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Pile Management Card
evidence
evidence
| Hearsay: criminal D's right of confrontation |
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prosecution may not use hearsay (even within exception) if: - testimonial - declarant unavailable - D had no opportunity to cross-examine on prior occasion or at trial incl.: grand jury testimony, responses to police interrogation, statement to establish past event potentially relevant to a criminal prosecution, but NOT when purpose of questioning is to enable police to meet on-going emergency |
| Hearsay exceptions |
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- forfeiture by wrongdoing - former testimony of now-unavailable witness (when D had opportunity to cross-examine/develop testimony) - statement against interest of now-unavailable witness (pecuniary, proprietary, penal) - dying declaration about cause/circumstances of death (criminal: homicide only, civil: any, ***MA: homicide only) - excited utterance (unavailability not req'd) - present sense impression (***MA: NOT adopted) - present state of mind - declaration of intent - present physical condition - statement for purpose of medical treatment or diagnosis (past OR present symptoms or cause) (***MA: limited to statement to treating physician, NOT incl. statements about general cause) - business records - public records (***MA: NOT incl. findings of fact/opinion resulting from investigation) (NOTE: police reports prepared for prosecution are NOT admissible in criminal case) + past recollection recorded + learned treatises ***MA: also - statements of decedent in civil actions (NOT in MS) - specialized business records involving medical matters (hospital records, medical report of deceased physical who treated a personal injury victim) - statements by child victims of sexual acts |
| Non-hearsay |
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- verbal acts (legally operative words: contract, fraud, etc.) - to show effect on hearer or reader - circumstantial evidence of speaker's state of mind - witness statements: --prior statement of identification --prior inconsistent statement under oath (***MA: NOT substantive evidence except in grand jury testimony) --prior consistent statement to rebut charge of recent fabrication (***MA: ONLY to rehabilitate) - party admissions (***MA: "hearsay exception") (incl. employee against employer) |
| Privileges |
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- federal substantive law cases (civil Constitution, federal statute, criminal cases): common law privileges - diversity cases (state substantive law): state privileges + state law on competency, burdens of proof, presumptions privileges: - attorney-client (requires client intent to be confidential) - physician-patient (***MA: ONLY psychotherapists, and in fed cases based on fed law) - husband-wife in criminal cases (***MA: NOT in grand jury) - confidential communications between spouses during marriage, held by both spouses (***MA: both spouses prohibited from testifying about oral conversations during marriage, no waiver permitted, EXCEPT after death) |
| Hearsay: criminal D's right of confrontation |
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prosecution may not use hearsay (even within exception) if: - testimonial - declarant unavailable - D had no opportunity to cross-examine on prior occasion or at trial incl.: grand jury testimony, responses to police interrogation, statement to establish past event potentially relevant to a criminal prosecution, but NOT when purpose of questioning is to enable police to meet on-going emergency |
| Hearsay exceptions |
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- forfeiture by wrongdoing - former testimony of now-unavailable witness (when D had opportunity to cross-examine/develop testimony) - statement against interest of now-unavailable witness (pecuniary, proprietary, penal) - dying declaration about cause/circumstances of death (criminal: homicide only, civil: any, ***MA: homicide only) - excited utterance (unavailability not req'd) - present sense impression (***MA: NOT adopted) - present state of mind - declaration of intent - present physical condition - statement for purpose of medical treatment or diagnosis (past OR present symptoms or cause) (***MA: limited to statement to treating physician, NOT incl. statements about general cause) - business records - public records (***MA: NOT incl. findings of fact/opinion resulting from investigation) (NOTE: police reports prepared for prosecution are NOT admissible in criminal case) + past recollection recorded + learned treatises ***MA: also - statements of decedent in civil actions (NOT in MS) - specialized business records involving medical matters (hospital records, medical report of deceased physical who treated a personal injury victim) - statements by child victims of sexual acts |
| Non-hearsay |
