSIBLE as part of the case-in-chief of the prosecution (in a criminal case) or of the plaintiff (in a civil action) for any relevant purpose, including DEFENDANT’S PROPENSITY FOR SEX CRIMES, as circumstantial evidence of conduct on the occasion in question.
a. NOT reputation or opinion
2. MD: Defendant's prior sex crimes are admissible only if MIMIC rule is satisfied OR if the prior sex crime was directed to the same victim as in the pending case. IF same victim: the prior sex crimes are admissible to show propensity
Overview: If the relevance of a writing depends upon its source or authorship, a showing must be made that the writing is authentic (genuine), i.e. that it is what it purports to be. This is the process of authentication.
Foundation: In the absence of a stipulation as to authenticity, a FOUNDATION must be made in order for the document to be admissible
1. Witness’s Personal Knowledge: Witness observed X signed document
2. Proof of Handwriting (where document is handwritten)
(a) Layperson’s opinion: Lay witness testifies to opinion that X wrote document on basis of familiarity with X’s handwriting as a result of experience in normal course of affairs.
(b) Expert Comparison: Handwriting expert testifies to opinion that X wrote document on basis of comparison between document & genuine sample (exemplar) of X’s handwriting.
(c) Jury Comparison: Jury compares document w/ exemplar of X's handwriting.
3. Ancient Document Rule: Authenticity may be inferred IF document is at least 20 years old, facially free of suspicion (no white outs, erasures), and found in a place of natural custody
4. Solicited Reply Doctrine: A document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.
5. Procedure: The proper procedure when an issue of fact is raised as to the authenticity of a document is
a. Conditional relevancy standard: The document is admissible if the court determines there is sufficient evidence from which a reasonable juror could conclude that the document is genuine. Ultimate decision as to authenticity is for the jury.
1. In General: Certain documents are presumed to be authentic --> no need for foundation testimony
(a) Official publications (i.e. gov’t regs)
(b) Certified copies of public or private records on file in public office
(c) Newspapers or periodicals
(d) Trade inscriptions & labels (i.e. label on can)
(e) Acknowledged Document (certification by notary public)
(f) Commercial Paper (i.e. promissory note)
2. Effect: Shifts the burden of proof to the other side to show absence of genuineness
1. Rule: A witness may testify on the basis of personal knowledge that the photograph is a “fair & accurate representation” of the people or objects portrayed.
Definition: A party who seeks to prove the contents of a writing must either produce the original writing, or provide an acceptable excuse for its absence
If the court finds the excuse is acceptable, the party may then use secondary evidence --> oral testimony or a copy
Note: The definition of writing includes sound recordings, X-rays & films
1.Legally operative document: The writing is a legally operative document, meaning that the law treats the writing itself as creating rights and obligations (i.e. Ks, patents, deeds, mortgages, etc.)
2. Even if not a legally operative document, Witness is testifying to facts that she learned solely from reading about them in a writing (instead of personal knowledge)
Does NOT Apply: When a witness with personal knowledge testifies to a fact that exists independently of a writing that records the fact.
1. Whatever the parties intended as the original; any counterpart intended to have the same effect; any negative of film or print from the negative; computer print-out
2. Duplicate: any counterpart produced by any mechanical means that accurately reproduced the original (e.g. photocopy, carbon copy)
a. Rule: Duplicate is admissible to the same extent as the original UNLESS it would be unfair (e.g. photocopy of fuzzy fax), or genuine question is raised as to authenticity of original.
3. Handwritten copy is NEITHER an original nor duplicate (i.e. handwrite summary of contract)
2. Destroyed w/o bad faith
3. Cannot be obtained w/ legal process --> know where it is, but it is beyond the court’s subpoena power
* Standard: The court must be persuaded by a preponderance of the evidence that the excuse has been established. Secondary evidence is then admissible.
1. Voluminous Records can be presented through a summary or chart, provided the original records would be admissible and they are available for inspection.
