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Flow chart: 1. Factually relevant? If not, its not getting in at all.

Definition: relates to, and possesses probative value regarding an event, person, or

time at issue in litigation. Tendency to make the existence of any fact that is of consequence to the determination nor the action more probable or less probable than it would be w/o the evidence . 2. Legally relevant? Probative must outweigh 1. Unfair prejudice; 2. Confusion of issues; 3. Misleading the jury; 4. Undue delay; 5. Wasting time; 6 cumulative evidence. (presumption exists that probative outweighs prejudice, so other party must prove) Def of unfair prejudice: undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. (same standard in AK)

2. Does a rule get it in? (if youre offering it for truth of matter) 3. Probative outweigh prejudicial? FRE will apply to all fed court cases, even diversity J cases where state substantive law applies. But where state substantive law applies, then the states rule on privilege will apply. Otherwise, in a federal court, federal privilege rules apply. FRE does not apply in these proceedings: extradition, prelim exams in crim cases, sentencing/probation, search and arrest warrants; bail. Rule FRE 602 Notes Cannot testify unless personal knowledge Admissibility of evidence: cannot use something to refresh recollection just to get something in that would otherwise be excluded Production of any doc that a witness reviews before trial. Party seeking must convince judge they are needed under the cases facts/circ Appeal may not be successful for stuff admitted/ex cluded unless a substantial right of the parties is affected. CL: lay witness can

FRE 612

If using to refresh recollection, and its something privileged; you waive that privilege. refresh recollection items: do not need to be disclosed pretrial. Must offer as proof and preserve if youre denied something into evidence. Make an offer of proof to court, on record outside of jury, the type and nature of evidence that would have been presented and why admissible and relevant.

FRE 103

If excluded, need to make an offer of proof. If admitted, need to make timely objection and grounds of objection to preserve.

FRE 701

May generally testify about opinion on intoxication, weight, insanity, speed, height. For the sake of time, witness may testify to conclusion or impression, like someone was nervous rather then

only testify to facts; no opinions. FR: may testify to opinions but 1. Must assist in obtaining a clear understandi ng of the wit testimony; 2. Rationally based on wits perception. 3. Not based on scientific, technical or other specialized knowledge. all witnesses are competent (unless proven otherwise) CL: bright line test: presumed incompetent: minors/infa nts, insane, convicted felons, nonbelievers, parties to the litigation. Every witness required to declare they will testify truthfully Interpreters: subject to the provisions of these rules relating to qualification as an expert and the administrati on of oath to make a true

how they were acting nervous. AK: same rule but doesnt include #3.

FRE 601

If trying to prove someone incompetent, must impeach. Witnesses who lack ability to understand and convey the info will not be competent. There will be a hearing on the issue and judge will decide. Automatic grounds for incompetency: lack of personal knowledge or refusal to swear by oath to tell the truth. Challenging incompetency: enter evidence from another who heard/observed what witness heard/observed and who states something different. This goes to witness inability to accurately perceive what they heard/saw.

FRE 603

FRE 604

Judges/ju rors as witnesses

FRE 201: Judicial Notice

translation. No. NO objection needed to preserve the judge thing. Jurors: must be given chance to object absent the jury so theres no prejudice. Dont need to introduce some things into evidence, like court records, public records, statutes, government rainfall/tem p records. Knowledge of historical event. Judge: can determine prelim questions: admissibility ; privilege; competency; hearsay. Jury: issues of fact, credibility, authenticity of evidence. The judge can instruct the jury to accept presumption . Ct may on its own motion or at suggestion of a party, call witnesses and all parties are entitled to cross

Jurors: cannot testify about deliberations. Exceptions: juror was subjected to improper outside influence or exposed to prejudicial info. After verdict rendered, party may move for new trial or appeal if juror misconduct. Trial court analyzes 1. What evidence demonstrates misconduct? 2. Does misconduct justify new trial or relief requested?

To be eligible for JN of Fact: 1. A. Fact is not reasonably disputable or b. Are generally known w/I the J or 2. It is capable of accuracy and ready determination through sources whose accuracy cannot be questioned. Ex: New Yorkers know that the Hudson runs along the west side of Manhattan, but a person in NE may not know that. AK: same rule Judge can take JN at his discretion, w/o a motion. Or party can make a motion. Crim jury instructions: jury may but is not required to consider the fact of judicial notice to be conclusively established. Civil jury instructions: judge required to instruct jury to accept any judicially noticed fact as conclusive. JN can be taken at any stage, even appeal. JN of Law: fed cts must take JN of fed and state laws; can but dont have to take notice of local or foreign laws. No rule for JN of Law. AK: theres a rule for JN of Law: ct must take JN of fed and state laws w/o request. And, upon request and notice to parties, must take JN of local and foreign laws.

Roles of Judge/Jur y

Presumpt ions

In civil case: Presumption must be rebuttable. If ev is offered, however, and not rebutted, judge can instruct jury to decide what they thing. If rebutted, judge will not instruct jury. Crim: fed case law governs this. Dont worry about it.

FRE 614

Direct Examinati on Cross

witnesses called. No leading. Leading OK.

Witnesses who have trouble=ct gives leeway. Matters of prelim info like name/address=leeway Cross is typically restricted to issues that were testified to on direct. But often its read broadly to include essential elements of the COA, crime, or defense mentioned in direct. Also impeachment. Cross is not an absolute right. For instance, if you have a witness who testifies on direct but refuses to answer questions on cross, then his direct testimony should be stricken because the invocation of the 5th precludes the Ds 6th.

Redirect

Recross

Stay away from these

FRE 615 FRE 607 IMPEACH MENT

Limited to questions re: testimony on cross that raised new issues, like that of impeachmen t. Limited to questions re: testimony on cross that raised new issues, like rebutting impeachmen t. Conclusory, argumentati ve, harassing, misleading or compound questioning. Or questions that assume facts not in evidence. Exclusion of a witness Impeachmen t: CL: cannot impeach your own witness. FRE: you can impeach anyone.

Get out of the courtroom upon testimony of others: unless its a party, a partys representative, person whose presence is shown to be essential to the presentation of the partys cause, or party authorized by statute to be present. Can impeach w/hearsay, as long as its not offered for the truth of the matter asserted.

FRE 806: IMPEACH MENT OF HEARSAY DECLARA NTS

C makes a co-conspirator admission admitted against co-D but C does not testify at trial. D can impeach credibility of C as if he were live at trial; can introduce Cs convictions. Can present opinion and reputation testimony. Prove bias, prior inconsistent statements, and contradictory statements by other evidence.

FRE 613: Impeach ment by Prior inconsiste nt statement s

You need to establish foundation.

