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Relevant: 2 prongs that must be satisfied for offered evidence to be relevant: 1. General relevance: 1) Offered evidence must prove or disprove some fact or matter of consequence in the case; 2) The evidence must be probative of a matter in issue in the case; 3) Must pass FRE 403 balancing test if raised by opponent of offered evidence i. 1ST prong: Look to pleadings and substantive law of the case to determine whether a matter or fact is of consequence to the case for first prong of test ii. 2nd prong: Any tendency suggests slight relevance is enough to satisfy FRE 401 and the 2nd prong of general relevance 1. Conditional relevance: Evidence that standing by itself is not relevant to any issue in a trial but would be relevant if the trier of fact also had some other information (FRE 104 B) iii. 3RD Prong: Highly prejudicial objection raised by opponent to offered evidence. 2 grounds you can object on under FRE 403: 1. Relevant 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." 2. According to FRE 403, relevant evidence may be excluded if "its probative value is substantially outweighed by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." a. Concerned w/ judicial efficiency 3. Process for determining FRE 403 rulings a. Judge weighs admissibility vs. exclusion. On the admissibility side of the scale, judge considers relevance and whether proponent can prove the fact any other way. On the exclusion side, judge considers the impact evidence would have on an untrained jury. 4. Judges discretion is considerable but not limitless; SC overturned conviction of defendant because of prejudicial evidence allowed in that should ve been excluded under 403 2. Special Relevance: Special relevance prong is a way to keep generally relevant evidence out. The reason behind this prong is because the unfair prejudice from particular types of evidence is considered so extreme that it cannot be risked. a. Character trait rules (404a + 405): i. Rule 404(a): Generally cannot introduce character evidence for the purpose of proving action in conformity with EXCEPT: 1. Essential element rule (405 B): When character or a trait of character is an essential element of a charge, claim, or defense it is admissible in both criminal and civil cases a. Child custody cases, knowingly hiring someone w/ a certain character type, wrongful termination cases i. Have to prove the person hired has that character type b. Mostly applies to civil cases
Evidence Outline c. This exception is rarely used only applicable when charges require character traits to be proven d. Can use reputation, opinion, or specific instances of conduct to prove character under this exception 2. Circumstantial Evidence Rule (405 B): Exception that allows character evidence in, as circumstantial proof that a person acted consistently with his character at the time in issue in the case a. Can only be used in criminal cases b. Evidence concerning a sex offense victim s character should be excluded if it is required by FRE 412 c. Only reputation & opinion are permissible ways to introduce character evidence under this exception d. Defendant decides whether character evidence will be admissible. If defense does not introduce character evidence, prosecution may not do so either. e. CE procedure: i. Prosecution may admit character evidence of victim s good character for peacefulness in a homicide case where the defendant introduces evidence that the victim was the first aggressor (arguing self defense) ii. Defendant claim s peaceful character P can rebut w/ violent character of D iii. Defense attacks victim s character (they re violent) Prosecution can rebut w/ peaceful character of victim iv. Defense attacks victim s character (they re vilent) Can rebut w/ defendant s violent character 1. AZ has not adopted this v. Offer specific acts to relating to character to impeach character witness f. Character evidence may be admissible against a defendant to prove propensity or conformity in sexual assault and child molestation cases in both criminal and civil cases under FRE 413-415 i. Only can use specific instances of conduct b. Other Acts Rule (Rule 404 B): i. Can t offer other acts to show propensity or bad character (specific instances of conduct) ii. 404 (B) is a rule of inclusion iii. Applies to both civil & criminal cases iv. Non-propensity purposes of other acts under 404 (b): 1. Identity a. Requires striking similarity b/w 2 acts
situation-specific repetitive behavior 1. Habit evidence is more probative than character evidence because habit evidence is automatic and more reliable v. 404 (b) is not implicated. Evidence offered to prove that any alleged victim engaged in other sexual behavior . Other act to show reason for committing crime 5. 404 (b) analysis must be confined to other crimes. Habit is reflexive. Knowledge a. If habit is very generalized more likely to be character evidence a. If the other act/crime is part of the crime on trial. or a part of it 1.Evidence Outline 2. State of mind 8. For example. I always stop at stop signs too general basicall saying you are careful driver b. wrongs. United States) vii. The following evidence is not admissible in criminal or civil cases: 1. hence others acts not other crimes (Dowling v. Routine practice is typically offered in commercial and product liability cases. D purchased gun week before the murder 6. Habit Rule (FRE 406): Offer habit to show propensity & its ok i. a company had a procedure to ALWAYS place a warning manual in their products iii. Important to not let character evidence in under the guise of habit 1. Intent 3. Rule applies to criminal + civil cases iv. General relevancy standard would apply vi. Consciousness of guilt 7. Dislike of or attitude toward victim v. The previous conduct did not have to result in an arrest or a conviction to be used. not contained in it. AZ uses clear & convincing standard for admissibility c. Person ran stop sign b4 so they knew it was there if they deny knowing 4. Sexual Assault Rule (Rule 412): Known as the rape shield rule and precludes specific acts involving sexual history of the victim of the offense i. The conduct must be extrinsic to the matter being tried. Different from character evidence in the sense that CE is a general personality characteristic that is not situation-specific ii. or acts. I always stop at THIS stop sign proper habit evidence d. Planning a. Motive a. Evidence of a person s habit or an organization s routine practice is admissible as circumstantial evidence of conduct at a particular time 1. Courts allow enough other acts evidence into the trial to show that the defendant was the one who did it by a preponderance of the evidence 1.
