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Evidence

Barbri Review

QuestionAnswer
Not covered in lecture- (rarely on exam) Procedural considerations, Burden of proof, Presumptions, Judicial notice, Real evidence
Cover in lecture- (ON EXAM) 80%- Relevance, Witnesses, Hearsay; 15%- Authentication, Best evidence rule, Privileges
Relevance- Basics Evidence is relevant if it has ANY TENDENCY to make a material fact more probable or less probable than would be the case w/o evidence
Relevance- Basics; Exceptions All relevant evidence is admissible, unless- a. Some specific exclusionary rule applicable, b. Ct makes discretionary determination that probative value of evidence substantially outweighed by pragmatic considerations
Relevance- Basics; Exceptions: Pragmatic considerations 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
Relevance- Similar occurrences Evidence concerns some time, event, or person other than that involve din case at hand, the evidence is INADMISSIBLE
Relevance- Similar occurrences; P's accident history P accident history is inadmissible b/c shows nothing more than fact P is accident prone; Just general character evidence (not allowed in civil action)
Relevance- Similar occurrences; P's accident history: Exception P prior accidents admissible if cause of P's injuries is in issue; ASK- For what purpose is evidence being offered
Relevance- Similar occurrences; Similar accidents cause by same event or condition Other accidents involving D are inadmissible b/c suggest nothing more than general character for carelessness
Relevance- Similar occurrences; Similar accidents cause by same event or condition: Exception Other accidents involving same instrumentality or condition admitted if other accident occurred under substantially similar circumstances shows- 1. Existence of dangerous condition, 2. Causation of accident, 3. Prior notice to D; Incl.- experiments/te
Relevance- Similar occurrences; Intent in issue Prior similar conduct of person may be admissible to raise an inference of person's intent on later occasion
Relevance- Similar occurrences; Comparable sales on issue of value Selling price of other property of similar type, in same general location, and close in time to period at issue, is some evidence of value of property at issue
Relevance- Similar occurrences; Habit (routine of bus. org.) Admissible as circumstantial evidence of how person (or business) acted on occasion at issue in litigation
Relevance- Similar occurrences; Habit (routine of bus. org.): Distinguish character evidence Refers to persons' general disposition or propensity, not admissible to prove conduct on particular occasion
Relevance- Similar occurrences; Habit (routine of bus. org.): Definition Habit is a repetitive response to particular set of circumstances; Two defining characters- 1. Frequency of conduct, 2. Particularity of conduct; Key- Always, invariably, automatically, instinctively
Relevance- Similar occurrences; Industrial custom as standard of care Evidence as to how others in same trade or industry have acted in recent past may be admitted as some evidence as to how a party in instant litigation should have acted
Relevance- Policy based exclusions; Liability insurance Evidence person has or does not have liability insurance is inadmissible for purpose of showing fault or absence of fault
Relevance- Policy based exclusions; Liability insurance: Policy To avoid risk jury will base decision on availability of insurance instead of merits of case
Relevance- Policy based exclusions; Liability insurance: Exception Evidence of insurance may be admissible for some other relevant purpose, such as- a. Proof of ownership/control of instrumentality or location, if disputed by D, or b. Purpose of impeachment of witness (should not be believed)
Relevance- Policy based exclusions; Subsequent remedial measures Post-accident repairs, design changes, policy changes; Inadmissible for purpose of proving negligence, culpable conduct, product defect, or need for warning
Relevance- Policy based exclusions; Subsequent remedial measures: Policy To encourage post-accident repairs, etc. to avoid future accidents; Products liability based on strict liability, subsequent remedial measure inadmissible to show existence of defect
Relevance- Policy based exclusions; Subsequent remedial measures: Exception Subsequent remedial measure may be admissible for some other relevant purpose, such as proof of ownership/control or feasibility of safer condition, if either is disputes by D (must be D raising issue)
Relevance- Policy based exclusions; Settlements of disputed civil claims In event of disputed civil claim, following inadmissible- settlement, offer to settle, statements of fact during settlement discussion,- for purpose of showing liability; Claim must be disputed to validity or amt of damages
Relevance- Policy based exclusions; Settlements of disputed civil claims: Policy To encourage settlement
Relevance- Policy based exclusions; Settlements of disputed civil claims: Exceptions 1. Settlement evidence admissible for impeaching witness for bias, 2. Statements of fact made during settlement discussion in civil litigation with gov't regulatory agency admissible in later criminal case (prosecutor use high probative factual evidence)
Relevance- Policy based exclusions; Offer to pay hospital or medical expenses Evidence party has paid or offered to pay an accident victim's hospital or medical expenses is inadmissible to prove liability; Not exclude statements made in connection w/offer to pay hospital or medical expenses
Plea bargaining in criminal cases- Inadmissible; Offer to plead guilty Cannot be used against D in pending criminal case or in subsequent civil litigation based on same fact
Plea bargaining in criminal cases- Inadmissible; Withdrawn guilty plea Cannot use against D in pending criminal case or subsequent civil litigation based on same facts
Plea bargaining in criminal cases- Inadmissible; Plea of nolo contendere Cannot be used against D in subsequent civil litigation based on same facts
Plea bargaining in criminal cases- Inadmissible; Statements of fact Made during any of above plea discussion
Plea bargaining in criminal cases- Admissible; Plea of guilty Admissible in subsequent litigation based on same facts under rule of party admissions
Relevance- Character evidence Refers to person's general propensity or disposition (honesty, fairness, peacefulness, violence)
Relevance- Character evidence; Admissibility 1. Person's character essential element in case (rare), 2. Evidence to prove conduct in conformity w/character at time of litigated event (circumstantial evidence of conduct), 3. Witness's bad character for truthfulness to impeach credibility
Relevance- Character evidence; Criminal cases: Defendant's character Evidence of D's character prove conduct on particular occasion inadmissible during prosecutions case-in-chief; However, D during defense, introduce evidence of relevant character trait (reputation/opinion) prove conduct opens door to rebuttal prosecution
Relevance- Character evidence; Criminal cases: Prosecution's rebuttal If D opened door by calling character witness, prosecution may rebut
Relevance- Character evidence; Criminal cases: Prosecution's rebuttal, By cross D's character witness w/"have you heard"/"did you know" questions about specific acts of D reflect adversely on particular character trait D introduced; Limited purpose to impeach character witness knowledge about D
Relevance- Character evidence; Criminal cases: Prosecution's rebuttal, Own reputation/opinion witness By calling own reputation or opinion witness to contradict D's witnesses