Note: if it was a prior inconsistent statement under oath, you are trying to get it in for truth of matter asserted. If not under oath, its hearsay and you arent trying to get it in for TMA. Can use testimony of a second witness to prove inconsistency of a first witness; but its hearsay, so its not being admitted for TMA, and is therefore not substantive. CL: a prior inconsistent statement is not admitted unless 1.a witness is made aware of what it is and place, time, person who made it and 2. Is given a chance to explain it. FRE: witness doesnt get chance prior before admission of the statement, b ut does get a chance to explain or deny in court.

FRE 613: Impeach ment by Prior Inconsiste nt Written Statement Impeach ment by Bias and Interest

Need to establish foundation.

On request, must show/disclose to other party. CL: witness must be shown and be provided w/an opp to explain/deny before its admitted into evidence. FRE: only admissible if witness is given opp to explain or deny statement and an adverse party is given chance to examine the witness about it.

Must lay foundation regarding the facts that indicate bias or interest. Can impeach any witness using misdemeano r or felony involving false statement or act of dishonesty.

Party can always ask questions of a witness that would show partiality, bias, interest or motivation. Note: Evidence of a witness's "religious beliefs or opinions is not admissible to attack or support the witness's credibility," an inquiry into the witness' religious beliefs or opinions for the purpose of showing interest or bias because of them is not within the rule's prohibition. It gets in. No balancing test. If 10 yr has passed since conviction or release, unless you can prove prejudicial/probative + written notice w/intent to use to other party. AK: same rule, except its 5 years. Exception: if its not the accused, its a criminal proceeding, and if admission is necessary for a fair determination of the case. IT WILL GET IN IF YOU CAN PROVE NECESSARY as long as not the D and crim case.

FRE 609: Impeach ment by Prior Convictio ns of a Misdemea nor or Felony involving false statement or act of dishonest y Impeach ment by Any Felony Convictio n (not the D)

Impeach ment by

Not the D: 1. Convicted; 2. Felony; 3. Probative/pr ejudicial. Civil case: must be admitted as long as its not against the defendant. Crim case: not the D and also prejudicial/p robative. Must have a good faith

If 10 yr has passed since conviction or release, unless you can prove prejudicial/probative + written notice w/intent to use to other party. AK: THIS RULE DOES NOT EXIST. IT ISNT GETTING IN UNLESS IT WAS A CRIME OF DISHONESTY/FALSE STATEMENT. (AK: broader interpretation of crimes of dishonesty/false statement: includes larceny, theft, perjury, fraud, forgery, false statement and robbery. Not assault/DUI.)

Allowance of this line of questioning is judges discretion. Also, once you ask the witness the questions, you cant call another witness to testify about it=extrinsic.

Specific Instances of Conduct (Bad Acts)

Impeach ment: Character for Truthfuln ess

belief of this. Cannot use extrinsic evidence. Only prior bad acts that are probative of truthfulness . CL: Credibility of a 1st witness can be impeached by testimony of a 2nd witness. Cannot include specific instances or have opinion. FRE: permit opinion and evidence of reputation that refers to that witness character for truthfulness /untruthfuln ess. Circumstanti al Evidence: inference is dawn from the collateral fact when viewed in combination with other evidence. Evidence is inadmissible unless authenticate d and identified.

Some/some: some fed cts wont allow any extrinsic evidence, even docs. Other fed cts dont consider a doc extrinsic if the initial witness can authenticate the doc. CAN ONLY USE ON CROSS. If Ds witness opened the door for Ds truthfulness, or that was put on the table, you can then use evidence of untruthfulness. But if thats not an issue, dont try to impeach.

If youre met with character for truthful ness, and it was rebutted w/untruthfulness, you can bolster. Can ONLY BOLSTER WHEN MET WITH EVIDENCE THAT CONTRADICTS. Do not bolster unless rebutted. You can introduce evidence for TRUTHfulness only, not peacefulness or good moral character. Be careful of this.

FRE 401

Ex: W testifies she saw Ds car speeding from scene of murder around time of death of V. Its circumstantial because it requires additional reasoning or evidence to conclude that D was the one who killed V.

FRE 901

Identification is a prerequisite for authentication. Lots of ways to authenticate: testimony by a witness that evidence is authentic, evidence of a system or process used to ensure accuracy, etc. Chain of custody: must show a chain of custody establishing that the evidence was neither altered nor tampered with in any considerable way. Docs can be authenticated in the following ways: a party-opponent admits or stipulates its genuine, jury makes a comparison between two pieces of evidence, circumstantial evidence indicates that the doc is genuine, like by 1. Contents of a disputed doc that disclose info that only the purported signer would know, making him the probable author; or 2. When a letter offered into evidence appears to be a reply letter coming from the addressee of the first letter; or 3. Coming from the address of the first letter, witness testifies that the doc is genuine These witnesses may provide the testimony: person who executed the doc, witness who saw the person execute the doc, expert witness (handwriting); lay witnesses who are familiar w/the handwriting, but the familiarity may not have been acquired for the purpose of litigation.