Permits the admission of other acts if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged f. FRE 414: Makes admissible in criminal child molestation cases. Sex Assault Rules (413-415): These rules are designed to allow specific acts of the defendant to show propensity in certain situations i. or a need for a warning instruction 1. Evidence of prior and probably false rape allegations against others is not excluded by Rule 412 e. Ex: A defendant takes a hostage for the purpose of a sexual attack. Policy Exclusions (407-415): i. the rule applies even though the actual charge is kidnapping v. a defect in a product s design. For 412 to apply there does not have to be a charge of a sexual crime. evidence of the defendant s commission of other offenses of child molestation iii. Preponderance standard a. a. etc. Remedial Actions (FRE 407): Evidence of subsequent repairs or product recalls is not admissible to prove negligence. Exceptions to the above rules in criminal cases: 1. Applies only to Arizona in lieu of FRE 413-415 2. Rule 404 (c): 1. FRE 415: Applies Rules 414 & 415 to civil cases 1. a defect in a product. Doesn t require defendant to be charged or convicted for the evidence to get in iv. Rule 412 prevents the defense from using FRE 404 (a)(2) to prove a character trait/past acts of the victim in a sexual assault case iv. AZ uses clear & convincing standard 3. including AZ . warning inadequacies. so long as the charge involves sexual misconduct 1. 3rd party responsible 2. Consent iii. Evidence offered to prove any alleged victim s sexual predisposition ii. Courts are still required to apply the FRE 403 balancing test to evidence of sexual misconduct under FRE 412-415. Applies to federal courts and some states. FRE 413: Provides that in criminal sexual assault cases evidence of the defendant s commission of other sexual assaults is admissible ii.Evidence Outline 2. Typically the evidence still gets in under the assumption that Congress intended that evidence of a defendant's propensity to commit sexual assaults under FRE 413 or FRE 414 is not outweighed by any risk of prejudice or other adverse effects 2. culpable conduct. Applies mostly in civil negligence cases and strict liability. 2.
such as proof of agency. this opens the door to evidence that the gun's safety mechanism was changed within weeks of the accident ii.Evidence Outline 3. agreement isn t brought up . control or witness bias iv. hospital or similar expenses is inadmissible to prove liability 2. owned by state. Ex: Slip and fall case. i. If settled defendant doesn t testify. Store owner says part of parking lot is not owned by me. Applies mostly to civil cases while 410 deals w/ criminal 2. Rule is very limited in scope does not exclude other factual statements or conduct of the person making the offer just the offer itself 4. control or feasibility of precautionary measures. Typically lawyers will admit to ownership & control to keep remedial action evidence out ii. At trial settled defendant becomes witness. the fact that D1 settled w/ plaintiff is admissible to show bias b. Nor does it bar statements of fault associated w/ an offer iii. Evidence of furnishing or offering or promising to pay medical. Existence or non-existence of prior accidents involving the products can be admitted 4. Rationale behind the rule is to encourage settlements 3. Compromise and Offers of Compromise (FRE 408): Evidence of settlement or offers to settle are not admissible to prove liability or amount of damages 1. Remedial evidence can also be used to impeach a witness. ownership. Exception: A Mary Carter agreement is a partial settlement b/w a plaintiff and one of multiple defendants a. Reason being is the fear that jurors who know a party has insurance may find that party liable only because they the liability will be cost-free to the party or increase the damages 2. Can rebut by asking then why do your employees clean up spills in the parking lot? b. Payment of Medical Expenses (FRE 409): 1. Lack of liability insurance can be admitted if offered for proper purpose. but the jury will believe it shows fault 3. Does not bar offers to pay or payments of car repairs. Can be admitted if offered to prove ownership. So if a gun expert testifies that the gun in issue is not only safe but also is the standard for guns. Rationale behind the rule is such offers or payments may be motivated by reasons other than fault. Exceptions: a. Liability Insurance (FRE 411): Evidence that a person had liability insurance or doesn t is not admissible to prove negligence or fault 1.
If plea discussion are made w/ prosecuting attorney statements/conduct made during plea bargaining are inadmissible against defendant 3. Negotiations must be with the prosecuting attorney for statements to be barred 2. Specific Privileges: 1.Evidence Outline c. Federal criminal and civil-federal question cases FRE 501 2. General: 1. Federal courts: i. The witness spouse is the holder of the privilege iii. State courts State privilege law applies ii. Plea Agreements and Discussions (FRE 410): 1. the defendant must intend to engage in plea negotiations in order for the statements to be barred a. Due to Erie doctrine 3. A few states have held that such agreements are void on public policy grounds d. Privilege terminates upon dissolution of the marriage . Federal civil-diversity cases State privilege law applies a. then inter-spousal communications d. Most states don t like the rule which is why it terminates upon dissolution of marriage c. nothing in those discussions is admissible 4. Spousal Bar Privilege (broader than communciations priv): a. If plea discussions fail. Most states uphold the agreements v. If the defendant is the one engaging in plea discussions. Privilege only applies in criminal cases ii. Exception to the general rule barring plea discussions: a. Only applies to events during marriage iv. Defendant must be seeking a guilty plea deal 6. A plea of guilty later withdrawn may not be used against the defendant who made the plea 7. Most plea discussions involve the defendant s lawyer and rule covers his statements 5. the witness may be examined about his plea agreement with prosecution in order to show bias g. Consider this privilege first. Whenever a co-defendant enters into a plea agreement and later becomes a witness at trial of remaining codefendant. Allows one spouse to bar the other from testifying completely b. Privileges: Promotes candid conversations between certain people without fear of details being exposed in court one day i.
