evidence skeleton outline

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Evidence Skeleton Outline A. Basic Classifications of Evidence 1. Testimonial Evidence: Consists of oral statements of persons who are sworn as witnesses in open court. 2. Documentary Evidence: Information relating to facts in issue in written form. (i.e. written contracts, business records, wills and deeds.) -Before documentary evidence may be admitted it must be authenticated (i.e. someone must testify as to what the document purports to be AND its relevance to the issue being tried. 3. Real Evidence: Information appearing directly to the sensory perception of the trier of fact by the exhibition of tangible objects which have probative value. (i.e. a gun or articles of clothing) -Before real evidence is admitted, someone must authenticate it by testifying as to what it purports to be. 4. Direct Evidence: Testimony of a percipient witness which instantly relates to a fact in issue without intervention of proof of any other fact. (i.e. A witness who gets on the stand saying, “I was present and I saw the defendant shoot the victim,” is giving direct evidence) -Percipient Witness: One who had a direct personal experience with the event in question through one of his sensory perceptions. 5. Circumstantial Evidence : Information that relates to proof of an intermediate fact rather than directly to the fact at issue. Circumstantial evidence cumulatively based on logic and experience would lead the reasonable juror to conclude that a fact in issue is true or untrue. (Many cases are based completely on circumstantial evidence. -i.e. There was no one present who saw the Δ fire the weapon, but the state may present witnesses to testify that they sold the Δ a gun. Each witness is testifying to direct evidence of what they perceived, but all of them put 1

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Page 1: Evidence Skeleton Outline

Evidence Skeleton Outline

A. Basic Classifications of Evidence

1. Testimonial Evidence: Consists of oral statements of persons who are sworn as witnesses in open court.

2. Documentary Evidence: Information relating to facts in issue in written form. (i.e. written contracts, business records, wills and deeds.)-Before documentary evidence may be admitted it must be authenticated (i.e. someone must testify as to what the document purports to be AND its relevance to the issue being tried.

3. Real Evidence: Information appearing directly to the sensory perception of the trier of fact by the exhibition of tangible objects which have probative value. (i.e. a gun or articles of clothing)-Before real evidence is admitted, someone must authenticate it by testifying as to what it purports to be.

4. Direct Evidence: Testimony of a percipient witness which instantly relates to a fact in issue without intervention of proof of any other fact. (i.e. A witness who gets on the stand saying, “I was present and I saw the defendant shoot the victim,” is giving direct evidence)

-Percipient Witness: One who had a direct personal experience with the event in question through one of his sensory perceptions.

5. Circumstantial Evidence: Information that relates to proof of an intermediate fact rather than directly to the fact at issue. Circumstantial evidence cumulatively based on logic and experience would lead the reasonable juror to conclude that a fact in issue is true or untrue. (Many cases are based completely on circumstantial evidence.

-i.e. There was no one present who saw the Δ fire the weapon, but the state may present witnesses to testify that they sold the Δ a gun. Each witness is testifying

to direct evidence of what they perceived, but all of them put together may lead the trier of fact to believe that the Δ killed the victim.

6. Competent Evidence: Information that the trier of fact may properly consider in its inquiry by reason of its being information from a legally approved source and which is offered in a legally approved form. (Most evidentiary objections go towards the competency of the evidence.)

-i.e. “What is being offered violates the hearsay rule…”

7. Relevant Evidence: Information that under basic principles of logic and human experience will shed light upon and tend to prove the truth or falsity of some proposition in issue in the current lawsuit. No specific piece of information is intrinsically relevant. Relevancy means that information which is being offered has some logical tendency to prove or disprove the current issue in the lawsuit.

-Note: There is a lot of evidence that we may feel is logically relevant but for public policy reasons is kept out of the trial process.

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8. Material Evidence: Evidence that tends to prove a proposition that is in issue in the current lawsuit. In the law of evidence, evidence can be relevant and still be immaterial. In order to determine whether evidence is immaterial, you have to look to the pleadings in the case and the substantive law of the case.

-Material evidence goes to the SUBSTANTIVE issues of the case.-Found under FRE 401, regarding relevant evidence “of consequence.”-i.e. a passenger purchases a ticket for a Greyhound bus and the bus is involved in an

accident. The passenger brings an action against the bus company and the driver of the bus for negligence. The defense puts a witness on the stand to testify that he was with the plaintiff 3 hours before he got on the bus and saw him consume 13 beers. This is relevant, but the plaintiff’s sobriety is not an issue in the case – the issue is the negligence of the bus driver.

9. Extrinsic Evidence: External evidence or evidence that is inadmissible or not properly before the court, jury, or other determining body.

Fundamental Rule of Evidence→ All offered evidence NOT seasonably or timely objected to is admissible and entitled to probative value. Counsel must object immediately.

FRE 403: Exclusion of Relevant Evidence on the Grounds of Prejudice, Confusion or Waste of Time →-Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.

- Example: counsel may say - “I ask for your discretion on this issue under the omnibus rule. It’s probative value is outweighed by prejudice to my client, will take too much time, overly cumulative/confusing…etc.” Rule is frequently invoked by counsel.

-This rule gives counsel a tremendous opportunity to keep out evidence which would ordinarily come in IF you can convince the trial judge.

Ways to Establish Facts Without Formal Proof by way of Evidence1. Admissions Contained in Pleadings: Any factual allegations on the face of the complaint that are not denied are taken to be admitted.2. Inadvertent Admission of Fact: Usually need specific denial, general denial not sufficient.3. Formal Judicial Admission4. Stipulations: Bilateral agreements between counsel5. Pre-Trial Discovery: Request for Admission of Facts

B. Judicial Notice

-Judicial Notice is the recognition by the court of the truth of certain facts without the introduction of evidence on those facts.

-Judicial notice plays a vital rule on the trial process as to:a. To determine with finality certain types of adjudicative facts,b. Ruling on admissibility of certain types of scientific or technical expert proof, and

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c. The conclusiveness of certain types of scientific proof (to determine the weight that should be given to those facts.)

-There are 2 main types of facts of which judicial notice can be taken:

1. Adjudicative Facts: Are those facts which relate to the particular event under litigation.-They help explain who did what, when, where, how, and with what motive and intent.-Courts should judicially notice ONLY those facts that are so commonly and certainly

known within the territorial jurisdiction of the courts as to make them indisputable among reasonable persons. (Common Knowledge & Verifiable Certainty)

-Common Knowledge: Facts that are indisputable which form a part of the common knowledge of persons of ordinary intelligence and understanding within the

territorial jurisdiction of the court (These facts will be judicially noticed.-Verifiable Certainty: Facts generally known in the community which are capable of

immediate and accurate verification b y resorting to easily accessible sources generally recognized as authoritative to be judicially noticed. (i.e. hypotheses and generalized knowledge, and specific facts as defined by FRE 201)

2. Legislative Facts: Are more general facts that do not concern the immediate parties, and that remain the same across a wide range of cases. These are the facts that appellate courts deal with on appeal when dealing with the issue of whether existing law should be changed or modified because it has a substantive effect on people.