Voice Recording: witness who is familiar w/voice can give opinion testimony. Absence of such testimony, surrounding circ may provide enough evidence of authentication and identification. Photograph: admissible w/o needing supporting testimony if person who was there testifies to the accuracy of the event. Most Js use a modern silent witness approach, which allows for the pictorial evidence to speak for itself. To authenticate, however, foundational testimony is required to form a witness that the technical process used to obtain it is reliable. Includes x-rays, images captured by surveillance, etc. Self-authenticating: Ancient Docs (20+yrs old, not suspicious, in a natural custodial location); notarized docs like deeds, certified copies of public records, statute books, any official publication, newspapers/periodicals. FRE 404 Admissibility of Character Generally, evidence of a character trait is inadmissible to show that the person acted in conformity therewith on a particular occasion. (same rule in AK) Exceptions: evidence of a pertinent trait of character is admissible in a crim case if: a D uses it to prove his good character and innocence; or a prosecutor uses it to rebut the Ds evidence of good character and innocence; or the prosecutor uses it to rebut the Ds evidence of a victims bad character. So D must open that door if the pertinent trait of character is introduced. (ex: charge of battery; D introduces character that hes peaceful) D can introduce opinion or reputation evidence of a Vs character if the evidence is relevant to the defense raised by D. Ex: Vs reputation for violence is admissible to prove that a D acted reasonably to protect himself from harm. This rule relates to the issue of self-defense. FRE 405: When character is part of the charge or defense. Methods of Proving Character: character: only admissible when its made an issue (by the charge) Habit and Routine Practice: either party can get this in, any time. If character is made an ultimate issue in either civil or criminal cases, evidence of specific instances of a persons conduct is admissible. In civ cases of negligent entrustment, child custody, defamation, or fraud/misrepresentation, the rules allow for the following three types of evidence to rebut or prove. CRIMINAL CASES: 405(b): Ds character is an essential element of a prosecutors charge or a defense to that charge. In that instance, 405 allows: specific instances of Ds conduct opinion evidence about Ds character reputation evidence about Ds character General: evidence that a person consistently and predictably acts in a certain way is admissible to prove that the persons conduct on a specific occasion conformed to any previous acts. not necessary for a party that seeks to prove the existence of a habit to present eyewitnesses to corroborate the occurrence of particular acts or practices. AK: same Difference Between Habit and Character Evidence: main difference is that either party in both civil and crim cases may introduce habit ev, but character ev usually is admissible only after a D opens the issue. Habit requires proof of a very specific, frequently repeated behavioral pattern, whereas character ev deals with either general moral character or a relevant character trait. Repeated instances of drunk driving was found not to be a habit because it was volitional. AK: same distinction FRE 406 Prior bad acts as conformity therewith Nope. Cant do it. Cannot admit evidence of a prior bad act (conviction or otherwise) as proof that D has a propensity or predisposition to commit a charge offense similar to the one D is charged with. Unless youre proving: MIMIC KOP evidence: Evidence of the prior wrongful acts and past crimes is admissible if the evidence possesses independent relevance and is not being used to prove character. This evidence may be used to prove one of 8 things, including: 1. Motive; 2. Intent; 3. Absence of mistake; 4. Identity; 5. Common plan or scheme (if its very similar, it gets in even if its prejudicial); 6. Knowledge; 7. Opportunity and 8 preparation.

FRE 406

Stipulations: must be specific acts; not general character trait. Judge will apply probative/prejudicial. If requested by accused, prosecutor must provide reasonable notice in advance of trial. AK: same rule. The prior crimes do not have to be so distinctive as to represent a signature; rather the standard for admission is whether, under the totality of circumstances, the other crimes bear a striking enough similarity to the crime being litigated that they take on a probative aspect above and beyond the mere propensity to commit particular crimes. In order to admit evidence of prior acts under ARE 404, there must be sufficient evidence from which a reasonable jury could find by a preponderance of the evidence that the prior act occurred. DV in AK: for a crime involving DV or of interfering with a report of a crime involving DV, evidence of other crimes involving DV against same or another person or of interfering with a report of a crime involving DV is admissible. Includes violating a DV order. FRE 406 Prior accidents/dr iving record Prior Misconduct: Sexual Assault Cannot be used to show negligence in preceding accidents, nor due care. Exception: can be used when offered to prove: 1. existence of a dangerous condition, or 2. That a D was aware of the dangerous condition. CRIM: if accused of sexual assault or child molestation, evidence of the Ds commission of another offense of sexual assault or child molestation is admissible. If P is going to use this, must disclose to D, incl. statements of witness or summary 25d before trial, or later if theres good cause. CIV: if the claim is predicated on a sex assault or child molestation, prior acts are admissible. Same 15d requirement. AK: in a prosecution for physical or sexual assault or abuse of a minor, evidence of other acts by the D toward the same or another child is admissible if 1. within 10 years preceding the date of the offense charged; 2. are similar to the offense charged; and 3. were committed upon persons similar to the prosecuting witness. Note that you dont need a conviction of a prior bad act to admit the prior bad act. Ex: evidence of an assault charge that was dropped. ***admissibility of a prior incident: not enough to show that the evidence qualifies as a crime of DV. Will be allowed if passes probative/prejudicial test, and evidence suggests that a reasonable jury could find by a preponderance of the evidence that the prior act occurred. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence in a case, then a witness qualified as an expert may testify in the form of an opinion. Three requirements for expert testimony: 1. Testimony must be based upon sufficient facts or data; 2. The testimony must be the product of reliable principles and methods; and 3. The witness must apply the principles and methods reliably to the facts of the case. Federal and AK standard: expert opinion evidence is admissible if the trial court determines that 1. The evidence is relevant; 2. The witness is qualified as an expert; 3. The trier of fact will be assisted; 4. The facts or data upon which the opinion is based are of a type reasonably relied upon by experts in that field; and 5. Probative outweighs prejudicial. Before letting it in, ct will act as gatekeeper: 1. Is the reasoning and methodology scientifically valid and 2. Can the reasoning or methodology properly can be applied to the facts in issue. Basis for Expert Testimony: may base her opinion testimony on facts perceived by or made known to the expert, at or before the hearing. (AK: same) Hypothetical Info: an expert who testifies at trial may base her opinion testimony on data or facts about which the expert learns at a trial, possibly through a hypothetical question, and data or facts made known to the expert prior to a trial. Many Js require that hypothetical questions must contain all material facts in evidence that are essential to creating a rational expert opinion.

Expert Testimony and Scientific Evidence

if the facts are reasonably relied upon by experts in the particular field in forming opinions upon the subject, they are not required to be admissible in evidence in order for the opinion to be admitted into evidence. But any facts or data that are otherwise inadmissible cannot be disclosed to the jury unless the court determines probative/prejudicial. expert can provide their opinion without first testifying to the underlying facts or data that the expert has relied upon. May be required to testify to the underlying facts on cross, though. AK: Ex: in one case, the ct of appeals confirmed that cross-examination of an expert witness may include hypothetical questions concerning facts of which the expert was not aware in forming his opinion. A defense expert testified that he found no evidence of aggressive tendencies, impulses, etc in the Ds background that might have contributed to a head -on collision when D unsafely attempted to pass vehicles. The trial court allowed the prosecution to cross the expert on his knowledge of Jansens two prior drunk driving convictions. The appeals court upheld admission of the two prior drunk driving convictions. In another case, the prosecution crossed Ds expert as to ds prior attempts to bomb plane, after expert testified as to Ds capacity to act with intent to kill. SO, rule in AK is, if the expert testifies that D isnt capable of it, then P can get in past convictions for that crime. Zing! Scientific Evidence: does it get in? Reliability, Relevance, and Subject Matter Frye Standard: determines admissibility: is the principle or test being used to obtain the evidence at issue generally accepted in the scientific community? Under this test, these are usually excluded: voice prints, truth serum, lie detector tests, hypnosis, and psychological stress evaluators. Usually admissible: : speed detection equipment results, statistical probabilities, neutron activation analysis, and information based on psychiatry and psychology. Frye Standard is rigid, so the SC and some Js have adopted the Daubert standard to permit the application and admission of expert evidence based on novel scientific theories. Daubert: two prong test: scientific evidence must be 1. Relevant and 2. Reliable (expert must have derived her conclusion from the scientific method). AK: Coon method, which expands on Daubert: the trier of fact must perform a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts at issue. Trial court will consider: can it be empirically tested (is it falsifiable and refutable); has been subject to peer review or publication; whether the known or potential error rate of the theory or technique is acceptable, and whether the existence and maintenance of standards controls the techniques operation; and whether the theory or technique has attained general acceptance. The AK court will designate a Daubert hearing to determine the scientific reliability of proposed evidence. FRE 704 Ultimate issue rule UI of FACT: ex: in a prosecution for driving a vehicle in excess of the speed limit, the cars speed is the ultimate issue. An expert witness can testify about an ultimate issue of fact, unless it concerns a criminal Ds mental state while committing an alleged offense. No expert witness testifying with respect to the mental state or condition of a D in a crim case may state an opinion or inference as to whether the D did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the tier of fact alone. AK: same: judge/jury is the role of jury to decide what is an issue of fact. UI of LAW: an expert nor a lay witness can testify to an issue of law or assert what the outcome of any proceeding should be. Types of Evidence Real Evidence: physical evidence, like the gun. Need identification and authentication. Demonstrative evidence: maps, diagrams, stuff that explains a fact. To get it in, all you need to show is that the evidence is that which it purports to represent. Experimental evidence: experiments or demonstrations are admissible if they will provide relevant evidence that is more probative than prejudicial, wasteful, confusing, or cumulative. 1. does a relationship exist that the courts aim to protect? 2. is there a communication?