Party spouse is the holder of the privilege ii. AZ Rule: i. The key inquiry is to look at the circumstances under which the communication was made 2. Interspousal crimes + torts 3. Spousal communications privilege: a. Client is the holder of privilege only he can waive it iii. Basically the same as federal rule ii. Protects confidential communications. If husband assaults wife 2. Only covers events occurring during the marriage in criminal cases iii. Both civil + criminal iii. emails. Both civil and criminal cases iii. Only applies to communications (letters. Exceptions to the privilege: 1. Each spouse is the holder of the privilege to their communications made to the other iv. Joint torts + crimes 2. AZ Rule (civil +criminal): i. Privilege terminates upon dissolution of the marriage v. Exceptions: Privilege doesn t apply to: 1. Inter-spousal torts and crimes a.Evidence Outline e. Does not terminate upon dissolution of relationship . Federal: i. They commit a crime together 2. Federal: i. Never terminates v. Each spouse is holder of privilege and can assert the privilege to his or her communications to the other iv. Joint spousal torts and crimes a. Covers events all time in civil cases iv. Privilege protects 1) confidential 2) communications 3) between legally married spouses 4) made during the marriage ii. oral and written. between an attorney and client relating to the rendering of legal services 1. Privilege never terminates c. phone calls) made during time frame of marriage b. Attorney-Client Privilege: a. Not all communications are privileged ii.
Protects any communication from any corporate employee to corporate counsel which was necessary to develop information needed to inform corporate counsel so that it could competently represent the corporate client ii. Basically follows federal rules ii. Only recognizes privilege for psychotherapistpatient communication b. they are joint clients. No doctor/patient privilege ii. If federal law applies (federal criminal + fed ?): i. Multiple clients issue: Where two or more individuals have consulted a lawyer for advice on a matter that concerned both individuals. impliedly waives the privilege as to the medical records relevant to his condition (ex: personal injury case) as well as earlier medical records that relate to the particular medical condition (to perhaps show plaintiff had pre-existing condition) . AZ Approach: i. or calling the physician to testify to them 1. Atty/Client privilege Corporate setting: i. If the joint clients sue each other. Plaintiff holds the privilege iii. Only communications between corporate counsel and the control group (officers. Privilege survives death of the client c. their communications to the lawyer will not be privileged 4.Evidence Outline b. Most states follow Control test: 1. directors and managerial employees with legal decision making authority) are protected under the privilege d. Patient waives the privilege by testifying to these communications or facts. Protects not only confidential communications between doctor & patients but also examination results from disclosure in civil cases ii. Federal courts & AZ follow Upjohn test 1. Doctor/Patient privilege: a. AZ Rule: i. Means privilege issues are uncommon v. Only plaintiff can waive the privilege doesn t terminate upon end of relationship iv. by filing a lawsuit which puts in issue his physical condition. A plaintiff.
Contract 3. Second prong: 1. Requires you just to prove that the words were said 2. When an inadvertent disclosure is made in a federal proceeding. Most conduct is not a statement ii. made at any other time or place iii.Evidence Outline 5. A statement is an 1) oral assertion. the disclosure does not operate as a waiver in a federal or state proceeding if the disclosure is inadvertent. Gift 4. FRE 502: Deals w/ advertent and inadvertent waivers of the attorney client privilege and work product doctrine in fed and state litigation a. First prong: 1. since the parties can now avoid effects of inadvertent waivers on the attorney client privilege and workproduct Reliability I. Assertive conduct is a statement only if clearly intended as the functional equivalent of an assertion a. the holder of the privilege or protection took reasonable steps to prevent disclosure. while on the stand. Independent Legal significance: Applies when the applicable substantive law gives legal significance to words merely because they have been said (they aren t being offered for the truth) 1. Statements here are not hearsay since they are being offered for their falsity (aka misrepresentation) . Is the out of court statement being offered to prove a matter in issue? b. Defamation a. Gives effect to non-waiver agreements b. Satisfied whenever a witness. Intentional Misrepresentation a. Basically the rule limits the cost of discovery process. Hearsay: 1) statement 2) made out of court 3) offered to prove the truth of the matter asserted in the statement a. 2) written assertion or 3) assertive conduct (intended to be an assertion) i. Third prong: 1. repeats any statement either he. and the holder promptly took reasonable steps to rectify the error c. or another person. Common categories of non-hearsay (out of court statements offered for proper purpose proponent of evidence will argue these): i.
