EVIDENCE

RELEVANCE

A. BASIC PRINCIPLES: Evidence is Relevant if it has ANY Tendency to make a material fact more probable or less probable than will be the case w/out the Evidence

a. All relevant evidence is ADMISSIBLE, Unless (a) Some specific Exclusionary Rule is applicable, OR (b) the court makes a discretionary determination that the probative value of the evidence is substantially outweighed by one or more of 6 Considerations:

(1) Accuracy: Danger of Unfair Prejudice, Confusion of Issues, or Misleading the Jury

(2) Efficiency: Considerations of Undue Delay, Waste of Time, or Unduly Cumulative

B. SIMILAR OCCURRENCES: In general, if evidence concerns some time, event or person other than that involved in the case at hand, the evidence is inadmissible – Probative value is usually outweighed by above considerations – 6 Recurring situations that May Permit Admissibility:

a. Plaintiff’s Accident History (1) Generally , Π accident history is inadmissible b/c it shows nothing more than

the fact that the Π is accident prone1. Having a General Propensity for Actions is nothing more that

character evidence, which is not admissible in a Civil action to prove a person’s conduct on a particular occasion

(2) But , Π prior accidents may be admissible if cause of Π injuries is at issue1. Key is what is the Purpose that the evidence is being offered for

b. Similar Accidents Caused by the Same event or condition (1) Other accidents involving Δ are generally not admissible b/c they suggest

nothing more than a character for carelessness (NO Character Evidence)(2) But , Previous Accidents Involving the same Instrumentality or Condition may

be admissible if accidents occurred under substantially similar circumstances – 1. To show the existence of a dangerous condition2. To Show Causation of the Accident3. To Show Prior Notice to the Δ

c. Where Person’s Intent is at Issue : Person’s Prior Conduct may provide inference of intent on later occasion

(1) E.g., B’s treatment of other women qualified candidates tends to show discriminatory intent with respect to Martha for discriminatory non-hiring

d. Comparable Sales of Other Property (1) Selling Price of other property of similar type., in the same general location,

and close in time to period at issue, is some evidence of value of property at issue

e. Habit : Habit of a person (or Business) is admissible as circumstantial evidence of how the person (or Business) acted on the occasion at issue in the litigation

(1) Habit is a Repetitive response to a particular set of circumstances1. Frequency of the Conduct 2. Particularity of the Conduct / Circumstances

(2) Key Words: “always, invariably, automatically, instinctively” to indicate habit(3) Business Routine: e.g., to prove that a particular letter was mailed by CEO,

evidence that CEO put letter in he out-box on Tuesday, and messenger “routinely” picks up mail in CEO’s outbox at 3 each business for delivery

f. Industrial Custom as Proof of Standard of Care

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(1) Evidence of how others in the same trade have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation should have acted, i.e., evidence of the appropriate std. of care

1. Π is injured by blade flying off motor. She can admit evidence that 80% of lawn mower manufacturers install devices to prevent such accidents

C. POLICY BASED EXCLUSIONSa. Liability Insurance : NOT admissible to prove the person’s fault or absence of fault

(1) But , evidence of insurance may be admissible for some other relevant purpose, Such as proof of ownership / control of instrumentality or location If Disputed by the Δ; also admissible for impeachment of witness, and Motive for Crim Pros.

b. Subsequent Remedial Measures : Post Accident Repairs and Design Changes by Δ are NOT admissible for the purpose of proving negligence, product defect, culpable conduct, or need of a warning – We Want to Encourage Safety Measures for Public Safety

(1) However, May be admissible for proof of ownership / control; or feasibility of safer condition (“safer condition was impossible”) if disputed by Δ

c. Settlement Evidence : or Offer to Settle NOT admissible in ANY Case (including subsequent criminal case)

(1) However , evidence of settlement is allowed to impeach W for Bias (on cross)(2) Statements of Fact made During the Settlement : Generally inadmissible

1. However, Statements of Fact made in the course of settlement claim asserted by a Government Agency, are Admissible in a Related Criminal Case on the issues of guilt or Witness Impeachment

