Professional Documents
Culture Documents
Evidence Handout PDF
Evidence Handout PDF
INTRODUCTION
I. RELEVANCE
A. Basic Principles
any tendency
1. Evidence is RELEVANT if it has _______________________________ to
make a material fact more probable or less probable than would be the case
without the evidence.
__________________________
undue delay
waste of time
unduly accumulative
__________________________
__________________________
__________________________
B. Similar Occurrences
______________________________________________________
HYPO 1. Billy Joel drove into a lamp-post and sues the municipality in negligence, alleging
that the placement of the post created a hazardous condition. (a) On the issue of contributory
negligence, should the municipality be allowed to introduce evidence that Billy has frequently
driven into other stationary objects (tree, bridge, brick wall)?
no, Billy’s propensity or character for carelessness
(b) What if Billy claims that the accident injured his shoulder, and the municipality wants to
show that Billy’s shoulder was injured when he crashed into a tree a year before the lamp-post
incident?
exception: caused by another accident
Q-TIP: Always ask yourself—For what purpose is the evidence being offered?
HYPO 2. Assume in Hypo 1 that several other vehicles had collided with the same lamp-post
that Billy ran into. Could Billy introduce those other accidents against the municipality?
Yes, if those other accidents happened under
substantial similar circumstances, like weather,
lighting, traffic conditions.
3. Intent in Issue.
HYPO 3. Paris sues Brewski Co. for gender discrimination, alleging that she was qualified for
the job but was not hired because of her gender. She seeks to show that Brewski hired no
women, despite their qualifications, during the past six years. Admissible?
Yes, Breeski’s treatment of other qualified women tends
to show discriminatory intent with respect to Paris.
Selling price of other property of similar type, in same general location, and close
in time to period at issue, is some evidence of value of property at issue.
EVIDENCE 5.
5. Habit.
_______________________
HYPO 4. In an auto accident case, the issue is whether Lindsay stopped her car at the stop sign
at the intersection of Hickory and Main Streets.
(a) Plaintiff calls Britney to testify that during the six months preceding the accident, she
had seen Lindsay run red lights, change lanes without using signals and run stop signs
throughout town. Admissible as habit evidence to prove that Lindsay ran the stop
sign at Hickory and Main?
No, prior acts of Lindsay tend to show mere general
carelessness
(b) Britney will testify that she has seen Lindsay run the stop sign at Hickory and Main
on at least eight occasions within a two-week period. Admissible as habit?
Yes, frequently repeated response, time, particular
set of circumstances
6. EVIDENCE
Evidence as to how others in the same trade or industry have acted in the recent
past may be admitted as some evidence as to how a party in the instant litigation
should have acted, i.e., as evidence of the APPROPRIATE STANDARD OF
CARE.
C. Policy-Based Exclusions
Evidence that a person has (or does not have) liability insurance is
inadmissible
_______________ proving fault or the absence of fault
for the purpose of _______________________________
Policy: to avoid risk that jury will base decision on availability of insurance
instead of merits of case, and to encourage purchase of liability insurance.
admissible
EXCEPTION: Evidence of insurance may be _________________ for some
other relevant purpose, such as: (a) proof of OWNERSHIP / CONTROL OF
that issue is disputed by defendant
INSTRUMENTALITY OR LOCATION, IF _________________
impeachment
or (b) for the purpose of _________________of a witness (the process of trying to
show that a witness should not be believed). on the ground by bias
EVIDENCE 7.
HYPO 5. Rosie fell down a well on Trump’s property. Rosie sues Trump, contending that the
well was impossible to see because of overgrown foliage. Trump denies that he was negligent
and also defends, in the alternative, on the ground that he did not own the land in question.
(a) Should Rosie be allowed to introduce evidence that Trump carried a homeowner’s
liability insurance policy on the land?
as evidence of Trump’s negligence, not admissible
To show Trump’s ownership of the land, Yes
(b) Same case. Apprentice, a witness called by Trump, testifies that she had been on
Trump’s property just prior to the accident and there was no foliage covering the
well. May Rosie show, during cross-examination of Apprentice, that Apprentice is a
claims adjuster employed by the company that issued the homeowner’s policy to
Trump?
Yes. To impeach a witness on the ground of bias.
admissible
EXCEPTION: Subsequent remedial measures may be _____________
for some other relevant purpose, such as proof of OWNERSHIP /
CONTROL or FEASIBILITY OF SAFER CONDITION, IF EITHER IS
disputed by the defendant
________________________.
HYPO 6. Penelope bought a cup of coffee at Dante’s Coffee Inferno and scalded her tongue
because the coffee was too hot. She sues Dante’s in negligence. Dante’s denies that it was
negligent.
(a) At trial, Penelope seeks to introduce evidence that after the accident, Dante’s installed
new thermostats on its coffee-brewing equipment. Penelope contends that this
conduct is an admission by Dante’s that better safety controls were feasible.
Admissible?
No, basic exclusionary rule applies
Dante’s new thermostats are subsequent remedial
measure, no good to prove negligence.
Still no good to show feasible. Because feasibility to
do sth was not disputed by the defendant.
(b) Same case, except now assume that Penelope contends that Dante’s negligence
consisted of the failure to place warnings on its coffee cups indicating that its coffee
was too hot for human consumption. Dante’s defends, in part, on the ground that it
was impossible to affix labels to its coffee cups. Penelope seeks to introduce
evidence that after the accident, Dante’s began to use cups that were pre-printed with
warnings. Admissible?
Yes. Defendant is disputing the feasibility of doing
sth safer.
p.57
3. Settlements of Disputed Civil Claims.
disputed civil claim
In the event of a __________________________,
____________________________
____________________________
showing liability, impeaching a witness as prior
inconsistent statement
for the purpose of ______________________________________.
EXCEPTIONS:
HYPO 7. On their way home form the Jersey Shore, Vinny and Pauly were simultaneously
struck by a car being driven by Snooki. Vinny and Pauly both filed suit against Snooki, each
seeking $100,000. Snooki denied all allegations.
(a) Before trial, Vinny settled with Snooki for $50,000. When Pauly’s case went to trial,
Pauly sought to introduce the Vinny-Snooki settlement as evidence that Snooki, in
effect, acknowledged her fault. Admissible?
No. not for liability
10. EVIDENCE
(b) Before Pauly’s case went to trial, Pauly and Snooki met to discuss possible
settlement. During the discussion, Pauly said, “I’ll accept $50,000 in settlement. So
what if I was jay-walking?” Snooki declined. At trial, should Snooki be allowed to
introduce (1) Pauly’s offer to settle and (2) Pauly’s admission that he was jay-
walking?
(1)no. offer to settle cannot be used to show the
weakness of offeror’s case
(2)statement of fact made during a settlement
discussion.
If Pauly testified at the trial that he did not jay-walk, could Snooki introduce his
prior inconsistent statement to impeach his credibility?
