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Evidence
MBE--Finished--procedural and crim pro sections of outline skipped.
| Question | Answer |
|---|---|
| Sources of Evidence Law 1 | I. State Common Law II. State Evidence Codes III. Federal Rules of Evidence |
| All Evidence MUST initially be.... 2 | Relevant... Test: Relevant evidence tends to proves any fact of consequence to the action. And it must be competent: that is it does not violate any exclusion rule. |
| Types of Evidence 3 | Direct: It involves no inferences Circumstantial: Is indirect and relies on inference |
| Limited Admissibility 4 | Evidence may be admitted for one purpose but not another. Upon request, a CT must restrict the evidence to its proper scope and instruct the jury accordingly. |
| Unfair Prejudice 5 | A court may exclude evidence entirely, even with a limiting instruction, that the probative value of a proffered evidence is substantially outweighed by a danger of unfair prejudice. |
| Evidence Analysis | 1. Is it relevant? 2. Is there proper foundation( authenticity est.)? 3. Is the evidence in the proper form? (e.g. questions are properly phrased, etc.) 4. Is there an applicable exclusionary rule? |
| Relevance | -Must make the existence of a material fact more probable than it would be w/o the evidence. -Must relate to time, event, or person in the present controversy- |
| Past events (relevancy) | Previous similar occurrences are admissible if they are...(1) probative of a material issues and (2) that probativeness outweighs the risk of confusion or unfair prejudice. |
| Examples of admissible past events (1) | 1. To prove causation 2. Prior false claims to show falsity of current claim or the PLA's condition is attrib. to a prior injury 3. Similar Accidents or Injuries may be used to prove (1) the existence of a dang. condition, (2) D's knowledge of the DC. |
| Examples of admissible past events (2) | 4. Previous similar acts by the same party are admissible to prove current intent or motive when these are relevant. 5. Rebutting a claim of impossibility 6. Salems of similar property, that are close in time, are admissible to prove value. 5. |
| Examples of admissible past events (3) | 7. Admissible to prove habit: habit describes a persons reg. response to a SPECIFIC set of circs-"instinctively"/"automatically" 8. Indust./business routine to show a particular event occured. 9. To est. an industry standard of care-but not conclusive. |
| Discretionary Exclusion of Relevant Evidence | A judge has DISCRETIon to exclude evidence if the probative value of the EV. is substantially outweighed by a danger of 1. Unfair prejudice* 2. confusion of issues 3. missleading the jury 4. Waste of time (delay) |
| Exclusion of Relevant Evidence for for Public Policy Reasons (list thereof) (pp-1) | 1. Liability Insurance 2. Subsequent Remedial Measures 3. Settlement offers or negotiations. 4. Withdrawn guilty please or offers to plead guilty. 5. offers to pay or payment of medicial expenses. |
| Evidence of Liability Insurance (pp-2) | Evidence of insurance against liability is not admissible to show negligence or ability to pay a substantial judgement. Exception: (1)Admissible to prove ownership/control, (2) to impeach, (3) as part of an admission. |
| Subsequent Remedial Measures (pp-3) | Evidence of reapirs or precautionary measures after an injury are NOT admissible to prove (1) negligence (2) culpable conduct, (3) a defect in design or product, (4) or a need for a warning. -exceptions exist...see next card |
| Exceptions For Remedial Meassures (pp-4) | -Except: admissible to prove (1) ownership/control, (2)rebut a claim that a precaution was infeesable, and (4) to prove opposing party destroyed evidence. |
| Settlement Offers and Withdrawn Guility Pleas (pp-5) | Evidence of compromises or offers to compromise (settle) are NOT admiss. to prove(1) liability or (2) the invalidity of claimed damages if disputed. Same as to withdrawn guilty pleas. Note: A claim or controversy must exist b/f this rule applies. |
| Offers to pay medical expenses (pp-6) | Payment of or offers to pay an injured party's medical expenses are INADMISSIBLE. Except: Admissions accompanying such offers are admissible. |
| Character Evidence (CE-1) | Admissible as substantive evidence to prove (1) character when it is an ultimate issue in a case (defamation) OR (2) serve as circum. evidence of how a person probably acted with serious restrictions (see below) |
| Character Evidence and Civil Cases (CE-2) | -Character Evidence is generally not admissible in civil cases by either party to prove conduct of a person....UNLESS character is directly at issue. |
| Character Evidence and Criminal Cases (CE-3) | Generally only the accussed may initially admit character evidence to prove conformity therewith by OPINION and REPUTATION evidence offered by witness. Note: A def. doesn't make his char. an issue by test, just his cred. which limits attacks to imp. evid. |
| Rebutting Defendant's use of Character Evidence (CE-4): First Method | Pros. may rebut def. char evidence by.. (1) Cross-Xing the character witness regarding the BASIS of the knowledge, including asking about ANY specific instances of misconduct by the DEF. (not witness--see witness rules-but extrin. evid. is barred. |
| Rebutting Defendant's use of Character Evidence (CE-5): Second Method | (2) Calling a qualified witness to testify to the defendan's bad REPUTATIOn or their OPINIIONS of the defendant's char. |
| Character Evidence and Victims in a criminal case (CE-6) | The def. MAY introduce REP. or OP. evidence of a bad char. trait of an alleged vic., when it is relev. to prove def.'s innoc. Once intro. pros may intro. rep. or opion evidence of the victims (1) good char. (2) the def.'s bad char. for the same trait. |