Privilege

3. was communication confidential? I.e., was communication made in public or meant to be relayed to outsiders? 4. Is the holder asserting the privilege? 5. was privilege waived? 6. any exceptions to this privilege? Testimoni al privilege authorizes A to refuse to disclose to C the contents of communications with B. Party asserting the privilege has burden of proving that the contested communication is protected by privilege. If a fed question, then fed privilege law applies. If a div J case, then the state where the district ct sits will rule. Protected: atty/client; physical/psychotherapist/patient; and spouse-spouse. (clergy/lay person and doctor/patient: in AK, that privilege is yours) Waiver of Privilege: generally, the holder of a privilege may waive it in any of the following ways: failing to claim the privilege; disclosing the privileged info to a third party; or by signing a written waiver of the privilege. Spousal Immunity a person may not be called to testify against a spouse in any criminal prosecution about anything, even stuff before the marriage. Cannot be required and cannot w/o other spouses consent divulge confidential communicati ons that occurred during the marriage. Fed ct: witness, not the party spouse holds priv. Most states: party has privilege. AK: witness holds the priv, just like in fed ct. Most states apply spousal privilege to crim and not civil cases. Min states: civ and crim cases. Exception: litigation between spouses: privilege does not attach (like in DV or child molestation cases).

Marital Communi cations Privilege

MCP does NOT apply to time before marriage, unlike spousal immunity rule, which pertains to any testimony. MCP does not apply to things said in front of a 3 rd party. Does not apply in litigation b/t spouses. Minority Rule: in a minority of Js, the Marital Communications Privilege may only be invoked by the communicating spouse. In those Js, the spouse who received the communication cannot invoke the privilege and could be required to disclose what the communicating spouse said. Differences b/t spousal immunity and marital communications privilege
Spousal Immunity Criminal: no spouse can be called to testify against another spouse Who has privilege: Fed: testifying spouse, not party spouse. Most states: party spouse has it, so if the witness wants to testify, party spouse must waive. Crim proceeding (not GJ): State may call a spouse, but cannot compel them to testify Terminates upon divorce Spousal immunity does not apply in cases involving litigation b/t spouses, or when spouses are involved in litigation regarding domestic violence against, or incent with, family members. Applies even to communications re: before marriage Marital Communications Privilege Spouse not required without the others consent to divulge the confidential communications in the marriage Both spouses, in crim and civil. Either spouse may invoke the privilege not to testify. Each spouse may prevent the other from testifying regarding confidential communications. Privilege still may be asserted even if the parties get divorced. does not apply when the spouses are involved in litigation regarding DV against, or incest with, family members. Privilege does not apply to communications that occurred before the marriage or in the presence of third parties during the marriage.

Atty/Clie

Client holds

Assumed to be confidential unless client intended for it to be public and client took reasonable

nt Privilege

the privilege. Continues after death of client or atty. Atty must assert the privilege for a client who cannot do so.

precautions to not be heard. Consider location, volume of the talking, etc. AK: privilege applies against an eavesdropper when 1. Client and lawyer intended that the comm be confidential; and 2. When precautions to preserve confidentiality were reasonable under the circumstances. Unprivileged: A casual communication, not conducted for the purpose of obtaining legal advice or representation. Def: atty: person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation. Privilege extends to the lawyers representative in their communications with the client. If not prepared for litigation, like a company routine report, its not privileged. Privilege does not apply to physical evidence that the client provides to atty; docs preexisting the atty-client relationship; atty fee arrangements, bills, etc. the attys services that are requested to assist in planning or committing a crime or fraud. This constitutes an exception to the clients constitutional right against being compelled to testify as a witness in federal criminal (i.e., GJ) proceedings, if such testimony would incriminate the client Privileged: communication is made between a person or entity for the purpose of obtaining legal representation or advise, the communication is confidential and legally privileged from disclosure. Same rule applies for communication made in preparation for litigation. This applies even if the client communicated with someone that he reasonably believed to be, but who, in fact, was not an atty. Also applies regardless of whether the atty ultimately provided any advice or representation to the person. An attorney can have third-party agents ben included in the confidential communications without waiving the atty/client privilege. (same in AK) Common Interest Privilege: if multiple parties with a common interest have joint discussions with their respective lawyers present, they havent waived their privilege a nd so the parties cannot testify about it. But, this rule is only enforceable against the party and third parties if the common interest parties are suing each other, this privilege does not apply.