No. Statement of fact made during settlement cannot
be used to impeach credibility of inconsistent
statement. Policy value outweighs impeachment.
(c) At the trial of Pauly’s case, Snooki called Vinny as a witness and Vinny testified to
the effect that Snooki did not drive negligently. On cross-examination of Vinny,
should Pauly be allowed to prove the Vinny-Snooki settlement?
Yes, as evidence of Vinny’s bias.
HYPO 8(a). A’s and B’s cars collided. B immediately ran up to A and said, “Look, I’ll settle
with you for $100,000 if you don’t sue.” Should A be allowed to introduce B’s statement against
him at a subsequent trial?
Yes, it’s relevant. Admission of fault by B.
A has not yet asserted any claim against B at the time.
Rule is not triggered.
EVIDENCE 11.
HYPO 8(b). After A’s and B’s cars collided, A sent a letter to B saying, “The accident was all
your fault. I demand that you pay my damages in the amount of $100,000.” B called A on the
phone and said, “You’re right about the accident. It was all my fault and I owe you the full
$100,000 you’re asking for. But you know how fickle juries can be. If you don’t accept $50,000
now, you’ll have to sue me to get anything.” Should A be allowed to introduce B’s statements
against B at a subsequent trial?
Variation on 8(b): What if B had said, “It was all my fault, but you didn’t suffer $100,000 in
damages”?
Enough to trigger the exclusionary rule.
HYPO 9. Arnold sold toxic “Terminator” action figures to the public. The Environmental
Protection Agency (EPA) sued Arnold for civil penalties. Arnold denied liability. In
negotiations with the EPA, Arnold offered to settle for half the amount sought, admitting during
the discussions that the toys were toxic. Thereafter, the Government prosecuted Arnold for
violating criminal laws against the distribution of toxic toys. In the criminal case, as evidence of
Arnold’s guilt, should the Government be allowed to introduce:
(B) Arnold’s admission to the EPA that the toys were toxic?
Yes. statements of facts made during settlement talk with
gov regulatory agency.
12. EVIDENCE
NOTE: This rule does not exclude other statements made in connection
with an offer to pay hospital or medical expenses.
HYPO 10. Donna’s car hit pedestrian Pablo. Donna immediately ran to Pablo and said, (a)
“Don’t worry about a thing. I’ll pay for your hospital bills. (b) I’m sorry I ran the red light.”
D. Character Evidence
1. Criminal Cases.
HYPO 11. Rambo is charged with murder. During its direct case, should the prosecution be
allowed to introduce evidence that Rambo has been convicted three times for assault, has a bad
reputation for violence, and he recently stampeded a herd of cattle through the middle of town?
No. Just show the general propensity of violence. Not allowed.
14. EVIDENCE
Should the prosecution’s proposed evidence be admitted on the ground that defendant’s violent
character is an essential element of the crime with which Rambo is charged?
HYPO 12. During the defense, Rambo calls Trautman to the stand to testify: (1) “I’m familiar
with Rambo’s reputation for peacefulness, and it is excellent. (2) I personally know Rambo, and
in my opinion he is a peaceful person.” Admissible? For what purpose?
______________________
Could Trautman properly testify: “I’ve seen Rambo turn the other cheek
when assaulted by bullies; just last week he was elected President of the
local Pacifist Club.”
No, evidence of specific acts
HYPO 13. During the defense, Rambo called Trautman to testify to Rambo’s peaceful
character.
(a) Could the prosecutor ask Trautman, on cross-examination, (i) “Have you heard that
Rambo was arrested last year for assaulting Rocky?” (ii) “Did you know that Rambo
shot Judge Dredd three years ago?”
Yes. P is allowed to test the character witness knowledge
about Ramboo reputation and to test soundness.
(b) If Trautman denies having heard or knowing of the arrests or bad acts mentioned by
the prosecutor, may the prosecutor prove that they actually occurred?
No, P must take the answer of the character
witness(bound by the witness answer), not allowed to
prove. Not worthy, time-consuming.
Inquiry.
16. EVIDENCE
(c) Could the prosecutor properly ask Trautman, “Have you heard (or did you know) that
Rambo cheated on his income taxes last year?”
No, irrelevant bad act. Only relevant.
HYPO 14. Assume Rambo introduced Trautman’s favorable character testimony. After the
defense rests, the prosecution calls Murdock to testify that he has known Rambo for 20 years, is
familiar with Rambo’s reputation for peacefulness in the community, and that such reputation is
bad. Rambo’s attorney objects on the ground that this is impermissible character evidence.
Objection overruled.
During the prosecution rebuttal case, the P can call her own
character witness to give reputation and opinion testimony
to rebut, contradict, neutralize the defendants character
witness.
HYPO 15. Assume that the only witness who testified during the defense was Rambo himself,
and he testified only to the fact that he did not commit the murder. After the defense rests, the
prosecution calls Murdock to testify that Rambo has a reputation for violence. Rambo’s attorney
objects on the ground that this is impermissible character evidence.
Objection sustained. In the case, Rambo did not open the
door.
Proper method: character witness may testify to victim’s reputation for violence
and may give opinion.
Homicide: If defendant offers evidence of any kind that victim was the first
aggressor, prosecution may introduce evidence of victim’s good character for
peacefulness. Example: D’s witness testifies, “Victim aimed a gun at D.”
HYPO 16. Defendant, Coach Bobby, has been charged with assault for throwing a chair at
Tonya. Coach Bobby claims that Tonya started the fight and lunged at him with a knife. To
prove that Tonya was the first aggressor, Bobby calls Nancy to testify:
(a) That she knows Tonya and that in her opinion, Tonya is a very violent woman.
Admissible. Criminal self-defense case. Victim bad
character. Circumstantial evidence that Tonya is
the first aggressor.
(b) That she (Nancy) had been the victim of a knife attack by Tonya a few years ago.
No, evidence of specific act. Only permissible way:
reputation and opinion.
(c) What if Bobby offers evidence that, at the time of the altercation with Tonya, he was
aware of her prior knife attack on Nancy?
Admissible. Even it’s a evidence of specific act.
Separate rule of relevance: If the defendant, at the time of the alleged self-
defense, was aware of the victim’s violent reputation or prior specific acts of
violence, such awareness may be proven to show the defendant’s state of mind—
fear—to help prove that he acted reasonably in responding as he did to the
victim’s aggression.
18. EVIDENCE
Under “rape shield law,” in both criminal and civil cases, where defendant
is alleged to have engaged in sexual misconduct, the following evidence
about the victim is ordinarily inadmissible:
2. Civil Cases.
(a) During the plaintiff’s case-in-chief, A seeks to offer evidence of B’s reputation for
careless driving. Admissible?
No.
EVIDENCE 19.
(b) During the defense, B calls Witness to testify that, in her opinion, B is a prudent and
careful driver. Admissible?