| Character Evidence and Rape Victims (CE-7): | In any CIVIL or CRIM.involving sex. misconduct, evidence offered to prove the sexual behaviour or disposition of a victim is generally barred. |
| Character Evidence and Rape Victims (CE-8): Exceptions in Criminal Cases | In a crim. case, a vict's sexual behav. is admis. to prove someone other than the Def. is the source of the phys. evid. And spec. instances of prior sexual behav. btw. vic and def. to prove any matter if off. by the PROS. or CONSENT if offered by the DEF. |
| Character Evidence and Rape Victims (CE-9): Exceptions in Civil Cases | In a civil case, EV of the vic's sex. BH is admiss. its probative value sub. outweighs the danger of harm to the vic. or of unfair prej. to the def. EV of rep.of the vic. is admiss. only if placed at issue by vic. |
| Character Evidence and Homicide Cases (CE-10) | In a homicide case, wherein Def. pleads self-defense, evidence of ANY kind that victim was the 1st agreessor, allows evid. that vic. has character for peacefullness. Note: This EV is admiss. regardless if Def. has intro. CE of the vict's violent prop. |
| Character Evidence and Specific Acts of Misconduct (CE-11) | Evidence of a person's other crimes or misconduct are INADMISSIBLE is offered soley to prove conformity therewith. But is admissible to prove: MIMIC -Motive-Intent-Mistake-Identity-Common Scheme |
| Prior Acts of Sexual Assualt/Child Molestation (CE-12) | EV of def. prior acts of either are admissible in a case where defe. is of accussed of committing an act of sexual assult or child molest. Must disclose to def. 15 days prior to admission. |
| Judicial Notice | Recognition of a fact as true w/p formal presentation of evidence. Must be: (1) indisputable facts that are matters of (2) commmon knowledge or (3)are capable of verification w/easy access to sources of unquestionable accuracy. No motion req. |
| Procedural Aspects of Judicial Notice | If court doesn't motion on its own, a party may motion for jud. notice. It is conclusive in a civil trial, but in a crim. trial, the jury is instructed that it may, but is not req. to accept as conclusive any JN fact. |
| Real Evidence | is actual physical evidence addressed directly to the TOF. |
| Genderal Conditions of Admissibility for Real Evidence. | (1) Relevant (2) Authentication (3) If significant, condition of object must be shown to be same at trial. (4) Balancing test ( practical inconvenience) |
| Authentication | An object must be identified as what the proponent claim it to be, either by: (1) Testimony of a witness that recognizes the object. (2) Evidence that the object has ben held in a substantionally unbroken chain of possession. |
| Reproductions and Explanatory Evidence | E.g. Maps, diagrams, photos. Admissible is their value is not outweighed by the danger of unfair prejudice. Note: items used only for explanatory purposes may be used, but are gen. admitted into evidence. |
| Maps, Charts, Models, Etc. | Usually admissible for purposes of illustrating testimony, but must be authenticated. |
| Exhibition of Injuries | Generally Admissible in personal injury cases or criminal cases, but the CT has discretion to exclude due to unfair prejudice. |
| Admissiblity of Documentary Evidence | Generally, must be relevant (duh) and in the case of writings, the authenticity of the doc. is one aspect of its relevancy. |
| Authentication of a documentary evidence | Generally, a doc. must be authenticated by proof that shows that the writing is what the prop. claims it to be... as proven by (1) Pleadings or Stipulation (2) Admission or acted upon by opponent. (3) Eyewitness test. (4) Handwriting Verification. |
| Handwriting Authentication | A writing may be authenticated by the genuiness of the handwriting of the maker by (1) the opinion of a nonexpert with personal knowledge (not for TR), (2) the OP of an expert who has compared writing samples, or (3) the TOF trhough comparison of samples. |
| Ancient Documents | Such a doc. may be authenticated by showing (1) It is at least 20 yrs. old (2) Is in such condition as to be from suspicion as to its authenticity and (3) Was found in a place where such a writing is likely to be kept. |
| Reply Letter Doctrine | A writing may be authenticated by evidence that it was written in response to a communication sent to the claimed author. |
| Photographs | admiss. if a WITNESS (photographer not req) IDs the photo as a fair and accurate. rep. of the relevant facts. If photo is taken by unattended cam if there is EV that the cam was properly operating at the relev. time and the photo was dev. from that film. |
| Authentication of Oral statements (e.g. only admissible if said by a particular person) | Authentication as to the ID of the speaker is req. May be identified by the opinion of anyone who has heard the voice at any time, including after litigation has begun and for the sole purpose of testifying. |
| Authentication of a Voice in a telephone conversation (1) | May be authenticated by one of the parties to the call by testifying that (1) she recognized the other party's voice, (2) the speaker had knowledge of certain facts only a part. person would know... |
| Authentication of a Voice in a telephone conversation (2) | (3) called a certain number and the voice answering ID themselves as that person (4) called a business and talked w/the person answering the phone about matters relevant to the business. |
| Self Authenticating Documents | Certain Docs. prove themselves: (1) Certified copies of public records. (2)official publications. (3) newspapers and periodicals (4) trade inscriptions (5)acknowledged docs. (6) commercial paper and the like, (7) certified business records. |