2. Certified copies of public records: original kept on file at public office
3. Collateral documents: documents that are not very important to the case
a. At the court’s discretion whether an item is collateral
1. Basics: Two basic requirements
(a) Personal knowledge: witness saw w/ own eyes, heard w/ own ears
(b) Oath or affirmation: Demonstration by witness that willing to tell the truth
2.Maryland Rule: Person previously convicted of perjury is disqualified from testifying
a.Exception: Criminal defendant has a constitutional right to testify despite prior perjury convictions
a. FRE/in general: A witness is not ordinarily incompetent merely bc she has an interest – a direct legal stake – in the outcome of the litigation
b. State Dead Man's Acts: The typical Act provides that in a CIVIL action, an interested witness is incompetent to testify in support of her own interest against the estate of a decedent concerning communications or transaction between the interested witness and the decedent.
c. FRE does NOT have a Dead Man's Rule
1. GENERALLY NOT ALLOWED on DIRECT EXAMINATION of witness
2. Generally ALLOWED on CROSS-EXAMINATION of witness.
3. BUT allowed on DIRECT EXAM as follows:
(1) Preliminary introductory matters
(2) Youthful or forgetful witness
(3) Hostile witness
(4) If witness is the adverse party, or someone under the control of the adverse party
(1) Basic Rule: Witness may not read from prepared memorandum; must testify on basis of current recollection.
(2) BUT if witness’s memory fails him, he may be shown a memorandum (or any other tangible item) to jog his memory
(a) Once witness’s recollection is refreshed, he may NOT read the writing into evidence --> once memory restored, writing must be set aside
(3) Adversary has the right
(a) To inspect the memory refresher
(b) To use it on cross-examination
(c) To introduce it into evidence
(2) witness had personal knowledge at former time
(3) writing was made by the witness, or adopted by the witness(4) making or adoption occurred when the event was fresh in the witness's memory
(1) rationally based on the witness’s perception (personal knowledge), and
(2) helpful to the jury
(b) Typical examples
1) Drunkenness or sobriety
2) Speed of vehicle
4) emotions of another person
7) Odor (of marijuana)
(a) Qualifications: Education AND/OR experience (i.e. Marisa Tomei, My Cousin Vinny)
(b) Proper Subject Matter: Scientific, technical, or other specialized knowledge that will be helpful to the jury in deciding a fact
- If something is obvious --> not helpful
(c) Basis of Opinion: Expert must have opinion based on “reasonable degree of probability or reasonable certainty”
i. Three permissible data sources;
(1) Personal knowledge
(2) other evidence in the trial record usually made known to the expert by hypothetical question
-i.e. testimony by other witnesses, exhibit (medical reports, X-rays)
(3) Facts outside the record (hearsay) if the outside information is of a type reasonably relied on by experts in this field forming opinions.
a. General rule: If the material relied upon by the expert is from outside the record, the expert may only state in general terms what she relied upon w.o disclosing the actual content
b. Exception: The court, in its discretion, may allow the jury to hear the contents of an out-of-court material IF:
(1) It is necessary to aid the jury in determining the probative value of the expert's opinion, and
(2) The court gives a limiting instruction to the jury not to use the out of court material for its truth
c. MD Limit: Limit on the use of outside sources in criminal cases.
1.MBE: Daubert: Court serves as “gatekeeper” and will use 4 principal factors to determine reliability of principles & methodology used by experts to reach opinion --> “TRAP”
Testing of principles or methodology
Rate of error
Acceptance by other experts in the same discipline. FRE: general acceptance NOT required
Peer review and publication
a. Scientific evidence: including medical opinions by physicians. The sole determining factor for reliability is general acceptance --> scientific evidence must be based on principles or methods that are generally accepted in the relevant scientific community.
b.Non-scientific expertise: More flexible standard of “adequate” methodology.
(1) Direct exam of party’s own expert: Relevant portions of the treatise, periodical, or pamphlet may be read into evidence as substantive evidence (to prove TOMA) if established as reliable authority
(2) Cross-exam of opponent’s expert: Read into evidence to impeach and contradict opponent’s expert. Comes in as substantive evidence.