Considered fair to use whatever an opposing party says against him at trial iii.Any words or acts by a criminal defendant before arrest are admissible as admissions. Notice: Tort law cases where you have to show defendant or someone was aware of a fact 2. or will not voluntarily attend the trial and cannot be reached by compulsory process Specific Exceptions I. under the Miranda holding. Meaning it is offered to show the statement was made. writing. Prior Statements Category: a. Effect on listener s state of mind: A statement is non-hearsay if it is being introduced merely to show that it affected the listener. but a properly admonished defendant may. Impeachment with a prior inconsistent statement: Prior inconsistent statement is being offered to show contradiction (impeachment) not that the prior statement made was true Hearsay Exceptions General: a. 801 (D)(2) do not require declarant to be subject to cross ii. An admission is anything an adverse party has ever communicated (in speech. II. 1. 804: Exceptions that require witness to be subject to cross unless they are unavailable 1. refuses to testify. Rule is very generous and no guarantees of trustworthiness is required iv. The statement could have been favorable to some interest of the party. 801(d): Classifies as non-hearsay both admissions of a party opponent and certain prior statements by witnesses 1. Note . Fear: Offering an out of court statement to show that someone is afraid of another after hearing a threat iii. FRE characterize party admissions as non-hearsay states consider it hearsay exception vi. 801(D)(1) requires declarant to be subject to cross 2.Evidence Outline ii. has a lack of memory. not that it is true. or neutral ii. 803: Exceptions that don t require declarant to be subject to cross iii. . The party s own statement oral written or non verbal conduct before or during trial b. Types of admissions by party opponent: 1. A witness is unavailable when he asserts a privilege. or unfavorable. is dead or too sick to testify. Admissions by party opponent [801 (D)(2)] i. A party cannot offer its OWN prior statement as a party admission statement can only qualify if offered by the opposing party v. A party s own admission [801 (d)(2)(a)][ non-hearsay ] a. Witness Availability requirement categories: i. or in any other way) sought to be introduced against that party at trial.
S." B has adopted A's statement as his own and can be admitted against B b. Not admissible because defendant has 5th Amendment right to remain silent iii.Evidence Outline waive his 5th amendment and 6th amendment rights and make admissions as well 2. 2) The statement was made "during the course and in furtherance of the conspiracy i. Co-Conspirator statement as party admission [801 (D)(2)(E)] a. Admissions by authorized persons. Cop says to defendant why did you shoot the guy? D says nothing. Adoptive Admissions [801(D)(2)(B)]: a. Note . A statement of which the party has manifested an adoption or belief in its truth i. In criminal cases 5th Amendment privilege issues D has right to remain silent 1. however. Silence can be considered an adoptive admission if most people would have spoken to contradict something like a statement just made to the party. U. Someone who admits something and is authorized to do so on behalf of a party i. .Silence as an adoptive admission is not favored by judges because silence can mean any number of things 3. Can be used against a party if: 1) Evidence exists there was an ongoing conspiracy involving the declarant and the person the statement is offered against. agents and employees a.). it is not enough standing alone. An agent statement made on behalf of a party if the statement 1) concerned a matter within scope of the agency relationship or employment 2) and was made during existence of the relationship 4. Can prove conspiracy by using the declarant's own statement. Ex: A says to B "I am sorry i had to shoot the bank teller. i." and B says. Ex: A lawyer b. "You're right. to establish the existence of the conspiracy and the participation in it of the declarant and the party against whom the statement is offered (Bourjaily v. Civil cases silence is allowed in as party admission as long as party heard the statement/understand English ii. but it was the only way you and I could get the money.
If prior inconsistent statement wasn t made under oath it can only be offered to impeach but not offered for its truth (613) 2.Evidence Outline b. a. admissible as substantive evidence. Reason for this Exception is that in-court identification testimony is weak and subject to suggestion an out-of-court identification is fresher in time and opportunities for exerting influence is less c. Prior consistent statement can be oral or written under oath or not 3. that is. So if on cross these implication of bias/interest/lying isn t made. etc. The charge of recent fabrication or improper influence or motive can be "express or implied" during cross 5. offered to rebut an express or implied charge against the declarant of recent fabrication or of improper influence or motive [FRE 801(d)(1)(B)] 1. 4. Prior Statements by Witnesses [801(D)(1)] [ non-hearsay ] i. Prior Inconsistent Statement [801(D)(1)(A): 1. Statements against interest [804(b)(3)]: Exception is based on the assumption that people do not make statements damaging to themselves unless they believe for good reason that their statements are true i. A statement consistent with the declarant's testimony. A prior statement used to impeach a witness during a trial or hearing is not hearsay if the statement is 1) inconsistent with the declarant's testimony and 2) was given under oath subject to the penalty of perjury at a trial or hearing/proceeding a. The rule treats such prior consistent statements as nonhearsay. these prior consistent statements would not be admissible 2. Prior consistent statement must be made before the event giving rise to the charge of recent fabrication. Deals w/ rehabilitation iii. Prior statement is not hearsay if it is one of identification of a person made after perceiving the person 2. for its truth b. Arizona has modified 801 (D)(1) so that ALL prior inconsistent statements used to impeach are non-hearsay and substantive evidence (truth) ii. A statement of identification of a person made after perceiving the person [FRE 801 (d)(1)(c)] 1. for its truth. that is. Declarant must be unavailable . Test for exception to apply: 1. Means that the statement is admissible as substantive evidence.