| Best Evidence Rule (Original document Rule) | To prove the CONTENTS/Terms of a writing the orig. writing must be produced if they are material. Secondary evidence is admissible ONLY if the original is unavailable. |
| Best Evidence Rule--Applicability | Applies namely when there is a (1) legally operative or dispositive writing or (2) the knowledge of a witness concerning a fact results from having read it in a doc. |
| Non-Applicability of the Best Evidence Rule | (1) The knowledge or facts exist INDEPENDENT of a writing OR (2) The writing is of minor importance (collateral) OR (3) Summary of Voluminous Records OR (4)Public Records-copies of public records that are certified or testified as correct. |
| Definitions of Writings, Original and Duplicates | Writing=writings, recordings, or photographs Original=a writing itself or any copy that is intended by the person executing it to have the same effect as the orig. A duplicate=is an exact copy of the original by mechanical means (admissible as orig). |
| Secondary Evidence is admissible to prove the contents of a writing if there is a satisfactory reason for not producing the original like. . . | (1) loss or destruction of the orig. (2) orig. is in the possession of a 3rd party outside the juris and is unobtainable or(3) the orig. is in possession of an adversary, who after due notice, fails to produce the orig. |
| Writings and Admissibility (reservation of preliminary facts for a jury) | Normally a court preliminarily decides the admissibility of a writing except as to (1) whether an orig. ever existed (2) whether the writing produced at trial is an orig. (3) whether the proffered evidence correctly reflects the contents of the orig. |
| Competency | Witnesses are presumed to be competent. But Witnesses must have the capacity to (1)observe (2) recollect (3) communicate (4) appreciate the obligation to speak truthfully |
| Federal Rules of Competency | (1) The witness must have personal knowledge of the matter about which he is to testify and (@) the witness must declare he will testify truthfully. Note: If needed, an interpreter must be qualified and take an oath to make a true translations. |
| Infancy and Competency | The competency of an infant depends upon the capacity and intelligence of the particular child as determined by the judge. |
| Instanity and Competency | An insane person may testify, provided he understands the obligation to speak truthfully and has the capacity to testify accurately |
| Dead Man Act | A party or person interested in the event is incompetent to testify as to personal transaction or communication with the deceased, when such testimony is offered against the representative or successors in interest of the deceased. |
| Leading Questions | G/R: Generally improper on direct. However they are permitted (a) on cross-x (b) to elicit preliminary or introductory matters (c) when the witness needs to aid to respond b/c of loss of memory, immaturity or phys. or mental weakness, (d) hostile witness. |
| Improper Questions Answers | 1. Misleading 2. Compound 3. Argumentative 4. Conclusionary 5. Cumulative 6. Unduly Harassing or embarassing 7. Calls for narrative answers 8. Assume facts not in evidence . . . Are NOT permitted |
| Improper Answers | Answers that (1) lack foundation or are (2) unresponsive . . . may be STRICKEN. |
| Refreshing Recollection | A witness CANNOT read her testimony from a prepared memorandum. However! (1) A witness may use ANY writing or thing for purpose of refreshing her PRESENT recollection. |
| Past Recollection Recorded | Where after a witness still cannot testify accurately and fully even after her memory refreshed, the writing itself may be read into evidence if proper foundation is laid....see next |
| Proper Foundation for a past recollection recorded--recorded recollection | (1) Witness has Pers. knowledge of the facts in the writing and (2) the wit. made the writing (or adopted) and (3) the writing was timely made when the matter was still fresh in wit's mind (4) its accurate and (5) wit. had insuff. recoll. to testify F&A. |
| Inspection and Use of refreshing recollection material | When a witness uses material to refresh her recollection, the adverse party is entitled to have the writing produced at trial, my cross-x the witness on it, and introduce the portions of it relating to the witness's testimony into evidence. |
| Opinion Testimony: of law witnesses Summary | Lay Witness opinion admissible if its (1) rationally based on witness' perception (2) and its a helpful opinion to the jury. Note: cannot testify as to a whether someone acted as an agent or whether an agreement was made |
| Opinion Testimony: Summary of Expert Witnesses | Expert Witness opinion reqs: -education and/or experience -Proper subject matter: Scientific, Technical or other specialized knowledge that will be helpful to the jury in deciding a fact. |
| Summary Continued for Expert Witnesses---basis of opinion | The expert must possess reasonable probability regarding his opinion... |
| Summary Continued for Expert Witnesses---permissible sources for basing their opinion | G/R: opinion must be supported by a proper factual basis-(1) personal knowledge, (2) other evidence admitted at trial and made known to the expert, and (3) facts outside the record but relied upon experts in that particular field in forming their opinion. |
| Summary Continued for Expert Witnesses---Relevance and Reliability | G/R: To be admissible, expert opinion must be relevant to the issue at hand and the methodology & principles used by x-pert, must be suffic. reliable. as determined by the daubert factors. |
| Daubert factors | (1) Testing of the principles or methodology, (2) Rate of Error, (3) Acceptance by other experts in the same field (no consensus req) (4) Peer Review and Publication. |