(3) Applicability : This Exclusion only applies if (1) there is a claim that (2) is disputed as to (3) either the validity of the claim or the amount of damages

d. Plea bargaining in Criminal Cases : (1) We exclude in ALL cases a Δ offer to plead guilty and statements of fact

during plea bargaining(2) If Δ pleads guilty, and sticks to it, then plea of guilty CAN be used against you

in other similar cases (civil matter) b/c it is a Party Admission(3) If Δ W/D guilty plea, it cannot be used against him in Criminal or Civil Case

e. Offer to Pay Hospital or Medical Expenses . Not Admissible to Prove Liability b/c we want to encourage people to be generous – don’t have to have existence of disputed claim

D. CHARACTER EVIDENCE.a. In General : Character Evidence refers to a person’s general propensity or disposition,

e.g., honesty, fairness, peacefulness, or violence(1) Potential Purposes for the Admissibility of Character Evidence

1. Person’s Character is a Material Element in the Case (Very Rare)2. Character evidence to prove Conduct in Conformity with

b. Criminal Cases (1) Defendant’s Character – Not Admissible During Prosecution’s Case in Chief

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1. However, if Δ Brings up evidence of his character, then it opens the door for Prosecution to rebut the Δ Character Evidence

2. Δ Can only Introduce Evidence about his Relevant Character in 2 Waysa. Reputation Testimonyb. Personal Opinion Testimony

i. But Cannot be Proven through Specific Instances3. A Character Trait has to be Relevant to the Crime at Issue

a. Murder = Peacefulness, but not honesty or braveryb. However, we do allow W say that Δ is “Law Abiding”

(2) Prosecution’s Rebuttal : If Δ has opened the prosecution may rebut (2 Methods)

1. By Cross-examining Δ character Witness with “Have you heard” or “Did you know” Q’s about specific acts of the Δ that reflect adversely on the particular character trait that the Δ has introduced

2. By Calling its own reputation or opinion Witnesses to contradict D’s character witnesses

3. What if Δ Takes the Stand and Says that he is a good guy (implying he didn’t do it) – judge has discretion as to whether Prosecution can rebut

(3) Victim’s Character evidence offered to Show Self Defense 1. Criminal Δ may introduce evidence of V’s violent character to prove

V’s conduct (i.e., V was the aggressor)a. Character W may testify as to V’s reputation for violence and

may give opinionb. If Δ knew about V’s violent tendencies from specific instances,

that evidence is admissible to show D’s fear of V to help prove that D acted in self defense

2. Prosecution Rebuttal: with evidence of V’s good character for peacefulness (with reputation or opinion). In addition, P has option proving D’s Character for Violence (double whammy door opening)

(4) Rape Shield Law – V’s Character for Sexual Misconduct Case 1. We do Not let in opinion or reputation evidence about V’s sexual

propensities or instances of V’s Sexual Acts – 3 Exceptionsa. Specific Sexual Behavior of V to prove that someone else was

the source of semen or injuryb. V’s Prior Sexual Activity with Δ to show defense of consentc. Where exclusion would violate Δ DP Rights

c. Civil Cases : (1) Character Evidence generally inadmissible to prove conduct in conformity(2) However, if Character is an essential element if claim or defense, then you can

prove it through specific acts – very Rare, only in 3 instances1. A Tort Action alleging negligent hiring or entrustment2. Defamation Cases – all about D’s Character3. Child Custody Dispute – Character of Parent is Important

E. Δ OTHER CRIMES FOR NON-CHARACTER PURPOSEa. General Rule (applicable in Civil and Criminal): Other crimes or specific bad acts of Δ

are NOT admissible during the prosecution’s case in chief if purpose is to suggest that Δ had a propensity to do the Act

b. Non-Character Purposes for Using Specific Bad Acts (MIMIC) :

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(1) Motive. Can introduce Specific Acts to Prove Δ motive (e.g., Δ prosecuted for murder of officer – can admit evidence that Δ was imprisoned 5 years ago for narcotics possession as a result of Officer’s investigation)

