Evidence that may be Excluded for Policy Reasons
Liability Insurance (purposes inadmissible and admissible for)
Inadmissible: to prove negligence or ability to pay
Admissible: prove ownership or control; impeachment; as an inseparable part of an admission of liabiliy
Statement by an Opposing Party
A statement by or attributable to a party, offered against the party
Excited Utterance
Out-of-court statement:
1) relating to a startling event AND
2) made while under the stress of the excitement from the event
Former Testimony
- the testimony was given under oath at a trial, hearing, or deposition in the same or different case AND
- the party against whom the testimony is now being offered had an opportunity and similar motive to develop the declarant's testimony at the prior proceeding
Spousal Immunity (types of cases, duration, holder, included information)
- one does not have to testify against their spouse in a criminal case
- only lasts during marriage
- privilege belongs to witness-spouse
- covers information/matters that occurred before or during the marriage
Subsequent Remedial Measures (purposes inadmissible and admissible for)
Inadmissible: to prove negligence; culpable conduct; a defect in a product or its design, or a need for a warning or instruction
Admissible: to prove ownership or control; to rebut a claim that precautions were impossible; to prove destruction of evidence
Prior Inconsistent Statement of Testifying Witness
- hearsay declarant is a witness in the current case
- the declarant is subject to cross-examination now;
- the past statement is inconsistent with what the declarant is saying now in court;
- the past statement was made under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition
Present Sense Impression
- describes or explains an event or condition AND
- is made while or immediately after the declarant perceives the event or condition
Statement Against Interest
- statement was against that person's interest;
- a reasonable person in the declarant's position would have made it only if they believed it to be true;
- declarant was aware the statement was against their interest when they made it
Confidential Marital Communications (types of cases, duration, holder, included information)
- applies to criminal and civil cases
- never ends
- both spouses hold it
- covers communications, made in reliance on confidentiality of marriage, not disclosed to other people
Settlement Offers or Negotiations (purposes inadmissible and admissible for)
Inadmissible: to prove or disprove the validity or amount of a disputed claim, or to impeach by prior inconsistent statement or contradiction
Admissibility: for all other purposes
Prior Consistent Statement of Testifying Witness
- hearsay declarant is a witness in teh current case;
- declarant is subject to cross-examination now;
- the past statement is consistent with what the declarant is saying now in court; and- the past statement is offered (1) to rebut an express or implied charge that the witness is lying or exaggerating because of some motive OR (2) to rehabilitate a witness whose credibility was attacked on some other ground
Present State of Mind and Present Bodily Condition
- then-existing state of mind (including motive, intent, or plan)
- then-existing emotional, sensory, or physical condition
Dying Declaration
Only in homicide prosecution or civil case
- declarant believed their death was imminent AND
- statement concerned the cause or circumstances of what the declarant believed to be their impending death
Attorney-Client Privilege & Psychotherapist/Social Worker-Client Privilege (they work the same)
- client is seeking professional's services at the time of the communications
- confidential
- survives death
Offers to Pay and Payment of Medical Expenses (purposes inadmissible and admissible for)
Inadmissible: to prove culpable conduct
Admissible: for all other purposes
*admissions of fact accompanying an offer to pay medical expenses are admissible*
Prior Statement of Identification of Testifying Witness
- hearsay declarant is a witness in teh current case;
- the declarant is subject to cross-examination now;
- the past statement is a statement of identification; and
- the statement of identification was made after perceiving the person
Statement for Medical Diagnosis or Treatment
1) statement was made for medical diagnosis or treatment;
2) is reasonably pertinent to that diagnosis or treatment; and
3) describes a person's medical history, past or present symptoms, or their inception or general cause
Statement of Personal or Family History
Concerning births, marriages, divorces, relationship, genealogical status etc.
-the declarant is a member of the family in question or intimately associated with it AND
- the statements are based on the declarant's personal knowledge of the facts or their knowledge of family reputation
Exceptions to Marital Privileges
- legal actions between spouses
- cases involving crimes against the testifying spouse or either spouse's children
- in furtherance of joint crime or fraud
Withdrawn Guilty Pleas and Offers to Plead Guilty (purposes inadmissible and admissible for)
Inadmissible: for nearly all purposes
Admissible: not
Other Purposes to Admit an Out-of-Court Statement
- legally operative facts
- offered to prove effect on reader or listener
- circumstantial evidence of declarant's state of mind
- impeachment
Business Records (or Absence Thereof)
1) record must have been made in the regular course of business;
2) the business regularly keeps such records;
3) record made by a person with a duty to make to entry;
4) the person who made the record had first hand knowledge or received information from another employee with a duty to report;
5) entry made at or near the time of the event;
6) authenticated
Statement Offered Against Party Procuring Declarant's Unavailability
- party procuring declarant's unavailability engaged or acquiesced in wrongdoing that intentionally procured the declarant's unavailability
- the motivation for such was to prevent the declarant from testifying
Recorded Recollection Hearsay Exception
Document not admissible but may be read to jury
- witness not able to remember the facts AND
- writing was made or adopted when events were fresh in their mind