| Learned Treatis3 in Aid of Expert-Testimony (Hearsay Exception) | On direct-x: x-pert Wit. may read relev portions of a treatise into EV as substantive EV if est. as reliable authority and in conjunc. w/his testimony.(2)On Cross-X opponents x-pert may read into EV to impeach and substant. EV. (3)But can't admit into EV. |
| Ultimate Issues | Opinion testimony is permissible even if it addresses an ultimate issues in the case (not in WYO though). |
| Cross Examination | Generally limited in scope to area covered in direct area and testing credibility of a witness. Also, generally examiner is bound by answers given and cannot intro. extrinsic evidence to contradict answer (except bias, interest, or conviction). |
| Impeachment (Credibility) | Generally, a party may not bolster the testimony of a witness until the witness has been impeached. |
| Exception to Bolstering Rule | A witnesses prior identification of a witness is allowed in as NON-HEARSAY and Substantive Evidence. |
| Whom may impeach a witness? | A witness may be impeached by any party, including the party calling him. |
| Impeachment Types | (1) Prior Inconsistent Statements (2) Bias, Interest, or Motive (3) Sensory Deficiencies (4) Bad Rep or Opinion on Witnesses character for truthfulness (5) Criminal Convictions (6)Bad Acts that reflect adversely on witness's honesty. (7)Contradictio |
| Impeachment Methods | (1) Cross Examination (2) Extrinsic Evidence . . . G/R: Some types of impeachment require certain foundation be laid b/f extrinsic evidence may be introduced. |
| Which types may use extrinsic evidence? | All of them...except Bad Acts or Contradictory facts that are collateral. |
| For those impeachment types that allow extrinsic evidence, is it necessary to ask the witness about the impeaching fact b/f the extrinsic evidence is introduced? | None of them, except BIAS. |
| Prior Inconsistent Statements | May be used to impeach. May only be used for an impeachment purposes. Caveat-may be used as substantive EV as well if statement was made (1) orally under oath and (2)at a prior proceeding. |
| Prior Inconsistent Statements and Extrinsic Evidence | Extrinsic Evidence may be introduced to prove a PIS only if AT SOME POINT, the witness is given an opportunity to explain or deny the statement unless its a hearsay declarant or is the defendant (def's is an admission and thus impeach and substantive EV). |
| Bias, Interest, or Motive to Misrepresent. | Evidence that witness has in interest in the outcome of a case tends to show they may lie. A witness must be confronted on the stand b/f bias may be proven by extrinsic evidence. |
| Sensory Deficiency | Generally may be used to impeach a witness and may be proven by extrinsic evidence w/o first confronting. |
| Bad Reputation or Opinion about a witnesses Character for Truthfulness | Any witness may be impeached by this method. No confrontation is required b/f proving by extrinsic evidence |
| Criminal Convictions | Wit. may be impeached by proof of convictions for certain crimes. (1) Any crime involving dishonesty-must be admitted and (2) Felony not involving dishonesty--in discretion of the court may exclude if probative value is outweighed(or S/O if def) by UFP. |
| Time limit on convictions | Generally, if more than 10 yrs have elapsed since conviction or release from prison, the crime is inadmissible. Juvenile convictions as well and convictions arising from violation of a person's rights. |
| Criminal Convictions and Extrinsic Evidence | Extrinsic Evidence may be used, and confrontation is not required b/f introducing the EE. |
| Specific Bad Acts if they reflect adversely on witness' character for truthfulness. | Must inquire in good faith into these specific instances and cannot use extrinsic evidence (although admissible to prove bias, etc.). An arrest or indictment is not a bad act. |
| Contradiction | Cross examiner may thru confrontation with a witness obtain an admission of mistake or dishonesty. However, is this permitted thru use of EE? NO, if the contradiction is immaterial. |
| Impeachment of a hearsay declarant | The credibility of someone who doesn't testify but whose outof court statement is introduced may be attacked by evidence that would be admissible the declarant had testified. |
| Rehabilitation | A Witnesses character for truthuflness may be proven (1) only when the impeachment suggest witness was lying, not merely mistaken and (2) may be proven by a character witness. |
| Rehabilitation by prior consistent statement. | If the witness's trial testimony is charged as a recent fabrication, or a product of improper influence, a PCS made b/f the motive for bias arose, may be used to rebut the charge and as substantive evidence (non-hearsay as well). |
| Privileges | Federal Courts are ruled by the common law which includes privileges for (1) attorney client (2) spousal communication (3) and psychotherapist/socal worker. Note: in diversity cases, state law controls. |
| Confidential Communication | Holder of a privilege must intend confidentiality or in confidence |
| Persons who may assert a privilege | Only the holder of privilege |
| Waiver of privilege | Any privilege is waived by (1) failure to claim the privilege, (2) voluntary disclosure by the holder, or (3) contractual provision waiving the specific privilege. Mistaken disclosure is not a waiver. |
| Eavesdroppers | A privilege based upon a confidential information is not waived by an eavesdropper who is unknown to the holder unless the holder is negligent. |
| Attorney Client Privilege | Elements: Privilege applies (1) confidential communications (not underlying info. or physical evidence or pre-existing docs) (2) btw. the A and C or rep. of either (3) made while A is rendering legal services. |
| Waiver of Attorney Client Privelege | Only the client, as the holder of the privilege, may waive the privilege. Privilege last forever. |