(2) Intent. Allowed where State of mind is at issue (e.g., Prosecution of Δ for possession w/intent to sell – Δ claims he was just a user – P can admit evidence that Δ sold drugs a year ago also to show Δ intent here)

(3) Mistake, the Absence of: Prosecution for Murder and Δ claims it was an accident; prosecution can admit evidence that Δ threw a knife at V 1 week earlier during a quarrel

(4) Identity. Prosecution for Robbery of Walmart; Δ Says You got the wrong guy – Prosecution can admit evidence that on same day D robbed a Sears in the same vicinity as Walmart – also includes modus operandi of previous crimes

(5) Common Scheme. As Part of Common Scheme to Rob a Bank Δ stole white Acura from neighborhood and used the Acura for getaway (admissible)

c. Method of Proof for MIMIC-purpose Crimes : (1) By Conviction, or(2) By evidence that prove the crime occurred:

1. Conditional relevancy standard – prosecution need only produce sufficient evidence from which a reasonable juror could conclude that Δ committed the other crime

(3) Upon Δ request, prosecution must give pretrial notice to use MIMIC evidence(4) Court must also weight Probative Value vs. Prejudice to Δ

F. Sexual Misconduct to Show Propensity in Sex-Crime Prosecution or Civil Actiona. Use of the Δ Prior Sexual Acts is Admissible as part of the Case in Chief for any

Relevant Purpose, including Δ propensity to commit sex crimes (for assault and child molestation)

AUTHENTICATION OF WRITINGS

A. Overview. 3 Issues to A Writing: Authentication, Best Evidence, Hearsaya. A showing must always be made that the writing is authentic (that it is what it purports

to be – this process is called “authentication”b. In the Absence of a Stipulation as to Docs Authenticity, a Foundation must be made

for the Doc to be AdmissibleB. Methods of Authentication

a. Witness’ Personal Knowledge – W Observed X sign Docb. Proof Of Handwriting

(1) Lay Witness can Testify that X wrote Doc on basis of Familiarity w/X’s handwriting

(2) Expert Comparison Opinion – Handwriting Expert Testifies to opinion that X wrote the Doc by comparing Doc to a Sample of X’s handwriting

(3) Jury Comparison (Jury Compares Doc with EX of X’s Handwriting)c. Ancient Document Rule – Authentication may be Inferred if:

(1) The Doc is At Least 20 years old (30 years for Deeds in VA)(2) The Doc is Facially Free from Suspicion(3) The Doc was found in a Place of Natural Custody

d. Solicited Reply Doctrine – Doc can be authenticated by evidence that it was received in response to a prior communication to the alleged author (X signs K mailed to him from B)

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e. Standard for Admissibility – If party Challenges the Authenticity of the Doc, the judge lets it in if there is sufficient evidence from which a reasonable juror could conclude doc is gen

C. Self Authenticating Docs – Presumed to be Authentica. Official Publications, Certified Copies of Public or Private Records on File in Public

Office, Newspapers or Periodicals, Trade Inscription or Labels, Acknowledged Documents (notary public certification stating that author was present), Commercial Paper

D. Authentication of Photographsa. W may testify on the basis of personal knowledge that the photo is a fair and accurate

representation of the people or objects portrayed

THE BEST EVIDENCE RULE (only applies to Writings)

A. Rule: A party who seeks to prove the contents of a writing (sound recordings, x-rays, films included), must either produce the original writing or provide an acceptable excuse for its absence

a. If Court finds that excuse is acceptable, the party may use a Copy or Oral TestimonyB. When Does the Best Evidence Rule Apply? When a Party is Seeking to prove the contents

of a Writing – 2 Principal Situationsa. The writing is legally operative, i.e., the writing itself creates rights and obligations.