Relevance- Character evidence; Criminal cases: Victim's character, Self-defense case Criminal D may introduce evidence of victim's violent character to prove victim's conduct in conformity (circumstantial evidence victim first aggressor)
Relevance- Character evidence; Criminal cases: Victim's character, Self-defense case- Proper method Character witness may testify to victim's reputation for violence and may give opinion
Relevance- Character evidence; Criminal cases: Victim's character, Self-defense case- Prosecution rebuttal Evidence of victim's good character for peacefulness (reputation/opinion); Plus, prosecution may prove D's character for violence
Relevance- Character evidence; Criminal cases: Defendant's character When character evidence admissible through character witness to prove conduct conformed, proper form- 1. Reputation evidence, and/or 2. Opinion evidence; NOT specific acts, unless law abiding about trait at issue
Relevance- Character evidence; Criminal cases: Victim's character, Self-defense case- Homicide If D offers evidence of any kind victim was first aggressor, prosecution may introduce evidence of victim's good character for peacefulness
Relevance- Character evidence; Criminal cases: Victim's character, Self-defense case- Separate rule of relevance If D, at time of alleged self-defense, was aware of victim's violent reputation or prior specific acts of violence, such awareness may be proven to show D's state of mind (fear) to help prove acted reasonably in responding to aggression
Relevance- Character evidence; Criminal cases: Victim's character, Sexual misconduct case- Rape shield law In criminal and civil cases, where D alleged to have engaged in sexual misconduct, following evidence about victim ordinarily inadmissible- 1. Opinion/reputaiton evidence about victim's sexual propensity, 2. Evidence of victim's specific sexual behavior
Relevance- Character evidence; Criminal cases: Victim's character, Sexual misconduct case- Exception 1. Specific sexual behavior of victim to prove someone other than D source of semen or injury to victim
Relevance- Character evidence; Criminal cases: Victim's character, Sexual misconduct case- Exception 2. Victim's sexual activity with D if the defense of consent is asserted
Relevance- Character evidence; Criminal cases: Victim's character, Sexual misconduct case- Exception 3 Where exclusion violate D's right of due process, D should be allowed to show victim had sexual relationship with X at time of D's alleged rape if X saw victim and D together; Purpose- Suggest victim motive to lie nonconsensual
Relevance- Character evidence; Civil cases: Inadmissible Character evidence generally inadmissible to prove conduct in conformity
Relevance- Character evidence; Civil cases: Admissible Evidence of person's character admissible in civil action where character essential element of claim or defense (prove by reputation/opinion/specific acts); 1. Essential element of claim/defense (negligent hiring), 2. Defamation 3. Child custody disput
Relevance- D's other crimes for non-character purpose; G/R Other crimes or specific bad acts of D are not admissible during prosecution's case-in-chief if only purpose to suggest that b/c of D's bad character more likely to have committed crime currently charged
Relevance- D's other crimes for non-character purpose; Exception D's bad acts or other crime may be admissible to show- (something separate and apart from mere propensity to commit crime)
Relevance- D's other crimes for non-character purpose; 5 most common non-character purposes (MIMIC) M: Motive I: Intent M: Mistake or accident (the absence thereof) I: Identity C: Common scheme or plan
Relevance- D's other crimes for non-character purpose; 5 most common non-character purposes (MIMIC): Method of proof- By conviction Bring it in to prove
Relevance- D's other crimes for non-character purpose; 5 most common non-character purposes (MIMIC): Method of proof- By evidence Proves crime occurred; Conditional relevancy standard: Prosecution need only produce sufficient evidence from which reasonable juror could conclude D's committed other crime
Relevance- D's other crimes for non-character purpose; 5 most common non-character purposes (MIMIC): Upon D's request Prosecution must give pretiral notice of intent to introduce MIMIC evidence; In all cases, ct must also weigh probative value v. prejudice and giving limiting instructions if MIMIC evidence admitted
Relevance- D's other crimes for non-character purpose; 5 most common non-character purposes (MIMIC): In civil cases If relevant to non-character purpose, MIMIC evidence can also be used in civil cases, such as tort action for fraud or assault
Relevance- Other sexual misconduct to show propensity in sex-crime prosecution or civil action; Case alleging sexual assault or child molestation Prior specific sexual misconduct of D admissible as part of case-in-chief of the prosecution or P for any relevant purpose, including D's PROPENSITY for sex crime, as circumstantial evidence of conduct on occasion in question
Authentication of Writing If relevance of writing depends upon its source or authorship a showing must be made that writing is authentic (genuine), what is purports to be; In absence of stipulation, foundation must be made in order for doc to be admissible
Authentication of Writing- Methods of authentication; In general: Whether X is author of document, Personal knowledge Witness observed X sign document
Authentication of Writing- Methods of authentication; In general: Whether X is author of document, Proof of handwriting- Lay person's opinion Lay witness testifies to opinion that X wrote doc on basis of familiarity with X's handwriting as result of experience in normal course of affairs
Authentication of Writing- Methods of authentication; In general: Whether X is author of document, Proof of handwriting- Expert comparison opinion Handwriting expert testifies to opinion that X wrote doc on basis of comparison b/w doc and genuine sample of X's handwriting
Authentication of Writing- Methods of authentication; In general: Whether X is author of document, Proof of handwriting- Jury comparison Jury compares doc with exemplar of X's handwriting
Authentication of Writing- Methods of authentication; In general: Whether X is author of document, Ancient document rule Authenticity may be inferred if document- 1. Doc at least 20 yrs old, and 2. Facially free of suspicion, and 3. Doc found in place of natural custody
Authentication of Writing- Methods of authentication; In general: Whether X is author of document, Solicited reply doctrine Doc authenticated by evidence it was received in response to prior communication to alleged author; Circumstantial evidence; Conditional relevancy standard: Doc admissible if ct determines sufficient evidence from which reasonable jury conclude genuine
Authentication of Writing- Self-authenticating documents; Presume authentic No need for foundation testimony- 1. Official publications, 2. Certified copes of public/private records on file in public office, 3. Newspaper/periodicals, 4. Trade inscriptions and labels, 5. Acknowledged doc, 6. Commercial paper
Authentication of Writing- Authentication of photographs Witness may testify on basis of personal knowledge that photograph is a "fair and accurate representation" of people or objects portrayed
Best Evidence Rule A party who seeks to prove content of a a writing must either produce the original writing, or provide acceptable excuse of absence; Includes- sound recordings, x-rays, films
Best Evidence Rule- Excuse If ct finds excuse acceptable, party may then use secondary evidence (oral testimony or copy)
Best Evidence Rule- When best evidence rule applies When party is seeking to prove the contents of writing