Judicial Notice of Law → Courts should take judicial notice of those matters which are deemed to be within the special competence of the judge in the exercise of the judge’s judicial office as a member of the co-equal branch of government.

-Judges MUST judicially notice correctly ALL areas of DOMESTIC law applicable to a case with three exceptions. The reason for this is because the laws are not easily accessible. Historically, counsel had the burden of proving the municipal ordinances, town bylaws, and private acts. (ON EXAM).

i. Municipal Ordinancesii. Town Bylawsiii. Private Acts of the State Legislature (the objective of which is to benefit a particular

person or location.)iv. Example: You cannot stand up in court and ask the judge to judicially recognize the

Town of Attleboro Zoning Laws. Counsel must prove the bylaws (get printed copy) and enter them into the record. They will not be judicially recognized otherwise.

-Judicial Notice in Regards to Expert TestimonyGeneral: There are a couple ways of utilizing judicial notice of expert testimony. Specifically, for the validity and admissibility of certain types of scientific evidence.

-ONLY 2 WAYS to admit testimony of scientific evidence: (Scientific evidence can include newly discovered gadgets, techniques, and methodology)

1. Judicial Notice

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-State v. Finkle→ Δ convicted of speeding challenges use of radar. Court holds that absence of scientific writings on subject so common does not

mandate reversal. Radar falls within the scope of judicial notice.2. Legislature enacts legislation authorizing the results of the scientific process to come

into evidence. (i.e. breathalyzer, blood grouping for paternity, etc…)

-All Scientific Evidence passes through 3 Stages → If the court does not judicially notice what stage the scientific evidence is in, there is no way of admitting the evidence other than through legislative means.

(1) Stage 1: Initial Discovery – No court should ever allow evidence in at this stage. (2) Stage 2: Research & Development(3) Stage 3: General Scientific Acceptance – Virtually everyone in the scientific field recognizes reliability at this stage. (Evidence should only be accepted at this stage)

Case Law→-Frye v. U.S.: (Test no longer used) → Stated that “expert opinion based on a scientific technique is inadmissible unless the technique is ‘generally accepted’ as reliable in the relevant scientific community.”-Daubert v. Merrell Dow Pharm: (New Standard for Admissibility of Expert Testimony)-Facts→ π proffered expert witnesses were excluded because the opinions they intended to introduce were not based on methods generally accepted in the scientific community.-Issue→ Does an expert opinion need to be generally accepted in the scientific community to be admissible? NO.-Rule→ An expert opinion does not need to be generally accepted in the scientific community to be admissible.-Reasoning→ FRE 702: The rule provides that “if scientific… or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue,” an expert may testify thereto. Nothing in this rule provides that general scientific acceptance is a condition to admissibility. The rule requires “knowledge,” so guesses or speculation are inadmissible. A necessary corollary to this is that the expert MUST base his opinions on sound principles and valid deductions.

-Daubert rejects Frye and turns trial judge into a gatekeeper for scientific evidence.-Judge must hold a voir dire hearing regarding questions of admissibility of evidence.

Information is presented to judge who then rules on admissibility of certain pieces of evidence, i.e. expert testimony, Δ’s statements..etc.

**The KEY things the Judge MUST focus on are RELIABILITY and RELEVANCE **

-Guidelines for Preliminary Determination of Admissibility → (Daubert: All 5 guidelines need NOT be found, simply meant to assist in making preliminary determinations)

1. Examine whether the proposed theory or technique has been TESTED.2. Examine whether the proposed theory or technique has been SUBJECTED TO PEER REVIEW OR PUBLICATION.3. Examine what the KNOWN OR POTENTIAL ERROR RATE IS of the theory or technique.4. Examine what the STANDARDS OR PROTOCOLS ARE FOR CONTROLLING THE APPLICATION of the theory or technique; and5. Examine whether the theory or technique has acquired GENERAL SCIENTIFIC ACCEPTANCE WITHIN THE SCIENTIFIC COMMUNITY.

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Application of Daubert→-Kumho Tire: Question was whether Daubert principles apply to non-scientific testimony. SC held that FRE 702 imposes a gate keeping obligation on the trial court judge to determine that ALL expert testimony, not just that of scientific experts, is RELIABLE AND RELEVANT.

-Anytime ANY expert offers an opinion, the judge MUST apply the gate keeping principles to determine the RELEVANCE AND RELIABILITY of the evidence.

Final Note: A Judge may never judicially notice one of the elements of a case that the government has to prove. A Judge may never step in and judicially notice the existence of one of the elements of a criminal offense.

C. Testimonial Proof

-Federal Standards of Witness Competency (Whether a particular witness may testify at all in the current proceeding)

-Issues of witness competency generally arise with respect to young children, aging persons, or persons with some type of mental retardation.-Anytime a witness competency is challenged, the judge MUST hold voir dire

hearing outside the presence of the jury. The judge is the sole determiner of witness competency and the jury has nothing to do with the issue.

-The capacity to understand obligation to speak truth, observe occurrence, remember occurrence, and give meaning to what was seen and heard is

the crucial consideration.

FRE 601: General Rules of Competency: (Basically a presumption of competency, other than judge or juror) UNLESS→

1. FRE 602: Lack of Personal Knowledge→ A witness “may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Evidence to prove personal knowledge may, but need not, consist of the witnesses own testimony.

-Mechanics: Trial judge must determine if a witness has a sufficient opportunity to perceive the subject matter of the testimony. The Rule DOES NOT REQUIRE that the witnesses knowledge be positive or rise to the level of absolute certainty. Evidence is inadmissible under this rule only if in the proper exercise of the trial courts discretion it finds that the witness could NOT have actually perceived or observed that which he testified to.

-If it’s a matter of credibility, it should go to the jury.

2. FRE 603: Oath or Affirmation →Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witnesses conscience and impress the witnesses mind with the duty to do so.

-MA Standards for Sufficient Understanding→ To be considered a witness of sufficient understanding:1. A witness must be shown to be able to receive relevant sensory perceptions.

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2. A witness must demonstrate some ability of an independent memory of the past sensory perception.3. A witness must have some present ability to communicate in a meaningful way the past sensory perception, either directly or through an interpreter.4. A witness must demonstrate some fundamental understanding of the obligation to tell the truth. With a child witness, they do not have to understand the meaning of the oath or the meaning of punishment, but they do have to understand that they know it is wrong to lie and that if they do lie, some punishment will result.

-All issues 1-4 are relevant to cross-x-All that is required is that the witness have minimal competency and if a

witness’s competency is challenged, the judge MUST conduct a voir dire hearing outside the presence of the jury.