Examples: patent, deed, mortgage, divorce, decree, written contractb. Witness is Testifying to facts that she learned solely from reading about them in a

writingi. E.g., Δ is charged w/setting off bomb, which was captured on film by

surveillance. J testifies that he watched the film and it shows Δ – Not admissible; need the Film

C. When Does the Best Evidence Rule NOT apply?a. When a Witness with personal knowledge testifies to a fact that exists independently

of a writing that records the fact, he can testify w/out producing the docD. What Qualifies as the Original Writing?

a. Whatever writing the parties intended to be the original – the writing itself or any counterpart intended to have the same effect

b. Duplicates (i.e., a photocopy) – admissible to same extent as original, unless it would be unfair (photo of fuzzy fax), or genuine question is raised as to authenticity of original

c. Handwritten Copy is neither original nor duplicate, so not admissibleE. Excuses for Non-Production of Original

a. Lost or cannot be found with due diligenceb. Destroyed w/out bad faithc. Cannot be obtained with legal process

F. Escapesa. Voluminous Records can be presented through a summary or chart, provided the

original records would be admissible and they are available for inspectionb. Certified Copies of Public Recordsc. Collateral Documents (not very important to the case) – judge has discretion (e.g.,

plumber testifies that he is certifies, but no writing)

WITNESSES

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A. Competency of a Witness – 2 Requirements: (1) Must Testify from Personal Knowledge and (2) Oath

B. Dead Man’s Statute. a. Just B/C Witness has interest in litigation does not make her incompetent to testifyb. But, in a Civil Action, an interested Witness is incompetent to testify in support of her

own interest against the estate of a decedent concerning communications or transactions b/w the interested party and the decedent

(1) Analysis: Under the Federal Rules, there is No dead man’s act, which means that W’s are not incompetent to testify

(2) VA: However, Can still testify against estate if there is corroborating testimonyC. Leading Questions

a. Generally NOT allowed on Directb. But, Allowed on Direct

(1) Preliminary Introductory Matters(2) For a Youthful or Forgetting Witness (3) For a Hostile Witness(4) To Question the adverse party or someone under the control of the adverse

partyD. Writings in Aid of Oral Testimony

a. Refreshing Recollection (1) Basic Rule: W may not read from prepared memorandum(2) But if W’s memory fails him, he may be shown a memo (or any other tangible

item to jog his memory)(3) Safeguards against abuse: Adversary has Right to inspect the memo, to use it

on cross, and to introduce it into evidenceb. Past Recollection Recorded (Hearsay Exception )

(1) Hearsay Exception for past recollection recorded – where the writing becomes a substitute for Witnesses lack of memory – must satisfy 5 things:

1. Showing the writing to witness fails to job memory2. Witness had personal knowledge at former time3. Writing was either made by witness or adopted by witness4. Making or adoption occurred while the event was still fresh in the

memory of the witness5. Witness can vouch for accuracy of writing when made or adopted

E. OPINION TESTIMONYa. Lay Witnesses – Opinion Admissible If:

(1) W’s opinion was rationally based on perception (personal knowledge)(2) W’s opinion must be helpful to the jury in deciding a fact (judge’s discretion)

b. Expert Testimony (1) Expert must be Qualified Qualifications : Expert must be qualified through

education and/or experience(2) Subject Matter must be Appropriate for Expert Testimony : Scientific,

Technical or other Specialized knowledge that will be helpful to the Jury in deciding a fact

(3) Opinion must be Based on reasonably degree of Certainty 1. Personal Knowledge2. Other evidence in the trial record (Testimony by other witnesses,

exhibits made known to the expert)

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3. Facts outside the record if these facts are of the type reasonably relied upon by experts in this particular field

(4) Relevance and Reliability 1. To be admissible, expert testimony must be relevant to the issue at hand

and Sufficiently Reliable2. Court Serves as a Gatekeeper to Expert Testimony – 4 Factors (TRAP)

a. Testing of Principles or Methodologyb. Rate of Errorc. Acceptance by other experts in the same fieldd. Peer Review and publication

(5) Authoritative Texts and Authorities Aid of Expert Testimony (Hearsay Exception)

1. On Direct of Party’s own Expert – Relevant portions of treatise or periodical may be read into evidence as substantive evidence if established