3 prongs must be satisfied b4 transcript of a witness' earlier testimony is admissible: 1. Not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement b. or subject the person to civil or criminal liability a. 2 kinds of statements against penal interest: 1. Ex: "I gave Mary the diamond ring as a present. Ex: "I owe Johnson $100. Look at context/situation where statement was made b. Penal interest subjects someone (including declarant) to criminal or civil liability i. Inculpates (says someone is guilty) Statement is generally trusted a. AZ does not require unavailability if the transcript is introduced in a civil case 2. Statement was so far contrary to the declarant s interest that a reasonable person would not have made the statement unless it believes it to be true a." c. The party must have an opportunity and similar motive to develop the witness' testimony in the earlier hearing Spontaneous statements a. Statements have to be disserving d. . Key inquiry is the length of time between event & statement 2. Who says that? 2.Evidence Outline 2. Exculpates (says someone is innocent) Distrusted a. 1) Statement must be made during or immediately after perceiving the event and 2) describe what they saw 1. Statement must be against the declarant's pecuniary." b. Prior Testimony [804 (B)(1)]: i. Focus on relationship b/w person making statement and person exculpated 3. I robbed the bank i. Pecuniary interest is a financial interest i. proprietary interest.declarant must be offered against a party that was present at the earlier hearing 3. Rationale behind the exception is declarant doesn t have time to forget the event or distort it 3. Present Sense Impressions [803(1)]: i. The out-of-court declarant must be unavailable (see above) a. The transcript of the out-of-court. Proprietary interest is an interest in property i. Just needed a witness to testify about the statement II.
Factual assertions included in statement r excluded . Can allow statement to show past conduct when a person s will is in issue 1. Statements are reliable because the declarant has no time to fabricate 2. My back hurts right now 2. Statements made by patient (or representative of patient like parent) for purpose of receiving treatment / diagnosis are admissible 1. Allowing past conduct would gut hearsay rule could be making up a lie about what u did b4 ii. Both doctors and related parties (such as nurses/healthcare providers) can testify about the statements made to them 3. Malice d. Excited Utterances [803(2)] i. Allowed in as circumstantial proof of conduct if: a. Can admit statements about physical condition 1. Most states allow present state of mind statements to apply to declarant & 3rd person i.Evidence Outline b. Statement is present state of mind about future conduct i. No distinction b/w treating/non-treating physicians 4. Allowed in as direct evidence if it proves an element of the case a. Intentional torts and crimes 2. Allowed in w/o exception because people won t lie about their present physical condition ii. Excited standard is subjective meaning the length of time between statement and event can fluctuate 3. Statements of present or past conditions for diagnosis [803(4)] i. Issue w/ this exception is psychologists say people under excited state aren t good observers c. Can also admit statements regarding State of mind in limited situations ( I m frightened ) ( I d like to kill Joe ) 1. 1) Statement must be made under the stress of excitement and 2) statement must relate to a startling event 1. Ex: Mary says I m going to a party with Joel. Mental suffering element of damages c. Present Mental and Physical Condition [803(3)] i. Only limits on the rule are statements of pure fault and medical history not reasonably pertinent to the present medical condition d. Cannot offer statement by declarant against a 3rd party under FRE c. Testator is in best position to know what he intended to accomplish in his will b. Can apply statement to Mary but not joel d. Intent to create domicile b. Covers prior history + present symptoms 2.
If u want the margin notes in argue the notes were made by employee of company and should be party admission b. Rationale behind the rule is people who are about to die are unlikely to lie III. "I am afraid of Arthur because he uses a baseball bat to collect debts. but can be excluded if the record indicates lack of trustworthiness c. 3) by a person who had knowledge of the facts recorded or made from information transmitted by a person having knowledge of the facts. Records a. Applies to homicide & civil cases 4. conditions or opinions 2. Double hearsay issue (805): i.Evidence Outline i. Words such as I m about to die will suffice 2. Allowed in to evidence if custodian or other qualified witness can testify that the exhibit is: 1. 2) belief in certainty of imminent death. 5) kept in the course of a regularly conducted business activity a. 3) statement must be about circumstances of injury/cause of imminent death 1. Records made in anticipation of litigation are not automatically excluded. Business records whose creation lack trustworthiness i. Subjective standard b. 4) made as party of the regular practice of that business . Proponent of offered evidence has burden of proving declarant believed death was imminent a. Margin notes/hand written changes on the record: i. record or data compilation in any form b. Record includes a memo. Issues w/ exception: a." e. 1) Record of the business. Dying Declarations (804(B)(2) i. Business Records [803(6 & 7)] i. report. Record may contain acts. 2) made at or near the events recorded on it. Requires 1) declarant to be unavailable. Good argument to keep them out cuz u don t know who made the notes or when they were made ii. events. Self-serving records d. Issue w/ this exception is whether declarant believed they were dying imminently 3. Hearsay included within hearsay is not excluded under the hearsay rule if each part of the .
