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Relevance (Exclusion)
GEN: Like the federal rule, relevance means any tendency to prove a fact that was more or less likely to have existed and is pertinent to the case.
- EXCLUSION:
- PA: Unfair prejudice must MERELY outweigh probative value.
- FED: Unfair prejudice must substantially outweigh prob value.
- >> Prejudice includes: confusion, misleading, delay, waste, cumulative.
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Character and Unrelated Acts
(Defendant's Character to Show Conduct, Crim Cases)
- PA: Reputation only.
- FED: Rep and opinion.
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Character and Unrelated Acts
(Victim's Character to Show Conduct, Crim Cases)
- PA: Reputation only.
- >> AND: Defendant may offer specific instances of victim's violence known to the defendant.
FED: Opinion and reputation.
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Character and Unrelated Acts
(Character to Show Conduct, CIVIL)
- PA: Generally inadmissible UNLESS civil assault or battery cases.
- >> D can offer witnesses to testify that P has a reputation for violence.
FED: Inadmissible (gen).
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Character and Unrelated Acts
(Cross Examining Character)
PA: Only convictions
FED: Convictions, arrests, acts.
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Character and Unrelated Acts
(Balancing Test for Other Crimes, Wrongs, Acts)
PA: Presumptively inadmissible -- prosecution must show more probative than prejud.
FED: Presumptively admissible -- defendant must show unfair prejud substantially outweighs probative value.
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Character: Sex Crimes Evidence
- Sexual Conduct -- CRIM CASES
- PA: Presumptively inadmissible unless P can show more probative than prejudicial.
- FED: Testimony re: specific instances of sexual misconduct presumptively admissible IF relevant.
- >> Opinion/reputation not admissible.
- Sexual Conduct -- CIV CASES
PA: Presumptively inadmissible unless P can show more probative than prejudicial.
FED: Evidence of sexual disposition of victim admissible only if probative value substantially outweighs prej.
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Ancient Docs
PA: 30 yrs.
FED: 20 yrs.
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Competence: Disqualifiers
- PA: Everyone competent unless disqualified by a COMP
- C: Communication -- if you cannot communicate effectively (be understood)
- O: Obligation to tell the truth -- if cannot suff. understand the obligation to tell the truth of the consequence of lying.
- M: Memory impairment.
- P: Perception problem -- incapable of perceiving.
- FED: Every person is competent to be a witness except as otherwise provided -- must take oath/affirmation, and must have PK.
- >> KEY: Testimony will be helpful.
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Competence: Dead Man's Statute
- GEN REQS:
- (1) The case is CIVIL.
- (2) W has direct stake in the outcome.
- (3) W testifying for his interest.
- (4) W testifying against the decedent or decedent's rep.
- PA:
- (4) Subject matter extends to all pre-death events.
- (5) Ask: has there been a waiver?
- >> In PA: right may be waived by introducing a deposition of the deceased or a cross-examination of the witness on pre-death events.
FED: Waiver if decedant's testimony gets before the jury.
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Scope of Cross of Parties
PA: Any relevant matter.
FED: Scope of direct.
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Expert Opinion Testimony
- GEN (PA): Expert testimony must be based on sceintific, technical or other specialized knowledge -- beyond that possessed by a lay person -- which will assist the trier of fact.
- >> Novel areas of science: require general acceptance.
- NOTES:
- (1) Standard of novel scientific/tech acceptance: general acceptance.
- (2) Experts permitted only when necessary -- beyond reservoir of lay person's knowledge.
- >> Eyewitness ID: no
- >> Revived memories: no
- >> Child sex abuse and rap trauma: no.
- >> Battered child/spouse syndrome: yes.
- >> Prof. Neglect/malpractice: yes.
- >> Product/design defect: yes.
- (3) All evidence upon which an expert relies is admissible -- and must be disclosed (forms basis of opinion).
- (4) Expert can testify re: mental state of accused.
- FED:
- (1) Standard of scientific/tech acceptance: reliability.
- (2) Scientific, technical or other specialized knowledge.
- (3) Expert testimony permitted when it assists the trier of fact.
- (4) Underlying basis info -- must show admissible, or that prob outweighs prej.
- (5) Underlying basis testimony is discretionary -- all, some, none.
- (6) Expert can only testify re: sanity; NOT mental state.
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Expert Testimony (Learned Treaties)
PA: Admitted for impeachment only.