2. On Cross of Opponent’s Expert – Read into evidence to impeach and contradict opponent’s expert. Comes in as Substantive

c. Can Opinion be Given on Ultimate Issue of Case ?(1) Opinion MAY be given on ultimate issue provided all of the other

requirements for opinion testimony are met(2) Criminal Cases: Expert Prohibited from Testifying as to Δ Mental State

F. CROSS EXAMINATION (2 Areas of Cross)a. Party has a RIGHT to cross-examine any opposing witness who testifies at the trial.b. Proper Scope of Cross Examination

(1) You can Cross examine as to anything that was within scope of the direct testimony

(2) Matters Affecting W Credibility

G. CREDIBILITY AND IMPEACHMENTa. Bolstering Own Witness : Not Allowed, must wait until your witness has been attacked

(1) Prior consistent statement by Witness – NOT allowed(2) Exception : W’s prior identification of criminal Δ (That’s the Δ, and I also

picked him out of a lineup 2 weeks ago) – this is an exception to hearsayb. Impeachment of Own Witness : May do So w/out limitation

IMPEACHMENT METHODS

A. 2 Background Procedure Issues a. Can the impeaching fact be proven by extrinsic evidenceb. Assuming Extrinsic evidence is allowed, do you have to first confront the W with

impeaching fact as a prerequisite To introduction of extrinsic evidenceB. Prior Inconsistent Statement . Any W may be impeached by showing that on some prior

occasion she made a material statement that is inconsistent with her trial testimonya. In General. Prior inconsistent statement can only be used for the limited purpose to

raise doubt as to the W’s credibility (b/c she can’t keep the story straight)b. Exception. However, certain prior inconsistent statements may be admitted if given

orally under oath as part of a formal hearing proceeding trial or deposition(1) e.g., W gave testimony at a grand jury proceeding and said X, and at trial she

said Y. When she said X at grand jury proceeding, it may come in as

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substantive evidence, and not just for impeachment purposes (exclusion from hearsay)

(2) Such Statements are Admissible as Substantive Evidence if Made by a Partyc. Confrontation. You are NOT required to immediately confront the Witness with her

prior inconsistent statement, but the W must be given an opportunity at some point to either explain or deny the prior inconsistent statement (unless W is an opposing party)

C. Bias, Interest or Motive to Misrepresent . Witness is a Party, Friend, relative, or employee of Party; Expert Witness is Being Paid by the Party; W has Grudge against a Party

a. Confrontation: Court has Discretion as to whether should be confronted w/alleged bias

b. Extrinsic Evidence: Bias may be proven through Extrinsic Evidence if Confrontation met

D. Sensory Deficiencies : Anything that could affect W’s perception or memory (e.g., bad eyesight, hearing, mental retardation, consumption of alcohol or drugs at time of event or on stand)

a. Confrontation NOT Required, and Extrinsic Evidence is AdmissibleE. Bad Reputation or Opinion About W’s Character for Truthfulness

a. Confrontation is Not Requiredb. Extrinsic Evidence is the ONLY way you can do it – you call a character W to testify

that Target W has bad reputation for truthfulness, or that character W has low opinion of Target W’s character for Truthfulness (Cannot Testify as to Specific Instances)

F. Prior Criminal Convictions a. Automatic Admissibility. Conviction of any crime is admissible where false

statement was an element of the crimeb. Discretionary Admissibility. If Conviction did not require proof of a dishonest or

false statement, then only a FELONY is Admissible for Impeachment if Probative Value is outweighed by Danger and Unfair Prejudice

c. Time Limit. If Conviction, or release from prison, whichever is later, is more than 10 years old, then not admissible, Unless proponent shows that probative value on the issue of credibility substantially outweighs unfair prejudice to Δ

d. Method of Proof: Ask W to admit prior conviction, or introduce record of convictionG. Inquiry of Prior Bad Acts (w/NO Conviction) negatively reflecting character for Truth

a. Only Can be Done on Cross Examination – No Extrinsic Evidence Permitted, but conduct must be probative of W’s Truthfulness

b. Prosecution must have good faith basis for asking about bad acts (cant make them up)c. Admissibility of Q’s in courts discretion