| Subject Matter Waiver | A voluntary waiver of a privilege as to some communications will also waive the privilege as to other communications if (1) the partial disclosure was intentional (2) concerns the same subject matter and (3) fairness requires it. |
| Attorney Client Privilege and multiple clients | Where an attorney acts for both aprties to a transaction, no privileges can be invoked in a lawsuit btw. the two parties but may be asserted in a suit against a 3rd party. |
| Corporate Clients | Statements made by corporate officials or employees to an attorney are protected if the employees were authorized by the Corp. to make such statements |
| Inadvertent waiver | An inadvertent disclosure of a privileged communication will not waive the privilege so long as the privilege holder (1) took reasonable steps to prevent the disclosure and(2) took reasonable steps to correct the error. |
| Privilege does not apply when ... | (1) Communications w/attorney for future crimes or fraud. (2) Client puts legal advice at issue, (3) Attorney-Client dispute. |
| Attorney's Work product | Documents prepared by an attorney for his own use in a pending litigation are not protected by privilege but are not discoverable except in cases of necessity. |
| Physician-Patient Privilege | Not recognized by federal law (applied to psychotherapists though). Held by the patient. Elements (1) A confid. comm. (2) in the course of treatment, and (3) information was necessary for treatment (non-medical info. is not privileged). |
| Waiver of Physician-Patient Privilege | (1) Patient puts his physical condition at issue; (2) the physicians aid was sought to aid wrongdoing or; (3) physician-patient dispute (4) federal case, and (5) contractual provision. |
| Social Worker/Psychotherapist privilege. | Applies in federal law and follow doctor-client rules. |
| Husband-Wife Privileges | Spousal Immunity and Confidential Communications btw. Spouses: |
| Spousal Immunity | Applies only in criminal cases. G/R: A current spouse cannot be compelled to testify about anything against the defendant spouse. Privilege belongs to witness-spouse. |
| Confidential Communication between Spouses: | In any type of case, confidential communications btw. a husband and wife during a valid marriage are privileged. Both spouses hold this privileges. |
| Waiver of both Husband-Wife Privileges . . . | (1) communications or acts in furtherance of jointly-perpetrated future crimes or frauds, (2) communications or acts in furtherance that are destructive of family unit. (3) Litigation btw. spouses. |
| Clergy or Accountant Privilege | A privilege exists for statements made to a member of the clergy or accountant, the elements of which are very similar to the AC privilege. |
| Governmental Privilege | Official information not otherwise open to the public or the identity of an informer may be protected by a privilege for the gov. |
| Exclusion and Sequestration of Witnesses | Upon a party's request, the TC will order witnesses excluded from the CT or on his own motion. May not exclude(1) a party, officer/ employee of party (2) a Per. whose presence is essential to the presentation of a p's case or (3) a per. statutorily auth. |
| Hearsay | Is an out of court statement, made by a person, offered into evidence to prove the truth of the matter asserted. G/R: Hearsay is inadmissible upon an objection and no exception applies. |
| Hearsay within Hearsay | An hearsay statement that incorporates other hearsay within it is admissible only if both fall within an exception. |
| Non-Hearsay Statements | (1) Verbal or legally operative facts (e.g. contract language or defamatory language). (2) Statements offered to show their effect on the hearer or reader (3) As circumstantial evidence of Speakers State of Mind. |
| Non-Hearsay Statements Cont... | (4) Prior Statements of Trial Witness (very specific see below),(5) Party Addmissions (6)Co-Conspirators. |
| Prior Statements of Trial Witness | G/R: Inadmissible, even if its the own witnesses statement. Exceptions (non-hearsay!) (1) Witness's prior statement IDing a persons (2) W's PIC if oral and under oath at a prior proceeding (3) W's PCS if being used to rebut charge of lying, bias, motive. |
| Party Admission | Any statement or act made by party is admissible for its truth if it is offered against the party. |
| Adoptive Admissions | A party may make an admission by expressly or impliedly adopting or acquiescing in the statement of another. |
| Adoptive silence | If a reasonable person (RP) would've responded and a P remains silent in the face of an accusation, his silence is an implied admission if: (1)the party heard and understood the statement (2) P was capable of denying the statement (3) RP would've denied. |
| Vicarious Admissions | Statement made by an agent or employee is admissible against principle if the statement concerns matter w/scope of agency and is made during the existence of the agency relationship. |
| Admission of Vicarious Admissions | B/f admitting a statement as a vicarious admission, the court must consider the contents of the statement, but the statement alone is not sufficient to establish the required relationship. |
| Co-Conspirator statement | The statement of a co-conspirator is admissible against a party who was a member of the conspiracy if the statement was made (1)during and(2) in furtherance of the conspiracy. |
| Hearsay Exceptions (Requiring unavailability of declarant) | (1) Forfetiure by Wrongdoing. (2) Former Testimony (3) Statements against Interest (4)Dying declaration |
| Hearsay unavailability | A declarant is unavailable if they are: (1) exempt from testifying due to privilege (2) Refuses to testify despite a court order (3) lack of memory (4) Is absent and beyond the court's subpoena power (5) Death/phys. or mental illness. |