No.
HYPO 18. Nicole’s estate sues OJ for wrongful death damages, alleging that OJ intentionally
killed Nicole. During the defense, may OJ properly introduce evidence of his peaceful
character?
No, civil action.Even when the underlying conduct is
criminal in nature, we don’t allow a party in civil case
to show the character.
____________________________
____________________________
Example (2): P sues Newspaper for libel based on a story in which P was
accused of being dishonest. To support its defense of “truth,” Newspaper
may introduce reputation, opinion and specific-act evidence about P’s
dishonesty; and P may use the same type of evidence to show P’s honesty.
General rule: Other crimes or specific bad acts of defendant are not admissible during
the prosecution’s case-in-chief if the only purpose is to suggest that because of
defendant’s bad character he is more likely to have committed the crime currently
charged.
Example: D is charged with robbing bank A. The fact that D robbed bank B six months
later would be inadmissible character evidence.
(something separate and apart from mere propensity to commit the crime.)
_________________________
_________________________
_________________________
NOTE: If a MIMIC category is satisfied, the prosecution may use other-crimes evidence
as part of its case-in-chief. MIMIC evidence is not dependent on defendant’s
introduction of favorable character evidence.
HYPO 19. Defendant is charged with the murder of Officer Johnson. The prosecution seeks to
prove that Defendant was convicted and imprisoned five years ago for narcotics sales in the
aftermath of an investigation and arrest made by Officer Johnson. Defendant objects on the
ground of impermissible character evidence. What ruling?
HYPO 20. Defendant is charged with possession of narcotics with the intent to sell. He defends
on the ground that he was merely a possessor and user—not a seller—of the drugs. The
prosecution seeks to prove that Defendant sold drugs a year ago in the vicinity of the arrest in the
current case. Admissible?
Yes, the defendant state of mind is in issue. Prior sale
shows his intent to do the same thing.
HYPO 21. Lizzie Borden is accused of intentionally killing her mother with an ax. Defense:
accident. Prosecution seeks to show that Lizzie threw a knife at her mother during a family
quarrel one week before the mother’s demise. The evidence:
HYPO 22. D is charged with the armed robbery of a Wal-Mart in Indianapolis early in the
afternoon of July 1. Defense: mistaken identity. Prosecution seeks to introduce evidence that
around noon on July 1, D robbed a Penney’s and a Sears in Indianapolis, in the same vicinity as
the Wal-Mart.
Admissible, closeness in time and place of the other
crime. That tends to identify D as the robbery.
HYPO 23. Defendant is prosecuted for robbing the First National Bank. Defense: alibi.
Prosecution introduces evidence that the robber wore a red ski mask, carried a .38 caliber gun
and used a uniquely worded stick-up note. Prosecution then seeks to prove that Defendant used
the same modus operandi when robbing the Second National Bank a year ago.
If the MO is the other occasion is distinctive, and the
crime currently charged perpetrated in the same way.
Identity
22. EVIDENCE
HYPO 24. Defendant is charged with robbing the First National Bank. The prosecution seeks
to prove that two days before the robbery, Defendant stole a white Acura from a neighbor in the
same town. The robber of the First National Bank used a white Acura for the “getaway.”
by conviction, or
Note: This rule allows prior acts only; not reputation or opinion.
not to be convictions
EVIDENCE 23.
Q-TIP: Whenever a writing appears on the exam, be alert to three potential issues (aside
from relevance): authentication, best evidence rule, and hearsay.
2. Proof of Handwriting
Lay person’s opinion
(a) ___________________________ (Lay witness testifies to opinion that
X wrote document on basis of familiarity with X’s handwriting as
result of experience in normal course of affairs.)
Jury comparison
(c) ___________________________ (Jury compares document with
exemplar of X’s handwriting.)
HYPO 25. During plaintiff’s case-in-chief, Witness testifies that, in her opinion, document was
written by X because she is familiar with X’s handwriting. X advises the judge that he intends to
testify during the defense that the document is a forgery and argues that the judge cannot admit
the document into evidence until the judge is personally convinced that the document was
written by X. Good argument?
No, when the question of fact to be raised
B. Self-Authenticating Documents
C. Authentication of Photographs
HYPO 26. Alice testifies that she observed the auto accident that occurred at the intersection of
Hickory and Elm Streets on July 1. She is shown a photograph and asked whether it is a fair and
accurate portrayal of the Hickory and Elm intersection as she remembers it on July 1.
“Objection: No foundation that Alice was the photographer.” What ruling?
Objection overruled.
It is sufficient the witness has the personal knowledge.
26. EVIDENCE
If the court finds the excuse is acceptable, the party may then use secondary evidence—
oral testimony or a copy.
NOTE: The definition of writing includes sound recordings, X-rays, and films.
HYPO 27. Bubba ordered 100 pounds of shrimp from Gulf Shrimp Co. pursuant to a written
purchase order. In his suit for breach of contract, Bubba takes the stand and testifies, “I didn’t
get what I ordered. The purchase order called for 3” jumbo shrimp and they delivered 1” mini-
shrimp.” Which of the following would be a valid objection to Bubba’s testimony?
(A) The actual shrimp are the best evidence of what was delivered.
(B) The purchase order is the best evidence of what the contract required.
A. When best evidence rule applies: When a party is seeking to prove the
contents of a writing.
1. The writing is a legally operative document, i.e., the writing itself creates
rights and obligations. Examples: patent, deed, mortgage, divorce decree,
written contract.
2. Witness is testifying to facts that she learned solely from reading about them
in a writing.
EVIDENCE 27.
HYPO 28. Tommy the Terrorist is charged with detonating a bomb. No one witnessed the
detonation, but it was captured on film by an unmanned surveillance camera. Counterterrorism
Agent Jack Bower testifies that he watched the film and it clearly shows Tommy was the
bomber. Objectionable?
Yes. It violates the best evidence rule: even though the film is
not the legal operated doc, Jack Bower does not have personal
knowledge about the bombing by reference to the content of the
film. Jack is trying to prove the content of the writing. Show the
jury film.
B. When best evidence rule does not apply: When a witness with personal
knowledge testifies to a fact that exists independently of a writing that records
the fact.
HYPO 29. Agent Jack Bower is prosecuted for giving perjured testimony at a congressional
hearing into the use of torture during the interrogation of terrorist suspects. At trial, a
congressional aide offers to testify to what Jack said during the hearing. True or False: The
aide’s testimony is improper because the transcript is the best evidence of what Jack said.
False. Best evidence rule does not apply.
1. transcript is not legally operative doc
2. in the fact there is a witness who has personal knowledge of
what Jack said.
HYPO 30. Agent Jack Bower, claiming he worked a 24-hour shift, sues Boss for nonpayment of
wages and failure to reimburse for expenses.