Atty Work Product

Developed in anticipation of litigation. Anything atty creates or acquires. The FRCP provide qualified immunity, which means that work product materials may be subject to discovery if the party requesting them proves: 1. A substantial need; and 2. An inability to obtain a substantial equivalent by another means. Absolute Immunity: Even if a party can show need, etc., the atty is absolutely immune from disclosing work product docs when they divulge the attys mental impressions, conclusions, opinions, or legal theories regarding litigation. If inadvertent, its not a waiver. As long as the holder promptly took reasonable steps to rectify the error. After receiving such notice, the receiving party must promptly return, sequester, or destroy the specified information and any copies of it in their possession. The other party cannot use or disclose it. all confidential communications regarding medical treatment that occurred b/t a patient and a physician or psychotherapist. Commences when a patient begins a relationship with a physician or psychotherapist in order to obtain medical treatment of a physical, emotional, or mental condition. Keep in mind that this includes drug/alcohol dependencies. Privilege does not include nurses or other medical professionals. Waiving: pt may waive the following ways: 1. Intentionally or unintentionally disclosing the privileged info to a third party; or 2. By signing a written waiver of the privilege. ***note: also can waive if P voluntarily brings an action against D regarding the injuries. Limitations: several states do not extend the privilege to the following situations: crim trials, malpractice actions, proceedings in which a patients mental competency or physical condition is at issue; and when an allegedly privileged communication was made to aid the future commission of a criminal offense or civil fraud. AK: Definition of confidential and the BOP: must prove that the communication was confidential, as it was not intended to be disclosed to 3rd persons other than those present to further the interest of the patient in the examination, consultation, or interview. Support groups:

FRE 502: inadverte nt disclosure Physician /psychoth erapistPatient

Pt holds the privilege. Can assert to prevent a dr from divulging info. Dr can assert on behalf of pt. (AK same)

it would be tough to argue that stuff said in a support group is confidential. AK: TWO Exceptions to the claim of privilege w/physician: conf comm relates to a condition or element of claim or defense. In any proceeding in which the condition is an element of the claim or defense. If you as a D raise the issue of your condition, you cant try to keep this out. Crime/fraud: When conf comm relates to a crime or fraud. If services of physician were obtained, used, or sought to help a person commit a crime or fraud or to avoid apprehension or detection after the commission of a crime/fraud. Ct can require you (P) prove a prima facie case of the wrong doing, like the crime or the fraud by independent evidence. AK: alcohol treatment privilege: Psychotherapist: includes people authorized to practice medicine, including alcohol/drug addiction. Also people licensed as professional counselors, or those that the person reasonably believes to be so. Licensed or certified psychologists who diagnose or treat the addiction. SelfIncrimina tion 5th am applies to any time someone would incriminate himself, whether in civ or crim trials (any proceeding, including GJ and congressional hearings). Only extends to testimonial communications: not blood, DNA, etc. Professing innocence doesnt waive: the SC has held that even if a person professes innocence, he still can assert the 5th. The 5th Am and Impeachment on Cross-Examination: once a crim defendant decides to take the stand in his own defense, his ability to assert the privilege may be diminished. The SC generally has held that a Ds choice to testify acts as a waiver of the privilege regarding questions on cross that concern matters touched upon in direct. Immunity Transactional Immunity: if a witness testifies, pursuant to the prosecutors grant of transaction immunity to having killed someone, then the prosecutor cannot prosecute the witness for that homicide, even if the prosecutor does not use her earlier testimony during this later prosecution. Use and Derivative Use of Testimony: generally, use and derivative use immunity, in comparison, is far narrower. It only protects against any use of the earlier testimony in a later prosecution. So if the witness testifies pursuant to a grant of use and derivative use immunity hat she killed someone, the prosecutor cannot use that earlier testimony in the later prosecution. However, prosecutor may prosecute her for the homicide if he can make his case without using her earlier testimony. Compelled Document Production: the 5th Ams protections extend to the witness production of documents that would possess testimonial significance because of the compelled testimony aspect of the witness production and authentication of those documents. In the event of such compelled document production, use and derivative use immunity may adequately protect the witness privilege against self-incrimination. If the witness is granted use and derivative use immunity in such circumstances, the witness privilege against self-incrimination may be overcome. Other privileged relationsh ips clergy/laype rson; accountant/c lient; journalist/so urce (in AK: clergy/layperson privilege: person has a privilege to refuse to disclose a confidential comm by the person to a member of the clergy. The comm must be made to the clergy in that individuals professional character as spiritual adviser. Clergy: broadly defined as a minister, priest, rabbi, etc or an individual reasonably believed so to be by the person consulting the individual. To be considered privileged, must prove that the communication was confidential, as it was not intended to be disclosed to 3rd persons other than those present to further the interest of the purpose of the comm. So D needs to prove 1. Convo is to remain private and 2. The persons belief in the privacy of the convo is reasonable. the fed govt possesses a privilege against the disclosure of diplomatic or military secrets. The executive branch possesses some absolute and qualified privileges not to disclose certain information. all government law enforcement officers have a qualified privilege not to disclose the identity of confidential informants

Fed Govt Privilege Law Enforcem ent Privilege

FRE 411

Insurance Coverage

evidence about whether a person carried liability insurance is inadmissible regarding whether the person engaged in negligent or wrongful conduct. Exception: evidence regarding whether a person possesses liability insurance may be admitted for the following reasons other than establishing negligence or wrongful conduct: 1. To show that a witness is biased or prejudiced; or 2. To show control, agency, or ownership. Def: evidence of subsequent measures that if taken previously, would have made the event less likely to occur. In AK: not admissible to prove negligence in connection with an event. General Rule: certain evidence is not admissible to establish awareness of fault or liability for negligence. Exception: allows the admission of relevant evidence of subsequent remedial measures: to prove a D owned or controlled something to that harmed P, to prove the feasibility of precautionary measures if a D controverts them; or to impeach D. Civ: cannot use evidence of negotiations or compromise. Cant be used when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity, or amount, or to impeach through a prior inconsistent statement or contradiction. Settlement negotiations: not admissible. Offers to compromise: inadmissible. Medical Expenses: Offers to Pay Medical Expenses are Inadmissible. Plea Negotiations: Inadmissible as evidence of guilt. FRE 410: applies to the following 4 types of evidence arising from, or related to, plea negotiations b/t a prosecutor and a crim D: a guilty plea that is subsequently withdrawn after a trial judge has accepted it; a plea of nolo contender; a statement made about a guilty plea or a plea of NC during proceedings under FRCP 11 or similar state rules; and the contents of discussions b/t the prosecutor and the crim D concerning the entry or withdrawal of a guilty plea.

FRE 407

Remedial Measures

FRE 408

Compromise, Payment of Medical Expenses, and Plea Negotiations

FRE 412

Past Sexual Conduct: no character, past acts permissible if goes to Vs sexual conduct.

CL: evidence of rape victims character for chastity admissible. D could introduce evidence of Vs prior sexual activity to prove consent. 412 replaced that; most Js restrict scope of evidence of Vs pas t sexual conduct. 412: a D may introduce evidence of Vs pertinent trait of character. But 412 restrict the admissibility of evidence of the Vs previous sexual conduct. 412 exclude all reputation and opinion evidence regarding a victims past sexual conduct, as well as all testimonial evidence about that conduct. Exception: admissible in 3 instances: 1. victims past sexual behavior w/D; 2. when Vs past sexual behavior with persons other than D is presented to show the D was not the source of the semen or injury, or 3. constitutional grounds exist that warrant its admission.