Best Evidence Rule- When best evidence rule applies; Legally operative documents Writing is legally operative doc (writing creates rights/obligations); Such as, patents, deed, mortgage, divorce decree, written K
Best Evidence Rule- When best evidence rule applies; Witness testifying Witness is testifying to facts she learned solely from reading about them in writing
Best Evidence Rule- When best evidence does NOT apply When witness with personal knowledge testifies to fact that exists independently of writing that records fact
Best Evidence Rule- What qualifies as "original writing" Whatever parties intense as original, counterpart intended to have same effect, any negative of film or print from negative, computer print out
Best Evidence Rule- What qualifies as "original writing"; Duplicate Any counterpart produced by any mechanical means that accurately reproduced original
Best Evidence Rule- What qualifies as "original writing"; Duplicate: G/R Duplicate is admissible to same extent as original unless it would be unfair or genuine question is raise as to authenticity of original
Best Evidence Rule- What qualifies as "original writing"; Handwritten copy Neither an original or duplicate
Best Evidence Rule- Excuses for non-production of original 1. Lost or cannot be found with due diligence, 2. Destroyed without bad faith, 3. Cannot be obtained with legal process
Best Evidence Rule- Excuses for non-production of original; Standard Ct must be persuaded by preponderance of evidence that excuse has been established; Secondary evidence is then admissible (testimony based on memory, handwritten copy)
Best Evidence Rule- Escapes; Voluminous Can be presented through summary or chart, provided original records would be admissible and they are available for inspection
Best Evidence Rule- Escapes; Public records Certified copies
Best Evidence Rule- Escapes; Collateral documents Documents not important to merits of the case determined by judge; If ct. in its discretion, determines writing is collateral, contents may be proven by secondary evidence
Best Evidence Rule- Escapes Do not have to bring in in original writing
Witnesses- Competency of witness; In general 1. Personal knowledge (saw or hear with own ears/eyes), 2. Oath or affirmation (demonstrate appreciation of duty to tell truth)
Witnesses- "Dead Man's Statute"; In general: Not incompetent 1. Witness is not oridianrily incompetent merely b/c interest (direct legal stake) in outcome of litigation
Witnesses- "Dead Man's Statute"; In general: "Dead Man's Act" 2. But, Act provides that in a civil action, an interested witness incompetent to testify in support of own interest against estate of decedent concerning communications or transaction between interested witness and decedent
Witnesses- "Dead Man's Statute"; Federal rules of evidence No dead man's rule; Multistate exam witness ordinarily no incompetent, but if particular jurisdiction arising dead man statute apply Act
Witnesses- Leading questions Form of question suggests answer
Witnesses- Leading questions; Not allowed Generally not allowed on direct examination of witness
Witnesses- Leading questions; Allowed Generally allowed on cross-examination of witness
Witnesses- Leading questions; Not allowed: Exceptions Allowed in direct if- 1. For preliminary introductory matters, 2. Youthful or forgetful witness, 3. Hostile witness, 4. Direct examination is adverse party or under control of opposing party
Witnesses- Writing in aid or oral testimony; Refreshing recollection: G/R Witness may not read from prepared memorandum, must testify on basis of current recollection
Witnesses- Writing in aid or oral testimony; Refreshing recollection: Exception If witness's memory fails, may be shown memorandum (or any other tangible item) to jog memory
Witnesses- Writing in aid or oral testimony; Refreshing recollection: Safeguards against abuse, Adversary has right 1. To inspect memory-refresher, 2. To use it on cross, 3. To introduce it into evidence
Witnesses- Writing in aid or oral testimony; Past recollection recorded (hearsay exception): Foundation for reading contents of writing into evidence 1. Showing writing fails to jog memory, 2. Personal knowledge at former time, 3. Writing was either made/adopted by witness, 4. Making/adoption occurred while event fresh in witness memory, 5. Witness can vouch for accuracy of writing when made or ado
Witnesses- Opinion testimony; Lay witness Lay opinion admissible if- 1. Rationally based on witness perception(personal knowledge, and 2. Helpful to jury in deciding fact
Witnesses- Opinion testimony; Lay witness: Examples Drunk/sober, speed of vehicle, sane/insane, emotions of another person, handwriting
Witnesses- Opinion testimony; Expert witness: Qualifications Education, and or Experience
Witnesses- Opinion testimony; Expert witness: Proper subject matter Scientific, technical or other specialized knowledge that will be helpful to jury in deciding fact
Witnesses- Opinion testimony; Expert witness: Basis of opinion Expert must have opinion based on "reasonable degree of probability or reasonable certainty"
Witnesses- Opinion testimony; Expert witness: Basis of opinion, Permissible data sources 1. Personal knowledge, 2. Other evidence admitted at trial (Testimony by other witnesses, exhibits, made known to expert) 3. Facts outside record (hearsay) if of type reasonably relied upon by experts in particular field in forming opinion
Witnesses- Opinion testimony; Expert witness: Relevance and reliability To be admissible, expert opinion must be relevant to issue at hand and sufficiently reliable
Witnesses- Opinion testimony; Expert witness: Relevance and reliability, Principal factors to determine reliability (TRAP) T: Testing of principal's or methodology, R: Rate of error, A: Acceptance by other experts in same field (general not required), P: Peer review and publication
Witnesses- Opinion testimony; Expert witness: Learned treatise in aid of expert testimony (hearsay exception), Direct examination of party's own expert Relevant portions of treatise, periodical, or pamphlet may be read into evidence as substantive evidence (to prove truth of matter asserted) if established as reliable authority
Witnesses- Opinion testimony; Expert witness: Learned treatise in aid of expert testimony (hearsay exception), Cross of opponent's expert Read into evidence to impeach and contradict opponent's expert; Comes in as substantive evidence
Witnesses- Opinion testimony; Expert witness: Learned treatise in aid of expert testimony (hearsay exception), Learned treatise May not be introduced as exhibit; Treatise must be with testimony
Witnesses- Opinion testimony; Expert witness: Ultimate issues Opinion testimony permissible even if addresses ultimate issue, but all other requirements for opinion testimony must be satisfied, including requirement that opinion helpful to jury
Witnesses- Opinion testimony; Expert witness: Ultimate issues, Criminal cases Still proper objection if expert seeks to give direct opinion that D did or did not have relevant mental state; Expert only testify in general terms about effects of D's mental condition w/o linking to particular case
Witnesses- Cross-examination Party has right to cross any opposing witness who testifies at trial; Significant impairment of right will result, at minimum, in striking witness's testimony
Witnesses- Cross-examination; Proper subject matter 1. Matters within scope of direct examination, and 2. Matters that test witness's credibility
Witnesses- Credibility and impeachment; In general: Bolstering own witness Not allowed until after your witness's credibility has been attacked (rehabilitation)