(3) BUT learned treatise may NOT be used as an exhibit.
a. Rule: Opinion testimony (lay or expert) is permissible even if it addresses an “ultimate issue” in the case (e.g. DUI case, layperson testifies that D “seemed drunk”).
1. BUT --> all other requirements for opinion testimony must be satisfied, including the requirement that the opinion is helpful (i.e. LEGAL JARGON is NOT helpful)
b.Criminal Cases: Expert’s Opinion on Defendant’s Sanity or Insanity
1. MDE Rule: Ultimate issue is still a proper objection if expert seeks to give direct opinion as to defendant's sanity or insanity.
- The expert can only testify in general terms about the effects of a defendant's mental condition without linking it to the particular case.
2. MARYLAND RULE: Expert witness may give an opinion that the criminal defendant was or was not sane.
1.Party has the RIGHT to cross-examine any opposing witness who testifies at the trial. Significant impairment of this right will result, at minimum, in striking of witness’s testimony.
2. Proper Subject Matter:
(a) Matters WITHIN THE SCOPE of direct examination, and
(b) Matters that test the witness’s CREDIBILITY
1. Bolstering Own Witness
a. Rule: Not allowed until AFTER the witness’s credibility has been attacked --> rehabilitation
b. Exception: A witness’s prior identification of a person: Sounds like hearsay, BUT a prior identification by a trial witness is not barred by the hearsay rule --> It is labeled as an “exclusion” from hearsay, & comes in as substantive evidence.
1.Note: Witness who made prior identification must testify at trial
2. Impeachment of Own Witness: You CAN impeach your own witness!
(1) Prior Inconsistent Statements
(2) Bias, Interest, or Motive to Misrepresent
(3) Sensory Deficiencies
(4) Bad Reputation or Opinion about witness’s character for truthfulness
(5) Criminal Convictions
(6) Bad Acts (w/o conviction) that reflect adversely on witnesses’s character for truthfulness
a. Rule: Any witness may be impeached by showing that on some prior occasions, she made a material statement (orally or in writing) that is inconsistent w/ her trial testimony.
b.General Purpose: The prior inconsistent statement is admissible ONLY for the purpose of IMPEACHMENT
c.Exception: A prior inconsistent statement may be admitted BOTH for impeachment and as substantive evidence IF the statement was made:
(1) Orally under oath, and
(2) It was made as part of a formal hearing, proceeding, trial, or deposition
- Hearsay exclusion under FRE
- Includes grand jury testimony
1. FRE: Confrontation timing is FLEXIBLE --> not required to immediately confront witness.
a. HOWEVER: after proof by extrinsic evidence, the witness must be given an opportunity at some point to return to the stand to explain or deny the prior inconsistent statement.
2. Maryland Rule: Confrontation on stand is required before the conclusion of the witness's testimony
a. Oral statement: Witness must be told the contents of the prior statement, time & place, and person to whom it was made
b. Written statement: Witness must be shown the writing
c. The witness must be given the opportunity, before examination ends, to deny or explain the prior inconsistent statement
- If the witness denies the statement, extrinsic evidence may be introduced later to prove it
3. Exception (MBE & MD): No opportunity to explain needs to be given if the witness is the opposing party bc the statement is ALWAYS admissible as a party admission
a. Rule: Can show any fact that would give a witness an incentive to be favorable or hostile to a party.
b. Purpose: To suggest testimony is false, slanted, or mistaken’s in party’s favor
c.Purpose: To suggest testimony is false, slanted, or mistaken’s in party’s favor
(a) Must witness be confronted with alleged bias while on the stand?
1. FRE: YES
(b) May bias be proven by extrinsic evidence? Yes if the procedural prerequisites are followed.
a. Rule: Anything that could affect the witness’s perception or memory, such as bad eyesight, bad hearing, mental retardation, consumption of alcohol or drugs at time of event or while on the witness stand.
b.Purpose: to suggest mistake
(a) Confrontation required?