FRE 413

Applies to rape and also molestation trials Writings, recordings, photographs. Only applies if party is seeking to prove contents of the

For any reason, the prosecutor may introduce evidence of sexual behavior b/t a D and V. Also allows the admission of evidence of a Ds prior acts of child molestation or sexual misconduct for the purpose of showing the Ds disposition to commit a charged act of sexual misconduct. CL: no evidence is admissible unless it is the best that the nature of the case will allow. Must have original unless original is unavailable due to no fault of the party. Collateral Writing Exception: applies when a witness testimony descries writings that have only a peripheral relationship to any disputed issues of a trial. In that event, the original does not need to be produced because it lacks direct significance. FRE: to prove the content of a writing, recording, or photo, the original is generally required. The FRE have altered the Common Law Best Evidence Rule by changing it to include writings, recordings, or photographs. Also the Federal Best Evidence Rule applies only if a party is seeking

Best Evidence Rule

FRE 1003 FRE 1004

writing/reco rding, etc. Also only applies when document/r ecording/wr iting is of a legally controlling nature. Admissibility of Duplicates Exceptions to the BER

to prove the contents of the writing, recording, or photo. The federal BER only applies when a writing, recording, or photo is evidence of a legally controlling nature. So that evidence 1. Must be essential to the disposition of legal issues in controversy, and 2. Its proponent must seek to establish the contents of an item being presented. Ex: contract, deed.

a duplicate is allowed in stead of original unless party-opponent presents a genuine issue regarding authenticity or in a specific situation it would not be fair to admit the duplicate. In that event, an admissible doc may be any duplicate of an original that correctly reproduces the doc. its either destroyed or lost and its proponent did not lose or destroy due to bad faith; it cant be secured through normal judicial channels of procedure or process; the party against whom it would have been proffered has possession of the item and failed to produce despite receiving adequate notice that it was needed: proper notice is by correspondence, pleadings, subpoena, etc; or an original item of evidence does not need to be produced in order to establish a collateral matter. In that event, a writing, recording, or photo is not closely related to a controlling issue. BER doesnt apply to collateral matters, i.e., when it is of minor importance. Thus, if the writing, recording, or photo would not be presented with respect to a controlling issue, the original version of that does not need to be presented as evidence. The federal BER does not apply, and a copy of a document may be used as evidence, if events or facts exist independently of a writing (like certificates of death or birth no rule automatically prohibits the introduction of evidence obtained through deception. But there are statutes that govern these sorts of things. Charts, etc. a summary is a compilation or other form of summarized writing/recording/photographs, that purports to accurately represent, and/or compile into a manageable and reduced format, all of the source material from which it was derived. Party can introduce a summary instead of all the source material. Thats because the real deal is too voluminous. Ct will look to: is the evidence too voluminous? Has a competent witness gained familiarity with the evidence and the summary? Has the witness testified that the summary accurately reflects the evidence? The originals shall be made available for examination or copying by other parties at a reasonable time and place. The court may order that they be produced in court. when a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered with it. Out of court statement offered for the truth of the matter asserted. Basic rule does not allow hearsay if offered for truth of matter asserted. when a statement does not assert a fact; when a statement is of a type that FRE 801(d) defines as not hearsay when a statement qualifies as an exception to the hearsay rule under FRE 803-804; or when a statement is not being offered to prove its truth. (ex: in a divorce proceeding, Al against Barb, Carla testifies that she heard Barb say Al, youre the scum of the earth. Is this hearsay? Well, its not being admitted to prove that Al was the scum of the earth, but that Barb was mean. So it gets in.) These are admissible to prove that a defamatory statement (i.e. verbal act) was made because of

FRE 1006

Admissibility of Secretly Obtained Recordings Summaries

FRE 106

Introducing part of a writing or recorded statement

Hearsay What is not hearsay

Hearsay

Exception s

the statements independent legal significance and because its truthfulness is not at issue. Contract Formation: words of offer or acceptance in oral contract litigation are verbal acts because they are explanatory words that relate and give character to a translation. So they are not hearsay and are admissible evidence to prove that the statement was made because its significance and its truthfulness are not at issue. Hearsay is admissible to prove its effect upon a reader or hearer instead of the statements truth or falsity. A declarants out-of-court statement is admissible to prove that it caused an emotional response in a reader or hearer, rather than prove the statements truth or falsity. an out of court statement is admissible to prove that it provided notice of some information (like a fact or event) to a reader or a hearer. In that event, the statement is not being presented to establish the statements truth or falsity.

FRE 801

Prior Statements by a Witness

Act of an animal NOT hearsay, like a drug dog sniffing. Nope. Text of 801: A statement is not hearsay if: its an admission by a party-opponent. (admission by party-opponent means that the party that is admitting it is the opposing partys own statement) this rule makes sense because anything the other party says can be admitted as non-hearsay because they are actually there to address and rebut that testimony. A. The statement is offered against a party and is the partys own statement, either in an individual or a representative capacity; or B. a statement of which the party has manifested an adoption or belief in its truth; or C. a statement by a person authorized by the party to make the statement concerning the subject; or D. a statement by a partys agent concerning a matter within the scope of the agency or employment, made during the existence of the relationship; or E. a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarants authority under (C) , the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against who the statement is offered under Subdivision E. allows the admission of three types of prior statements by a witness. Prior statements NOT NOTNOT NOTNOTNOTNOT hearsay as long as the declarant testifies at trial, and witness has an opportunity to explain. 801 permits the cross of a witness as to a prior inconsistent statement. Although the witness may be questioned, an important distinction that has been tested on the exam is whether the prior inconsistent statement can be used as substantive evidence only for impeachment purposes. If the previous statement is inconsistent with present testimony, and was not made under oath, only use for impeachment, not as substantive. If the previous statement was made under oath, you can use it as substantive evidence of the truth of the matter asserted. Also applies to a witness prior consistent statement offered to rebut an allegation of recent fabrication or improper influence or motive if that statement was made before the motive to fabricate existed. The rule provides that if a witness previous statement is consistent with testimony at a trial, it is not hearsay if it is proffered to rebut a party-opponents allegations that the witness trial testimony constituted a recent fabrication or demonstrated an improper influence or motive. If that witness testifies at trial, then the previous statement can be used as substantive. Prior Identification of a Witness: the rule provides that a witness prior ID of a person that occurred out of court is admissible to prove its truth when the witness is presently testifying. Its not hearsay. It constitutes substantive evidence. However, a witness who made a declaration of ID must personally testify in court. NOT HEARSAY. I know what this sounds likean ID is