Witnesses- Credibility and impeachment; In general: Bolstering own witness, Exception Prior identification of person(witness testifies she recognizes D, as perpetrator); Might seem like hearsay, but prior identification by trial witness not barred; Exclusion from hearsay so substantive evidence
Witnesses- Credibility and impeachment; In general: Impeachment of own witness Impeachment permitted without limitation
Witnesses- Impeachment methods 1. Prior inconsistent statement 2. Bias/interest/motive misrepresent 3. Sensory deficiency 4. Bad reputation/opinion about witness's character for truthfulness 5. Crim. conviction 6. Bad act reflect neg. witness character for truthfulness 7. Contrad
Witnesses- Impeachment methods; Procedure 1. Ask witness about impeaching fact with aim of having witness admit it (confronting witness), 2. Prove impeaching fact with extrinsic evidence (other's testimony)
Witnesses- Impeachment methods; Procedure: Impeaching fact may be proven with extrinsic evidence as to following impeachment methods- ALL, except bad acts and contradictory facts that are collateral
Witnesses- Impeachment methods; Procedure: Impeachment methods that allow extrinsic evidence is it necessary to ask witness about impeaching fact before introduced? No, except at to method of bias
Witnesses- Impeachment methods; Prior inconsistent statements Witness may be impeached by showing on some prior occasion, made material statement that is inconsistent with trial testimony
Witnesses- Impeachment methods; Prior inconsistent statements: General purpose Prior inconsistent statement is admissible only for purpose of impeachment, NOT substantive evidence
Witnesses- Impeachment methods; Prior inconsistent statements: Exception May be admitted both to impeach and as substantive evidence if statement was made- 1. Orally under oath, and 2. As part of formal hearing proceeding trial/deposition (hearsay exclusion)
Witnesses- Impeachment methods; Prior inconsistent statements: At pretrial deposition, Procedural issue Must witness be confronted with prior inconsistent statement while still on stand, or may be proven later as extrinsic evidence without confrontation
Witnesses- Impeachment methods; Prior inconsistent statements: At pretrial deposition, Rule Confrontation time is flexible; Not required to immediately confront witness, but after proof by extrinsic evidence, Witness must be given an opportunity at some point to return to stand to explain or deny
Witnesses- Impeachment methods; Prior inconsistent statements: At pretrial deposition, Exception No opportunity to explain need be given if witness is opposing party; Also, prior inconsistent statement of opposing party can always be used against them as substantive evidence
Witnesses- Impeachment methods; Bias, interest or motive to misrepresent: Procedural issue Any fact to give witness reason to testify favorable or hostily to particular party; 1. Witness must be confronted with alleged bias while on stand, and 2. If confrontation prerequisite met, bias may be proven by extrinsic evidence
Witnesses- Impeachment methods; Sensory deficiencies Anything that could affect witness's perception or memory; Confrontation is not required; Extrinsic evidence is allowed
Witnesses- Impeachment methods; Sensory deficiencies: Purpose To suggest mistake
Witnesses- Impeachment methods; Bad reputation or opinion about witness's character for truthfulness Any witness is subject to impeachment by this method; Confrontation is not required; Extrinsic evidence is allowed
Witnesses- Impeachment methods; Bad reputation or opinion about witness's character for truthfulness: When? Call a character witness to testify Target Witness has bad reputation for truthfulness, or character witness has low opinion of Target Witness's character for truthfulness
Witnesses- Impeachment methods; Bad reputation or opinion about witness's character for truthfulness: Purpose To suggest Target witness is not telling truth on witness stand
Witnesses- Impeachment methods; Criminal convictions: Purpose To suggest testimony is false
Witnesses- Impeachment methods; Criminal convictions: Relevance Person who has been convicted of crime is more likely to lie under oath than is person with unblemished record
Witnesses- Impeachment methods; Criminal convictions: Permissible types of convictions 1. Conviction of any crime (felony/misdemeanor) as to which prosecution was required to prove false statement (fraud) as element of crime; Method of proof- Ask to admit, or introduce record of conviction
Witnesses- Impeachment methods; Criminal convictions: Permissible types of convictions 2. If conviction did not require proof of false statement, it must be felony, and ct may exclude, in discretion, if probative value on issue of witness credibility outweighed by danger of unfair prejudice to party (misuse of evidence of liability/guilty)
Witnesses- Impeachment methods; Criminal convictions: Time limitation Conviction, or release from prison, whichever later, generally must be within 10 yrs of trial; If more than 10 yrs elapsed, conviction may not be used for impeachment unless probative value of issue of credibility is substantial
Witnesses- Impeachment methods; Inquiry about bad act (w/o conviction) if reflect adversely on witness's character for truthfulness: Only permissible procedure Confront the witness on cross-examination
Witnesses- Impeachment methods; Inquiry about bad act (w/o conviction) if reflect adversely on witness's character for truthfulness: Good faith Cross examiner must have good faith basis for inquiry, and permission to make inquiry subject to cts. decision; Proof of extrinsic evidence may still be allowed if bad act relevant for some purpose other than bad character for truthfulness
Witnesses- Impeachment methods; Contradiction: Concept Cross examiner, through confrontation, may try to obtain admission she made mistake/lied about fact she testified during direct; If witness admits mistake/lie, impeached by contradiction; However, if not issue whether extrinsic evidence introduce to pro
Witnesses- Impeachment methods; Contradiction: G/R Extrinsic evidence not allow for purpose of contradiction IF fact at issue is collateral (no significant relevance to merits of case, or direct bearing on witness credibility)
Witnesses- Rehabilitation; Showing witness's good character for truthfulness: When Only when impeachment suggested witness was lying as compared to merely being mistaken
Witnesses- Rehabilitation; Prior consistent statement to rebut charge of recent fabrication: When? If witness's trial testimony charged as recent fabrication, or product of improper influence, prior statement by witness that is consistent with testimony will be admissible to rebut charge if statement MADE before the motive to fabricate arose
Witnesses- Rehabilitation; Showing witness's good character for truthfulness: How? Bring out a character witness to testify impeached witness good reputation or opinion of good record of character for truthfulness
Witnesses- Rehabilitation; Prior consistent statement to rebut charge of recent fabrication: Purpose A prior consistent statement that fits within rule is admissible to rehabilitate credibility and substantive evidence that prior statement true; Hearsay exclusion
Privileges- Introduction; Federal procedure issue on multistate: Substantive law If bar examiners specifically indicate action pending in federal ct, apply following- Arising under federal substantive law, privileges governed by principal of common law as may be interpreted by federal ct in light of reason and experience
Privileges- Introduction; Federal procedure issue on multistate: Diversity jurisdiction Based on diversity jurisdiction, where state substantive law applies to parties' claims/defense, federal ct must apply privilege law of the state; State law= competency, BOP, presumptions