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- verbal acts (legally operative words: contract, fraud, etc.) - to show effect on hearer or reader - circumstantial evidence of speaker's state of mind - witness statements: --prior statement of identification --prior inconsistent statement under oath (***MA: NOT substantive evidence except in grand jury testimony) --prior consistent statement to rebut charge of recent fabrication (***MA: ONLY to rehabilitate) - party admissions (***MA: "hearsay exception") (incl. employee against employer) |
| Privileges |
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- federal substantive law cases (civil Constitution, federal statute, criminal cases): common law privileges - diversity cases (state substantive law): state privileges + state law on competency, burdens of proof, presumptions privileges: - attorney-client (requires client intent to be confidential) - physician-patient (***MA: ONLY psychotherapists, and in fed cases based on fed law) - husband-wife in criminal cases (***MA: NOT in grand jury) - confidential communications between spouses during marriage, held by both spouses (***MA: both spouses prohibited from testifying about oral conversations during marriage, no waiver permitted, EXCEPT after death) |
| Impeachment methods |
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- prior inconsistent statements (NOTE: NOT substantive evidence UNLESS given under oath--***MA: ONLY grand jury statement in criminal case) - bias, interest, motive to misrepresent - sensory deficiencies bad character for truthfulness: - bad reputation/opinion about witness's character for truthfulness (***MA: reputation only) - criminal convictions: any crime involving false statement or felonies, both within 10 yrs of conviction or release (unless serious) (***MA: ANY felony within 10 yrs or misdemeanor where sentence was imposed within 5 yrs) - bad acts that reflect character for truthfulness (NO extrinsic evidence, except for other purposes) (***MA: NOT allowed EXCEPT in rape to show pattern of false accusations) - contradiction * impeaching fact may be proven by extrinsic evidence (docs or other witness testimony) EXCEPT bad acts and contradictory facts that are collateral * NO requirement of immediate confrontation (may be later) (***MA: EXCEPT prior bad acts requires confrontation while witness is on stand) - NO need to give witness opportunity to explain at all if witness is opposing party rehabilitation: - show witness's good character for truthfulness - prior consistent statement to rebut a charge of recent fabrication (***MA: ONLY to rehabilitate, NOT also as substantive evidence) |
| Impeachment of own witness |
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MS: ok ***MA: ordinarily NOT allowed EXCEPTION: party may impeach own witness's prior inconsistent statement IF caught by surprise and witness is confronted while on stand and given opportunity ti deny/explain |
| Bolstering own witness |
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NOT allowed until witness's credibility attacked EXCEPTION: prior identification of a witness ("I recognize X, and I picked him out of a line-up 2 weeks ago"--treated as exclusion from hearsay) |
| Cross-examination |
| ***MA: NO limit to scope, may question on anything relevant |
| Ultimate issues |
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lay/expert witness may give opinion testimony even on ultimate issue if other requirements for opinion satisfied ***MA: witness in criminal case NOT allowed to state "D is guilty in my opinion" |
| Learned treatise |
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may be used on direct exam of expert, on cross-exam of opponent's expert, but NOT introduced as evidence ***MA: can ONLY be used to impeach opponent's expert on cross-exam EXCEPT: in med mal if author is recognized as expert (independent of book) and proponent gives 30 days' notice--then can be used without live expert at all |
| Expert witness |
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qualifications: education AND/OR experience proper subject matter: special knowledge that will be helpful to trier of fact basis of opinion: reasonable degree of probability or reasonable certainty permissible data sources: - personal knowledge (treating physician) - other evidence in trial record (reports) made know to expert by hypo question - facts outside record IF type reasonably relied upon by experts in the field **only allowed to state in general terms what info relied upon out of court (cannot disclose actual contents of out-of-court material to the jury) Court will determine reliability of principles, methodology (Daubert): - testing - rate of error - acceptance by other experts in discipline - peer review and publication |
| Lay opinion |
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ok if - rationally based on witness's perception - would help trier of fact examples: - drunk - speed of vehicle - sane - emotions - handwriting ***MA: rule on opinion of sanity: lay witness may NOT give direct opinion, only DESCRIBE observations of speech and conduct EXCEPT attesting lay witness (or physician) to a will |