-It is an absolute error to allow the jury to be present when a voir dire hearing is being conducted by the judge on the issue of witness competency.

-There are no age requirements for competency of witness.-Impairment of witness competency goes to the weight of his testimony, not the admissibility. Also, consider the right to a meaningful cross-x.

FRE 701: Opinion Testimony by Lay Witnesses → If the witness is not testifying as an expert, the witnesses testimony in the form of opinions or inferences is limited to those opinions or inferences which are:

1. Rationally based of the perception of the witness, AND2. Helpful to a clear understanding of the witnesses testimony or the determination of a fact in issue, AND3. Not based of scientific, technical, or other specialized knowledge within the scope of FRE 702.

D. Impeachment of Witness** Recognize you can only impeach a witness who has testified (Impeachment = destroy credibility).FRE 607: Who can Impeach → Anyone

-General Rules: When a witness gets on the stand for the first and is called by counsel in a civil or criminal case, counsel cannot attempt to bolster the credibility of that witness.

1. Counsel CANNOT, at the outset, try to support the credibility of a witness.2. You can only try to bolster witness credibility after the witness has been attacked by

the other side.

-5 Common Techniques for Impeaching Witnesses→1. Character: The witness’ general character, especially his character for truth telling, may be attacked. Usually done by:

A. Prior Convictions: FRE 609 → (Remember over 10 yrs for felony, 5 for Misdeamean.) General rule. For the purpose of attacking the credibility of a witness, 1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the

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probative value of admitting this evidence outweighs its prejudicial effect to the accused; and 2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

-Note: Must be interpreted narrowly to apply only to those crimes which bear on a witnesses propensity to testify truthfully. If the conviction offered to impeach falls within FRE 609a2, no balancing of probative value is permitted.-What is kept out under FRE 403 may well be admissible under 609 for impeachment purposes.-Argument is that the probative value of the conviction is substantially outweighed by the prejudice.

B. Bad Acts: By showing that he has previously committed bad acts that have not led to criminal conviction; (Not allowed in MA) orC. Reputation: By showing that he has a bad reputation (Usually for not telling truth) →

-It MUST be a poor community wide reputation for truth and veracity. In MA, work or business reputation is also admissible. FRE 608

2. Prior Inconsistent Statement (PIS): The witness’ credibility may be attacked by showing that on a prior occasion; he has made a statement that is inconsistent with his present testimony.

-10 Issues that can arise with the use of a prior inconsistent statement →1. Can the prior inconsistent statement be used with respect to a particular witness? PISs can be used on ALL witnesses, yours and your opponents.2. What is meant by inconsistency? Do NOT need a plain categorical contradiction to show inconsistency. All you need is a prior statement (i.e. in the pleadings) the implications of which tend in a different direction from what the witness has testified on the stand.3. Should there be any concern about the form of the prior inconsistency? NO. The out of court statement is not being offered substantively – the form of the inconsistent statement is immaterial. Question is – did the witness make a PIS in whatever form.4. Should there be any concern about the subject matter of the PIS? YES. As a matter of right, counsel may only introduce PISs in whatever form which relates to the substantive testimony of the witness, NOT collateral type statements.5. Is there any surprise requirement before a PIS can be used? NO. 6. Is there an affirmative damage requirement before a PIS can be used? NO. 7. Is there any foundation requirement before extrinsic evidence of a PIS may be used? Yes. MA requires foundation to be set; however no foundation required for adversary witness.8. If the PIS is admitted by the witness on foundation questioning is extrinsic evidence of the PIS admissible? FRE 615b – If the witness admits making the prior inconsistent statement, extrinsic evidence is NOT allowed after this.9. What is the evidentiary effect of a prior inconsistency? A PIS made orally or by writing is admitted solely for the issue of witness credibility. It is not admitted substantively or probatively.-General Rule→ Is that PISs are hearsay and are not admitted substantively – ONLY for impeachment requiring a limited instruction from the judge.

-2 Exceptions→

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a. PISs made by a PARTY witness is admissible both substantively and on the issue of the party’s credibility. (Impeachment & Evidentiary

Admissions)b. FRE 801(d)(1)(a): Statements which are not hearsay → A statement is

not hearsay if (1) Prior statement by witness – The declarant testifies at the trial or hearing and is subject to cross-x concerning the statement, and the statement is (a) inconsistent with the declarant’s testimony, and was given under oath subject to penalty of perjury at a trial, hearing, deposition, or other proceeding.

-NOTE: The prior statement MUST be given UNDER OATH. 10. Is there any constitutional exclusionary impediment to the use of a witness’s PIS in a

criminal trial? Yes, Miranda warnings must be given. Also, if Δ invokes right to counsel and counsel not provided, and subsequent statements are inadmissible.

-Illegally obtained evidence may NEVER be used as part of the State’s case in chief but it CAN be used in effort to impeach the witness’s credibility. UNLESS, that info was obtained through coercion or beating, can never be used for any purpose.

3. Bias: Credibility may be attacked by showing that the witness is biased in favor of or against one side, because of family relationship, financial interest, or other ulterior motive.

4. Sensory or Mental Defect: Grounds for witness competency are minimal and all you need is to have a witness who has some opportunity to remember the event and some minimal ability to communicate, thus impeachment reached through failing to perceive and remember.-CAN ask if they were under the influence of narcotics, heavy medication, ANYTHING that might

impair the witness’s ability to perceive events accurately. (3rd party can also be question regarding witness’s impairment)

5. Contradiction: Ex) Witness testifies that Δ went through red light; I produce witness who testifies the light was green.

-Witness Rehabilitation → Counsel CANNOT try to show his witness is a good witness until his credibility is attacked and someone shows he is bad. The method of rehabilitation MUST match the method of attack/impeachment.

-Methods of Attempted Rehabilitation: A. Evidence explaining or denying impeaching evidence. If a witness is attacked, she can

take the stand again and deny or explain the impeaching evidence.B. Proof of Prior Consistent Statements → FRE 801(d)(1)(B) is allowed in to rehabilitate a

witness to (1) rebut a charge of recent fabrication of a witness, or (2) to rebut a charge of improper influence or motive. This is NOT hearsay under FRE 801(d)(1). Most states will allow prior consistent statements to rebut prior inconsistent statements.

-CANNOT be used where an attack is on bad character or contradiction because the proposed defense is not relevant to the attack.

C. Proof of Good Character. Can produce other witnesses to show a witness has a good reputation for truth and veracity.

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-Best Evidence Rule → ONLY concerns written statements (private documents) and production of original documents.

-Exceptions: Destroyed, lost, or in possession of another person.

E. HEARSAY

-Definition (2 Parts): Hearsay is a (1) out of court statement (oral or written) that is (2) offered in court to prove the truth of the matter asserted. → BOTH elements must be satisfied!!!

