Broad Concepts
under legal relevance, the probative value must..
substantially outweigh to prejudicial effect
hearsay exceptions where availability irrelevant
excited utterance, present sense impression, state of mind, medical diagnosis, recorded recollection, business record, public records, learned treatises
public policy reason as to why courts do not allow character evidence to be admitted
if it is used to show propensity to a crime, the prejudicial effect is far greater than its probative value (fails the balancing test)
types of intrinsic impeachment methods
prior inconsistent statements
bias
testimonial capacities
contradictions
prior conviction
prior bad acts
what are the privileges recognized under MBE
MBE- spousal immunity and marital communications
under PP, it won't be admissible to show ability to pay
Privileges/policies
liability insurance
hearsay exceptions where declarant must be unavailable
former testimony, statements against interests, dying declarations
in civil cases, character evidence will be admitted when
character trait is an element to crime
if a prior conviction does not go to a persons truthfulness then
prior conviction must be a felony, has to pass the balancing test and must of happened within 10 years
a lay witness may be permitted to testify on behalf of ______ if it is shown that they had prior knowledge
someone's handwriting
What are 5 ways to introduce Character Evidence
1. character is an element (CEND)
2. Def opens the door to his good character
3. def mentions victims character in self-defense
4. specific acts for non-character
5. similar acts in sexual molestation
distinguishing factor from prior inconsistent statements used for impeachment v. used for hearsay exception
under oath- hearsay exception
not under oath- may be used only to impeach
prior bad acts can be brought in both to impeach and as character evidence, explain how
impeach- a question of unconvicted prior bad act bearing on truthfulness
character evidence- to prove MIMIC
an inconsistent statement that is testimonial in nature can be used to
either impeach or as non-hearsay (remember testimonial means under oath, under oath will make it non-hearsay and will come in)
expert testimony will be admitted if he/she used any of which sources
personal knowledge
facts presented at trial
facts that other experts rely on in the field
public policy exclusions
subsequent remedial measures
settlement offers and discussions (including admissions of fault)
offer to pay medical expenses (if admission of fault statements, might be able to come in ALONE)
plea bargaining
liability insurance
declaration against interests(hearsay exception) v. admission
What's the difference?
declaration- anybody, declarant unavailable, personal knowledge, made statements at time where it was against interests
v.
admission- party opponent, none of the other requirements
what are the elements to raise a 6th amendment confrontation clause issue
it has to be brought in by prosecution
the declarant of such statement must be unavailable
statement is testimonial in nature
no previous opportunity to be cross examined
(Exception: defendant was the cause as to why the declarant isn't testifying now)
when can extrinsic evidence for prior inconsistent statements for impeachment purposes be brought in
to prove:
bias
the statements are at issue
testimonial
convictionsrep or opinion
the Best Evidence Rule is raised when
the writing or statements being brought in are to prove content of a writing, then the rule states that the original document must be produced unless some showing that the original cannot be brought in
2 main non-hearsay
prior statements of testifying witness
opposing party statements
how does a past recollection recorded get submitted into evidence as an exhibit?
opposing party must be the one to request it
when we see hearsay within hearsay what must happen in order to get a part of the statements in
each relevant part of the hearsay statements must have an independent hearsay exception to be brought it
ALL OR NOTHING COMES IN ON A HEARSAY WITHIN HEARSAY
what happens under rehabilitation
an impeached witness is rehabilitated by using prior consistent statements, reputation or opinion from another witness etc, methods used to gain back the credibility of a witness that opposing party deterred
an ancient document will be allowed in as circumstantial evidence if
it was kept where it would normally be kept by someone who would keep it
more than 20 years old, or made before 1998