(a) Without producing any documents, Jack testifies, “I worked 24 hours and my
expenses were $15 million.” Boss objects—“Best evidence rule. Produce the time
sheets and expense receipts.”
overruled. Best evidence rule does not apply here.
1. time sheets and expense receipts are not legally operative doc
The time sheets do not create hours that Jack worked. He worked
those hours regardless of the time sheets.
2. Jack has the personal knowledge.
(b) Without producing any documents, Boss testifies: “Jack’s time sheets show he
worked only 20 hours, and the receipts show only $10 million in expenses.”
Boss’ testimony does violate the best evidence rule. Because Boss
has no personal knowledge. His sole knowledge comes from reading
the sheets and receipts.
28. EVIDENCE
Court must be persuaded by preponderance of the evidence that excuse has been
established; secondary evidence is then admissible (e.g., testimony based on
memory, handwritten copy).
E. “Escapes”
Voluminous records
1. _______________________ can be presented through a summary or chart,
provided the original records would be admissible and they are available for
inspection.
public records
2. Certified copies of ____________________________
Collateral documents
3. ____________________________________
IV. WITNESSES
1. Basics:
(2) BUT some states have a “Dead Man’s Act.” The typical statute
provides:
CIVIL
i. in a _________________ action,
interested
ii. an ___________________ witness
incompetent
iii. is ___________________ to testify
decedent
iv. against the estate of a ______________
a transaction or communication
v. concerning ______________________________
between the interested witness and the decedent.
30. EVIDENCE
HYPO 31. Shania sued Elvis for breach of an oral contract. Elvis denied that any contract was
made. Elvis died before trial. (a) May Shania testify to what Elvis said and did in negotiating
the contract? (b) May Shania’s friend Faith, who witnessed the making of the contract, testify to
what Elvis said and did?
YES
Yes
Shania and Faith are both competent to testify what Elvis said and did
Under the FRE, there is no “dead man’s rule.” Thus, on Multistate exam,
witnesses ordinarily are not incompetent on this ground. BUT, if question
explicitly states that the particular jurisdiction in which the case arises has
a “dead man’s statute,” apply the rule in B.(2) above.
(a) Shania is an interested witness(plaintiff),
therefore now Shania becomes incompetent to testify what
Elvis said and did.
(b)Faith. Faith has no direct legal stake in the
outcome, therefore, Faith is competent. Even though
Faith is a bias witness, bias is not a disqualifying
interest and she can testify.
C. Leading Questions
Form of question suggests the answer (e.g., “Isn’t it a fact that you ran the red light?”; or
unevenly balanced alternatives, such as “Were you driving fast and furious, or in some
other way?”).
leading questions are not
allowed
(a) GENERALLY ________________________ on DIRECT EXAMINATION
of witness.
leading questions
are allowed
(b) Generally ________________ on CROSS-EXAMINATION of witness.
1. Refreshing Recollection
(a) Basic rule: Witness may not read from prepared memorandum; must
testify on basis of current recollection.
HYPO 32. Homer Simpson’s house was burglarized two years ago, and several valuable items
were stolen. Simpson sued his insurer for failing to pay the loss covered by his homeowner’s
policy. While on the stand at trial, Homer has trouble remembering all of the stolen items. To
refresh Homer’s recollection, his attorney shows him a copy of a list of the missing items that
Homer prepared for the police the day after the burglary. Insurer objects on the ground of lack
of authentication, best evidence rule and hearsay.
(b) If Homer’s recollection is refreshed, may he then read the list into evidence?
No. Not allowed. After the witness’ memory has been restored, the
writing must be set aside.
HYPO 33. In Hypo 32, Homer looks at the list of stolen items he prepared for the police the day
after the burglary. It fails to jog his memory, and he is still unable to testify on the basis of
current recollection. At this point, Homer’s attorney seeks to read the list into evidence.
Objection: hearsay.
HYPO 34. After laying foundation, Homer’s attorney seeks to introduce Homer’s memorandum
into evidence as an exhibit.
(a) Proper?
No, the memo can now be read to the jury, but the memo itself cannot
be introduced by the party who is using the memo as the substitute
for the witness memory.
Don’t want to give too much weight.
E. Opinion Testimony
1. Lay Witness
(b) Examples:
drunk/sober
speed of vehicle
sane/insane
odors
handwriting
2. Expert Witness
(a) Qualifications:
education
AND/OR experience
HYPO 35. Dr. Seuss, a board-certified child psychiatrist, testifies, “In my opinion, within a
reasonable degree of medical probability, Bartholomew Cubbins’ preoccupation with hats is a
disabling psychosis. My opinion is based on (1) my own clinical interviews and tests of
Bartholomew; (2) exhibits 1 and 2 in evidence (MRI test results, medical office records of Dr.
Grinch); (3) interviews of Bartholomew’s friends Wump, Gump and Thump; and (4) a written
report prepared by Dr. Sam I. Am. As to items (3) and (4), this is the type of information that
psychiatrists like me customarily rely upon in making evaluations.”
(a) Bartholomew moves to strike Dr. Seuss’s opinion because it is based, in part, on
inadmissible hearsay.
Item 3,4, the psychiatrist reasonably relied upon in forming clinical
opinion
(b) Should Dr. Seuss be permitted to testify further, “Let me tell you what Wump said
during our interview, and let me read you what was in Dr. Sam I. Am’s report”?
Generally the testimony in item B goes too far.
Hearsay danger.
Jury will use that as the substance evidence-hearsay sneaks into
the back door.
If the judge decides that it would be help to the jury to
evaluate the experts credibility.
EVIDENCE 35.
______________________________
______________________________
3. Ultimate Issues
HYPO 36. In a personal injury case, Defendant is alleged to have been driving recklessly at the
time of a car accident. Witness who observed the event testifies that Defendant looked angry,
smelled of alcohol and drove away from the scene at 80 m.p.h. Witness then states, “It looked to
me as though Defendant was engaged in conduct constituting a reckless disregard for the safety
legal jargon
of others.” Objectionable?
(A) Yes, because Witness is testifying to the ultimate issue. objection has been abolished.
(B) Yes, because Witness’s opinion is not helpful. to lay person in jury
F. Cross-Examination
1. Party has a RIGHT to cross-examine any opposing witness who testifies at the
trial. Significant impairment of this right will result, at minimum, in striking
of witness’s testimony.
EVIDENCE 37.
credibility
(b) Matters that test the witness’s __________________
HYPO 37. Plaintiff calls Witness 1 to the stand. Witness 1 testifies that she saw Defendant’s car
run the red light. Defense counsel states that she has no questions for the witness. After Witness
1 steps down, Plaintiff calls Witness 2 who testifies, “Witness 1 has a good reputation for
truthfulness.” Objectionable?
Yes. Objection sustained. Improper bolstering.
no attack on witness credibility
Variation: Witness 1, after testifying that she saw Defendant’s car run the red light, then
testified, “I told everyone at work the next day that I had seen Defendant run the red light.” This
is an inadmissible prior consistent statement:
improper bolstering.