| Forfeiture by Wrongdoing | Any type of hearsay statement is admissible against a def. whose wrongdoing made the witness unavail. if the CT finds by (1) Preponderance of the EV (3) the D's conduct was specifically designed to prevent the witness from testifying. |
| Former Testimony | The former test. of a now-unavail. witness, if given at a former proceeding is admiss. against a P who, on the prior occasion, had an opportunity and motive to cross x or develop testimony of the W. ISSUE IN BOTH PROCEEDINGS MUST ESSENT. BE THE SAME. |
| Statements Against interest | The statement of a person, now unavailable as a witness, against the person's (1) pecuniary; (2) penal; (3)proprietary interest when made, is admissible as an exception to hearsay rule. The FRE requires corroborating circ. indicating trustworthiness. |
| Scope of Statements against interest-Scope | The exception only covers those remarks that inculpate the declarant, not the entire extended declaration. |
| Dying Declarations | In a (1) HOMICIDE or (2) CIVIL ACTION, a statement made by a (1) now unavailable declarant is admiss. if (2) they believe their death is imminent (actual death need not occur) and (3) the statement concerned the cause or circ. of the believed death. |
| Statements of Personal or Family History---now unavailable declarant | Statement by a NUD concerning births, marriages, divorces, relationships, etc. are admissible if(1) the declarant is a member of the fam. in question and (2) based upon declarant's personal knowledge. |
| Hearsay exceptions---Declarants Availability Immaterial | (1) Present State of Mind. (2) Excited Utterance. (3) Present Sense Impression. (4) Declarations of Physical Condition. (5) Business Records. (6) Past Recollection Recorded. (7) Official Records. (8)Ancient Documents and Docs Affecting Property Interest. |
| Hearsay exceptions---Declarants Availability Immaterial Continued (2) | (9) Learned Treatise. (10) Reputation. (11) Family Records. (12) Market Reports. (13) Market reports. (14) FRE catch all. |
| Present State of Mind | Statement of THEN EXISTING STATE OF MIND, EMOTION, SENSATION OR PHYSICAL CONDITION (usually introduced to establish intent---look for future planning language). Not admissible to prove the fact the truth of the fact remembered. |
| Excited Utterances | An OOC statement relating to a startling event, made while under the stress of the excitement from the event, is admissible. |
| Present Sense Impression | Statement made concurrently with perception of the event described. |
| Declarations of Physical Condition | -Present Bodily Condition-Admissible: a spontaneous declaration of present bodily condition is admissible as an exception to the hearsay rule even though not made to a physician. |
| Declarations of Past Bodily Condition | Admissible if to Assist Diagnosis or treatment---even declarations about the cause or source of the condition are admissible if pertinent to treatment. |
| Business Records. | Any writing or record made as a memo. of any act or transaction is admissible in evidence as proof of that act or transaction. |
| Business Records--definition of "Business" | Business includes every association, profession, occupation, or calling any kind, whether or not conducted for profit. |
| Business Records--Entry made in the regular course of business. | To be admissible, (1)it must appear that the record was made in the regular course of business and (2) that it was customary to make the type involved. |
| Business Records--Personal Knowledge | The business record must consist of matters within the personal knowledge of the entrant or within the knowledge of someone w/a DUTY (meaning police reports do not qualify) to transmit such matters to the entrant. |
| Business Records: Authentication and Entry... | Authentication: a record must be authenticated and can be done by a custodian (1) testifying that the record is a BR or (2) certifying in writing that the record is a B. Entry must be made at the time or near the time of the transaction. |
| Past Recollection Recorded | If a witness's memory cannot be revived, a party may introduce a memo that the witness made or near the time of the event. |
| Official Records and Other Official Writings | (1) Public records. (2) Records of Vital Statistics. (3) Statement of Absence of Public Record. (4) Judgments. |
| Public Records and Reports | The following are admiss: (1) records setting forth the activities of the office or agency; recordings of matters observed pursuant to a duty imposed by law; civial action and against the Gov. in crim. cases, and records of factual findings by agencies. |
| Public Records continued | A record must have been made by and within the scope of the duty of the public employee and it must have been made at or near the time of the event...thus police records may come in here but generally are inadmissible against criminal defendants. |
| Records of Vital Statistics | Records of vital statistics are admissible of the report was made to a public officer pursuant of requirements of law. |
| Statements of Absence of a Public Record | Evidence in the form of a certification or testimony from the custodian of public records that she has diligently searched and failed to find a rec. is admissible to prove that the matter was not recorded, or inferentially that the matter did not occur. |
| Judgments | A certified copy of judgments is always admissible proof that such judgments has occurred. |
| Judgments--Criminal Convictions | Under the FRE: a judge. of a felony convict. is admiss. in CRIM and Civ. actions as an exception to hearsay to prove any fact essential to a judgment. Yet, in a crim case, the gov. may use this judg. for this purpose only against the def./Impeach. others. |