1. FRE: NO
(b) Extrinsic evidence allowed? YES
b. Procedural Issues
(a) Confrontation Required? NO
(b) Extrinsic evidence allowed? Yes --> this type of impeachment is done by calling a character witness
c.Rule: Call a character witness to testify that Target Witness has bad reputation for truthfulness, or that character witness has low opinion of Target Witness’s character for truthfulness.
d.Purpose: to suggest that Target Witness is NOT telling the truth on the witness stand.
e. Inadmissible: Character witnesses may not testify about specific acts of a witness's untruthfulness
a. Purpose: To suggest testimony is false
b. Relevance: A person who has been convicted of a crime is more likely to lie under oath than is a person w/ an unblemished record
1) Conviction of ANY crime (felony or misdemeanor) as to which the prosecution was required to prove false statement as an element of the crime
a. False statement: the speaking of false words
1.Rule: Must be a truth-telling type of crime, such as perjury or fraud, NOT merely theft
b. Automatically admissible: If witness was convicted for a crime involving proof of false statements as an element, automatically admissible (NO judicial discretion)
2) Felony: If the conviction did NOT require proof of false statement, it MUST be a felony
a. Court's discretion: The court may exclude the conviction, in its discretion, if probative value on the issue of witness credibility is outweighed by the danger of unfair prejudice to a party (misuse as evidence of liability or guilt).
3) Time Limitations: Conviction or release from prison, whichever from later, must be within 10 years of trial
a. More than 10 years: Conviction may not be used for impeachment UNLESS the proponent shows that the probative value on the issue of credibility is substantial & the judge has discretion
4) Procedure: Ask witness to admit prior conviction or introduce record of conviction (extrinsic evidence)
(1) Two types of crimes: can impeach with convictions for two types:
1.Infamous Crimes: includes treason, common law felonies (murder, rape, arson, robbery, burglary, grand larceny), and crime involving deceit or false statement
2. A crime relevant to witness credibility: Evolving standard.
a. THEFT = relevant
b. NOT relevant: crimes involving violence, indecent exposure, and motor vehicle offenses
c. Narcotics offenses:
- Distribution/sale: Relevant
- Possession: NOT relevant
(2) Balancing: Court balances impeachment value against potential for prejudice to witness or party. Applies to ALL convictions: No automatic admissibility in MD.
(3) Time Limitation: Conviction must be within 15 years of trial (to be computed from date of conviction, not release from prison).
(4) Appeals: Cannot use conviction to impeach if an appeal of the conviction is pending
a. ONLY Permissible Procedure: Confront the witness on cross-examination --> no extrinsic evidence!
b. Cross-examiner must have a good faith basis for the inquiry AND permission to make the inquiry is subject to the court’s discretion.
c.Exam tip: Proof with extrinsic evidence may still be allowed if the bad act is relevant for some purpose other than bad character for truthfulness, such as bias.
d. Arrests, indictments, arraignments: CANNOT ask the witness if he was arrested, indicted, or arraigned, bc these are just ACCUSATIONS. Ask about the underlying act
a. Concept: Cross-examiner, through confrontation of witness, may try to obtain admission that she made a mistake or lied about any fact she testified to during direct examination.
1. If the witness admits the mistake or lie, she has been impeached by contradiction.
2. However, if she sticks to her story, the issue becomes whether extrinsic evidence may be introduced to prove the contradictory fact.
b. Rule: Extrinsic evidence is NOT ALLOWED for the purpose of contradiction IF that fact at issue is COLLATERAL
1. Showing witness’s good character for truthfulness
a) When: ONLY when impeachment clearly suggested that witness was lying as compared to only mistaken
b) How: Bring out a character witness to give reputation or opinion testimony.
