PA: Evidence

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.

• PA: Reputation only.
• FED: Rep and opinion.

• PA: Reputation only.
• >> AND: Defendant may offer specific instances of victim's violence known to the defendant.

FED: Opinion and reputation.

• 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).

PA: Only convictions

FED: Convictions, arrests, acts.

PA: Presumptively inadmissible -- prosecution must show more probative than prejud.

FED: Presumptively admissible -- defendant must show unfair prejud substantially outweighs probative value.

• 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.

PA: 30 yrs.

FED: 20 yrs.

• 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.

• 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.

PA: Any relevant matter.

FED: Scope of direct.

• 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.

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.

• 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.

• 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.

• PA: Presumptively admissible against accused and all witnesses.
• >> As long as it could have been used against an adult.
• FEDInadmissible.

• PA: No, unless acts resulted in convictions
• FED: Admissible.

PA: Witness must be subject to cross at trial AND be testifying about making the identification.

FED: Witness must simply be subject to cross.

• PA: None.
• FED: Yes.

• PA: All cases.
• FED: Civil and homicide cases

• 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.

• 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.

• 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.

• PA: None.
• FED: Statement more reliable than any other statement regarding a particular fact -- then may come in.

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.

• 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.

• 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.

• 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.