Privileges- Attorney client privilege; Rationale To encourage client to speak openly to counsel
Privileges- Attorney client privilege; Elements Privileges applies to- 1. Confidential communication 2. B/w atty and client (Representative) 3. Made during professional legal consultation 4. Unless privilege waived by client, or 5. If exception applies
Privileges- Attorney client privilege; Definitions: Confidential communications Client must intend confidentiality
Privileges- Attorney client privilege; Definitions: Joint client rule If two or more clients with common interest consult same attorney, their communication with counsel concerning common interest are privileged as to third parties; if later dispute privilege NOT apply
Privileges- Attorney client privilege; Definitions: Communication Privilege does not apply to underlying information, pre-existing documents, physical evidence
Privileges- Attorney client privilege; Definitions: Attorney Member of bar or person client reasonably believes member of bar
Privileges- Attorney client privilege; Definitions: Representative of attorney Any agent reasonably necessary to facilitate provision of legal services
Privileges- Attorney client privilege; Definitions: Client Includes person seeking to become client
Privileges- Attorney client privilege; Definitions: Representative of client Any agent reasonably necessary to facilitate provision of legal services
Privileges- Attorney client privilege; Definitions: Professional legal consultation Primary purpose of communication must be to obtain or render legal services, not business or social advice
Privileges- Attorney client privilege; Definitions: Waiver, Voluntary Only the client has power to waive privilege; After client's death, privilege continues and only client's estate can waive it
Privileges- Attorney client privilege; Definitions: Waiver, Subject matter Voluntary waiver of privilege to some communication also waive privilege as to- Partial disclosure is intentional, Disclosed/undisclosed communication concern same subject, Fairness requires disclosed/undisclosed communication considered
Privileges- Attorney client privilege; Definitions: Waiver, Inadvertent Not waiver privilege so long as privilege holder- 1. Took releasable steps to prevent the disclosure, and 2. Take reasonable steps to correct the error
Privileges- Attorney client privilege; Definitions: Exceptions, Client use service for future crime or fraud Client tells attorney
Privileges- Attorney client privilege; Definitions: Exceptions, Client puts legal advice is issue In tax fraud prosecution, D defense defends on grounds that she relied on advice of her attorney in reporting income
Privileges- Attorney client privilege; Definitions: Exceptions, Attorney/client dispute Attorney sues client for unpaid fee, or client sue attorney for legal malpractice
Privileges- Physician patient privilege Usually created by state statute; Rationale: Encourage candor by patient and to protect privacy
Privileges- Physician patient privilege; Elements: Privilege applies to- 1. Confidential communication/info acquired by physician from patient, 2. For purpose of diagnosis or treatment of medical condition
Privileges- Physician patient privilege; Psychotherapists Also applies to those who diagnose or treat mental or emotional illness
Privileges- Physician patient privilege; Federal law distinction Based solely on federal law privilege exists only for psychotherapy only; No physicians regarding physical conditions
Privileges- Physician patient privilege; General exception If patient expressly or impliedly puts physical or mental condition on issue
Privileges- Husband wife privileges; Spousal immunity: Criminal cases only A spouse cannot be compelled to testify about anything against D's spouse
Privileges- Husband wife privileges; Spousal immunity: Criminal cases only, Rationale To protect harmony of existing marriage at time of trial
Privileges- Husband wife privileges; Spousal immunity: Criminal cases only, Holder of privilege Witness spouse not D(witness spouse may voluntarily testify against D spouse is chooses)
Privileges- Husband wife privileges; Confidential communications b/w spouses In any type case, spouse not required and not allowed in absence of consent by other spouse to disclose confidential communication may be one to other during marriage
Privileges- Husband wife privileges; Confidential communications b/w spouses: Holder of privilege Both spouses, meaning either spouse can invoke
Privileges- Husband wife privileges; Confidential communications b/w spouses: Rationale To encourage candor b/w husbands and wives during marriage
Privileges- Husband wife privileges; Exceptions (applies to both) 1. Communications or acts in furtherance of jointly-perpetrated future crime/fraud, 2. Communication or acts destructive of family unit, 3. In litigation b/w spouses themselves
Hearsay- Definition 1. Out of ct statement by person (oral or written), 2. Offered to prove truth of matter asserted in statement
Hearsay- Rule Hearsay is inadmissible unless an exception or exclusion applies
Hearsay- Rationale To credibility of declarant at time statement made was not tested through cross in presence of current fact finder
Hearsay- Non-hearsay statements Not hearsay if they are not offered to prove truth of the matter asserted in statement; If offered for some other purpose, credibility of declarant irrelevant
Hearsay- Principal categories of non-hearsay purposes; Verbal act Legally operative words; Situation where substantive law attaches legal rights and obligations to certain words b/c spoken; Terms of patent/copyright, making gift, bribe, perjury, fraud, defamation, words accompanying ambiguous acts
Hearsay- Principal categories of non-hearsay purposes; To show effect on person who heard or read statement If person hears or reads certain statements made by others this may be relevant to put listener on notice of something, gives motive, good faith belief, or creates fear
Hearsay- Principal categories of non-hearsay purposes; Circumstantial evidence of speaker's state of mind Usu. insanity, False alibi then consciousness of guilty, Question suggesting lack of knowledge
Hearsay- Prior statements of trial witness; G/R A witness's own prior statement, if offered to prove truth of matter asserted in statement, is hearsay and is inadmissible unless exception or exclusion applies
Hearsay- Prior statements of trial witness; Witness statement exclusions from hearsay (Witness on stand at trial, subject to cross) 1. Witness prior statement of identification, 2. Witness's prior inconsistent statement if oral/under oath/made during formal trial/etc., 3. Witness's prior consistent statement used now to rebut charge of recent fabrication/improper motive or influence
Hearsay- Party admission Any statement made by a party (P or D) is admissible for its truth if it is offered against party
Hearsay- Party admission; Terminology Exclusion, and Non-hearsay
Hearsay- Party admission; Theory Party ought to bear consequences of what he/she says; Can explain to jury and cannot complain about inability to cross-examine self
Hearsay- Party admission; Adoptive admission If party expressly/impliedly adopts statement made by another person it is as though party made statement; Adoption by silence occurs when party remains silent under circumstance reasonably person would protest if false
Hearsay- Party admission; Vicarious party admissions Statement by agent/employee admissible against principal/employer if statement concerns matters within scope of agency/employment and made during existence of relationship