1. No attack
2. Prior consistent statement only has
limited probative value
3. Hearsay
38. EVIDENCE
Witness prior identification of a
EXCEPTION: person
____________________________ (e.g., Witness testifies
that she recognizes D, sitting in court, as the perpetrator. In addition, “I
picked D out of a line-up two weeks after the robbery”). Might seem like
hearsay (out-of-court statement offered to prove truth of statement) but
prior identification by trial witness is not barred by hearsay rule. It is
labeled as “exclusion” from hearsay, and comes in as substantive
evidence.
NOTE: Witness who made prior identification must testify at trial and
must be subject to current cross-examination.
H. Impeachment Methods
Overview of Methods:
Procedure Overview: There are two possible ways to use impeachment methods:
(1) Ask the witness about the impeaching fact with the aim of having
the witness admit it (“confronting” the witness), or
(1) The impeaching fact may be proven with extrinsic evidence as to the
following impeachment methods:
All of them except 6.BAD ACTS, 7.contradictory facts that are
collateral.
EVIDENCE 39.
(2) For the impeachment methods that allow extrinsic evidence, is it necessary
to ask the witness about the impeaching fact before the extrinsic evidence is
introduced?
No, except for 2.Bias
___________________________________________
(hearsay exclusion)
HYPO 38. Defendant is sued for negligence in a multi-vehicle accident in which he was driving
his Suburban. Witness testifies for plaintiff that she saw the Suburban run the stop sign.
(a) On cross-examination, may Defendant’s counsel seek to establish that a few days
after the accident, Witness told the police that the Jeep Cherokee, not the Suburban,
ran the stop sign?
inconsistent prior statement
(b) If Witness admits she made the prior inconsistent statement, may Defendant use the
statement as substantive evidence that the Jeep Cherokee, rather than the Suburban,
ran the stop sign?
No.
Prior inconsistent statement is hearsay offered
as substantive evidence.
40. EVIDENCE
(c) What if Witness made her prior inconsistent statement about the Jeep Cherokee
during a pretrial deposition in which she gave sworn testimony?
The prior inconsistent statement would be admissible for 2
purposes. Impeach & substantive evidence.
HYPO 39. In auto accident case, Plaintiff testifies that she was wearing her seat belt. Defendant
does not cross-examine her. During the defense, Defendant calls Joe the Bartender, who testifies
that Plaintiff told him, at Joe’s bar a week after the accident, that she had NOT been wearing her
seat belt.
(a) Should Plaintiff’s motion to strike be granted on the ground that Plaintiff was not
given an immediate opportunity to explain or deny the inconsistency?
No, there is no need to give any opportunity to this witness to
explain or deny. Because the witness happened to the opposing
party.
Bias may be based on any fact that would give a witness a reason to testify
favorably or negatively about a party’s case. Examples: Witness is party;
friend, relative or employee of party; expert witness being paid by party;
person with grudge against a party, etc. Purpose: to suggest testimony is
false, slanted, or mistaken in party’s favor.
A prosecution witness who is testifying pursuant to a plea
bargain
Procedural Issue:
3. Sensory Deficiencies
Yes
Extrinsic evidence allowed? _______
42. EVIDENCE
No
Confrontation required? ________
Yes
Extrinsic evidence allowed? _______
Call a character witness to testify that Target Witness has bad reputation
for truthfulness, or that character witness has low opinion of Target
Witness’s character for truthfulness. Purpose: to suggest that Target
Witness is not telling the truth on the witness stand.
HYPO 40. Larry testifies for the prosecution that he saw Defendant commit the crime. During
the defense: Defendant calls Rev. Al to testify that Larry has a lousy reputation for truthfulness
among members of Rev. Al’s congregation, and in Rev. Al’s opinion, Larry is not a truthful
person.
(b) May Rev. Al follow up his opinion as follows: “Let me tell you how I reached my
opinion of Larry. During the past year, he lied to me on six separate occasions.”
No. That’s evidence of specific acts.
Character witness cannot be allowed to prove some other bad
character for truthfulness by using specific acts.
not even to show his basis of opinion
Allowed: reputation & opinion
5. Criminal Convictions
Time Limitation:
(a) whether he was convicted eight years ago for the misdemeanor of income tax fraud?
Yes. Conviction involving false statement
(c) whether he was convicted two years ago for the misdemeanor of shoplifting?
No, not felony, not a crime of false statement.
Don’t need to say anything to commit the crime, no uttering of
false words.
44. EVIDENCE
(d) whether he was released from prison three years ago for a murder conviction?
Yes, in the ct’s discretion.
Method of proof:
Cross-examiner must have good-faith basis for the inquiry, and permission
to make the inquiry is subject to the court’s discretion. The inquiry is
limited to the act of untruthfulness itself, not its consequences, such as job
termination, civil judgment, or arrest.
Exam Tip: Proof with extrinsic evidence may still be allowed if the bad
act is relevant for some purpose other than bad character for truthfulness.
Such as bias
HYPO 42. Witness gives favorable testimony for Defendant. On cross-examination, Plaintiff
asks Witness whether she assaulted her mail carrier two years ago (no charges were brought).
No, assault is not a bad act reflecting character for untruthfulness
HYPO 43. After Witness testifies for Defendant, Plaintiff asks Witness whether she made false
statements in an application for food stamps in July 2001 (no charges were ever brought).
This inquiry is allow in ct’s discretion
If the witness admits, it casts some doubt on her current credibility
EVIDENCE 45.
HYPO 44. Same cross-examination. Witness vehemently denies making false statements in the
application for food stamps. May Plaintiff thereafter call a welfare agent to prove that Witness
made the false statements?
No, no extrinsic evidence is allowed.
HYPO 45. Prosecution of Michael for embezzlement of the office petty-cash fund. Dwight
testifies for Michael. On cross-examination, Dwight is asked whether he was arrested three
years ago for passing counterfeit money. Objectionable?
Yes, objectionable. You are not allowed to ask the witness if the witness
himself was arrested for his bad act.
HYPO 46. Prosecution of Donald. Winston testifies for the prosecution. On cross-examination,
Winston is asked whether he was arrested a month ago for selling marijuana and is awaiting trial
on those charges.
7. Contradiction
HYPO 47. In an auto accident case, Witness testifies for Plaintiff that, while leaning against a
maple tree near the intersection of Boardwalk and Park Place on March 1, he saw that the traffic
light was red for Defendant as Defendant’s car entered the intersection and hit Plaintiff. On
cross-examination, Witness is asked (a) “Isn’t it a fact that the tree at that intersection is an oak?”
and (b) “Isn’t it a fact that the traffic light was not functioning at all on March 1?” Witness
insists that his direct testimony was accurate.
(a) During the defense, may Defendant properly prove that the tree at the intersection is
an oak tree?