3) factual finding made pursuant to law 1. 2) deals w/ matters observed w/ duty to report. Allows the recorded statement (writing) into court as evidence asserted for its truth when the witness no longer has a recollection of the events 3. Police report = public record exception 3. Doesn t apply to routine police stuff like license numbers or weather the day of the accident iii. Recording must 1) be made or adopted by a declarant who ONCE had personal knowledge of the recorded facts. and 3) accurately reflect the declarant's firsthand knowledge 1. Comes up when computers organize business records into different arrangements and are printed out ii. Factual findings includes conclusions & opinions BUT the findings has to be from a public entity that is directed by law to make public findings a. Still a business record? Likely a summary under FRE 1006 b. Qualifies if: 1) Activities of office. Each level of hearsay must qualify as an exception for statement to get in 1. 2) be made or adopted by the declarant at a time when the matter was fresh in his memory. Doesn t happen very often b. Ex: Police report contains statement from witness that the car sped right thru the redlight 2. Watch out for double hearsay issues iv. Business record v. Public records & reports [803(8) & (10)] i. Comes up a lot w/ written documents e.Evidence Outline combined statements conforms with an exception to the hearsay rule provided in these rules ii. summaries: i. National Transportation Safety Board investigates cause of all plane crashes directed by statute to determine cause of plane accidents ii. Policy is that it is preferable to admit the record than lose the evidence altogether . Rationale: Allow the document in as public record exception because of assumption public officials will perform duty properly c. Includes police reports however police reports are barred in criminal cases unless offered by the defendant (confrontation clause issue) 1. Witness statement = excited utterance iii. Fall back option for written statements that don t qualify as public records or business records 2. Recorded Recollection [803(5)] i.
Most times this allows testimony in iii. Basically anyone can testify 3. Been applied to such matters as prior inconsistent statements of a witness that lack the oath requirement of FRE 801 (d)(1)(a). General competency notes: 1. prior consistent statements that do not fit within FRE 801 (d)(1)(b). Used as last resort to admit a statement that doesn t fall into any of the hearsay exceptions b. AZ has eliminated most competency disqualifications. felons. In order to be admitted. retaining only in civil cases the bar to witnesses of unsound mind. The record is read to the jury but not admitted into evidence unless opponent wants it admitted IV. Give notice to opponent c. Most probative available proof iv. FRE has eliminated common law disqualifications such as parties. and children under 10 who are incapable of receiving just impressions or relating them fully 2. Judge/Jurors may not serve as a witness . Every witness is given an oath to testify truthfully 2. the statement bears little or no trustworthiness 3. Serves interests of justice v. former testimony where the lack of opportunity and motive to cross keeps it outside FRE 804(b)(1). AZ rule in state case or federal diversity: 1. Equivalent trustworthiness 1.Evidence Outline 4. Basically anyone can testify ii. AZ will allow the testimony in if the testimony is corroborated or a manifest injustice would otherwise result i. infants because those issues can be raised on cross 2. Witnesses: a. Deadman Act (ARS 12-2251): a. Character of declarant for honesty ii. This barred the testimony of interested parties to transactions with the deceased in litigation involving the estate of the deceased b. proponent must demonstrate: i. Did the declarant speak from personal knowledge? If not. and records that are not quite business or public rd prong deals w/ evidence being presented the right way Right: 3 1. Offered as evidence to a material fact iii. Was statement made under oath? 2. FRE apply if federal criminal or federal question civil case (601-606) 1. Residual Exception (807) a. Competency Rules: Threshold issue is whether witness is competent to testify i.
Experts thru work experience (farm workers. Direct Examination General i. miners. 3) and introduce into evidence portions which relate to testimony of the witness 2. Witnesses must be excluded from the courtroom during testimony of other witnesses 5. 2) cross witness about it. Refreshing recollection of witness (FRE 612): 1. Generally not allowed on direct but allowed on cross 2. either from its content or the way its articulated. Leading questions are permitted on preliminary or undisputed matters 5. If the stuff is obvious it s a waste of time for expert to testify 2. suggests a preferred answer to the witness 3. Leading questions are also allowed when establishing a foundation for an exhibit or when proving up (FRE 611 (C)) ii. Expert Opinion Rules (702-706) 1. Is expert qualified? a. technical or other specialized knowledge. economists) OR b. truck drivers. etc. Parties to the case cannot be excluded b. Item used to refresh memory does not have to be admissible iv. Lay witnesses are typically allowed to testify about FACTS not to draw conclusions from the facts 2. Leading questions (FRE 611) 1. Judge can call and question witnesses 4. Lay Witness Opinion (701) 1. Leading question is one which. Leading questions are barred because you want the witness to give the answer & not be suggested one by the lawyer 4. lawyers. they must qualify as an expert under 702 v. Those that become experts thru education (doctors. If a writing is used to refresh memory of a witness for purpose of testifying (during or before) an adverse party is entitled to 1) have the writing produced at the hearing to inspect it. Called witness must have personal knowledge about the matter testifying about (FRE 602) iii. BUT. if opinion is based on scientific. accountants. Opinion rules for lay witnesses have been relaxed permitted to give opinions if 1) rationally based on perception of the witness and 2) helpful to clear understanding of the witness testimony of a fact in issue 3.) . Will the expert testimony help the jury resolve the case and solve issues b.Evidence Outline 3. Is subject matter appropriate? a.