-Must focus on purpose; it’s not hearsay if the statement is NOT BEING USED to prove the truth of the matter asserted.

-Declarant = The person who made the out-of-court statement-Implied Assertion → always considered hearsay

-Purpose of hearsay→ We want people to have personal experiences about what they are testifying. A person testifying about what the declarant said does not have this personal experience. Also, in a criminal case, the Δ has a 6th Amend right to confrontation.

1. Anytime a witness is on the stand and they are testifying to an out of court assertive statement made by another person, if that statement is offered to prove the truth, it is hearsay.2. Hearsay ONLY applies to persons, not devices.3. There is some relationship between the 6th Amend and the hearsay rule in the sense that the Δ has a right to confront accusers (Confrontation Clause)4. Hearsay Analysis →The key question is whether the evidence is offered to prove the truth of the matter asserted?

A. What is the statement?B. What is the issue upon which it’s offered?C. Is the statement offered to establish the truth of any assertion within it

(testimonially) OR is it being offered to show that the statement was made (circumstantially)?

-FRE 802 → Hearsay is NOT admissible except as provided by these rules and SCOTUS & Congress.

-Dangers of Hearsay: There is no way to question the declarant who is not available. Hearsay is objectionable because there is no immediate opportunity to cross-x the declarant in the presence of the current fact-finder at the time the statement was made. (Absence of contemporaneous cross-x)

-That’s how we challenge the accuracy and truthfulness of the statement.

-Statements Which Are NOT Hearsay:1. Prior Statement by a Witness: The declarant testifies at the trial or hearing and is subject to cross-x concerning the statement and the statement is: (FRE 801(d)(1))

a. Inconsistent with the declarant’s testimony, and was given under oath (PIS ARE hearsay and are inadmissible (although admissible to impeach witness’s

credibility); but are not hearsay if PIS is made under oath and has been subject to cross-X); OR

b. Consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence

or motive; OR

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c. One of identification of a person after perceiving the person (“That was the guy who did it”).

(However, a witness’s own prior statement if offered to prove the truth of the matter asserted in the statement is hearsay, unless there’s an exception; i.e. “I told the cops I didn’t do it when they arrested me.” Hearsay b/c we are unable to cross-x at the time the statement was made, doesn’t matter that Δ is on the witness stand right now.)

2. Admission by Party/Opponent: Evidentiary admissions. The statement is offered against a party and is: (FRE 801(d)(2))

a. The party’s own statement, in either an individual or representative capacity, ORb. A statement of which the party has manifested an adoption or belief in its truth, ORc. A statement by a person authorized by the party to make a statement concerning

the subject, ORd. A statement by the party’s agent or servant concerning a matter within the scope of

the agency or employment, made during the existence of the relationship, ORe. A statement by a co-conspirator of a party during the course or in furtherance of the

conspiracy. f. The contents of the statement shall be considered but are not alone sufficient to

establish the declarant’s authority under c, d, or e.3. Operative Words Doctrine: (Verbal Acts) Oral or written statements of direct legal significance. These statements form the basis of all or part of a cause of action. (i.e. slander, warranty, oral contracts, etc.) AKA a situation where the substantive law attaches legal significance to certain words simply because those words were spoken (i.e. speaking words of offer and acceptance = contracts)

-Here credibility is irrelevant-Not hearsay, they are verbal acts

4. Circumstantial Evidence: Evidence NOT offered to prove the truth of what was stated, but provides indirect proof of a fact.

a. Offered to Show Effect of Statement on Hearer or Reader – offered to show that the statement was made. The statement can got to knowledge, good faith, or

intent.-i.e. Dr. left sponge in P’s stomach. Nurse testifies that she heard another nurse

say that the sponge count was off. This is not offered to show that the sponge count was actually off, but rather the effect it had on the Dr. (He should’ve checked it out, even if it’s not true – purpose for prior notice or warning)

b. Offered to Show the State of Mind or Feeling of the Declarant: Statement won’t be allowed in if it proves the truth of the matter to be asserted, i.e. mother hears

daughter say, “he killed my brother,” not to prove Δ committed murder, but can be used to prove her state of mind.

c. Offered to show the Sanity of the Declarant: In a proceeding of whether Δ should be committed, witness testifies that Δ said he was the pope. This is not offered to

show Δ is the pope, but to question Δ’s sanity.d. Offered to Explain Ambiguous Acts: Where an act is legally ambiguous, any statement made at the time of the act which helps explain the true nature of the act is admissible.-Exactly the same as the operative words doctrine, but involves act (i.e. A gives B

pen: This is an ambiguous act – is it a gift, a bailment, or a trust. Witness said that A’s statement was “happy birthday.” This explains the act.)

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-This applies to statements made at the time of the act which help to define the true meaning of the act.

5. Reputation Evidence: Witness states that another witness has a reputation for truth & veracity in the community, for the purpose of impeaching the character of another witness.

EXAM TIP (Always on exams)-First, ALWAYS see if the hearsay statement is being used to offer proof of the matter asserted.F. Exceptions to the Hearsay Rule → FRE 803 (Availability of Declarant Immaterial) & 804 (Declarant Unavailable)

-FRE 804 Contains 5 Exceptions that can ONLY be used when the declarant is unavailable(For all other exceptions, must refer to FRE 803)

-FRE 804(a): Definition of Unavailability→ Includes situations in which the declarant:(1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement (testimony not available), OR(2) Persists in refusing (while on the stand) to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so, OR(3) Testifies to a lack of memory of the subject matter of the declarant’s statement, OR(4) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity, OR(5) Is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s absence (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4) the declarant’s attendance or testimony) by process or other reasonable means.(6) A declarant is NOT unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

-NOTE: 2 classifications of unavailability→1. Testimonial Unavailability (a, b, & c above)2. Physical Unavailability (d & e above)

-FRE 804(b): Hearsay Exceptions→ The following are not excluded by the hearsay rule if the declarant is unavailable as a witness (ALL of these exceptions are based on the fact that there is a necessity for the out of court statement AND the statements have an indicia of reliability to them.)

A. Former Testimony: Testimony given as a witness at another hearing of the same or different proceeding, or in a deposition taken in compliance with the law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect exam.

-Necessary Elements→1. Witness MUST have testified under oath2. Party against whom the testimony is now offered, or a predecessor in interest in a civil case, must be shown to have had an opportunity and similar motivation

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to examine the witness and develop his testimony on substantially the same issue. (MUST have had OPPORTUNITY to cross-x)

3. Witness MUST be presently unavailable on any of the 5 recognized grounds set forth in 804(a).

-Predecessor in Interest: If it appears that in a former suit, a party having a similar motive to cross-examine about the same fundamental facts as

the present party would have, and there was an adequate opportunity for such examination, the testimony may be received against the present party.

