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Rule 403 balancing factors accuracy (danger of unfair prejudice, of misleading jury, or of confusion) and efficiency (delay, waste, cumulative)
Definition of Judicial Notice Judicial recognition of a fact as true without formal presentation of evidence.
What can a court take judicial notice of? Indisputable facts. Two forms: [1] Matters of COMMON KNOWLEDGE within the ct's territorial jur. [2] Matters capable of easy verification by resort to unquestionable sources. NOTE: Judicially noticed facts conclusive in civil cases, but NOT in crim.
In a defamation case, if plaintiff wishes to testify as to what the defendant said, will the testimony constitute hearsay? NO. An alleged defamatory statement does not constitute hearsay because it is a verbal act (a/k/a legally operative words).
When is a specific instance of a person's conduct admissible? When character is directly in issue. Most common: DEFAMATION and NEGLIGENT ENTRUSTMENT.
What hearsay exception is related to judicial notice? The learned treatise exception. An attorney can request the court to take "judicial notice" that a treatise is a "reliable authority".
What are the proper methods of authentication? (1) Testimony by W w/ pers knowledge; (2) Proof of author's handwriting; (3) Ancient document rule; (4) solicited reply; (5) self-authenticating docs
When does the PRESENT STATE OF MIND exception to hearsay apply? Hillmon case (e.g. I'm going to crooked creek): statements of intent to do something in the future.
When does the past PHYSICAL CONDITION exception to hearsay apply?
What are the exceptions to hearsay where UNAVAILABILITY is required? What are the different forms of "unavailability"? (FiSDePF) former testimony, statement against interest, dying declaration, pedigree, forfeiture by wrongdoing
Best Evidence Rule aka original document rule. [1] legally operative docs; or [2] facts learned from writing/recording. Exs: [1] deeds; [2] Jack Bauer + [1] surveillance [2] timesheets
What is the "collateral document" rule Ex: Dr. Drew takes stand and says he's a licensed physician. His license is collateral.
How can you prove author's handwriting? by (a) lay W who's familiar (b) expert, (c) jury comparison
What docs are self-authenticating? Official publications; Cert copies of public docs on file in public office; newspapers; trade inscriptions and labels; notarized docs; commercial paper; certified business records.
Ancient document rule At least 20 yrs old (In NY, must be 30 yrs); free of suspicion and found where it would be expected. [Ex: Nicolas Cage on trial for stealing the US Constitution from the Nat'l Archives].
Business Record exception to hearsay BaRem RecaTOF: business; regularly made; regularly recorded; made about the TIME of event; and OBSERVED by employees or FALLS w/in independent hearsay exception
Statements against interest exception PPP: pecuniary, proprietary, or penal interest
What's the difference b/w "statements against interest" and "party admissions"? 1) UNAVAILABILITY required; 2) against interest at the TIME statement was made; 3) PERSONAL KNOWLEDGE; 4) ANY PERSON can make statement. [Ex: Porky Pig sues ACME for negligent driving of Donald Duck. DD tells police he was drinking. ACME fires DD.]
Pleas or Plea Discussions FRE: Inadmissible: offer to plead guilty, withdrawn guilty plea, nolo contende, and statements of fact during any of the above. NY: Withdrawn guilty pleas are ADMISSIBLE in a subsequent civil case.
Public Records (FRE Only; NY doesn't recognize) Public records setting forth (A) activities of office, or (B) matters observed under legal duty EXCLUDING in crim cases matters observed by law enf, or (C) in civil actions and against the gov’t in crim cases, findings resulting from an invstgation.
Created by: mdiaz367