Evidence Misses

  1. Statements for purpose of medical diagnosis or treatment.
    admissible as an exception to the hearsay rule

    • statement made for the purpose 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
  2. Adoptive admission by silence
    Admissible as an exception to the hearsay rule.

    • Can generally be used against a party who manifested his adoption or belief in its truth by conduct or silence.
    • *Watch out for constitutional rights (Miranda/self incrimination)
  3. Criminal Conviction
    Evidence of a crime that was punishable by death or by imprisonment for more than one year

    • must be admitted in criminal case in which
    • the witness is a defendant
    • the probative value of the evidence outweighs in prejudicial effect to that defendant
    • **Porbative prejudicial concerns are within the discretion of the judge.
  4. Judicial notice
    • Judge may be taken of any matter that is within common knowledge.
    • Evidence law, that allows a fact to be introduced into evidence if the truth of fact is so notorious or well known, or so authoritatively attested, that it cannot reasoanbly be doubted.
  5. Admission
    • Non-hearsay or hearsay exemption. 
    • An out-of-court statement made by a party and offered against that party.
  6. Logical relevance
    must tend to prove or disprove a material issue in dispute.  Remember similar happenings
  7. Logical Relevance Exception: Similar Acts
    certain similar acts may be relevant if probative of a material issue: (1) to prove cause and effect, (2) to show common plan or scheme of fraud, (3) to show instrumentality, (4) to infer intent from prior conduct, (5) to rebut impossibility, (6) to establish value, (7) habit (need specific description + recurrence), (8) business routine.  Must show: substantial identity of material circumstances
  8. Judicial Discretion
    probative value substantially outweighs risk of unfair prejudice, confusing the issues, wasting time, misleading the jury
  9. Public Policy
    liability insurance, subsequent remedial conduct, settlement offers, payment or offer to pay medical expenses, guilty pleas.
  10. Character Evidence: Civil Case
    generally inadmissible to prove negligence, fault, or a person’s conduct on a given occasion.  But, admissible if character is in issue or for impeachment
  11. Character Evidence: Criminal Case
    • generally admissible to show MIMIC or for impeachment.
    • But, evidence of the D’s bad character is inadmissible at the prosecution’s initiative to show propensity to commit a crime unless and until the D opens the door by presenting evidence of his good character to show innocence of the crime. 
    • Then and only then may P may present evidence of D’s bad character the specific trait mentioned by the D.
    • Motive/Intent/Absence of Mistake/Identity/common plan or scheme
  12. Best evidence rule
    In proving the contents of a writing, the original writing itself must be produced or shown to be unavailable, unless the writing refers to a collateral matter.
  13. Opinion Testimony: Lay
    • admissible if:
    • (1) rationally based on the perception of the witness (personal knowledge),
    • (2) the opinion is helpful to the trier of fact (no legal conclusions), and
    • (3) not based on scientific, technical, or other specialized knowledge. 
    • Note: Lay opinions are NOT admissible re whether one acted as an agent or whether an agreement was made.
  14. Expert Opinion
    • Subject matter must be appropriate for expert testimony: the opinion must be sufficiently reliable that it is helpful to the trier of fact
    • The methodology underlying the opinion must be reliable
    • Witness must be qualified as an expert: qualifications need not be formal or academic. Skill or experience is sufficient.
    • Expert must possess reasonable certainty or probability regarding the opinion: more than mere speculation.
    • Opinion must be supported by a proper factual basis. Facts supporting the opinion must be either:
    • Facts w/in the personal knowledge of the expert
    • Facts not w/in personal knowledge, but supplied to the expert by the evidence
    • Facts not w/in personal knowledge, not in evidence, as long as they are of a type that experts in that field would reasonably rely upon in making out of court professional decisions.
  15. Impeaching your own witness
    • allowed if the witness is
    • An adverse party or identified w/ an adverse party
    • Hostile
    • One whom the party is required by law to call
    • Gives surprise testimony that is affirmatively harmful
  16. Attorney-Client Privileges
    Confidential communications between attorney and client made during professional legal consultation are privileged from disclosure unless waived by the client or the representative of the deceased client.
  17. Physician/Psychiatrist-Patient
    The patient has a privilege against disclosure of confidential information acquired by the physician/psychiatrist in a professional relationship entered into for the purpose of obtaining treatment.
  18. Spousal Immunity Privilege
    • one spouse can’t be forced to give adverse testimony against the other in a criminal case. Requirements:
    • Valid marriage at the time of trial
    • Protects against any and all testimony (including pre-marriage facts)
    • Holder of privilege is witness spouse not party spouse
    • Applies only in criminal cases
  19. Confidential Marital Communications Privilege
    spouse can’t be required (or allowed without consent from other spouse), to disclose confidential communication made by the other during the marriage.

    • Requirements:
    • Marriage not necessarily at time of trial, but at time of protected communication.
    • Protects only confidences not all testimon So spouse can take the stand, but may be stopped from revealing marital communications.
    • Either spouse holds the privilege, not just the witness.
    • Privilege applies in both civil and criminal cases.
  20. Hearsay
    out of court statements offered for the purpose of establishing the truth of the matter
  21. Former testimony
    testimony given in earlier proceeding by person now unavailable is admissible if (1) meaningful opportunity for cross; and (2) unavailability of the declarant
  22. Meaningful opportunity
    (1) same issue and motive, and (2) same identity of party (party against whom offered must have been a party in the first proceeding or, in civil case, at least in privity with party in first proceeding).
  23. Unavailability
    Court exempts declarant from testifying due to privilege; declarant refuses to testify b/c of privilege or other reason; declarant’s memory fails; declarant is dead or sick; or proponent of statement cannot procure declarant’s attendance by process of other reasonable means.
  24. Declaration against interest
    declaration of a person, now unavailable as a witness, against that persons’ pecuniary, proprietary or penal interest (or statement which would expose declarant to civil liability or defeat a civil claim by declarant) at the time the statement was made. 

    • Requirements:
    • Statement must have been against interest when made
    • Declarant must have personal knowledge of facts
    • Declarant must be unavailable
    • Does not have to be a party (distinguish party admissions).
  25. Dying declaration
    Statement made by a declarant while believing his death is imminent. 

    • Requirements:
    • Made under sense of impending death (need evidence that the declarant believed he was going to die)
    • Declarant need not die but must be unavailable at time of trial
    • Admissible in homicide or any civil cases
    • Must concern cause or circumstances of impending death
  26. Statements of personal or family history
    (e.g. birth, death, marriage) made by family member or one closely associated with the family.
  27. Excited utterance
    • 1) startling event,
    • (2) statement made under stress of excitement,
    • (3) concerns the facts of the startling event. Look for nature of event, time lapse, language.
  28. Present-sense impression
    a statement describing or explaining an event or condition made while the event was happening (“Spano’s at the door.”)
  29. Declaration of past physical condition
    statements made describing medical history.  Admissible if: (1) made to medical personnel, (2) pertinent to either diagnosis or treatment (even if diagnosis is only for the purpose of giving testimony
  30. Business records
    • Records made as a memo of any business transaction is admissible if:
    • The record is germane to business
    • It appears that the record was made in the regular course of business
    • The business record consists of matters w/in the personal knowledge of the entrant or within the knowledge of someone with a duty to transmit such matters.
    • Entry made at or near the time of the transaction
    • Authenticity established by the custodian (1) testifying that the record is a business record, or (2) certifying in writing that the record is a business record.
Card Set
Evidence Misses
Evidence Misses