Crawford v. Washington: 6th Amend. Confrontation Clause-Facts. In August of 1999, the Petitioner was arrested for the stabbing of Kenneth Lee (”Mr. Lee”). The Petitioner admitted he had gone in search of Mr. Lee after Mr. Lee had tried rape his wife. At that time, statements were taken both of the Petitioner and his wife, who witnessed the incident. Ms. Crawford could not be called to testify against her husband, due to the marriage immunity privilege; however, her testimonial statement was later used against her husband because the facts of her statement and those in his were somewhat different-particularly, whether Mr. Lee was armed and made an advance prior to his stabbing came into question. The Petitioner was charged with assault and attempted murder, and based on the testimonial, he was found guilty. The Petitioner appealed.

-Issue. Whether an out of court statement can be used against a defendant to assert the truth of the matter at issue?

-Synopsis of Rule of Law. Testimonial statements cannot be used against a defendant who is not given the opportunity to confront the witness giving the statement.

-Held. When statements are testimonial in nature, the defendant must be given the opportunity to confront the witness. In this case, Mr. Crawford could not confront his wife due to marital immunity, and thus her statement should also have been immune from use by the prosecution.

-Concurrence. While Chief Justice William Rehnquist (”J. Rehnquist”) concurred in the judgment, his statements were contrary to a concurrence. In his opinion, J. Rehnquist maintained that the court needs to delineate what a testimonial statement is, in order to make a clear determination as to how it is to be treated. (Overturned Ohio v. Roberts)

Davis v. Washington: -Facts of the Case: Davis was arrested after Michelle McCottry called 911 and told the operator that he had beaten her with his fists and then left. At trial, McCottry did not testify, but the 911 call was offered as evidence of the connection between Davis and McCottry's injuries. Davis objected, arguing that presenting the recording without giving him the opportunity to cross-examine McCottry violated his Sixth Amendment right to confront his accuser as interpreted by the U.S. Supreme Court in Crawford v. Washington. The Washington Supreme Court disagreed, finding that the call was not "testimonial" and was therefore different from the statements at issue in Crawford.

-Question: Under the U.S. Supreme Court's interpretation of the Sixth Amendment in Crawford v. Washington, may statements made to police during investigation of a crime, though not made with the

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intent to preserve evidence, be admitted in court without allowing defendants to cross-examine the person who made the original statements?

-Held: Yes. In a 9-0 decision authored by Justice Antonin Scalia, the Court ruled that the Confrontation Clause of the Sixth Amendment, as interpreted in Crawford v. Washington, does not apply to "non-testimonial" statements not intended to be preserved as evidence at trial. Although McCottry identified her attacker to the 911 operator, she provided the information intending to help the police resolve an "ongoing emergency," not to testify to a past crime. The Court reasoned that under the circumstances, McCottry was not acting as a "witness," and the 911 transcript was not "testimony." Therefore, the Sixth Amendment did not require her to appear at trial and be cross- examined. Justice Clarence Thomas wrote a separate opinion concurring in part and dissenting in part. He argued that though McCottry's statements were not testimonial, the Court should not "guess" at the primary motive behind the statements. This case was decided with Hammon v. Indiana.

B. Statement Under Belief of Impending Death: In a prosecution for homicide or in a civil action or proceeding, a statement made by the declarant while believing the that the

declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

- The federal rule is designed for a situation where X is shot, stabbed, or seriously wounded and police officer asks “who did this to you?” Traditionally, in the

prosecution of D, the victim’s dying declaration will be admissible as a firmly rooted hearsay exception.

-MA law = dying declarations in civil cases are inadmissible-Even though the court holds a voir dire hearing and finds that the statement was a

dying declaration, the court MUST instruct the jury that THEY are bound to revisit the criteria and question whether at the time the identification was made the victim was in a fixed sense of imminent death – if they do not find so, then they are to completely disregard the statement.

-Rationale: if a person is about to die, they are probably telling the truth.

C. Statement Against Interest: A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

-Rationale behind this rule is that people do not usually make statements against their own financial, property, or penal interests. These statements are allowed into

evidence because there is some indicia of reliability and trustworthiness.

- Statements Against Interest (contrasted with Evidentiary Admissions). -A statement against interest is an out of court verbal or written statement by a third person who is NOT a party to the lawsuit. Evidentiary admissions are adverse oral or written statements or conduct of a party to the pending lawsuit.

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- The declarant of a statement against interest must be unavailable within one of the five grounds set forth in FRE 804(a). There is no requirement that

the declarant of an evidentiary admission be unavailable.

-The out of court statement that is a statement against interest must be made by a declarant against his proprietary, pecuniary, or penal interests at

the time it is made. An evidentiary admission need NOT be against the interest of the party at the time that it is made, but must be adverse to the party’s position at the time of the pending trial.

-The statement against interest by a third person must relate to a factual subject matter within the person’s personal knowledge. An evidentiary

admission does not require personal knowledge of the declarant and the form of the admission is not important.

-A declaration against interest is a common law hearsay exception which is retained and extended as a hearsay exception under FRE 804(b)(3).

Evidentiary admissions are generally considered as common law hearsay exceptions in the majority of states (including MA) but under the FRE 801(d)(2) evidentiary admissions are considered NOT to be hearsay.

-A qualifying declaration against interest is admissible as non-binding substantive proof in both civil and criminal cases. Evidentiary

admissions of a party, although not conclusive evidence, are admissible as substantive evidence against a party in both civil and criminal cases.**KEY is that at the time of its making, the statement is so far contrary to the declarant’s pecuniary or proprietary interests as to be reliable.

-Exculpation Statement: A statement that exposes the declarant to criminal liability while exculpating another is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

- HAVE to look at timing of declaration, relationship between declarant and witness, reliability and character of declarant, whether it was made spontaneously, whether other people heard it, whether there was a motive for declarant to misrepresent matter, etc…

D. Statement of Personal or Family History: (A) A statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though the declarant had no means of acquiring personal knowledge of the matter stated, or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other’s family as to be likely to have accurate information concerning the matter declared. (Self-explanatory)

E. Forfeiture by Wrongdoing: A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

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-Example: if X threatens Y if Y testifies. Any statements made by Y may come in. -Anytime a party engages in such misconduct, the objective of which is to

procure the unavailability of the declarant, any relevant statement will be allowed into evidence.

-Further Hearsay Exceptions in the FRE→

FRE 805. Double Hearsay or Totem Pole Hearsay. Hearsay included within hearsay is not excluded under the hearsay if each part of the combined statements conform with an exception to the hearsay rule provided in these rules.

-Example: A police report contains an evidentiary admission by a party. The police report is hearsay as is the evidentiary admission, but both are exceptions to the hearsay rule and may be admitted into evidence.

