Beruflich Dokumente
Kultur Dokumente
Is statement Hearsay or Not Hearsay, explain why, then explain exceptions if exceptions apply.
o If a statement cannot get in under 803 or 804 it still can get in if it has equivalent
trustworthiness, and
(A) The statement is offered as a material fact
(B) The statement is more probative for the point it is offered than anything else
reasonably attainable
(C) Letting it in will best serve the interests of justice
You have to give opponent a heads up before trying to use this exception
804 Hearsay Exceptions Unavailability of Declarant Required
o 804(a) Definition of Unavailable
A witness is unavailable if:
(1) Protected from testifying due to privilege
(2) Refuses to testify despite court order to do so
(3) Testifies to lack of memory of the subject matter of declarants statement
(4) Is unable to be there b/c of death or then existing physical or mental illness
(5) The proponent of the evidence hasnt been able to find witness through
reasonable means
o If proponent of evidence acts to make witness unavailable, they are
considered available (cant scare witness away for your benefit)
o 804(b)(1) Former Testimony
Civil Case
Witness gave testimony or deposition in same or different hearing AND
o Predecessor in interest had an opportunity to cross
o Predecessor in interest had same nucleus of operative facts & similar motive
to develop testimony from unavailable witness
Criminal Case
Witness gave testimony or deposition in same hearing
Cannot be a predecessor in interest
o 6th Amendment confrontation clause requires opportunity to CX
o 804(b)(2) Dying Declarations
Declarant has to believe death is imminent (subjective belief Doesnt have to die)
Statement must directly relate to cause or circumstances of believed impending death
In Criminal cases Not useable in non-homicide criminal cases
o But in homicide cases the declaration doesnt have to be result of homicide
o 804(b)(3) Statement Against Interest
A statement that is so far against declarants interest that a reasonable person would not
say it unless declarant believed it to be true. It must:
Expose declarant to civil liability (OR)
Expose declarant to criminal liability (OR)
Render a legal claim by declarant against another invalid
The statement cannot be self-serving.
It cannot reduce the punishment of, or exonerate declarant.
If statement offered in criminal trial that exculpates the accused and exposes the
declarant to criminal liability it has to be supported by trustworthy evidence,
because someone in jail admitting to a crime cant be trusted
CHARACTER EVIDENCE
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o The evidence is prejudicial as hell, but it is supposed to be. It can only be kept out with a
modified 403 balancing test that looks at a sexual crime committed a long, long, time ago as
more prejudicial than probativebut a prior sex crime will likely never be kept out.
RELEVANCE OF EVIDENCE APPLIED TO SPECIFIC SITUATIONS
o Pretrial experiment evidence is weighed on the 403 scale. The probative value of the
experiment is related to how similar it is to the event it is trying to simulate.
o The sophistication of the experiment and what the experiment is offered to prove can influence
how much leeway the court is willing to give when it decides if the experiment is similar.
WITNESSES, COMPETENCY AND FIRSTHAND KNOWLEDGE
2. Has there been peer review & publication of theory & experiment data?
3. What is the potential rate of error? (standards for consistency)
4. The general acceptance of the method in the scientific community.
703 Three Permissible Factual Basis For Expert Opinions
o 1. First Hand Observations (like a treating physician)
o 2. Presentation of Evidence at Trial
The expert attends the trial & hears everything establishing the facts
The expert gets a long hypothetical on the stand establishing facts in the trial
o 3. Presentation of data outside the court
704 Opinion by Expert on Ultimate Issue
o 703(a) Generally an expert witness can testify to the ultimate issue in the case without raising
colorable objections
o 703(b) An expert is not allowed to testify to the ultimate issue of the mental state of a
defendant in a criminal trial.
705 Disclosure of Facts or Data Underlying Opinion
o The expert does not have to give all the facts that lead to his opinion but he can be questioned
about them. The facts used by the expert only have to be the facts the expert believes a similar
expert could rely upon.
PRIVILEGES
501 Privileges
o Privileges in federal courts are governed by federal common law on federal cases and state
common law or statutes when a state law case gets to federal court.
o Privileges can be waived, even accidently, but only by the person holding the privilege.
Disclosure of information to person that does not need to know can equal waiver because
the information is not being treated as secret anymore.
o Attorney Client Privilege - Individuals
Is for the benefit of the client, not the attorney
Begins at initial preliminary discussions b/t client & clients attorney, or attorneys rep.
The privilege lives on after death of client
Cant be used to help conduct a crime
The privilege only exists for the purposes the client sought legal advice.
o Attorney Client Privilege Corporate Client
Facts given to an attorney to obtain legal advice are protected for the corporation if:
1. Within the scope of employment of corporate employee to communicate
with corporate attorney about these facts
2. The employee knew the communication was for legal advice
3. The information is kept confidential
o Attorneys with joint clients
If a single attorney represents multiple parties in a case and the parties later become
adverse, the communication made to the single lawyer is not protected by attorney client
privilege.
o Attorney Versus Client
If attorney and client become adverse, the information shared between them ceases to be
privileged.
o Work Product Doctrine
The attorneys personal work on a case is not discoverable. The privilege includes:
Attorneys legal research and memos
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Attorneys notes
Attorneys thoughts and mental impressions
Attorneys personal conclusions
The privilege does not include an attorneys questioning of a witness in an office if there
is a substantial need for this information and no other way to get it.
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