No one factor is determinative 2. Can give an opinion based on what he hears from sitting in court during trial c. Medical doctor can base an opinion on what he observes about the patient and what patient tells him b. Facts or data not admissible in evidence if the probative value of inadmissible evidence in helping the jury evaluate the expert s opinion substantially outweighs their prejudicial effect . AZ (Old 702): Is the witness an expert? Some form of education or expert thru experience 1.Evidence Outline i. 4) the technique has been generally accepted in the relevant scientific community 1. Daubert Test: i. Expert must have greater knowledge than a lay person to make his testimony "helpful" to a jury 3. If expert is a scientific one (used tests to reach conclusion) Apply Frye for AZ & Daubert for FRE b. Frye Test: i. Test used to reach conclusion must be sufficiently established to have gained general acceptance in the particular expert community c. Judge considers whether 1) technique used has been tested. 3) technique has a high error rate. Determination of reliability is made by the judge ii. Deals w/ whether basis for expert opinion is reliable whether admissible or not. Firsthand observation of the witness (703) i. Training & Experience Expert (no tests just personal observation to form opinion) i. Shortcomings of Expert observations will be brought out on cross ii. Judges can also look at the conclusion reached from the technique (joyner) d. Is testimony based on relevant and reliable principles and methods? a. 2) technique has been subject to peer review and publication. FRE: Judge decides if expert observation is reliable (use Daubert factors) e. 703 deals w/ whether the expert can rely on inadmissible evidence 4. The trial or hearing itself (703) i. Proper Bases for Expert Opinions (FRE 703): a.
Non-responsive: . AZ allows the inadmissible evidence for the expert opinion so long as it is reasonably relied on by experts in the field 1. Expert testimony on ultimate issue (factual matters or legal conclusions) is okay so long as it is helpful to jury i. Impeachment is the only other area cross can cover that direct didn t d. Commenting on other witnesses 1. In federal court. Asked and Answered iv. Defendant is a paranoid schizo (proper) b. Cross Examination (611-615. and tell the jury what the other specialists told him (despite being hearsay) a. Argumentative iii. Couldn t do this under FRE 5. Leading questions are allowed 1. AZ court Witness may be crossed on any relevant matter (regardless of it was brought up on direct) iv. Defendant was at fault and negligent (improper) 2. Compound: vi. witness can only cover topics asked about on direct and credibility issues of the witness 1. its ok ii. Can t testify defendant was legally insane when crime was committed c. Ex: A doctor can testify that he based his opinions in part on consulting w/ other specialists. Leading ii. Common Objections to Questions i. If expert testimony is something jury couldn t figure out on their own. Ex: You re just a low-down scum of the earth. 701) i. aren t you? viii. Experts are NOT allowed to testify in a CRIMINAL case as to their opinion on whether defendant had mental state required under the charge.Evidence Outline i. If jury can figure it out on their own. embarrassing or personally attacking a witness 1. Opinion on Ultimate Issue (FRE 704) a. Narrative: ix. Adverse witnesses aren t as likely to follow a suggested answer contained in the question ii. Can t ask a witness to comment on the truth of another witness testimony v. not ok 1. Confusing and misleading: vii. Harassing. Cross examiner can call the witness on direct to question them on new subjects iii. or a defense to it i.
Examiner must accept the witness answer 3. Requires lawyer to believe the question is 1) relevant and 2) can be backed up by evidence if not admitted by witness iv. then depends on importance of the matter to determine whether issue can be proved up (see below) v. Non-collateral categories: a. motive. Collateral categories: a. Collateral (unimportant) matter CANT be proven w/ extrinsic evidence a. Bias. including their own witness 1. Bias/Interest/Motive: 1. Conduct probative of untruthfulness/prior bad acts 5. Impeachment General i. Case by case categories: a.Evidence Outline 1. Methods of Impeachment: i. If non-collateral and witness denies it and you can t prove it up. or explain the impeaching matter before allowing extrinsic evidence in a. Proving up a denial of impeachment matter: If witness denies or equivocates impeachment matter 1. Would also want to impeach own witness to lessen the sting when its brought out on cross iii. but the answer does not respond to it 2. Typically happens on cross w/ adverse witness x. can t raise it during cross 2. deny. Warning Question Requirement: 1. no need to call another witness to prove up the impeachment 3. . Speculation and Conjecture: e. Good faith requirement 1. If witness denies impeaching matter. Rationale behind the rule is judicial efficiency. When the question is appropriate. Can be anything about the relationship of the witness to any of the parties or the lawsuit that might cause a witness. Any party can impeach any witness. Some impeachment methods require a witness to be asked about the impeachment matter before it is brought out 2. If witness admits the impeaching matter. Noncollateral (important) matter Must be proven w/ extrinsic evidence a. Collateral = only offered to contradict testimony or nonimportant issue b. Impeachment is cross examination that attacks a witness' credibility ii. interest. Prior inconsistent statements and contradictory facts f. and prior convictions must be proven up w/ extrinsic evidence 4. This question gives the witness an opportunity to admit.