Statement s Attribute d to Party Opponent

NOT HEARSAY

present sense impression. But if you have PSI you dont need to testify in ct and also if you have PSI, its hearsay, but permissible. An ID is not hearsay, and not considered PSI, because the declarant needs to testify and be crossed and all that jazz. Per FRE, specific types of admissions of a party opponent are not hearsay. Party opponents statement may be admitted in the lawsuit (as an admission by the party opponent) if the statement is offered by another party against party opponent and party oppon ents position is inconsistent with that statement. Ex: M sues D over a car accident alleging D was negligent. A police officer on the scene asked D how fast he was going and D responds, 55 MPH., which is 10 mph over the speed limit. At trial, D alleges that he was going 45 MPH. M may introduce testimony by the officer as an admission of a party opponent because the two requirements are met: 1. The evidence is offered against a party opponent (D), and 2. The party opponents not position is inconsistent with the prior statement (D now alleges he was going 45 instead of 55). the party opponent himself need not be the one to make the statement. A statement will be attributed to the party opponent in several different circumstances. An admission by a party opponent is a statement offered against the party opponent and: the party opponent has expressed an adoption or belief in the statements truth; or the party opponent authorized a person who made the statement to make the statement; or the statement was made by the party opponents co-conspirator (in a crime) in the course of, and in furtherance of, a conspiracy; or the statement was made by the party opponents agent or employee about something within the existence and scope of their relationship. Actions (non verbal, like pointing to a person in a lineup) can be treated as a statement if it is communicative.

Silent Admissio n

a partys failure to respond to a statement or an act(in the nature of a provocative accusation or event) may constitute an admission by the party (as a party opponent) if: (1) the party opponent, against whom such evidence is proffered, heard, comprehended, and had the ability to respond to the statement or act; and (2) a reasonable person in a party-opponents position would have responded by refuting that statement or act. However, an adoptive admission will not result if the party possesses a constitutionally right to remain silent. Ex: D seeks to proffer as evidence, a transcript of an interview with W, in which W recounts hearing P say he arrived at the house at 8:30 (a material issue). The introduction of this transcript presents a multiple hearsay problem. The transcript is hearsay, as is Ws recounting of Ps conversation. So D must overcome hearsay objections as to each level of the hearsay. 803 talks about those exceptions to the hearsay rule that apply regardless of whether a declarant is available to testify at a crim or civil proceeding. 1. Present sense impression: NOTE: DO NOT GET THIS CONFUSED WITH WHEN SOMEONE MAKES A PLAN TO DO SOMETHING, ex: I am going to write my next book under the pen name Roberta Flack. No. Thats not hearsay if youre not trying to get it in for the truth of the matter asserted. Youre trying to get it in to show some circumstantial evidence. Its not hearsay because youre not trying to get it in for the truth. 2. Excited Utterances: Usually on the MBE, excited utterances are followed by exclamation points. Look out, that car blew the red light! The rule applies to a declarants statement that is made: 1. In reaction to an unexpected event or condition; and 2. Relates to the unexpected event or condition; and 3. When the declarant experienced stress that the event or condition caused. The statement need not explain, describe, or be limited to the witness observations of the event. The witness excitement is a sufficient assurance of reliability. 3. Statements of Mental, Emotional, or Physical Condition: a declarants spontaneous and impromptu statement regarding the declarants then existing (present but not past) mental, emotional, or physical condition is admissible. (i.e., I could never hurt him. I loooove him so much.

Multiple Hearsay FRE 803: Availabilit y Immateri al

A declarants words that express the declarants state of mind are admissible. A declarants statement of a current state of mind or intent to do something in the near future is admissible. One example is a declarants announcement of feeling fearful, when that statement is presented in support of the affirmative defense of self-defense. Mental State as Proof about Subsequent Act: a declarants state about his state of mind is admissible to prove the declarants conduct subsequently complied with the preexisting state of mind. 4. Statements for Medical Diagnosis and Treatment: a declarants statement of a part or present mental, emotional, or physical condition is admissible only if it was made for the purpose of treatment or diagnosis by a physician. The statement can concern medical symptoms or the inception or general character of the cause of them. To fall under this rule, statements must be reasonably pertinent to diagnosis or treatment, such as those regarding the medical condition subject to diagnosis or treatment. Usually, a patients statement that identifies someone as being at fault for the patients medical condition will be inadmissible under this rule because that other persons identity will not be relevant to treatment of the patient. Statements to Expert Witnesses: statements made to any physician in order to facilitate his expert testimony fall under the hearsay exception because the expert testimony will concern a diagnosis or treatment Recorded Present Sense Impressio n: FRE 803(5) a recorded past recollection (such as a written statement made by witness several years earlier) may be admitted into evidence as an exception to the hearsay rule when the following two requirements are satisfied: 1. The witness states that the witness does not recollect the recorded info and 2. Presentation of the recorded info does not refresh the witness recollection. Witness possessed personal, firsthand knowledge at the time of the docs creation before the witness testifies; The doc records the witness knowledge at that time; The witness made a timely statement when the doc was created; and The witness testifies to the docs reliability. Ex: case goes to trial two years after its filed. In the intervening time, the memories of witnesses fade. W, a key witness for the prosecution, submits a signed affidavit in which he describes the perpetrator of a crime. When called to testify at trial, W has forgotten the specifics. Even when he is given a copy of his affidavit, W still does not remember the specifics. The prosecutor may, under these circumstances, attempt to introduce the affidavit as a part recollection recorded that W can read into evidence. The affidavit cannot be received as an exhibit, unless defense offers it as an exhibit. Test of FRE 803(5): recorded recollection: a memo or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. Record of Regularly Conducte d Activity: FRE 803(8) certain records of regularly conducted business activities are admissible as an exception to the hearsay rule when the business records were: made contemporaneously or around the time when; an act, condition, or event that the records concern occurred; made by a person possessing personal knowledge of that occurrence; made in the normal course of regularly conducted business activity; and maintained in the normal course of regularly conducted business activity. (note: for reasons of public policy, if its a medical record, the person who made the notes doesnt actually have to be the person possessing personal knowledge, since lots of times, its a nurse or something making the notes at the behest of the doctor) DOESNT GET IN: Accident Reports-Records Made in Preparation of Litigation: accident reports and records made in preparation of litigation often fall outside the scope of this hearsay exception. They do not constitute a regularly kept business record because they are not made