FRE 806. Attacking and Supporting the Credibility of the Declarant. When a hearsay statement, or a statement defined in FRE 801(d)(2)C, D, or E has been admitted into evidence, the credibility to the declarant may be attacked and if attacked may be supported by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant’s hearsay, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement had been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

-Anytime statements come in you are able to use all of the techniques for impeachment on hearsay declarant, i.e. bias, contradiction, prior inconsistent statements, etc…

FRE 807. Residual Exception. A statement not specifically covered by FRE 803 or 804 but having equivalent circumstantial guarantees of trustworthiness is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purpose of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.

-Many states that have adopted the FRE have NOT adopted 807. MA has NOT adopted this and many lawyers are NOT in favor of this because it is too wide open and it leads to judge shopping and they want predictability in the rules. -There could be a sixth amendment problem because a right to confrontation can only be eliminated by a firmly rooted hearsay exception.

G. Evidentiary Admissions

-Generally: (Covered in Rule 801) Unlike a declaration against interest, an admission of a party DOES NOT have to be against the interest of the party at the time it is made, but it DOES have to be adverse to the party’s position at the time of trial.

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1. Evidentiary admissions are adverse oral or written statements or conduct of a PARTY to a pending lawsuit, civil or criminal.2. There is NO requirement that the declarant be unavailable.3. There is no requirement that the person who makes the statement have personal evidentiary knowledge of what the statement relates to and there is NO requirement that the statement be in any particular form.

HYPO: Driver in truck in scope of employment is in accident. Employer was not present and had no knowledge. Employer tells friend that his driver was in accident and it was his fault. This is admissible.

4. The admission need not be against the interests of the party at the time the statement is made, but rather it must be adverse to the party’s position at the time of the pending trial.

HYPO: I own property and get a tax bill assessing my property at $250K. I appear in front of the board stating that property is worth $150K. They disagree. Six months later, property is taken by eminent domain and town offers me $250K. I argue that the property is worth $500K. My statement made 6 months ago is admissible NOW because it was an adverse statement made against my interest.

5. Evidentiary admissions were generally considered to be hearsay in the common law, but under the FRE they are not hearsay. See FRE 801(d)(2). 6. Admissions of a party, although not conclusive evidence, are admissible as substantive evidence against the party in both civil and criminal cases.

3 Types of Admissions→

1. Express: Party expressly makes an admission-i.e. “I must have been going too fast, I didn’t see you”

2. Adopted or Implied: The failure to deny an accusation can be used against you as an adoptive admission. This is adopting the factual assertion in the allegation.

-i.e. Car Accident. The failure to deny an adverse accusation can be introduced as an adoptive admission (with certain caveats):-The person who made the accusation was not a police officer or law enforcement official.-If someone makes an accusation in any context, what you do not deny, assuming you hear it and understand it, you are impliedly admitting the accuracy of the accusation and your failure to deny it can be used against you.

-Bill v. Farm Life Insurance. Policy does not cover suicide. Medical examiner asks parents if there is any doubt son committed suicide and father shakes head no. Lateral head movement is an evidentiary admission and is admissible.

3. Vicarious: An adverse statement (admission) by an agent or a servant offered vicariously against a principle or master.

a. Example : X is driving the company truck and is in an accident. X makes the statement, “I guess I had one too many drinks.” The employee’s statement CAN be offered as proof in a trial against the employer.

b. Mahlandt v. Wild Canid Survival . Child bit by wolf held by agent of D. Can statements, minutes of board meetings be admitted into evidence despite lack of personal knowledge by D? YES. FRE 403 and 805 DO NOT mandate the introduction of personal

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knowledge into 801(d)(2)(d). The fact that the agent had no personal knowledge goes to weight rather than evidence.

c. Ruszcyk v. Secretary of Public Safety . MA adopted FRE 801(d)(2)(d). Cadet hurt at police academy when someone threw metal door at him. Sargent told selectman that trooper did it. Just because declarant lacked personal knowledge is no reason not to allow it if probative value outweighs prejudicial effect under 403.

-Non-Evidentiary Admissions under the FRE→ The following rules are predicated upon public policy grounds. But for these rules, one could rationally argue that something proscribed by the rules may still come in. Conduct represented by these rules MAY NOT be introduced as evidentiary admissions.

1. FRE 407b. Subsequent Remedial Measures. If after an injury caused by an event, remedial measures are taken to fix the problem, these measures cannot be admitted to prove negligence, culpable conduct, or a product defect. If it were allowed, no one would fix anything for fear it would be used against them.a. Post-accident repairs are NOT admissible as evidence of negligence or evidentiary

admission.2. FRE 408. Compromise or Offers to Compromise. If D’s lawyer calls P’s lawyer stating, “Your

client wants $50K, how about $30K?” this cannot be admitted as an admission of liability because there is a public policy in favor of settlements. a. If the very fact that people had discussions regarding settlement could be used against

them, it would never happen. There is a public policy to be served in having parties settle claims amicably.

3. FRE 409. Evidence of Furnishing or Offering to Pay Medical Expenses. Evidence of furnishing or offering to pay medical expenses cannot be admitted as an admission of liability because there is a public policy in favor of such benevolent conduct.

4. FRE 410. Admissibility of Pleas/Plea Discussions. Any discussions surrounding pleas will NOT be admissible as an evidentiary admission because otherwise nobody would attempt to plea bargain with the government if during trial it could come back to them. There is a public policy in favor of not going to trial.

5. FRE 411. Liability Insurance. Evidence that a person was or was not insured against liability is not admissible as an admission of negligence because of public policy.

H. FRE 803 EXCEPTIONS (Availability of Declarant Immaterial)

-Generally: Exceptions that may be used even though the declarant is available. If the out of court statement falls into one of these exceptions it is admissible. These rules only remove the hearsay objection – they do not automatically make statements admissible. They may still be inadmissible on grounds of relevancy, etc.

-Statements that fall within the following exceptions are admissible because there is some degree of trustworthiness associated with the statement.

-FRE 803(1): Present Sense Impression→ A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. (MA doesn’t accept the present sense impression)

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1. This is a wide open hearsay exception that allows a lot to be admissible—any relevant (civil & criminal) declaration of a person about an event. What is directly observed or immediately thereafter means just that – there is a narrow window. 15 to 20 minutes later is not considered immediate.a. Does NOT have to be startling or excited situation. b. ONLY need the person to perceive the relevant event.c. MA has NOT accepted (or rejected) this exception.

2. Commonwealth v. Coleman . Victim called mother and told her that boyfriend was going to kill her. Connection went dead and D was found with blood on him and said that he “hurt his girlfriend.” Girlfriend’s statement to mother was allowed in as a present sense impression.

3. Houston Oxygen v. Texas . This was the first time FRE 803(1) was used. W observed car driving fast and said, “they must be drunk and will get into accident.” Car was in accident and W’s statements were admitted.