H. Impeachment through Contradiction a. You confront the Witness during cross with the fact that she lied about something or

made a mistake about something on direct – this establishes a contradiction, which serves to impeach the Witness

(1) If W refuses to admit the mistake or lie, you can NOT use extrinsic evidence for the purpose of the contradiction If the fact at issue is collateral (if the fact has no significant relevance to the case or W’s Testimony)

I. Rehabilitation of Witness a. You can show Witness’s good character for Truthfulness, only when it has been

suggested that your Witness has a bad character for truthfulness(1) You do this by bringing out a Character Witness to Testify

b. Prior Consistent Statement allowed if:(1) Opposing side has impeached W by Charging that she is Lying or

Exaggerating because of Some Motive

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(2) It will be admissible to Rebut the Charge if the statement was made before the motive to fabricate arose (timing Issue)

c. HYPO – Yes, now we have insinuation that she is being motivated by recent romance, which is an implied charge of a recent fabrication (that she created the story b/c of romance). Therefore, the fact she talked about Brad being sober before romance (the motive to fabricate arose), it suggests that romance had no influence

1. A’s consistent statement in this context also comes in as substantive evidence (another exclusion from hearsay)

PRIVILIGES

A. Procedural Backgrounda. Case Arises under Federal Law, then apply CL rules of Privilegeb. Diversity Cases, apply state law on Privileges (dead man’s statute

B. Attorney-Client Privilege: a. Elements – The Privilege Applies To :

(1) Confidential Communications – Client must reasonably expect confidentiality(2) Between the Attorney and Client (or representative of either)(3) Made During a Professional Legal Consultation(4) Unless the Privilege is Waived by the Client(5) Or an Exception applies

b. Waiver – Client is the holder of the privilege, so she alone has power to waive; privilege continues after expiration of AC relationship

c. Exceptions (1) Pre-existing Documents or Physical Evidence(2) Communications about Future crime or fraud(3) If the Client puts legal advice at issue (sues L for malpractice)

C. Physician-Patient Privilegea. Elements – the Privilege Applies to:

(1) Confidential communication or information acquired by physician from patient(2) For purpose of diagnosis or treatment of medical condition(3) Also applicable to psychotherapists

b. Federal Distinction : If based solely on Federal Law in Federal Court, privilege exists for psychotherapists, but not for usual physician-patient confidences

c. Exception : if the patient expressly or impliedly puts his own physical condition at issue, then (Π suing for PI) (In VA, the Dr-Patient privilege is only available in civil cases)

D. Husband-Wife Privilegesa. Spousal Immunity

(1) In Criminal Cases, a spouse cannot be compelled to testify against the Δ spouse in ANY circumstances (The Witness Spouse holds the privilege, not the Δ)

(2) Does NOT apply if divorce occurs before trialb. Confidential Communications b/w Spouses

(1) In ANY case, a spouse is not allowed in the absence of consent to disclose a confidential communication made by one to the other during the marriage

1. BOTH spouses hold this privilege; applies even if divorce before trialc. Exceptions applicable to Both Privileges

(1) No Privilege for communications or acts in furtherance of jointly perpetuated future crime or fraud (Bonny and Clyde)

(2) Communications or acts destructive of family unit (spouse or child abuse)

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HEARSAY

A. 2 Part Definition: (1) Out of Court Statement by a person (oral or Written) (2) Offered to prove the Truth of the Matter Asserted in the Statement (Key)

B. Principal Categories of Non-Hearsay Purposesa. Verbal Act (Legally Operative Words)

(1) E.g., “I accept”; making a gift, bribe, perjury, fraud, defamationb. Circumstantial Evidence of Speaker’s State of Mind

(1) E.g., H charged w/murder, W testifies that H said “I am Elvis” 2 days before the murder – offered to show H was insane, not for truth of matter