2.Prior Consistent Statement to Rebut a Charge of Recent Fabrication
a) When: If the witness's trial testimony is attacked as a recent fabrication, or as a product of improper influence, a prior statement by the witness that is consistent with her testimony will be admissible to rebut the charge IF the statement was MADE before the motive to fabricate arose.
b) Purpose: Admissible to rehabilitate credibility AND as substantive evidence that the prior statement was true --> hearsay exclusion under the FRE
a.Federal Court action arising under FEDERAL SUBSTANTIVE LAW: Privileges are governed by federal common law --> use basic privilege rules
b.Federal Court Action BASED ON DIVERSITY jx where state substantive law applies (Erie situation): Apply privilege law of the STATE whose substantive law is applicable.
1. Note: In Diversity actions, apply state substantive law on:
a. Competency (Dead Man's Statutes)
b. Burdens of proof & presumptions
1. Rationale: To encourage client to speak openly to counsel
2. Elements: Privilege applies to
1) Confidential communications
2) between attorney and client (or representative of either)
3) Made during professional, legal consultation
4) Unless privilege is waived by the client
5) Or an exception is applicable
1) Joint client rule: If two or more clients w/ common interest consult the same attorney, their communications w/ counsel concerning the common interest are privileged as to third parties. BUT if the joint clients later have a dispute with each other concerning the common interest, privilege does not apply as between them
2) Communication: Actual exchange between attorney & client is covered
a. Does NOT apply to underlying information, pre-existing documents, or physical evidence
1.Representative of the attorney: any agent rx necessary to facilitate the provision of legal services covered
1.Representative of client: any agent rx necessary to facilitate the provision of legal services.
1) Voluntary Waiver: Only the client has the power to waive the privilege --> continues after client’s death, and only the client’s estate can waive it.
2) Subject Matter Waiver: A voluntary waiver of the privilege as to some communications will also waive the privilege as to other communications if:
a) Partial disclosure is intentional,
b) The disclosed & undisclosed communications concern the same subject matter, and
c) Fairness requires that the disclosed & undisclosed communications be considered together
3) Inadvertant Waiver: An inadvertant disclosure of a privileged communication will not waive the privilege so long as the privilege holder
a) Took reasonable steps to prevent the disclosure; and
b) Takes reasonable steps to correct the error
(1) Future crime or fraud: e.g. client tells attorney: “Help me disguise the bribes I made.”
(2) Client puts legal advice in issue: e.g. defense to tax fraud prosecution that relied on attorney’s advice
(3) Attorney-client dispute: e.g. attorney sues client for unpaid fee, or client sues attorney for malpractice.
1. Usually created by state statute
2. Rationale: to encourage candor by patient and to protect privacy
3. Elements: Privilege applies to
1) Confidential communication or information acquired by physician from patient
2) for purpose of diagnosis or treatment of medical condition
Also applicable to psychotherapists (M.D. or other professionals certified to diagnose or treat mental/emotional illness)
4. Federal Distinction: In federal court actions based solely on federal law, the privilege exists ONLY for psychotherapy. No federal physician-patient privilege
5. Exception: No privilege if patient expressly or impliedly puts physical or mental condition in issue
(1) Plaintiff puts mental condition in issue;
(2) Malpractice action against psychotherapist;
(3) in proceeding by state to commit patient to mental health facility;
(4) in case of child abuse or neglect
a. Rule: A spouse cannot be compelled to testify about anything against the defendant-spouse
b.Rationale: to protect harmony of existing marriage at the time of trial
c.Holder: Witness-spouse --> can waive and choose to testify
d. Privilege lasts DURING marriage --> ends when marriage ends
a. Rule: In ANY case, a spouse is not required, and is not allowed, in the absence of consent from the other spouse to disclose a confidential communication made by one to the other during the marriage.
b.BOTH spouses hold the privilege: one alone can’t waive
c. Rationale: to encourage candor bw spouses during the marriage
d. Privilege SURVIVES the marriage
1) Communications or acts in furtherance of jointly-perpetrated future crimes
2) Communications or acts destructive of the family unit (e.g. spousal or child abuse)
3) In litigation bw the spouses themselves
1. Out of court statement of a person (oral or written) AND
2) Offered to prove the truth of the matter asserted in the statement
Hearsay Rule: Hearsay is inadmissible unless an exception or exclusion applies
Rationale: The credibility of the declarant (out of court speaker or author) at the time the statement was made was not tested through cross-examination in the presence of the current fact-finder
1. Some out of court statements are NOT hearsay if NOT offered to prove the truth of the matter asserted in the statement.