No, collateral contradictory fact
(b) During the defense, may Defendant properly call a police officer to testify that the
traffic light at the intersection was not functioning at all on March 1?
Yes. Non-collateral contradictory fact.
I. Rehabilitation
(a) When?
Only when the impeachment suggests the witness was
lying as compared to merely being mistake.
(b) How?
Bring out character witness to testify that witness
has good character for truthfulness, even though
reputation testimony or opinion testimony.
Example: A police officer who testifies that she singled out the
defendant because of a prominent scar on his face is impeached
with a showing that the officer omitted to mention the scar in her
informal handwritten report. For rebuttal, it could be shown that
the officer mentioned the scar in her formal typewritten report.
HYPO 48. Brad v. Jennifer. On July 1, pedestrian Brad was struck by a car driven by Jennifer.
Angelina, a stranger to Brad and Jennifer at the time, witnessed the accident and told the police
on July 1 that Brad looked sober as he crossed the street. At trial, six months later, Angelina
testifies for Brad, “He looked sober as he crossed the street.”
(a) On cross-examination, the only question Angelina is asked is whether she was
convicted eight years ago of income tax evasion, to which she answers “Yes.” On re-
direct, may Angelina properly testify that she told the police on July 1 that Brad had
looked sober?
No.There is no basis here for using consistent statement.
That is a general attack on bad character for truthfulness, not a
charge for recent fabrication.
(b) Assume that on the cross-examination of Angelina, she is asked, “Isn’t it a fact that
after this accident, you and Brad became close friends and are now living together as
lovers?” to which she answers, “Yes.” On re-direct, may Angelina properly testify
that she told the police on July 1 that Brad had looked sober? If so, for what purpose?
yes, now we have the insinuation that Angelina testifies in favor of
Brad because of the motive and influence of their romance.
She said it before the romance. That prior consistent statement made
before the motive to fabricate. It neutralize the influence of
romance.
It’s admissible as additional substantive evidence that Brad was in
fact sober.
48. EVIDENCE
V. PRIVILEGES
A. Introduction
B. Attorney-Client Privilege
_____________________________________
_____________________________________
_____________________________________
EVIDENCE 49.
3. Definitions:
HYPO 49. Delbert is sued for his alleged negligence in an auto accident. He tells his attorney
what happened and gives her the cell phone with which he was making a call at the time of the
accident. Before trial, Delbert is deposed by plaintiff’s counsel:
(a) Must Delbert respond if asked, “What did you tell your attorney about the accident?”
No. Privilege communication
(b) Must Delbert respond if asked, “Describe what you were doing at the time of the
accident.”
Yes. Knowledge of underlying facts.
(c) If served with a subpoena, must Delbert’s attorney produce Delbert’s cell phone?
Yes. Cell phone is the physical evidence, not communication with
counsel
(e) Waiver—
CLIENT
(1) Voluntary Waiver: Only the ________________________
has the power to waive the privilege. After the client’s death,
the privilege continues and only the client’s estate can waive it.
(f) Exceptions—
Future crime or fraud
(1) ____________________________: E.g., client tells attorney,
“Help me disguise the bribes I made so that they look like
legitimate business expenses.”
Attorney-client dispute
(3) ____________________________: E.g., attorney sues client
for unpaid fee, or client sues attorney for legal malpractice.
C. Physician-Patient Privilege
anyone who is professionally certified.
1. Usually created by state statute. Rationale: to encourage candor by patient
and to protect privacy.
HYPO 50. Physician examines Patient’s lungs in hospital room while visitor is present. (1)
Patient tells doctor, “Do you suppose my wheezing is due to the four packs of cigarettes I smoke
every day?” (2) After visitor leaves, Patient says to doctor, “Know any good lawyers? I haven’t
paid my income taxes in three years.”
52. EVIDENCE
(a) In state court action in which condition of patient’s lungs is an issue, could doctor be
compelled to disclose statement (1)?
Yes, even though it’s info related to treatment and diagnose, it was
not confidential—a visitor was present. No privilege.
(b) In prosecution for income tax evasion, could doctor be compelled to disclose
statement (2)?
Yes. It’s not related to treatment and diagnose.
D. Spousal Privileges
HYPO 51. Niles is prosecuted for the murder of his brother Frazier. Niles and Daphne are a
married couple. Niles comes home on the night of Frazier’s demise wearing a blood-stained
Armani topcoat, which Daphne observed.
(a) At trial, the prosecutor calls Daphne to the stand to testify to her observations about
Niles’ topcoat, but she refuses to testify. The prosecutor seeks to compel her
testimony.
No, she cannot be compelled.
no privilege communication
Witness spouse cannot be compelled to testify anything against
the defendant spouse.
(b) Assume Daphne is willing to testify against Niles. In addition to the topcoat
observation, she seeks to testify to the following: “Niles told me when he got home
that he stabbed Frazier.” Niles objects.
Spousal immunity privilege is inapplicable because she is willing
to testify.
HYPO 52. Assume that Daphne divorces Niles before his case goes to trial. The prosecutor
calls her to the stand.
(a) Can Daphne be compelled to testify to her observations about Niles’ topcoat?
Yes.
The observation of topcoat is not confidential.
As far as spousal immunity is concerned, that privilege is
over.Spousal immunity can only be use when the marriage exists.
(b) Can Niles prevent Daphne from disclosing his admission to her about stabbing
Frazier?
Yes. Because the admission to her was a confidential communication
made during the marriage.
VI. HEARSAY
A. Two-Part Definition
Out of court statement of a person
(1) _________________________________________________ (oral or written)
(The hearsay rule does not apply to machines (e.g., what a clock “said” about the
time) or to animals (e.g., the fact that a drug-sniffing dog barked at a suitcase).)
AND
the truth of the matter asserted in the statement
(2) Offered to prove _______________________________________
B. Non-Hearsay Statements
Some out-of-court statements may look like hearsay at first glance, but are not
hearsay if they are not offered to prove the truth of the matter asserted in the
statement. An out-of-court statement may be relevant to some issue simply
because it was spoken (or written). If offered for some other purpose, credibility
of the declarant is irrelevant. On the issue of whether the statement was spoken,
the witness on the stand can be cross-examined; or if the statement was in writing,
it can be examined as an exhibit.
EVIDENCE 55.
HYPO 53. Action by the estate of Percy against Damien seeking damages for the pain and
suffering Percy experienced in an auto accident caused by Damien. Damien denies liability and
also asserts that Percy died instantly in the accident. Witness on the stand proposes to testify that
shortly after the accident, Percy said, “Damien’s car ran the red light.”
(b) Hearsay if offered to prove that Percy was alive following the accident?
Not hearsay
1. Verbal Act (Legally Operative Words). A situation where the substantive law
attaches rights and obligations to certain words simply because they were spoken.