| Writings in aid of oral testimony |
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- refreshing recollection (taken away) - past recollection recorded (read into evidence)--requirements: --writing fails to jog memory --witness had personal knowledge at the time --writing was made or adopted by witness --writing/adoption occurred when event was fresh in witness's memory --witness can vouch for accuracy of writing/adoption when made |
| Dead Man's Statute (NOT in FRE: MS rules--MA has no rule) |
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witness is not ordinarily incompetent merely because he has an interest in the outcome Dead Man's Statute: - in a civil action - an interested witness - is incompetent to testify - against the estate of a decedent - concerning a personal transaction or communication between the interested witness and the decedent ***MA: NO Dead Man's Statute + special MA hearsay exception for statements made by decedent |
| Witness competency |
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- personal knowledge - oath/affirmation |
| Best Evidence Rule exceptions |
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- lost - destroyed without bad faith - cannot be obtained with legal process rule DOES NOT APPLY: --voluminous records --certified copies of public records --collateral documents |
| Best Evidence Rule |
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in order to prove contents of a writing (incl. recordings, films), party must produce the original or provide an excuse applies: - writing is a legally operative document (deed, contract) - witness is testifying to facts that she learned solely from reading about them in a writing ***MA: enlarged, B&W photos ok (no need to produce original); but photocopies of business records only ok IF made in ordinary course of business (not in trial prep); bank/insurance co/hospital records copies only ok IF certified as accurate by custodian |
| Self-authenticating documents |
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- official publications - certified copies of public/private records on file in public office - newspapers or periodicals - trade inscriptions and labels - acknowledged document - commercial paper (burden shifted to show forgery) |
| Authentication |
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writing issues: - authentication - best evidence rule - hearsay authentication methods - personal knowledge - proof of handwriting - ancient document rule - solicited reply doctrine |
| Other sexual misconduct to show propensity for sexual assaults or child molestation |
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MS: D's prior specific acts of sexual assault are admissible as part of P's crim/civil case-in-chief to show propensity ***MA: NOT admissible unless MIMIC satisfied |
| Evidence of other crimes for non-character purposes |
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- motive - intent - absence of mistake - identity - common plan/scheme |
| Character evidence: civil cases |
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inadmissible to prove conduct in conformity because only damages at issue EXCEPT: - character is an essential element of a claim or defense - tort action alleging negligent hiring or negligent entrustment - tort action for defamation - child custody disputes |
| Victim's character: sexual misconduct |
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"rape shield law" makes opinion/reputation and specific acts inadmissible EXCEPT to show: - other source of semen or injury - consent - Love Triangle Defense (MA: statute, MS: case) |
| D's knowledge of victim's bad character for violence (federal & MA) |
| admissible to show D's state of mind (fear) |
| Victim's character: self-defense case |
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criminal D may introduce evidence of victim's violent character to prove conduct in conformity and that victim was first aggressor (prosecution may rebut with evidence of victim's character for peacefulness or D's bad character for violence) ***MA: court has discretion to admit victim's PRIOR ACTS of violence where victim was first aggressor, but D may NOT admit evidence of victim's reputation for violence to prove that victim was first aggressor; prosecution may rebut with evidence of peaceful conduct (compare: federal rule: only reputation/opinion) |
| Character evidence |
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admissible IF: - material element in case (but it is NEVER an element of a crime) - to prove conduct in conformity (but NOT in prosecution's case in chief; but prosecution may REBUT by cross-examining D's character witness about knowledge of specific acts to impeach or by calling own character witnesses) - bad character for truthfulness to impeach ***MA: D may prove good character for a relevant trait ONLY by reputation evidence (not opinion) NOTE: character evidence may NOT be proven by specific acts |