2. If offered for some other purpose --> credibility of the declarant is irrelevant
Principle Categories of Non-Hearsay Purposes
1. Verbal Act (Legally Operative Words): Situations where the law attaches rights & obligations to certain words
a. Ex: Terms of patent or copyright, contract formation, making gift; bribery; perjury' fraud, defamation; words accompanying ambiguous acts
2. To Show Effect on the Person Who Heard or Read the Statement
a. Ex: Motive, notice
3. Circumstantial Evidence of Speaker's State of Mind
a. Ex: Homer says, "I am Elvis Presley to show Homer is insane; false alibi as circumstantial evidence of consciousness of guilt; question to show lack of knowledge
1. General Rule: A witness’s own prior statement, if offered to prove the truth of the matter asserted in the statement, is hearsay & is inadmissible unless an exception or exclusion applies.
2.Prior Witness Statements that Qualify For Admissibility as Substantive Evidence (for the TOMA) --> called “exclusions” or “nonhearsay” under the FRE, exceptions in MD
1. Witness’s prior statement of identification of a person
2. Witness's prior inconsistent statement IF oral, under oath, made during formal trial, hearing, proceeding, or deposition
a. MD Distinction: admissible as substantive evidence if the statement was:
(a) Oral under oath & made during a formal trial, hearing, proceeding, or deposition; or
(b) contained in a writing, signed by the witness; or
(c) recorded by stenographic or electronic means at the time the statement was made
a. FRE: “Nonhearsay” or “exclusion.
1. Note: Recent update to FRE, call it “a statement attributable to an opposing party offered against an opposing party”
b.MD: Hearsay exception
3. Theory: Party ought to bear the consequences of what she says. Can explain it to the jury and cannot complain ab inability to cross-examine self.
4. Rule: No requirement that the statement be against the party's interest
5. Rule: No requirement that the party have personal knowledge
a. Rule: If a party expressly or impliedly adopts a statement made by another person, it is as though the party herself made the statement. Adoption by silence occurs when a party remains silent under circumstances in which a rx person would protest if the statement were false.
A form of party admission
a. Rule: Statement by agent/employee is admissible against the principal/employer if statement concerns matters within the scope of agency/employment and is made during the existence of the agency/employment relationship.
a. No requirement that employee be on the job when speaking.
a. Rule: The statement of a co-conspirator is admissible against a party who is a member of the conspiracy if the statement was made (1) during and (2) in furtherance of the conspiracy
Rule: In the context of hearsay, the prosecution may not use a hearsay statement against the criminal defendant (even if it falls w/in a hearsay exception) if:
1. The statement is testimonial,
2. The declarant is unavailable, and
3. The defendant has had no opportunity for cross-examination (may be satisfied either before or at trial)
1) Grand jury testimony: is testimonial
2) Statements in response to police interrogation: IT DEPENDS
a) Testimonial if the primary purpose of the questioning is to establish or prove past events potentially relevant to a criminal prosecution
b) Non-testimonial if the primary purpose of the questioning is to enable police assistance to meet an ongoing emergency
(1) by a preponderance of the evidence
(2) that defendant’s conduct was designed to prevent the witness from testifying
Effect: D forfeits both the hearsay & 6th Amendment objection
MD: Three Limits:
1. Type of crime: D must be on trial for a crime of violence or narcotics
2. Format: Unavailable declarant made the statement
(i) orally under oath during a trial, hearing, or other proceeding, OR
(ii) in a writing signed by the declarant, OR
(iii) in a recorded format: stenographic or electronic
3. Burden of proof: D's responsibility for declarant's unavailability must be proven by clear & convincing evidence
(a) The former testimony of a now-unavailable witness, if given at a former proceeding or in a deposition, is admissible against a party who, on the prior occasion, had an opportunity & motive to cross-examine or develop the testimony of the witness.