through some relationship to the parties or attitude about the matter in dispute. Prove up if non-collateral (important) 2. Prior statement must be materially impeaching i. but in a previous statement the witness failed to mention a revolver 4. usually financially. from a particular outcome to the case a. has a frame of mind that could color his testimony 4. to slant his testimony for or against a particular party 2. Warning questions are required c. Evidence that the witness once had a dispute with the defendant is admissible to show motive 6. Prior Statement Impeachment (613. Major inconsistency between statement on stand and prior statement b. Ex: Witness testifies at trial that the robber had a revolver in his waistband. Can impeach by showing a reasonable person would not have left that omitted fact out originally i. 801 d(1)): 1. Warning question required ii. Can impeach party under 801(D)(2) as party admission if they don t testify or under 801 (D)(1) prior statement by witness if they testify iii. Ex: Business partners 5. Can t use defendants post-arrest silence against him he has right to remain silent 5. The test for inconsistency is whether the prior statement or omission has a reasonable tendency to discredit the testimony of the witness 3. Motive is the reason why a person does something or testifies the way they do about their conduct a. Foundation is showing that the witness should have reasonably been expected to speak b. Contradicting Facts: . Type of impeachment is always non-collateral 3. Typically comes up on cross of the defendant b. To impeach w/ prior inconsistent statement: a. Interest exists where a witness's relationship to a party or the lawsuit is such that he stands to gain or lose. Bias exists where a witness. Impeachment by omission applies when a witness makes a statement about an event and adds an important fact to their testimony that was previously left out a. Impeachment by silence applies when a witness testifies to a fact but failed to mention it previously a.Evidence Outline consciously or unconsciously.
Rule 609 requires balancing the prior conviction s probative value with its prejudicial effect. As a result most courts will sanitize the conviction you ll only hear he had a prior conviction but not what for b. is asked to admit a fact that is inconsistent w/ what the witness just testified about 2. Judge determines whether the unfair prejudice of allowing the conviction substantially outweighs its probative value b. 608 (A) Deals w/ direct of character witness (rep or op) . Felony = crimes punishable by death or imprisonment over a year b. Prior Convictions (609): 1. 403 objection can be raised to all prior convictions a. Applies when defendants testify n their own case ii. 5) centrality of credibility issue 1. 2) age of the prior crime. embezzlement. Allows impeachment of a testifying witness (including D) credibility by showing the witness was previously convicted of a. Proving up depends on whether issue is collateral or non case by case basis 3. Denies collateral/non-collateral iv. Convictions over 10 years old i. 3) similarity b/w prior crime and crime at trial. Warning questions required 5. usually on cross-examination. Generally these convictions are kept out but allowed in if probative value outweighs the prejudicial effect 3. 4) importance of defendant s testimony (if important judge will keep prior conviction out). Occurs when a witness.Evidence Outline 1. Warning question requirement a. Felonies i. No balancing test required ii. Judges are reluctant to allow conviction impeachment in civil cases unless conviction relates directly to truthtelling 4. Perjury. Misdemeanors involving dishonesty or false statement i. Felony convictions of defendants in criminal cases i. any crime w/ deceitfulness or untruthfulness 2. when: a. Character for Untruthfulness (608) 1. Consider 1) nature of prior crime. Admits it impeachment over b. Non-collateral v.
SA) 3. Call character witness direct . Filling out false employment application ii. 4 ways to attack/support (on direct) CHARACTER witness truthtelling character: a.Evidence Outline 2. Warning question iii. Treatises (803 (18)) 1. Applies to any witness including defendant if they testify 6. Call character witness for character witness rep b. Applies only as a way to impeach an expert witness 2. Purpose of the rule is to prove that the fact witness or character witness is acting in conformity w/ that character and is more likely to be testifying untruthfully 4. Treatise must be established as a reliable authority by the testimony or admission of the witness or by other expert testimony 3. Cross of character witness is limited to credibility of that witness 7. Call character witness direct opinion of FW c. op. The treatise is read to the jury but not admitted as evidence vii. Impeaching out-of-court Declarant (806): 1. Collateral vi. Impeach original character witness w/ prior bad untruthful acts i. Collateral ii. Impeach original character witness on cross w/ specific instances of the FACT witness conduct relating to FACT witness truth-telling or bad acts in general i. you can present impeachment . Warning question required d. Only character evidence allowed is truthfulness / untruthfulness a. Collateral 8. Allowed to test the character witness knowledge of the fact witness character ii.reputation of FW b. Impeach FACT witness w/ prior bad untruthful acts (608(b)) i. Evidence of a witness TRUTHFULNESS (fact or character) can only be admitted once attacked 5. Filing false income tax returns iii. 3 ways to attack/support (rebut) FACT witness (FW) character under 608: a. When court gets a statement from an out-of-court declarant (typically 804 exceptions). Warning question iv. 608 (B) Cross of fact or character witness (rep. Call character witness for character witness opinion c.
qualify why can inconsistency occurred 2. No leading questions . Rehabilitation (613 & 801(D)(1)): Applies after impeachment i.Evidence Outline material you would ve presented to the witness had they testified 2. Can offer extrinsic evidence if impeachment is non-collateral g. Can rebut any bad character for truthfulness brought out under (608 b) w/ good character for truthfulness a. Proper redirect includes: 1. Anything that will reduce the impact of impeachment ii. Note Showing of bias and interest is not considered an attack on truthfulness so not rehabilitation allowed after this 3. Just being impeached w/ prior inconsistent statement doesn t trigger (801(D)(1) rehabilitation 4. Rehabilitate after inference of interst/motive/lying under (801(D)(1) by showing prior consistent statement was made b4 event a. Giving witness opportunity to explain.
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