C. Prior Statements of Trial Witness a. A witnesses own prior statement if offered to prove the truth of the matter is not

admissible unless it meets one of the exceptions(1) Witness’ prior statement of identification(2) Witness’ prior inconsistent statement if it was oral, under oath, and made

during formal trial, hearing, proceeding, or deposition(3) Witness’ prior consistent statement if being used now to rebut charge of recent

fabrication or improper motive or influenceD. Party Admissions (very common) (Exclusion from Hearsay)

a. Any statement made by a party is admissible, written/oral, if it is offered against the party

b. Vicarious Admission : Statement by agent/employee is admissible against principal if statement concerns matter w/in scope of agency made during agency/employment

E. Right of Confrontation for Criminal Δ: Right of Confrontation requires that Δ be confronted by Witnesses – Which means that cannot Use “Testimonial” Hearsay

a. At Minimum, it means Grand Jury Testimony, Responses to police interrogationb. To enable police assistance to meet an ongoing emergency c. Exception: Where Declarant has been made unavailable b/c of D’s wrongdoing, then

testimony is admissible against the Δ

HEARSAY EXCEPTIONS

A. Former Testimony of an Unavailable Witness: a. If given at a former proceeding or in a deposition, is admissible against a party who,

on the prior occasion, had an opportunity and motive to cross-examine b. What are the Grounds of Unavailability?

(1) W Invokes a Privilege(2) Absence from the Jurisdiction(3) Illness or Death(4) Lack of Memory(5) Stubborn Refusal to Testify

B. Statement Against Interest (W must by Unavailable)a. An Unavailable Declarant’s statement against his

(1) Pecuniary Interest(2) Proprietary Interest (Property)(3) Statement Against Penal Interest

b. Qualification in Criminal Cases : Statement against penal interest, when offered to exculpate Δ, must be supported by Circumstances showing trustworthiness of statement (i.e., corroborating evidence)

C. Dying Declarations

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a. Statement made under a belief of impending and certain death by now-Unavailable declarant concerning the cause or surrounding circumstances of the declarant’s death

(1) Criminal Cases: Only in Homicide Cases(2) Civil Cases – In all cases

D. Excited Utterance (No Requirement of Unavailability)a. A statement concerning a startling event made while declarant is still under stress of

excitement caused by the event (look for exclamatory clues (Gadzooks!))E. Present Sense Impression

a. The description of an event while the event is happening or immediately thereafter (rationale is that you don’t have time to fabricate)

b. E.g., M and V talking on the phone; V says, got to go, Δ is here for dinner. V is found dead the next day. M can testify to V’s identification of Δ at trial b/c presence sense impression

F. Declarant’s Present State of Mind – Declarant’s Feelingsa. Contemporaneous Statement concerning declarant’s present state of mind, feelings,

emotions (e.g., testimony at probate by decedent that D said to her friend, “I no longer love my family”)

G. Declaration of Intenta. Statement about Declarant’s intentions or plans to do something in the futureb. This includes intent to engage in future conduct with another person

H. Present Physical Condition a. Statement you make to anyone about your present physical condition is admissible

I. Statement for purpose of medical treatment or diagnosisa. Statement made to anyone concerning treatment or diagnosis of injuries is admissible

in trial over hearsay exception (usually beneficial to Π) Applies to past or present symptoms or the general cause of the condition for the purpose of treatment or diagnosis

b. Medical diagnosis includes diagnosis for the purpose of giving an expert opinion at trial

J. Business Records Exceptiona. Elements

(1) Records of a Business of Any Type(2) Made in the Regular Course of Business(3) Business Regularly keeps such records(4) Record was made contemporaneously(5) Contents must consist of information observed by employees of this business,

or a statement which falls within an independent hearsay exceptionb. Proving Business Records Foundation

(1) Call sponsoring W to testify to the 5 elements of business records hearsay exception; W need not be author of report

K. Public Recordsa. Records of a Public/Gov office are admissible if it sets forth any of the following 3:

(1) The Activities of the office itself(2) Matters observed pursuant to a duty imposed by law(3) Findings of fact or opinion resulting from an investigation by law

b. Exception : Police report prepared for prosecutorial purposes is not admissible against Δ in criminal Case

L. Impeachment of Hearsay Declarants: Any impeachment method may be used to attack the credibility of a hearsay declarant whose statement was introduced

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