- FED: Impeachment AND substantive purposes.
- >> Once established as authoritative!
- (1) Opposing expert relies on text(s).
- (2) Eliciting admission on cross -- familiar, authoritative.
- (3) Own expert states they are authoritative or reliable.
- (4) Judicial notice.
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Credibility: Impeachment
(Prior Inconsistent Statement)
- PA: Actual statement must be presented to witness -- stated if oral, shown if written.
- >> Admissible as substantive evidence IF:
- >>>> (1) Under oath;
- >>>> (2) Signed and adopted by the witness;
- >>>> (3) Witness words on tape (contemp audio/vis recording).
- FED: Statement need not be shown to the witness.
- >> Admissible as substantive evidence IF:
- >>>> (1) Under oath and subject to perjury.
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Credibility: Impeachment
(Prior Convictions)
- Types of Convictions
PA: Only convictions re: false statements or dishonesty. - FED: Crimes punishable by more than a year or involving FS or D.
- Impeachment of the Accused
PA: - >> Unsentenced Convictions -- only where claim of bias/motive.
- >> Sentenced Convictions -- generally only be extrinsic evidence (offering rap sheet into evidence)
- >>>> May cross examine on convictions only IF:>>>>>> D refers to conviction on direct;
- >>>>>> D offers testimony about his char; OR
- >>>>>> D offers testimony re: character of co-D.
NOTE: D does not waive error by not testifying or by disclosing a conviction if he properly objects in advance.
FED: Can ask directly about criminal record.
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Credibility: Impeachment
(Juvenile Record -- Convictions)
- PA: Presumptively admissible against accused and all witnesses.
- >> As long as it could have been used against an adult.
- FEDInadmissible.
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Credibility: Impeachment
(Prior Acts of Untruthfulness)
- PA: No, unless acts resulted in convictions
- FED: Admissible.
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Credibility: Impeachment
(Prior Identifications)
PA: Witness must be subject to cross at trial AND be testifying about making the identification.
FED: Witness must simply be subject to cross.
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Plain Error Rule (review on appeal without objection)
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Hearsay: Dying Declarations
- PA: All cases.
- FED: Civil and homicide cases
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Hearsay: Biz Records
- PA: Two distinctions --
- (1) No opinions/diagnoses w/o opportunity to cross.
- (2) No accident reports in CIVIL cases.
FED: Can have diagnosis and analysis without the opinion-maker testifying.
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Hearsay: Statements Made for Med. Diagnosis/Treatment
- PA:
- (1) Statements made in contemplation of treatment -- Admissible.
- (2) Statements made to consulting physicians -- Excluded.
NOTE: Statements made to independent medical examiners excluded under this rule, BUT may come in as party admissions.
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Hearsay: Tender Years Exception (Civ/Crim)
- PA: Admissible if --
- (1) Judge finds statement reliable;
- (2) Child must testify OR judge must find child unavailable in adversarial hearing (psych unavailable); AND
- (3) Notice of intent to use statement must be given to P and court.
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Hearsay: Catch-all Exception
- PA: None.
- FED: Statement more reliable than any other statement regarding a particular fact -- then may come in.
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Privilege: Atty-Client
PA: Confidential communications between client and lawyer (or his agent) wrt rep/advice.
Not Privileged: Observations, identity, fees, pre-relationship info, statements made in presence of a third party that's not an agent of the lawyer.
Exceptions: fraud, illegality.
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Privileges: Physician-Patient
- PA: Applies only in civil cases to communications which would tend to BLACKEN the character of the patient.
- >> NOTE: Comm. about alcoholism or mental illness are NOT protected, while statements about HIV are privileged.
NOT PRIV: Doc observations and opinions not based on comm, court ordered examinations, where P is a litigant.
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Privileges: Spousal Communications (Confid. Comm)
- PA: both parties hold the privilege and it must be waived by both parties.
- >> Applies: civil and crim cases. Survives death/divorce.
- >> Exception: spousal or child acuse, comm in furtherance of a crim.
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Privileges: Spousal Immunity/Competency
- PA:
- >> CIV: Spouses at the time of trial are incompetent to testify against each other.
- >>>> Cannot be waived unless divorce, support, custody, ect.
- >> CRIM: Competency may be waived by testifying spouse.
- >>>> Exceptions: Prosecutor can force spouse to testify re: abuse, rape, murder, ect.
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