-FRE 803(2): Excited Utterance→ Statement relating to a startling event or condition made while declarant was under the exciting condition/stress.

-Rationale: Declaration is instinctive rather than deliberate – in short, the reflex product of immediate sensual impressions, unaided by retrospective mental action. These are indicia or verity which the law accepts as a substitute for the usual requirements of an oath and opportunity for cross-x. The relative immediateness insures that there will have been little opportunity for reflection or calculated misstatement.

-Elements Needed: 1. The event that gives rise to the out of court statement MUST be sufficiently startling

to STILL reflection.2. The statement MUST be made while the declarant continued under the stress and

influence of the startling event.3. The statement MUST relate to the circumstances of the exciting event or occurrence.

-Time between Utterance and Event DOES NOT need to be contemporaneous. The time required between has elapsed progressively over time.

a. Hatchell v. Messier’s Diner . A goes to diner and slips on wet floor. Seconds later, witness screams, “I told you to clean that up 15 minutes ago.” Startling event was the fall that evoked the utterance seconds later.

b. Commonwealth v. Brandt . D shot V1 and V2. V2 played dead for 45 minutes until D left and then ran upstairs screaming “D shot me.” Court held that there is NO fixed time limit so long as there is NO time to fabricate.

c. Battered Women’s Cases. W gets beat and goes to police. Then W won’t testify so prosecutors often use statements as excited utterance.

d. Commonwealth v. Crawford . D shot victim in front of child. Six hours later, D drops off child with grandmother and child tells grandmother that D shot someone. Court held that statement WAS admissible as an excited utterance because at between the time of the shooting and the time she told the grandmother the child was under D’s control and

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there was no time for fabrication. One of the longer timeframes Fenton has seen that was not disqualified. Usually w/in an hour.

-FRE 803(3): Then Existing Mental, Emotional, or Physical Condition→ A statement of the declarant’s THEN EXISTING state of mind, emotion, sensation, or physical condition (such as intent, motive, plan, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

1. Statements of present bodily condition. a. Example: I feel sick. NOT, I felt sick last week.

2. Statements of present state of mind or emotion (when offered to prove a state of mind or emotion of the declarant.)

3. Statements of present state of mind (usually intent or plan offered circumstantially to prove subsequent conduct of the declarant in accordance with the state of mind.)a. Mutual Life Insurance v. Hillman . Body found and D’s family wants insurance proceeds

thinking body is him. P argues body is Walters. P produces letters written by Walters stating he is going to place where body was found. Was Walters state of mind expressed in the letters admitted circumstantially to show he carried out intentions? Court held that letters were admissible and that anytime a declarant expresses a present intention to do something in the future, it is admissible to show that he carried out his intention/plan.i. This is the HILLMAN DOCTRINE. Anytime the issue is whether someone did

something, a statement of their intent to do it is a state of mind and is circumstantially relevant as to whether or not they did what they intended to do.

b. United States v. Pheaster . X told girlfriend he was going to meet Y at parking lot at 9:30. X went missing. X’s statement are NOT admissible to show that X went to parking lot, ONLY to show that Y went to parking lot. i. This is a minority view because statements normally apply to the declarant’s

intentions, not those of a third party. Extension of Hillman to allow this evidence. 4. State of mind statements of a testator offered on issues in will cases. Statements that D

tore up second will and wanted first will to be followed are admissible. Statements of testators regarding past are okay, but NOT any other persons.

5. CANNOT be statement of memory. a. Shepard v. United States . P tells nurse that D poisoned her. Can the nurse testify to

this? NO. This statement spoke of a PAST ACT of someone who is not the speaker. Landmark case. i. If P told nurse that D was going to poison her, it is a different story because it is an

intention and is not an act in the past. b. Commonwealth v. Lowe . D charged with killing P. W testifies that P told her that she

carried a gun and D had hit her. NOT admissible because it is a memory of past act and she cannot use memories to prove that the act in fact happened.

-FRE 803(4): Statements for Purposes of Medical Diagnosis or Treatment→ Statements for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment

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1. RATIONALE. If you go to the doctor and tell your symptoms, there is an indicia of reliability because most people are going to tell the truth.

2. FRE allows statement of patient as to how injury was caused. “My patient told me she had serious back pain which existed for a month and a migraine headache from an automobile accident.” This would be allowed to come in as a general characterization of the cause of the symptoms. a. CANNOT say, “My patient told me she was stuck by a car when it came through a red

light.” The fact that the car came through the red light is NOT PERTINENT TO DIAGNOSIS OR TREATMENT.

b. Under the FRE, the statement DOES NOT have to be made to a physician and DOES NOT have to be made for the purpose of diagnosis – can be made for the sole purpose of telling. Statements made to a nurse or EMT apply.

c. The FRE is VERY liberal compared with the MA Rule. 3. MA Rule.

a. Expressions of present pain are admissible, whether made to a physician or a third person.

b. A physician may testify to statements of past pain, symptoms or conditions made to the physician when he was consulted for purposes of diagnosis AND treatment.

c. A patient’s account of how injuries occurred is NOT admissible even if made to a physician. The physician cannot testify to what patient said happened. Patient has to testify herself.

-FRE 803(5): Recorded Recollection→ A memorandum 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.

1. United States v. Riccardi . Whenever a witness cannot remember, you can show the witness anything to revive memory. The evidence that comes in is the witnesses testimony, not the document used to refresh the memory. Cannot expect witnesses to remember everything.

2. MUST show that:a. Memory cannot be refreshed,b. Witness cannot refresh memory without looking at document, and

c. Witness prepared accurately the document at the time of preparation

-FRE 803(6): Records of Regularly Conducted Business Activity→ A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), (12) or a statute permitted certification, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. The term business as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

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1. The Business Records Exception is a tricky exception that is widely misunderstood and is, for that reason, often tested on the bar exam. To be a business record, everyone involved in the transaction up until trial must have had some duty to do what they did as part of their business duty.

2. There is NO separate medical records exception under the FRE so they allow medical opinions and diagnosis to come in under the business exception. But, the records MUST still be made and kept in the regular course of business.