HYPO 54. Gates sued Trump for breach of an oral contract. Witness takes the stand and
proposes to testify as follows: “I heard Trump say to Gates: ‘I accept your offer to sell
Microsoft.’” Hearsay?
No, verbal act. Words of contract formation.
Substantive law gives legal effects to certain
words, simple because these words were spoken.
HYPO 55. Plaintiff v. Supermarket. Plaintiff alleges she slipped and fell on a broken jar of
salsa in aisle 3 and that Supermarket had prior notice of the dangerous condition. Plaintiff’s
witness takes stand and proposes to testify: “Several minutes before Plaintiff entered aisle 3, I
heard another shopper tell Supermarket manager, ‘There’s a broken jar of salsa on the floor in
aisle 3.’” Inadmissible hearsay?
HYPO 56. Sybil is charged with the murder of her husband Basil. To prove motive, the
prosecutor seeks to introduce an anonymous note to Sybil that was found in her possession at the
time of her arrest. The note stated, “Basil is having an affair with Polly.” Inadmissible hearsay?
No. The accusation about Basil shows potential motive.
HYPO 57. Homer is prosecuted for murder. Defense: Insanity. Witness for Homer proposes to
testify: “Two days before the killing, Homer said, ‘I am Elvis Presley. It’s good to be back.’”
No. state of mind
HYPO 58. Prosecution of D for robbery. D takes the stand in his own defense and testifies: (a)
“I didn’t do it. (b) And I told the cops when they arrested me that I didn’t do it.” Should (a) and
(b) be excluded as hearsay?
a. not hearsay.
b. hearsay. To prove the truth of the matter.
inconsistent
(H38)
2. Witness’s prior ___________________statement IF oral, under oath
and made during formal trial, hearing, proceeding or deposition; or
consistent (H48)
3. Witness’s prior _______________ statement to rebut charge of recent
fabrication, or contention of inconsistency or sensory deficiency.
3. Theory: Party ought to bear the consequences of what she says. Can
explain to jury, and cannot complain about inability to cross-examine
self.
HYPO 59. X is charged with income tax evasion for the year 2000. Prosecutor wants to prove
X’s income during 2000, and offers into evidence a loan application X submitted to a bank in
that year. X objects on the ground that the loan application, which is filled with inflated
numbers, was self-serving and unreliable.
Party admission.
X’s own statement, offered against him.
Note: statement against interest hearsay exception later
58. EVIDENCE
HYPO 60. Ma v. Life Insurance Co. for non-payment of policy proceeds on the life of Pa.
Defense: Suicide. Defendant offers a letter by Ma to her friend in which she wrote, “When I
came home from shopping I found Pa dead on the floor with his revolver nearby. I didn’t see
what happened, but this was no accident. Pa did himself in.” Admissible despite Ma’s lack of
personal knowledge?
Party admission. Ma is a party, offered against her.
Adoptive Admission
HYPO 61. Charlie the truck driver smashed into Pam’s house while on a run for Acme
Trucking, his employer. Charlie descended from the cab and calmly told Pam, “Sorry about
wrecking your home. I guess I took my eyes off the road. I was reaching down to get a beer and
a joint.” In Pam v. Acme, is Charlie’s statement admissible against Acme?
Yes, vicarious party admission.
HYPO 62. Thelma and Louise v. Acme Trucking for sex discrimination in failing to hire them.
They offer the statement of Charlie, an Acme truck driver, who told them over drinks one night,
“I know the Acme personnel office has a policy against hiring women no matter how qualified
they are.” Charlie’s statement is inadmissible because:
(A) Charlie was not on the job when he was speaking to Thelma and Louise.
(B) Charlie’s statement did not concern a matter within the scope of his employment.
EVIDENCE 59.
Co-conspirator’s Statement
F. Hearsay Exceptions
1. Forfeiture by wrongdoing
2. Former testimony
3. Statement against interest
4. Dying declaration
5. Excited utterance
6. Present sense impression
7. Present state of mind
8. Declaration of intent
9. Present physical condition
10. Statement for purpose of medical treatment or diagnosis
11. Business records
12. Public records
Rule: In the context of hearsay, the prosecution may not use a hearsay
statement against the criminal defendant (even if it falls within a hearsay
exception) if:
testimonial
(1) the statement is _________________________________,
unavailable
(2) the declarant is _________________________________, and
potentially relevant to
later criminal prosecution
___________________________________.
(3) Documents:
non-testimonial
(a) Business records are ____________________.
(e.g., bank or phone company records).
testimonial
(b) Sworn Affidavits are _________________.
testimonial
(c) A forensic laboratory report is _________________
accuse a targeted individual
if its primary purpose is to ______________________________
of criminal conduct.
testimonial
Examples: (1) Analysis of drugs seized from a particular suspect
to ascertain if the drugs are cocaine, etc. (2) Analysis of the blood
of a suspected DWI driver to ascertain his blood alcohol content.testimonial
nontestimonial
statement
But a DNA report is __________________ if it analyzes a sample
of bodily fluid collected from a crime scene for the purpose of
no particular person suspected
developing a DNA profile if ___________________________
at the time of the analysis.
2. Former Testimony
HYPO 63. Bus accident. Passengers A and B were seriously injured. A sued Bus Co., alleging
negligence by bus driver. At trial, Witness testified for A that bus driver was intoxicated at time
of accident. Thereafter, Witness died. B now sues Bus Co. and seeks to admit a transcript of
Witness’s former testimony.
Admissible hearsay: former testimony
EVIDENCE 63.
secret: p, Witness, juror,no judge, no lawyer,
no cross
HYPO 64. Same bus accident. At grand jury, Witness testified that bus driver was intoxicated
at time of accident. Thereafter, Witness died. Bus driver is prosecuted for DWI. Prosecutor
seeks to admit a transcript of Witness’s grand jury testimony.
No.
Even though the witness is unavailable, the same issue, the bus driver,
against whom the former testimony is being offered, the bus driver had no
opportunity to cross exam the witness at prior proceeding.
It also violates the confrontation clause.
NOTE: If a grand jury witness testified to something favorable for the defendant,
and then became unavailable, the defendant might be able to use the former
testimony against the prosecution because the prosecutor, at the grand jury, did
have an opportunity, and usually the motive, to develop the witness’s testimony.
________________
(c) Statement against interest differs from party admission in four ways:
any person (not merely party) can make statement against interest
HYPO 65. Plaintiff v. Acme Trucking, based on Charlie the truck driver’s negligent driving.
Charlie was fired immediately after the accident. Two weeks later, Charlie told Plaintiff’s
insurance adjuster that he had been drunk while driving. At trial, Charlie refused to testify on the
ground of self-incrimination. The insurance adjuster may properly testify to Charlie’s statement
as evidence against Acme because the statement is:
(A) A vicarious party admission. When the statement was made, Charlie was no longer
employee of Acme.
