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MBE Evidence III

Evidence - Hearsay

Approach to Hearsay 1) Isolate 2)Determine who is the declarant 3)Purpose for whcih the evidence is being offered: --For its truth=hearsay --Not for its truth=not hearsay 4)Apply the hearsay exceptions
Effect of Listener FRE 803(3) I -Not Hearsay: --Circumstantial Evidence offered to show: 1)Knowledge 2)Intent 3)Attitude 4)Belief *OF the declarant or of the listener
Effect of Listener FRE 803(3) II Hearsay Exception: -Statement of then existing state of mind or physical condition 1)Intent 2)Design 3)Plan 4)Motive *Offered for its truth
Statement Made for Medical Diagnosis or Treatment Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain , or sensations, or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
FRE 803(6): Business Record -Report or record concerning act or event -Made at or near the time -By a person with knowledge -Kept in the regular course of business
Past Recollection Recorded I -The witness once had personal knowledge or the writing; -the witness now forgets the writing and showing the writing to the witness does not jog his or her memory; the writing was either made by the witness or adopted by the witness;
Past Recollection Recorded II -The writing was made when the event was fresh in the witness's memory; and -The witness can attest that, when made, the writing was accurate
Absence of Entry in a Business record Lack of a record to prove that a transaction or occurrence had not taken place, is admissible if it was the regular practice of the business to record such events if they had actually occurred.
FRE 803(2): Excited Utterance Statement relating to a startling event made while declarant was under the stress of excitement caused by the event.
FRE 804(b)(2): Dying Declaration 1)Statement must concern cause or circumstances of death 2)Unavailable declarant 3)Criminal homicide or any civil case 4)Declarant's belief of imminent death
Confrontation Clause -The Confrontation Clause req' that --In a criminal case --Where the declarant is unavailable "Testimonial" evidence is inadmissible unless D is given a prior opportunity to cross-examine the declarant.
Davis v. Washington & Hammon v. Indiana -Non Testimonial:Primary purpose is to obtain police assistance to meet an ongoing emergency -Testimonial: Primary purpose of the interrogation is to establish or prove past events relevant to later prosecution
FRE 804(b)(3): Declaration Against Interest Statement of an: 1)Unavailable 2)Non-party (generally) 3)Against interest when made (penal, pecuniary or proprietary)
FRE(b)(1): Former Testimony -Testimony from the same or different proceeding, or in a deposition -Unavailable declarant -Opportunity and similar motive to develop the testimony on direct, cross or redirect.
FRE 804(b)(4): Statement of Pedigree A statement concerning declarant's own relationship by blood, adoption, or marriage or other similar fact of personal or family history.
Leading Questions Appropriate When: -On cross -Hostile or adverse witnesses -Questioning children -Refreshing a witness -Preliminary background matters
Spousal Privilege -Protects communications Before AND during marriage (impressions/observations) Privilege lost at divorce **Criminal cases ONLY -Holder: --Common law:Party spouse --Fed. Courts: Witness spouse
Marital Privilege -Protects communications only DURING the marriage -Privilege survives divorce -Both Civil and Criminal -Holder: --Both Spouses
Attorney Client Privilege -Communications between a client and her atty are inadmissible -Rationale:By assuring confidentiality the privilege encourages clients to make "full and frank" disclosures to their attys, who are then better able to provide advice and effective rep
Opinion Testimony -Lay witnesses may offer opinion testimony, if: -Opinions must be based on first-hand knowledge or perception; and -Helpful to the finder of fact
Created by: Gkell001
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