3. The KEY words in the business records exception is MADE . Just because a business keeps a business record does not make it a business record. The document must be MADE in the ordinary course of business (by a person associated w/the business). a. Johnson v. Lutz . Police go to accident scene and talk to witnesses and then prepare a

police report summarizing what witnesses said. Is the report admissible as a business record. NO. The report summarized conversations with third parties who were under no duty to make statements to the police and had no affiliation with the police department. i. RULE: A writing or record, made in the regular course of business, may be received

in evidence without the necessity of calling as witnesses all of the persons who had any part in making it, providing the record was made as part of the duty of the person making it, or on information imparted by the persons who were under a duty to impart such information.

b. Palmer v. Hoffman . After a RR accident, the engineer gave a statement to the RR and then died. Is his statement allowed as a business record? NO. Train schedules, personnel records, etc… are business records of the RR. A statement of an employee involved in the accident is not a business record. The regular course of the RR is not litigation. (In MA could come in as declaration of dying person.)

c. United States v. Jacoby . Lawyer represented bank who was closing all loans the next day. Lawyer writes down conversation with the president who wanted to do all of this. Lawyer pleads the fifth at trial. Is his memo to self admissible as a business record of the law firm? YES. The lawyer always wrote things down, especially if he thought there would be a problem with the transaction. The dictator was part of the staff and everyone associated with the memo was part of the staff.

4. Four Basic Elements for Foundation of Business Record . a. Record MUST have been MADE and KEPT in the course of a regularly conducted

business activity.b. Record MUST be shown that it was the regular practice of the business activity to make

the record.c. Record MUST be shown to have been made AT OR NEAR the time of the event that is

records.d. Record MUST be shown to have been made BY OR FROM INFORMATION transmitted by

a person with knowledge and the person with knowledge must have acted in the regular course of business having had a business duty to make the record.

-Mass. Gen. Laws. ch. 233 § 79. Hospital Records. Hospital records can come in as long as they relate to treatment and medical history because there is an indicia of reliability. They CANNOT come in if they reference liability.

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-FRE 803(8): Public Records & Reports→ Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, matters observed pursuant to duty imposed by law as to which matters there was a duty to report excluding in criminal cases matters observed by the police and other law enforcement personnel, or in civil actions or proceedings and against the government in criminal cases unless the sources of information or other circumstances indicate lack of trustworthiness.

I. Expert Opinions

-Basic Rule→ A qualified expert in the relevant field may testify by way of opinion in order to ASSIST the trier of fact in the search for truth ONLY if the subject matter of testimonial inquiry is NOT within the scope of ordinary lay persons experience but is distinctively related to some science, profession, trade, or occupation that is beyond the scope of understanding of a lay juror.

1. Expert testimony is NEVER admissible if jurors are equally capable of drawing all necessary inferences and influences without the assistance of someone’s expert opinion.

-FRE 702: Testimony by Experts → If scientific, technical, or other specialized knowledge will ASSIST the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of opinion or otherwise if:

a. The testimony is based on sufficient facts or data;b. The testimony is based on reliable principles or methods; andc. The witness has applied the principles and methods reliably to the facts in the case.

-Types of Experts→1. Percipient: An expert who has firsthand knowledge of the facts or data to which the opinion is based.2. Non-Percipient: No firsthand knowledge of the subject matter of the testimony. At common law, these witnesses had to be questioned in hypothetical questions that contained the facts of the case. If hypo was not supported by evidence in the case, it was objectionable.

-FRE 703: Bases of Opinion Testimony by Experts → - This is a significant rule because traditionally there were only two ways an experts opinion may be predicated – personal knowledge of underlying facts OR underlying facts being put in front of someone with hypothetical questions. FRE 703 introduces a third way for an expert to acquire facts or data upon which his opinion may be based.

-Example: it is okay for doctors to look at a patients record and make recommendations. Much of that may be admissible evidence.

-The use of the words “made known to an expert AT or BEFORE the hearing.” This allows an expert to base opinions on facts or data known prior to the hearing. This is the THIRD basis from which an expert can form an opinion.

-FRE 704: Opinion on Ultimate Issue →- NO WITNESS MAY TESTIFY TO THE MENTAL STATE – CONSTITUTING AN ELEMENT OF

THE CRIME.

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-Where insanity is the defense, no expert may give opinion as to whether or not the D understood the nature of his act and whether or not D can conform conduct to

legal norm. All experts can now only testify that the D, after evaluation, has a serious mental illness and may testify to the nature of the disease. MAY NOT go next step.

-FRE 705: Disclosure of Facts or Data Underlying Expert Opinion → The expert may testify in terms of opinions or inferences and give reasons therefore without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.-FRE 706: Court Appointed Experts → Self explanatory

-Types of Objections1. Objecting to need of expert: Judge we do not need expert because the jury is capable

of making inferences based on their life experiences.2. Objecting to Credentials of Specific Expert: Counsel can always object to the

qualifications of the expert called.-If you are presenting an expert of substantial credentials, do not ever accept on the part of your adversary that the person is an expert. The jury does not know

if the expert has been a doctor for 5 wks or 20 yrs. ALWAYS say that you want the jury to hear the qualifications of your expert b/c it goes to the weight and credibility of his testimony.

J. Privilege

-There are NO privileges in the FRE; none of the common law privilege rules were adopted. 1 rule covers all bases → FRE 501: The privilege of a witness, person, government, state, or political subdivision, shall be governed by the common law.

a. In federal criminal and federal question cases, the courts may apply common law privileges.b. In civil actions (diversity of citizenship) the federal courts shall apply state law principles.

-Questions on Privilege? (Exist with all privileges)1. Does a particular privilege exist?2. If one exists, what is its source?3. Who is the holder of the privilege?4. Has the privilege been seasonably claimed or has it been waived?5. When does the privilege begin? When does it end?6. What is included within the scope of the privilege?

-Spousal Privilege-The witness spouse has the choice of whether or not they will testify against their spouse (called MARITAL PRIVILEGE) BUT NEITHER husband nor wife shall testify as to PRIVATE CONVERSATIONS with the other (called MARITAL DISQUALIFICATION).

-Exceptions→a. A contract between husband and wife;b. Proceedings to enforce support;

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c. Proceeding where one spouse is accused of committing a crime against the other;

d. In a case involving child abuse or incest.

-Marital Privilege→ The holder of the privilege is the witness spouse – the spouse being called to the witness stand. Can decide if they want to testify against defendant spouse or not. Defendant spouse has NO standing to insist the other spouse not testify.

-KEY→ Time for marital privilege is that couple must be married during the trial or testimony.

-Marital Disqualification→ Neither husband nor wife may testify to private conversations with each other. If a husband and wife talk about something, neither may testify about it. BUT, if they exchange letters and they are germane to some lawsuit between themselves or strangers, the letters may come in barring hearsay or the Best Evidence Rule.

-KEY→ Time for marital disqualification is that spouses MUST have been married at the time of the conversation. It does not matter if they are not married at the time

of the testimony; MUST HAVE been married at time of private conversation.-Disqualification DOES NOT apply if a 3rd party was present.-Disqualification ONLY applies to civilized conversations. (i.e. if H says to W, “I am going to kill

you” even though it’s a private conversation, it can be testified to because the statute only covers private civilized communications between H & W.

-Distinction Between Privilege & Disqualification: Disqualification depends upon the existence of a marital relationship at the time of the conversation, whereas privilege exists at the time the privilege is being asserted.

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