1. Issue in both proceedings must be essentially the same.
(b) Theory: reliability assured by cross-examination on prior occasion; however, we prefer live testimony, so witness must now be unavailable
Absence from the jurisdiction --> cannot be found w/ due diligence, or beyond the court’s subpoena power
Illness or death
Lack of memory
Stubborn refusal to testify
or penal interest (money, property, or criminal liability)
(b) Theory: Not likely to lie when making a personally damaging statement about such interests
(c) Statement against interest differs from party admission:
- Must be against interest when made
- Any person can make a statement against interest
- Personal knowledge required
- Declarant must be unavailable
(d) Criminal Cases: Statement against penal interest must be supported by corroborating circumstances showing the trustworthiness of the statement
(a) Statement made under a belief of impending and certain death by a now-unavailable declarant concerning the cause or surrounding circumstances of the declarant’s death
1. Belief of impending & certain death: Need to show that declarant has given up all hope of survival
(b) Limits on type of case
- Criminal cases: Homicide only
- Civil Cases: ALL TYPES
- Criminal cases: Homicide, attempted homicide, and assault w/ intent to kill
-Civil Cases: All types
(a) Statement made concerning a startling event and made while declarant is still under the stress of excitement caused by the event
(b) Theory: excitement suspends one’s capacity to fabricate
(c) Factors to consider in determining whether a statement qualifies as an excited utterance:
(1) Nature of the event
(2) Passage of time: closer in time, more likely person is still under the influence
(3) Visual clues
(i) an exclamatory phrase
(ii) an excitement-oriented verb
(iii) an exclamation point
(a) Description of an event made while the event is occurring or immediately thereafter; (w/in seconds)
(a) Contemporaneous Statement concerning declarant’s present state of mind, feelings, emotions
(a) Statement of declarant’s intent to do something in the future, including the intent to engage in conduct with another person
1. Hillman doctrine: can be used to prove future conduct of the other person
(a) Statement made to anyone (usually medical personnel) if made for the purpose of obtaining medical treatment or diagnosis & concerning the declarant’s
(i) Present symptoms
(ii) Past symptoms
(iii) The general cause of the condition
NOT including statements about fault or the identity of the wrongdoer
UNLESS it is a domestic violence or child abuse case in which the victim is identifying the abuser
(1) Statement made by child under age of 13 who is a victim of alleged sexual offense, or child abuse or neglect;
(2) Statement was made to physician, psychologist, nurse, social worker, school official, licensed counselor, or licensed therapist;
(3) Statement has particularized guarantees of trustworthiness.
- If the statement is introduced in a criminal case or juvenile court proceeding, the child victim must also testify at the trial, subject to cross-examination. Note: This eliminates 6th Amendment confrontation violation
- If the statement was introduced in a proceeding for a "child in need of assistance" the statement may be admitted regardless of whether the child victim testifies, provided that it is corroborated by other evidence of the alleged offender's abuse or neglect.
(1) Records of any type of business
- Includes gov’t business (i.e. police)
(2) made in the regular course of business
(3) the business regularly keeps such records
(4) made at or about the time of the event recorded
(5) contents consist of either
- information observed by employees of the business --> need not be observed by the employee making the recording, or
- a statement that falls within an independent hearsay exception
(1) Call sponsoring witness to testify to the 5 elements of the business records hearsay exception; witness need not be the author of the report: can be records custodian or any other knowledgeable person within the business; or
(2) Written certification under oath attesting to elements of business records hearsay exception
(1) the activities of the office or agency itself; or
(2) matters observed pursuant to a duty imposed by law
(3) findings of fact or opinion resulting from an investigation authorized by law
(b) Excluded: Police reports prepared for prosecutorial purposes are NOT ADMISSIBLE against the defendant in a criminal case.
1. Nor is the prosecution in such cases allowed to introduce a police report against the D under the alternative theory of business records
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