Beruflich Dokumente
Kultur Dokumente
FEDERAL
DECLARANT MUST TESTIFY
Fed. Rule 803(5) Declarant is available AND testifies o Though statute/rule says whether declarant available or not Witness-declarant has no present memory Had personal knowledge of facts Made a record o by the witness-declarant o adopted by the witness-declarant
CALIFORNIA
Made a record o at witness-declarants direction; or o for purposes of recording witnessdeclarants statement, i.e., police reports both parties have to get up and testify
When fresh in memory Recorded accurately Fed. Rule 801(d)(1)(A) Declarant testifies o not just a true lapse of memory of the event To a statement made before testifying o Federal: under oath in a proceeding must be a hearing: preliminary statement ok, but not statement to police officer. Inconsistent with present testimony o whether recalls the statement or not Give witness-declarant a chance to explain/deny by confronting called Rule in Carolines Case Evid Code 1235
Federal non-hearsay
PURPOSE
Give witness-declarant a chance to explain/deny by confronting o California: or make witness subject to recall dont excuse them California exception California in for ALL purposes only state to do this
Impeachment only o inconsistency shows lack of credibility o not depend on the truth of prior statement o not hearsay Substantive proof of the event o depends on the truth of prior statement o meets traditional hearsay test Evid Code 1236
Hardly ever get this in! Fed. Rule 801(d)(1)(B) Declarant testifies To a statement made before testifying That is consistent with the testimony Prior statement was made before an alleged motive to fabricate would have arisen
California only: was made before an admitted inconsistent statement was made so if inconsistent statement is admitted into evidence, then can bring out prior consistent statement that preceded inconsistent statement.
EVIDENCE MIDTERM
SUSAN MASARWEH
Federal Testimony the light was green Prior Consistent Statement B green light (not admit)
California Testimony the light was green Prior Consistent Statement B green light (not admit)
Inconsistent Statement (intervening event b/t the 2 consistent statements) told PO: it was a red light
Prior Consistent Statement A green light (admit because has value prior to motive)
Event
Event
Fed. Rule 801(d)(1)(C) Declarant available AND testifies o has to lay foundation and then others can testify Statement of identification of a person after seeing the person
PRIOR IDENTIFICATION
Nonhearsay (exclusion)
SUSAN MASARWEH
EVIDENCE MIDTERM
DYING DECLARATION
FORMER TESTIMONY
NOTE: This comes up in retrials after hung jury, etc. There is a necessity element because the declarant is not available, and the testimony is reliable because the declarant was already cross-examined.
SUSAN MASARWEH
EVIDENCE MIDTERM
ADOPTIVE ADMISSION
AGENCY ADMISSION
CO-CONSPIRATORS
CA no 104 equivalent have to have independent evidence that conspiracy exists Majority(CA) take your conspiracy as you find it! you come late to the party you are part of the party.
Defendant is a member
Defendant is a member
Two fed districts do not allow and 9th Circuit DOES NOT ALLOW a prejoining statement made before the defendant joined the conspiracy!
SUSAN MASARWEH
NOTE: be careful about concealment/cover-up statements made in a 2nd conspiracy to cover up the first!! Once the first conspiracy ends it is over. The 2nd statements not admissible vs. the 1st members! Watergate as example.
EXCITED UTTERANCE
Fed. Rule 803(2) Whether declarant is available or not A startling event seen by declarant Statement relates to that event o i.e., narrates, describes or explains Made while under the stress of that event Test: did so little time pass that there is no possibility it is a lie? Preponderance of evidence.
Evid. Code 1240 In CA must prove independent of statement cant look @ quote
Fed. Rule 803(1) use if NO STARTLING EVENT Whether declarant is available or not Statement describes or explains an event or condition While declarant is perceiving it, or immediately after (key element)
CONTEMPORANEOUS STATEMENT
No Federal Counterpart
SUSAN MASARWEH
EVIDENCE MIDTERM
Fed. Rule 803(3) Whether declarant is available or not When state of mind or physical condition is a material issue Statement of existing (present) state of mind or physical condition not expressing memory or belief then existing state of mind at that time HILLMON DOCTRINE Fed. Rule 803(3) Whether declarant is available or not Statement of declarants own present state of mind If the act of declarant is a material issue state of mind itself need not be an issue To prove or explain the declarants act or conduct ex: present intent to do a future act Fed. Rule 803(4) Whether declarant is available or not o Declarant doesnt have to be the patient. Statement made for purpose of medical: o diagnosis - doesnt have to be a Dr. or to a Dr. o treatment Describing: o present symptoms, pain, sensations o past symptoms, pain, sensations o medical history, cause (if pertinent to diagnosis or treatment) not fault My leg hurts because I was in a car accident where Frank hit me
Unless it is untrustworthy
NO CA COUNTERPART
Evid Code 1253 Child victim statement o made when under age 12 o still under age 18 @ time of testimony Statement made for purpose of medical: o diagnosis o treatment Describing child abuse or neglect: o present or past symptoms, pain, sensations o medical history, cause (if pertinent to diagnosis or treatment)
Basically the same as federal physical condition, but only applies to child victims, thus only applies in criminal cases.
SUSAN MASARWEH
EVIDENCE MIDTERM
BUSINESS RECORDS
Fed. Rule 803(6) Writing not oral! o describing act, condition or event o plus opinions or diagnosis Made in the regular course of business Not just business any kind of organized activity is business At or near the time of the event described Testimony by custodian/other qualified witness o Identify the writing; explain how prepared Trustworthy source, method & time of preparation o admit unless lacks trustworthiness presumptively admissible unless opponent can show lacks trustworthiness
Trustworthy source, method & time of preparation o admit if indicates trustworthiness if trying to get it in, have the burden to show it is trustworthy, thus harder in CA to get it in.
PUBLIC RECORDS
Declarant is the one who created the record Dont confuse and admit something that wouldnt be admissible on the stand. If its reliable enough for the business to rely upon, its reliable enough for the court to rely upon. Fed. Rule 803(8) Evid Code 1280 Writing Writing Made by public officer Made by public employee within scope of duty Recording: Recording: o activities of the agency o an act, condition or event o matters observed on duty o At or near time of event recorded except by law enforcement in a criminal case cannot be introduced as public record need officer present o findings of fact from lawful investigation in civil cases or by criminal defendant Trustworthy because of Unless untrustworthy o source of information (personal knowledge) o method of preparation o time of preparation Fed. Rule 807 Trustworthy o Equivalent to other exceptions make comparison to other exceptions may imply looking at corroboration independent evidence not connected to this statement i.e., fingerprints, other witnesses, etc but need to be light on this Addresses a material fact More probative than other evidence that is available by reasonable efforts
FALL 2K4 -8-
RESIDUAL EXCEPTION
NO California counterpart
SUSAN MASARWEH
EVIDENCE MIDTERM
Necessity requirement built in if you have other good evidence then not likely to be able to use. Thus, if declarant available, not likely to use. Admissibility serves the interests of justice Notice given prior to trial
Most common fact pattern for residual exception Grand Jury Testimony (not majority, plurality)
SUSAN MASARWEH
EVIDENCE MIDTERM