Hearsay- Party admission; Co-conspirator's statements Statement of co-conspirator admissible against party who was member of conspiracy if statement made- 1. During, and 2. In furtherance of conspiracy
Hearsay- Hearsay exceptions Forefiture of wrongdoing, Former testimony, Stmt against interest, Dying declaration, Excited utterance, Present sense impression/state of mind/physical condition, Declaration of intent, Stmt purpose of medical treatment/diagnosis, Business/public record
Hearsay- Criminal D's right of confrontation 6th amendment right to confrontation requires that criminal D be confronted with witnesses against him
Hearsay- Hearsay exceptions; Criminal D's right of confrontation: G/R Prosecution may not use hearsay statement against criminal D if- 1. Statement is testimonial 2. Declarant is unavailable, and 3. D has had no opportunity for cross (cross requirement satisfied before or at trial)
Hearsay- Hearsay exceptions; Criminal D's right of confrontation: Testimonial, Grand jury Grand jury testimony is testimonial
Hearsay- Hearsay exceptions; Criminal D's right of confrontation: Testimonial, Statement in response to police interrogation- Testimonial If primary purpose of questioning is to establish or prove past events potentially relevant to a later criminal prosecution
Hearsay- Hearsay exceptions; Criminal D's right of confrontation: Testimonial, Statement in response to police interrogation- Non-testimonial If primary purpose of questioning is to enable police assistance to meet an ongoing emergency
Hearsay- Hearsay exceptions; Criminal D's right of confrontation: Testimonial, Statement in response to police interrogation- Ongoing emergency Situation in which crime has ended within past hour, perpetrator still at large, and poses an immediate threat to victim, police or public at large
Hearsay- Hearsay exceptions; Criminal D's right of confrontation: Testimonial, Documents- Forensic laboratory reports Prepared with view toward use at trial are testimonial
Hearsay- Hearsay exceptions; Criminal D's right of confrontation: Testimonial, Documents- Business records Not testimonial
Hearsay- Hearsay exceptions; Criminal D's right of confrontation: Testimonial, Documents- Police reports prepared for prosecutor purposes Testimonial
Hearsay- Hearsay exceptions; Forfeiture exception (declarant unavailable to D's wrongdoing) Any type of hearsay statement admissible against D whose wrongdoing made witness unavailable if ct finds- 1. By preponderance of evidence, 2. D's conduct specifically designed to prevent witness from testifying- Can use statements
Hearsay- Hearsay exceptions; Former testimony Former testimony of now unavailable witness if given at former proceeding/deposition, admissible against party who on proper occasion, had opportunity and motive to cross or develop testimony; Issue same in both
Hearsay- Hearsay exceptions; Former testimony: Theory Former testimony: Reliability assured by cross on prior occasion; However, prefer live testimony so witness must now be unavailable
Hearsay- Hearsay exceptions; Former testimony: Grounds of unavailability 1. Privilege, 2. Witness absent from jurisdiction, 3. Witness beyond cts subpoena power, 4. Illness or death 5. Stubborn refusal to testify; Same ground apply to all exceptions where unavailability requirement
Hearsay- Hearsay exceptions; Statement against interest Unavailable declarant's statement against his/her- 1. Pecuniary interest (money), 2. Proprietary interest (property), 3. Penal interest (criminal liability)
Hearsay- Hearsay exceptions; Statement against interest: Theory Not likely to lie when making a personally damaging statement as to such interests
Hearsay- Hearsay exceptions; Statement against interest: Differs from party admission 1. Must be against interest when made, 2. Any person can make statement against interest, 3. Personal knowledge is required, 4. Declarant must be unavailable
Hearsay- Hearsay exceptions; Statement against interest: Qualification in criminal cases Statement against penal interest must be supported by circumstances showing trustworthiness of statement
Hearsay- Hearsay exceptions; Dying declaration Statement made under belief of impending and certain death by now-unavailable delcarant concerning cause of surrounding circumstances of declarant's death
Hearsay- Hearsay exceptions; Dying declaration: Theory Expectation of imminent death is a solemn occasion
Hearsay- Hearsay exceptions; Dying declaration: Type of case, Criminal Must be homicide prosecution
Hearsay- Hearsay exceptions; Dying declaration: Types of case, Civil Any civil case
Hearsay- Hearsay exceptions; Dying declaration: Spontaneous statements Unavailability not required
Hearsay- Hearsay exceptions; Excited utterance Statement concerning a startling event and made while declarant still under stress of excitement cause by event
Hearsay- Hearsay exceptions; Excited utterance: Theory Excitement suspends one's capacity to fabricate
Hearsay- Hearsay exceptions; Excited utterance: Factors determining 1. Nature of event, 2. Passage of time (close to event), 3. Visual clues- a. Exclamatory phrase, b. Excitement oriented verb, c. Exclamation point
Hearsay- Hearsay exceptions; Present sense impression Description of an event made while event is occurring or immediately thereafter
Hearsay- Hearsay exceptions; Present sense impression: Theory Declarant has no time to fabricate
Hearsay- Hearsay exceptions; Present state of mind Contemporaneous statement concerning declarant's present state of mind, feelings, emotions
Hearsay- Hearsay exceptions; Present state of mind: Theory Contemporaneous statement about matter as to which declarant has unique knowledge
Hearsay- Hearsay exceptions; Declaration of intent Statement of declarant's intent to do something in future, including intent to engage in conduct with another person
Hearsay- Hearsay exceptions; Declaration of intent: Theory Contemporaneous statement about matter as which declarant has unique knowledge
Hearsay- Hearsay exceptions; Present physical condition Statement made to anyone about declarant's current physical condition
Hearsay- Hearsay exceptions; Present physical condition: Theory Contemporaneous statement about matter as to which declarant has unique knowledge
Hearsay- Hearsay exceptions; Statement made for purpose of obtaining medical treatment or diagnosis Statement made to anyone (usu medical personnel) concerning declarant's present/past symptoms or general cause of condition; Do NOT include statements about fault or identity of tortfeasor
Hearsay- Hearsay exceptions; Statement made for purpose of obtaining medical treatment or diagnosis: Theory A patient or injured person motive to be honest and accurate to get medical assistance; Does NOT include oral statements made by doctor/nurse TO injured person (not in doc)
Hearsay- Hearsay exceptions; Business records: Elements 1. Records of bus., 2. Regular course of bus., 3. Regularly keeps such records, 4. Contemporaneous (at or about time of event recorded), 5. Contents consist of- a. Observed by employees of bus., or b. Stmt falls w/in independent hearsay exception
Hearsay- Hearsay exceptions; Business records: Theory Business depends on accurate, up-to-date record-keeping, and accuracy is likely when employees are under business duty to make records; Useful substitute for testimony of employees
Hearsay- Hearsay exceptions; Business records: Proving business records foundation, Call sponsoring witness To testify to five elements of exception; Witness need not be author of reports, can be records custodian or any other knowledge person w/in business
Hearsay- Hearsay exceptions; Business records: Proving business records foundation, Written certification Under oath attesting elements of business records hearsay exception (w/advance notice to opposing party)