| exclusionary rule and judgments/Judgments in a Civil Case | -The exclusionary rule is still applied to records of prior acquittals. -A Civil Judg. is clearly inadmissible in a subseq. crim proceedings and generally. inadmiss. in subsequent civil proceedings. |
| Ancient Documents and Documents Affect Property Interests | Under the FRE, statements in authenticated docs. 20 yrs. or older are admissible, as are statements in any doc. affecting an interest in property, regardless of age. |
| Learned Treatise | Treatises are admissible as substantive proof if: (1) Called to the attention of, or relied upon by, an expert witness, AND (2) established as reliable authority by the testimony of that witness, other expert test., or judicial notice. |
| Reputation | Reputation is admissible, under several exceptions to the hearsay rule, as evidence of the following: (1) character, (2) personal or family history; (3) land boundaries; and (4) a communities general history. |
| Family Records | Statements of fact concerning personal or family history contained in (1) Bibles, (2) jewelry, (3) engravings, (4) genealogies, (5) tombstone engravings, etc. |
| Market Reports | Market Reports and other public compilations are admissible if generally used and relied upon by the public or by persons in a particular occupation. |
| Catch All: | hearsay is admissible if: (1) The hearsay statement possesses circumstantial guarantees of trustworthiness, and (2) the statement is strictly necessary, and (3) notice has been given to the adversary as to the nature of the statements. |
| Wyoming Specific | See below |
| WY: A Court has the power of Discretionary Exclusion of Relevant Evidence | Showing prejudice necessary to exclude relev. EV reqs. a showing that the EV had little or no probative value and it is extremely inflammatory (or soley introduce to inflame) . . .this rule doesn't exclude prejudicial EV, but unfairly prejudicial. |
| WY: "In life" Photographs of Homicide Victims | Photos of homicide vics, while they were alive are inadmiss. unless they are relev. to some material issue & their relev. outweighs the danger of prej. Where there is no purpose to intro. this EV, such admission invokes the symp. of the jury and is error. |
| WY: Subsequent Remedial Measures are inadmissible to prove negligence or Culpable Conduct | Unlike the FRE, the Wyoming rules allow such evidence to prove product defects, defective designs, or a need for warnings or instructions. |
| WY: Character Evidence: Specific Acts of Misconduct Generally Inadmissible--Admissible If Independently Relevant | WYoming doe snot limte the use of 404(b) to the prosecution: it is equally available to the defendant. A Def. may offer EV of other crimes or misconduct of a victim to prove a theory of the defense. |
| WY: Course of Conduct | Wyoming courts allow evidence of other crimes, wrongs, or acts if it forms part of the history of the event or enhances development of the facts. |
| WY: Quantam of Proof for independently Relevant Acts of Misconduct (404(b)) (HUGE) (H1) | Wyoming has adopted the federal Huddleston test for determing the admissible of evidence of other crimes, wrongs, or acts. |
| WY: Huddleston Test (H2) | (1) offered for a proper purpose (2)its relev. (3) probative val. is not sub. outweighed by its potenential for unfair prej. (5) upon request, a TC must issue a limiting instr. to the jury that this evid. may only be considered for its proper purp. |
| WY: Level of Proof requires for prior bad acts (H3) | PREPONDERANCE OF THE EVIDNECE |
| WY:Record requirements for admitting character evidence and prior bad acts | When admitting such evidence, the record must reflect the court's purpose for admitting the EV, the findings and conclusions estabing. the relev. and probative value, and the factors considered in balancing the probative value against the unfair prejudice |
| WY:Prior Acts of Sexual Assault or Child Molestation | The Wyoming Rules of EV do not contain these rules authorizing the admissibility of evidence of similar crimes ins sexual assault or child molestation. |
| WY:Remoteness of Evidence---remoteness in time of prior bad acts. | A bad act may be extremely proba. despite the passage of subt. amount of time. The relev. of this EV is depends on the pass. of time; the degree of sim. btw. the charged crime & the prior act must be inversely proportion to the time spam. No ten year bar. |
| WY:Judicial Notice and Prior Court Records | Wyo. Crts may take JN of prior court record as long as(1) written notice is given of the maters to be JNed and (2) any JN docs are physically included as part of the record. |
| WY:Competency of Hypnotized Witnesses | Witnesses who testimony has been hypnotically enhanced are not incompetent to testify: the question regarding the effect of the hyp. on the testimony is a question of credibility, not competence. |
| WY:Use of an Interpreter | In Wyoming, Interpreters are treated as experts. |
| WY:Infancy | To determine the competency of an infant to testify under oath, the court must examine the capacity and intelligence of a particular child to determine the below qualifications... |
| WY:Infant competency qualifications (I1) | A child must (1) understand the obligation to tell the truth (2)has mental capacity for an accurate impression of what happened (3) has suffic. memory for independent recollection (4) has the capacity to express his memory in words and. . . |
| WY:Infant competency qualifications (I2) | (5) has the capacity to understand simple questions. This test focuses on mental capacity, not the W's recollection of events...thus in a sexual abuse case, it is not necessary to ask the child about the events at issue in the case (but in TC discr). |