systematically or as a routine business matter, like payroll or a/r. Absence of Business Records: the lack of a business record when it would regularly be kept is admissible to prove the non-occurrence of an event or the non-existence of a fact if that event was of a type for which a record usually would have been made. Public Records and Reports: if public records, reports, statements, or data compilations in any form are created by public agencies and officials w/I the scope of their duties, then they are admissible as exceptions to the hearsay rule. Police reports, however, are inadmissible hearsay evidence against a crim D. In addition, the great majority of courts exclude evidence of a prior civil judgment against a party in subsequent civil litigation (and against the Gov in crim cases). This rule stems from the danger of undue prejudice substantially outweighing the probative value of the evidence. AK: kept out of public records: investigative reports by police and other LEOs; investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; factual findings offered by the state in criminal cases; factual findings resulting from special investigation of a particular complaint, case, or incident; any matter as to which the sources of information or other circumstances indicate lack of trustworthiness. (just think about it: biased) FRE 803(9): vital statistics FRE 803(11) FRE 803(12) FRE 803(13) FRE 803(14) 803(16) 803(17) 803(18) records of birth, deaths, marriages, etc are admissible if report was made to a public office.

provides for the admissibility of statements of births, marriages, divorces, deaths, etc. kept by a religious org. allows the admission into evidence of marriage, baptismal and similar certificates. provides for the admissibility of statements of fact concerning personal or family history contained in family bibles, genealogies, charts, urns, crypts, tombstones, etc allows admission of record of docs affecting an interest in property. If the r ecord is a record of public office and an applicable statute authorizes the recording of documents of that kind in office. allows the admission into evidence of statements in a doc in existence 20 yrs ago or more the authenticity of which is established. market reports, commercial publications, market quotations, tabulations, etc used and relied upon by the public admissible: scholarly or learned materials to the extent called to the attention of an expert witness upon cross, or relied upon by the expert witness in direct. Qualifying statements include statements contained in published treatises, periodicals, etc. established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If deemed reliable, the statements may be read into evidence but may not be received as exhibits. The evidence will be considered as both substantive evidence (i.e., for proof of its content in the action) and for impeachment purposes. reputation among members of a persons family by blood, adoption, or marriage, or in the community concerning a persons birth, adoption, marriage, divorce, etc is admissible under an exception to the hearsay rule. FRE 803(19). reputation in a community, arising before the controversy regarding boundary of lands and the reputation as to events of general history important to the community or State or nation in which located. permits admission into evidence of reputation of a persons character in the community or among the persons associates. exceptions to the hearsay rule that do not apply unless a declarant is unavailable as a witness at a crim trial or civ proceeding. Unavailability: this is when a declarant, who, through no fault of the evidences proponent, cannot testify due to privilege, a refusal to testify, a loss of memory, death or illness, or absence under certain circumstances. Generally, absence may occur when the proponent could not

803(19) 803(20) 803(21) 804 Exceptions to the Hearsay rule requiring unavailabilit y of the

declarant

obtain the declarants attendance at a hearing by process or another reasonable method. Former Testimony: if presently unavailable declarant testified under oath in a former trial hearing, proceeding, or depo, that testimony is admissible when: the prior testimony was under oath, concerns same topic as does the present proceeding; and one of the following two parties had an opportunity and similar motive to develop the former testimony by direct, redirect, or cross: 1. Party opponent against whom evidence is presented; or 2. In a civil action, the party-opponents predecessor in interest. **Note that in the past, the examiners have inquired into whether a statement made in an affidavit can qualify as former testimony. It cannot because, although it may have been made under oath, the opponent could not have had an opportunity to develop the testimony. admissible if it was made: 1. Under a certain expectation of impending death (regardless of whether death resulted as expected); and 2. Regarding the circumstances or cause of that expectation. Dying declarations=admissible in all civ proceedings. Only in crim prosecutions in homicide. Introduced about the cause or circumstances of what the declarant expects to be an imminent death. Must concern the circumstances or causes of death. Must actually believe he is going to die. a presently unavailable declarants statement is admissible if it was 1. Made contrary to a declarants pecuniary, penal, or proprietary interests; (think about that example in the MBE questions: D2 skipped town, but made a statement against his interest about the conspiracy with d1 to D2s girlfriend. Its getting in because its a statement against a party opponent about the conspiracy and also its against declarants interest. So even if its double hearsay, it gets in. ) 2. At the time when made by declarant. Unlike for admissions of a party opponent, the declarant does not have to be a party in the case. Also, if a crim D proffers a declarants statement against interest, such as the declarants confession of a crime, as an exculpatory defen se, then corroborating circumstances must show the statements trustworthiness for it to be admissible. right of confrontation entitles a crim D to be present in crim proceedings against him in order to face any witnesses. Applicable to all Trial Proceedings: any trial type proceeding in which the persons presence has a relation, reasonably sustainable, to the fullness of his opportunity to defend against the charge. Police Interrogation: a victims statement made during a police interrogation is a common type of testimonial evidence presenting a confrontation clause problem. A statement made during interrogation is potentially admissible, when made in the course of a police interrogation under circumstances objectively indicating that the interrogations primary purpose is to enable police assistance to meet an ongoing emergency. If a statement is non testimonial, then a court may use its discretion to determine the reliability of a statement and whether it should be admitted. Objective Standard: a court must evaluate the circumstances in which the encounter occurs and the statements and actions of the parties involved to determine whether the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Ex: in one case, a recording of a 911 call describing an ongoing domestic disturbance was nontestimonial where the victims statements were necessary to resolve the ongoing emergency, and the statements were not formal. In another case, statements were testimonial b/c the declarant (a victim spouse in a domestic disturbance) was interviewed after the event in a room separate from her husband and deliberately recounted the past events. Exceptions or Limitations on Right to Confrontation: Disorderly Conduct; Waiver of Right to Confrontation (if a person voluntarily removes himself from the courtroom); Co-Defendants Confession: if two crim Ds are tried together and only the first testifies at trial, the seconds confession may not be admitted at their joint trial if it expressly implicates the first accused. The reason for excluding the confession is that the first accused would be denied the opp to cross the second concerning the truth/falsity of the statement. This rule even applies if the jury receives instruction not to consider the confession. A limitation applies to the foregoing general rule. Specifically, admission of the second accuseds confession may occur at the joint trial if: 1. All of its references to the first accuseds name and existence are eliminated by redaction and 2. The jury receives an instruction not to use the seconds confession against the first. A redaction that

804: Statement under Belief of Impendin g Death Statement s against Interest

Dying Declaration

6th am

Right to confront

replaces the seconds name with an obvious indication of deletion is impermissible.