Hearsay- Hearsay exceptions; Public records: Records of public office or agency setting forth 1. Activity of office or agency, 2. Matters observed pursuant to duty imposed by law, 3. Finding of fact or opinion resulting from investigation authorized by law
Hearsay- Hearsay exceptions; Public records: Exclusions Police reports prepared for prosecutorial purposes NOT admissible against D in criminal case; Nor is prosecution allowed to introduce reports against D under alternative theory of business records
Hearsay- Hearsay exceptions; Public records: Double hearsay Hearsay statement including within another hearsay statement, evidence inadmissible unless each statement falls within hearsay exception
Hearsay- Hearsay exceptions; Impeachment of hearsay declarants Any impeachment method may be use to attack credibility of hearsay declarant whose statement was admitted to evidence
WY- Relevance; Discretionary exclusion of relevant evidence Showing prejudice necessary to exclude relevant evidence requires demonstration that evidence had little or no probative value and it is extremely inflammatory or introduced for purposes of inflaming jury; NOT b/c prejudicial, must also be unfair
WY- Relevance; Discretionary exclusion of relevant evidence: Example, "Barnes" Brutal death of 5 yr old girl, and attempted concealment of crime by arson, admission of photos of victim to show magnitude and severity of injuries was more probative than prejudicial
WY- Relevance; Discretionary exclusion of relevant evidence: "In life" photos of homicide victims Photos of homicide victims taken while alive inadmissible unless relevant to material issue and relevant outweighs danger of prejudice to D; No purpose invokes sympathy and constitutes error "Wilks"
WY- Relevance; Exclusion of relevant evidence for public policy reasons (policy based): Subsequent remedial measures, Inadmissible to prove negligence or culpable conduct WY does NOT extend limitation of admissibility to product design and defects or need for warning or instructions
WY- Relevance; Character evidence: A special relevance problem, Specific acts of misconduct generally inadmissible but admissible if independently relevant WY does not limit use of Rule 404(b) to prosecution, equally available to D; D can offer evidence of other crimes or misconduct of victim to prove theory of defense "Edwards"
WY- Relevance; Character evidence: A special relevance problem, Examples of relevant misconduct Course of conduct- WY cts allow evidence f other crimes, wrongs, or acts if it forms part of history of event or enhances development of facts
WY- Relevance; Character evidence: A special relevance problem, Quantum of proof for independent relevant acts of misconduct- "Huddelston" 1. Offered for proper purpose, 2. Relevant, 3. Probative value not substantially outweighed by potential unfair prejudice, 4. Upon request, trial ct must instruct jury similar acts evidence is to be considered only for proper purpose admitted
WY- Relevance; Character evidence: A special relevance problem, Prior acts of sexual assault or child molestation No provision like FRE 413-15 authorizing admissiblity of evidence of similar crimes in sexual assault and child molestation
WY- Relevance; Character evidence: A special relevance problem, Remoteness of evidence Act of misconduct extremely probative despite passage of substantial amt of time; Relevance of evidence dependent on time, degree of similarity b/w charges, and prior acts must be inversely proportional to time span; Refuse 10 yr limit for admissibility
WY- Judicial notice- Judicial notice of fact Facts appropriate for judicial notice: Prior ct records WY cts may take judicial notice of prior ct records as long as- 1. Written notice is given of matter to be judicially noticed, and 2. Any judicially noticed docs are physically included as part of record
WY-Testimonial evidence- Competency of witnesses; Basic testimonial qualifications Witnesses whose testimony has been hypnotically enhanced are not incompetent to testify; Question regarding effect of hypnosis on testimony is one of credibility, not competency
WY- Testimonial evidence- Competency of witnesses; Use of interpreter Interpreters are treated as experts
WY- Testimonial evidence- Competency of witnesses; Modern modifications of common law disqualifications: Infancy To determine competency of infant to testify under oath, the ct must examine capacity and intelligence of particular child
WY- Testimonial evidence- Competency of witnesses; Modern modifications of common law disqualifications: Infancy, Child must- 1. Understand obligation to tell truth, 2. Mental capacity for accurate impression of what happened, 3. Sufficient memory for independent recollection, 4. Capacity to express his memory in words, and 5. Capacity to understand simple questions
WY- Testimonial evidence- Competency of witnesses; Modern modifications of common law disqualifications: Infancy, Sexual abuse case Test focuses on mental abilities of witness rather than recollection; Not necessary to ask child about event as issue; Within discretion of trial judge
WY- Testimonial evidence- Competency of witnesses; Modern modifications of common law disqualifications: Prosecutor as witness D must demonstrate compelling need before participating prosecutor will be permitted to testify
WY- Testimonial evidence- Competency of witnesses; Modern modifications of common law disqualifications: Prosecutor as witness, D must show- 1. Testimony necessary and not just relevant, 2. Testimony would not be cumulative of other testimony or evidence, 3. He has exhausted all other available sources of comparably probative evidence
WY- Testimonial evidence- Competency of witnesses; Modern modifications of common law disqualifications: Attorney as witness G/R: Atty not disqualified as competent witness merely b/c participation as an atty in proceeding; However, ethical considerations make it improper for an atty to testify as witness on behalf on his client in matter
WY- Testimonial evidence- Competency of witnesses; Dead Man Acts An action against a person who is incapable of testifying, no judgment or decree founded on uncorroborated testimony shall be rendered in favor of a party whose interests are adverse to person incapable of testifying or personal representative
WY- Testimonial evidence- Opinion testimony; Opinion testimony by expert witnesses: Requirements of expert testimony, Subject matter must be appropriate for expert testimony "Daubert" + facts assess reliability- 1. Experts extensive experience/specialized expertise, 2. Expert proposing to testify about matter growing naturally & directly out of research conducted independent of litigation, & 3. Nonjudicial uses method pu
WY- Testimonial evidence- Opinion testimony; Opinion testimony by expert witnesses: Requirements of expert testimony, Subject matter must be appropriate for expert testimony- Testimony regarding sex crimes Expert testimony regarding behavior of sexual assault victim permissible where testimony based on number of factors related to victim's behavior and not merely victim's version of crime
WY- Testimonial evidence- Opinion testimony; Opinion testimony by expert witnesses: Requirements of expert testimony, Subject matter must be appropriate for expert testimony- Syndrome testimony Expert testimony explain victim's behavior admissible if base don either expert's own experience or on syndrome that reached sufficient level of development to warrant its admission
WY- Testimonial evidence- Opinion testimony; Opinion testimony by expert witnesses: Requirements of expert testimony, Subject matter must be appropriate for expert testimony- Syndrome testimony, Child sexual abuse Accommodation syndrome and post-traumatic stress disorder admissible syndrome evidence; Ct concluded whether testimony on rape trauma syndrome admissible