| WY:Prosecutor as a Witness | The def. must demonst. COMPELLING need (CN) before a participating pros. will be permitted to testify. CN shown by (1) the test. is necessary, not just relev. & (2) its not cumul. & (3) def. has exhausted all other avail. sources of comparable prob. EV. |
| WY:Attorney as a witness | As a general rule, an attorney is not disqualified as a competent witness merely b/c of his participation as an attorney in the proceedings. However, ethical considerations make it improper for an attorney to testify as a witness on behalf of his client. |
| WY:Wyoming's Dead Man Act | IN 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 who interests are adverse to the person incapable of testifying or his personal representative. |
| WY:Additional Daubert Standard Factors | (i)the extensive exp. and specialized expertise of the expert; (2) whether the expert is proposing to testify about matters growing natur. & directly out of research he has done out. the litig. &(iii) the nonjudicial uses to which the method has been put. |
| WY:Testimony Regarding Sex Crimes | Expert testimony regarding the behavior of a SA vic. is permissible where the testimony is based on a number of factors related to the victim's behavior and not merely the vic.'s version of the crime. |
| WY:Syndrome Testimony | Expert testimony to explain a victims behavior is admissible so long as it is based on either the expert's own exp. or on a syndrome that has reached a sufficient level of development to warrant its admission. |
| WY:PSD and Child Sexual Abuse accommodation syndrome. | Wyoming recognizes both as admissible syndrome evidence. The Wyoming Supreme CT has not conclude whether testimony on rape trauma syndrome is admissible. |
| WY:Opinion may embrace ultimate issues. . . | But not guilt of accused, truthfulness or untruthfulness of victims. However, testimony explaining a vics behavior as typical as that type of victim to explain their behavior is admissible. |
| WY:Prior Inconsistent Statements | Extrinsic Evidence of a PIS by a Witness is not admissible unless the W is afforded an opportunity to explain or deny the same, and the opposite party is afforded an opportunity to interrogate him regarding the statement. |
| WY:Conviction of a Crime and Co-Conspirators | When two person are indicted for seperate offenses growing out of the same circumstances, the fact that one has plead guilty is not admissible against the other in the prosecutors case in chief, but may be used to impeach. |
| WY:Co-Conspirator and admissions...time limitations | Wyo. courts place a 10 yr. limitation on this type of evidence. However, prior to excluding a remote conviction, the court must examine whether the evidence is more probative than prejudicial. |
| WY:Physician-Patient Privilege | Wyoming recognizes it. Its held by the patient. |
| WY:Psychotherapists and Social Worker Privilege (Wyoming recognizes it) exceptions. (PS1) | (1) Abuse or neglect elderly, child, mentally handi.; (2) where validity of a will is at issue; (3) info. is needed in a malpractice suit against;(4)where there is an immed. threat of phys. violence against a readily ID'd vic. in civil committ. proceeds. |
| WY:Psychotherapists and Social Worker Privilege (Wyoming recognizes it) exceptions. (PS2) | (5) immmediate threat of self-inflicted dmg. to the patient; (6) the patient has put it at issue in litigation; (7) where the patient is examined b/c of court order; (8) where the P or client has instigated an investigation before a licensing board. |
| WY:Spousal Immunity | Applies to CIVIL proceedings in Wyo. And privilege is held by both spouses |
| WY:Confidential Martial Communications | Wyo. Courts apply the intentions test, which treats assertive conduct that is intended to communicate a confidential msg. from one spouse to another. This privilege survives the death of either spouse. |
| WY:Clergy-Pentitent | Its recognized in Wyoming. Clergy must not testify concerning confessions made in a professional capacity if the church enjoins the clergy from doing so. |
| WY:Prior Inconsistent Statements---Admission Rule | Unlike the FRE, WRE admits an UNSWORN PIS, if the witness acknowledges and admits the statement as their own in CIVIL case. In criminal cases, WRE reqs. a PIS be given under oath at a prior proceeding. |
| WY:Prior Consistent Statements | Unlike the FRE, WRE does not required that PCS be made before the motive to fabricate or improper influence occurred. Whether the statement is admitted is left to the discretion of the TC. |
| WY: Wyoming Admissions by Co-Conspirators (WCC-1) | WRE requires that (1)there be EV of a conspiracy &(2) there is EV that both the declarant and def were involved in the conspriacy &(3) and EV the statement was made during the course of the conspiracy and in furtherance thereof. |
| WY: Wyoming Co-Conspirator evidentiary rules (WCC-2) | The 1st two reqs to admit statements or admissions by co-conspirators in Wyoming, must be proven EV independent of the co-conspirators's statements. |
| WY: Statements against Party Procuring Declarant's Unavailability | Wyoming does not recognize it. |
| WY: Excited Utterances....Wyoming recognizes fives factors to determine if it is an excited utterances which are.... | (1) the nature of the startling event; (2)the declarant's phys. manifestation of excitement; (3) declarant's age; (4) time btw. event and statement; (5)whether statement was made in response to an inquiry. Ultimate inquiry is whether state. was impulsive. |
| WY: Official Records hearsay exception | An arresting officer form is admissible as a public record and official document exception. However, notes by the officer, who is not the investigator, are not admissible. Plus, a finding that states legal conclusions are inadmissible. |
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