| Policy-based exclusions |
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- liability insurance - subsequent remedial measures EXCEPT to show ownership, control IF CONTROVERTED - settlements of disputed civil claims EXCEPT statements of fact in civil claim asserted by a govt agency in a related criminal case ***MA: statements of fact during compromise negotiations are excluded ONLY if inseparable from the effort to compromise; govt agency claims exception NOT applicable NOTE: exclusionary rules only applies if claim is disputed at time of settlement negotiations (validity or amount of damages) - certain pleas - offer to pay hospital or medical expenses |
| Plea bargaining in criminal cases |
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inadmissible - offer to plead guilty - withdrawn guilty plea (in pending crim or sub civil cases) - plea of nolo contendere (in subs civil suit) - statements of fact EXCEPT: plea of guilty (not withdrawn) IS admissible in sub litigation based on same facts under rule of party admissions |
| Character evidence |
| not admissible to prove conduct on a particular occasion |
| Similar occurrences |
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inadmissible EXCEPT: - P's accident history IF injury at issue - similar accidents caused by same event/condition IF to show existence of dangerous condition, causation of accident, or prior notice to D - intent in issue - comparable sales on issue of value - industrial custom as standard of care - habit (check: frequency, particularity) ***MA: ONLY business routine or evidence of decedent's "habits of dealing" to disprove P's evidence of decedent's promise/statement |
| Relevance |
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relevant evidence is admissible UNLESS: --promote ACCURACY of fact-finding-- - danger of unfair prejudice - confusion of issues - misleading the jury --promote EFFICIENCY-- - undue delay - waste of time - unduly cumulative |
| Presumption |
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shifts the burden of PRODUCTION, NOT the burden of proof - legitimacy - against suicide - sanity - death by absence - chastity - regularity - continuance of a condition - mail delivery - solvency - bailee's negligence - marriage |
| Preliminary determination of admissibility of evidence |
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jury: relevancy - agency - authenticity of a document - credibility of a witness - personal knowledge judge: competency of evidence that is relevant - requirements for hearsay exceptions, privileges, expert testimony, mental competence |
| NON-hearsay |
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IF DECLARANT UNAVAILABLE: - verbal acts or legally operative facts (e.g., contract, defamatory words) - statements offered for effect on hearer (e.g., to prove notice in negligence case) - statements offered as circumstantial evidence of declarant's state of mind (e.g., evidence of insanity or knowledge) AVAILABILITY IMMATERIAL: - present state of mind (to show intent) - excited utterances - present sense impressions - declarations of physical condition: present or past (if to assist diagnosis/treatment) - business records (check: knowledge, time, authentication) - official records and writings (NOT in criminal case) (may incl. prior criminal conviction, but NOT prior civil judgment) - ancient documents (20yrs) - learned treatises - reputation - family records - market reports * catch-all: - trustworthiness - necessary - notice given to adversary * constitutional issue: testimonial evidence INADMISSIBLE against criminal D unless hearsay declarant unavailable and D had opportunity to cross-examine when statement was made |
| Hearsay: former testimony |
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- party against whom offered or (in civil case) the party's predecessor in interest was a party in the former action - same subject matter - testimony was given under oath - party against whom offered had an opportunity to develop the declarant's testimony |
| Hearsay: "unavailability" |
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- privilege - refuses to testify - lack of memory - death or physical or mental illness - absent |
| Hearsay EXCEPTIONS |
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- prior inconsistent statements under oath at prior proceedings - admissions by party-opponent (formal judicial admissions: may NOT be explained); may be adoptive (certain silence) or vicarious (agent, partner) * admissions of co-conspirators require opportunity to cross-examine - declarant unavailable - statement against interest when made - dying declaration about cause/circumstances of believed impending death - statements of personal or family history - statements against party procuring declarant's unavailability |
| Hearsay |
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out-of-court statement offered in evidence to prove the truth of the matter asserted - verbal or non-verbal conduct |
| Husband-wife privilege |