HYPO 66. Prosecution of Doppler for arson of Town Hall. Doppler calls Waldo to testify that
while sitting in a bar, Waldo heard Stranger say, “I’m the guy who torched Town Hall, but I’m
glad they think it’s Doppler. Just to be safe, I’m leaving town tomorrow.” Doppler’s attorney
demonstrates that Stranger has not been located despite diligent efforts to find him.
4. Dying Declaration
HYPO 67. Prosecution of Dagger Dan for the murder of Victor Victim. A passerby found
Victor lying in the gutter in a pool of blood with a knife in his stomach. Victor told the passerby,
“It’s not looking too good for me. Dagger Dan did it, and I’m going to get him for this.” Victor
died an hour later. May the passerby testify to Victor’s statement as a dying declaration?
No. No impending imminent death.
HYPO 68. Prosecution of Dillinger for bank robbery. At the scene, a bank officer spoke with
wounded Teller Tim, who gasped, “I’m a dead man. Get me a priest. Dillinger shot me as he
made his getaway.” Tim then lapsed into a coma from which he has not emerged. May the
officer testify to Tim’s statement as a dying declaration?
No. Bank robbery prosecution, not homicide.
HYPO 69. Same event except civil action against Dillinger for Tim’s personal injury damages.
Tim is still in a coma. Is Tim’s statement admissible as a dying declaration?
Yes.
5. Excited Utterance
(a) Statement concerning a startling event and made while declarant is still
under the stress of excitement caused by the event.
HYPO 70. Ernie observes a horrific head-on auto collision and excitedly tells a cop, who arrives
10 minutes later, “Oh my God, Officer! Both of those cars were going 90 miles an hour!” May
the cop properly testify to Ernie’s statement at a trial based on the accident?
Excited utterance.
Ernie observed a startling event .
Factors to consider in determining whether a statement qualifies as an excited utterance:
The nature of the event
(1) _____________________________
The passage of time
(2) _____________________________
Visual clues
(3) _____________________________
Exclamatory phrase
(a) ____________________
Excitement oriented verb
(b) ____________________
Exclamation point !
(c) ____________________
HYPO 71. Mom telephones her son Victor Victim at his apartment. “Mom,” he says, “Can you
wait a minute? Someone’s at the door.” Thirty seconds later, Victor gets back on the phone and
says, “Mom, can’t talk now. My new friend, Hannibal Lecter, is here for dinner. Call you later.”
The next day, the remains of Victor’s dead body are found in his apartment. Hannibal is on trial
for the murder. May Mom testify that Victor identified Hannibal as his dinner guest that night?
Yes.Victor made a present sense impression.
EVIDENCE 67.
HYPO 72. Probate of Wanda’s Will, in which she left all her money to the local pet cemetery.
Wanda’s family challenges the will on the ground that Wanda was insane when she executed it.
Pet cemetery offers testimony that a few days before execution of the will, Wanda said to her
friend, “I do not love my family anymore.” Admissible over hearsay objection?
Admissible. That is a reflection of her state of mind at the time she
was speaking.
8. Declaration of Intent
HYPO 73. Susan has died and her family sues Life Insurance Co. for nonpayment of the policy
proceeds. Defense: Suicide. Life Insurance Co. seeks to introduce a note found in Susan’s
apartment (in Susan’s handwriting) in which she said, “I’m going to end it all next week.”
Relevant.
Intent to do sth in the future.
HYPO 74. Prosecution of Raymond for murder of Vic. Before going out Monday night, Vic
told wife, “I’m meeting Raymond tonight at the bowling alley.” Vic’s dead body was found
Tuesday morning outside the bowling alley.
Admissible That was a declaration intent with the participation of other
people.
68. EVIDENCE
HYPO 75. Plaintiff, whose arm was broken in accident with Defendant, sues for damages for
pain and suffering. Plaintiff may, of course, testify about the pain she experienced. But Plaintiff
also calls Neighbor to testify, (a) “I was with Plaintiff last July when she said, ‘I’m feeling a lot
of pain in my arm’ and again in December when she said (b) ‘I sure did feel a lot of pain in my
arm last July.’” Admissible over hearsay objections?
A. admissible. The neighbor was testifying to the declarant’s statements
of present physical condition.
B. Not admissible. Backward statement.
(c) This exception does not include oral statements made by a physician to
the patient. (Distinguish written entries made by a physician in
business records (e.g., hospital or office records).)
EVIDENCE 69.
HYPO 76. Plaintiff v. Defendant for pain-and-suffering damages based on alleged accident at
Defendant’s store. At trial, Plaintiff calls Dr. Treat, her treating physician, to testify, “When
Plaintiff came to see me for treatment a year after the accident, she said, (a) ‘The pain in my arm
is killing me. (b) I’ve been losing sleep at night for the past six months because of the pain in my
arm. (c) This all started when I fell down the stairway—(d) the one with no treads at
Defendant’s store.’” Admissible over hearsay objections?
a,b,c are all admissible as the statement made for the purpose of
obtaining medical treatment and diagnoses.
Variation: Would statements (a), (b) and (c) be admissible if the statements had
been made to Dr. Whizkid, a physician she retained solely for the purpose of
testifying as an expert witness?
(a) Elements:
business of any
type
(1) Records of a ______________
the regular course
(2) made in the ____________________ of business
routinely keeps
(3) the business __________________ such records
contemporaneously
(4) made ___________________
(at or about the time of the event recorded)
HYPO 77. Civil action by Pedestrian against Hot Rod Kid for recklessly running him down. At
trial, Pedestrian seeks to introduce the report of Officer McNulty, who arrived at the scene 10
minutes after the accident. The report, which was prepared by McNulty at the scene, states:
(b) “Officer Bunk, who witnessed the accident, told me that Hot Rod Kid was driving
nearly 60 miles per hour.”
Admissible as business record
Fact was reported to McNulty by a fellow cop
(c) “Bill Bystander told me that he saw the accident and that Hot Rod Kid ran through
the stop sign.”
(b) Exclusion:
prosecutorial purposes
Police reports prepared for ________________________ not civil
are not admissible against the defendant in a criminal case. Nor is the
prosecution in such cases allowed to introduce such reports against the
defendant under the alternative theory of business records.
HYPO 78. Shooter is on trial for the murder of Victim. In his hospital bed, Victim told the
nurse, “I’m feeling pretty good considering Billy Ray tried to kill me.” The next day, Victim
told a visitor, “I know I’m about to die. Shooter’s the one who shot me.” Victim then died.
(a) May the prosecution introduce Victim’s statement to the visitor over a hearsay objection?
Yes, statement about Shooter is a dying declaration.
(b) If the prosecutor is allowed to introduce Victim’s statement to the visitor, may Shooter
introduce Victim’s statement to the nurse in which he accused Billy Ray?
Cannot use the accusation against Billy Ray as substantive evidence
hearsay, not dying declaration.