WY- Testimonial evidence- Opinion testimony; Opinion may embrace ultimate issue WY Rules do not contain provision analogous to Federal Rule 704(b), which prohibits ultimate issue testimony regarding a criminal D's mental state
WY- Testimonial evidence- Opinion testimony; Opinion may embrace ultimate issue: Testimony as to guilt of accused Witness may not testify as to guilt of accused
WY- Testimonial evidence- Opinion testimony; Opinion may embrace ultimate issue: Testimony as to victim's credibility Expert testimony may not be used as evidence of truthfulness or untruthfulness of victims
WY- Testimonial evidence- Opinion testimony; Opinion may embrace ultimate issue: Testimony as to truthfulness of witness's testimony Expert may not vouch for truthfulness of another witness's testimony; However, testimony explaining alleged victim's behavior is typical of particular type of class admissible to explain behavior, not impermissible comment on victim's credibility
WY- Testimonial evidence- Credibility; Impeachment methods: Cross and extrinsic evidence, Prior inconsistent statements Extrinsic evidence of prior inconsistent statement by witness is not admissible unless witness afforded an opportunity to explain or deny same, and opposite party afforded opportunity to interrogate him regarding statement
WY- Testimonial evidence- Credibility; Impeachment methods: Cross and extrinsic evidence, Conviction of crime- Co-conspirators When two person are indicted for separate offenses growing out of same circumstances, fact that oen pleaded guilty is not admissible against other in prosecution's case-in-chief
WY- Testimonial evidence- Credibility; Impeachment methods: Cross and extrinsic evidence, Conviction of crime- Co-conspirators, Witness pleaded guilty Evidence that witness pleaded guilty to an offense growing out of same circumstances as offense for which D is being tried may be used to impeach witness
WY- Testimonial evidence- Credibility; Impeachment methods: Cross and extrinsic evidence, Must not be too remote WY ct place 10 year limitation on admission of prior convictions; However, prior to excluding remote conviction, ct must examine whether evidence more probative than prejudicial
WY- Testimonial evidence- Testimonial privileges; Physician-patient privilege: patent holding privilege If patient testifies voluntarily, physician may be compelled to testify on same subject
WY- Testimonial evidence- Testimonial privileges; Physician-patient privilege: Psychotherapist/Social worker-client privilege, Exceptions to mental health profession/client privilege- 1-3 1. Abuse or neglect of children/elderly/disabled individuals, 2. Where validity of will is at issue, 3. Where info necessary for psychologist to defense against malpractice,
WY- Testimonial evidence- Testimonial privileges; Physician-patient privilege: Psychotherapist/Social worker-client privilege, Exceptions to mental health profession/client privilege- 4-5 4. Where immediate threat of physical violence against readibly identifiable victim in contex of civil commitment proceedings, 5. Where there is an immediate threat of self-inflicted damage to patient,
WY- Testimonial evidence- Testimonial privileges; Physician-patient privilege: Psychotherapist/Social worker-client privilege, Exceptions to mental health profession/client privilege- 6-8 6. Where patient has put mental state at issue in litigation, 7. Where patient examined pursuant to ct order, or 8. Where patient or client instigated investigation of psychologist before licensing board
WY- Testimonial evidence- Testimonial privileges; Physician-patient privilege: Psychotherapist/Social worker-client privilege, Additional mental-health professional privileges WY extends the mental health professional-client privilege to professional counselors, marriage and family therapist, social workers, and chemical dependency specialists
WY- Testimonial evidence- Testimonial privileges; Husband-wife privilege: Spousal immunity Husband/wife not testify against other except criminal proceeding for crime committed by one spouse against other or civil action by one spouse against other; Not preclude them testifying for one in criminal/civil actions
WY- Testimonial evidence- Testimonial privileges; Husband-wife privilege: Spousal immunity, Distinguished from federal law Privilege available to both witness-spouse and party-spouse
WY- Testimonial evidence- Testimonial privileges; Husband-wife privilege: Privilege for confidential marital communications Intentions test- Treats assertive conduct that is intended to communicate confidential message from one spouse to another as confidential marital communication; Survives death of either spouse
WY- Hearsay Rule- Statements that are non-hearsay understand the federal rules; Prior statements by witness: Prior inconsistent statements An unsworn prior inconsistent statement, if acknowledged by witness as statement or shown to be statement made by witness, may be admitted into evidence in civil action
WY- Hearsay Rule- Statements that are non-hearsay understand the federal rules; Prior statements by witness: Prior inconsistent statements, WY requires Prior inconsistent statement given under oath at a trial, hearing or other proceeding or in a deposition to be admitted in criminal proceeding
WY- Hearsay Rule- Statements that are non-hearsay understand the federal rules; Prior statements by witness: Prior consistent statements Does not require prior consistent statement be made before motive to fabricate or improper influence occurred; Whether statement admitted is left to discretion of trial ct
WY- Hearsay Rule- Statements that are non-hearsay understand the federal rules; Admissions by party-opponent: Vicarious admissions, Co-conspirators- Requirements met prior to admitting statements of co-conspirators 1. Evidence of conspiracy, 2. Evidence that both the declarant and D were involved in conspiracy, 3. Showing that proffered statements made during course and in furtherance of conspiracy; First 2 shown by evidence independent statemetns
WY- Hearsay Rule- Hearsay exceptions; Declarant unavailable: Statements offered against party procuring declarant's unavailability WY rules of evidence do not contain rule
WY- Hearsay Rule- Hearsay exceptions; Declarant's availability immaterial: Excited utterance, 5 factors 1. Nature of startling event, 2. Declarant's physical manifestation of excitement, 3. Declarant's age, 4. Lapse of time b/w event and hearsay statement, 5. Whether statement made in response to inquiry
WY- Hearsay Rule- Hearsay exceptions; Declarant's availability immaterial: Excited utterance, Ultimate inquiry Whether declarant's condition at time such statement was spontaneous, excited, or impulsive rather than product of reflection and deliberation
WY- Hearsay Rule- Hearsay exceptions; Declarant's availability immaterial: Official records and other official writings, Public records and reports- What may be admitted Arresting officer form as prepared by state of WY is properly admissible as public record and official doc as exception to hearsay rule; However, notes of police officer at scene who is not investigating officer inadmissible hearsay within hearsay
WY- Hearsay Rule- Hearsay exceptions; Declarant's availability immaterial: Official records and other official writings, Public records and reports- What may be admitted, Additional finding Finding state legal conclusion assessing negligence and liability, as opposed to investigative conclusions or opinions, exceeds limits of admissible public record
Created by: dmoore147