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- spousal immunity: criminal case (while married) - confidential marital communications: ANY case (on communications made while married in reliance on intimacy) * do NOT apply in cases between spouses or involving children |
| Physician-patient privilege |
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- professional relationship - info acquired during course of treatment - necessary for treatment does NOT apply where: - patient puts condition in issue - assistance was sought to aid wrongdoing - relevant to an issue of breach of duty in a dispute between physician and patient - patient agreed by contract - in federal case applying federal law of privilege * may NOT apply in criminal case or felony case or homicide case (depending on state) |
| Attorney-client privilege |
| exception: necessity |
| Privileges |
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NOT recognized by FRE Federal courts: - attorney-client - spousal communications - psychotherapist/social worker-client * in diversity cases: state law of privileges applies |
| Impeachment |
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- prior inconsistent statements - bias or interest - conviction <10yrs: involving dishonesty (NO discretion to bar) OR felony (discretion) - bad acts on cross-exam (NOT arrests): ONLY if probative for truthfulness - sensory deficiencies - NO impeachment on a collateral matter |
| Authoritative texts and treatises |
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- expert must be on the stand - read into evidence, NOT an exhibit |
| Expert witness testimony |
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requirements: - specialized knowledge would assist trier of fact - witness is qualified - witness possesses reasonable probability regarding his opinion - opinion is supported by a proper factual basis * expert MAY render opinion on ultimate issue EXCEPT: in criminal case where D's mental state is an element of the crime or defense expert may NOT state opinion about whether D had the mental state at issue |
| Lay opinion testimony |
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requirements: - rationally based on witness's perception - helpful to testimony or fact in issue - NOT based on specialized knowledge ADMISSIBLE circumstances: - general appearance or condition of a person - state of emotion of a person - sense recognition - voice or handwriting ID - speed of a moving object - value of own services - ir/rational nature of another's conduct - intoxication of another INADMISSIBLE circumstances: - whether one acted as agent or made agreement |
| Past recollection recorded |
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read into evidence; adverse party made admit into evidence requirements: - personal knowledge of the facts - made by the witness or adopted - timely made - accurate - witness has insufficient recollection |
| Present recollection refreshed |
| NOT read into evidence |
| Judicial notice |
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indisputable facts of common knowledge or capable of verification (adjudicative facts--of the case; judge may also notice legislative facts regardless of common knowledge) - may incl. scientific principle - may be done upon request or independently - conclusive in civil case but NOT criminal case |
| Character evidence |
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- impeachment - substantive evidence IF --character is ultimate issue --circumstantial evidence of how D probably acted by specific acts, opinion (NOT IN MA), reputation * generally INADMISSIBLE in civil cases unless directly in issue (e.g., defamation) * admissible in CRIMINAL case IF D initiates --BUT P is limited to inquiry on cross-exam (NO extrinsic evidence ) --OK to ask character witness about D's prior arrests (and specific instances of misconduct), but NOT the witness's prior arrests --OK to call new witnesses about D's bad rep or opinion admissible if independently relevant: - motive - intent - absence of mistake - identity - common plan / scheme |
| Relevant evidence |
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must relate to time, controversy, person EXCEPT: - causation evidence - prior false claims - same bodily injury - similar accidents, injuries by same event or conditions (to prove existence of condition, D's knowledge, cause) - previous similar acts to prove intent - rebutting impossibility - habit (NOT character) - business routine - industry custom (standard of care) may still be excluded based on - judicial discretion (probative value vs. prejudice, etc.) - public policy (e.g., insurance, repairs, settlement offers and withdrawn guilty pleas IF CLAIM IS TO BE MADE, offers to pay medical expenses) |
| Sources of evidence law |
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- state common law and state statutes - comprehensive state codes - Federal Rules of Evidence (MBE) |
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