Privileges
Privileges are a narrowly constructed exception to this general rule/duty.
What is the general duty to testify?
Error must affect a party's substantial rights and: 1. if evidence was improperly admitted, object in a timely manner and on specific grounds; or 2. if the evidence was improperly excluded make an offer of proof.
What is the process of preserving an error for appeal?
Requires: 1. A statement; 2. Made out of court; 3. Made during/shortly after perceiving an event/condition; and 4. About that condition.
What is a Present Sense Impression 803(1)?
1. Death/Incapacity; 2. Can't be found by reasonable service of process; 3. Forgotten Testimony; 4. Valid claim of testimonial privilege; and 5. Called upon to testify, but refuses to do so without a valid claim of testimonial privilege.
What are the types of unavailability?
It must be sufficient to support a finding that evidence is what it claims to be.
What is the standard for authentication?
While not a privilege, this rule of discovery serves to protect a lawyer's legal theories, conclusions, and mental impressions.
What is the Work Product Doctrine?
This procedural device shifts the burden of production to the opposing party after an adequate foundation is laid, but never shifts the burden of persuasion.
What is a presumption?
Requires: 1. A statement; 2. Made out of court; 3. That relates to an event/condition; and 4. While the declarant was under the stress of that condition.
What is an Excited Utterance 803(2)?
Requires: 1. The declarant be under reasonable belief; 2. Of imminent death; and 3. Makes statements about the circumstances/conditions that resulted in the imminent death.
What is a Deathbed Declaration?
An original or a duplicate must be produced unless: 1. The original was destroyed not by the proponent acting in bad faith; 2. The original must not be able to be reasonably found by judicial process; 3. The opponent controls the evidence, was given notice that it would be called in, and the opponent fails to produce it; and 4. The evidence is on a tertiary/peripheral matter.
What is the best evidence rule?
1. Where one spouse sues another; 2. Where one spouse plots a crime/fraud against the other; 3. The needs of children are paramount/when one spouse communicates about abuse of children; and 4. Where both spouses are joint actors in a criminal venture.
What are the exceptions to spousal communications privilege?
1. Whether the party could still present the substantial thrust of their claim/defense; 2. Whether the improper evidence was merely cumulative; 3. Whether other evidence was overwhelming; 4. Whether the evidence was relied on by the jury; 5. Extent of jury deliberations on the evidence; and 6. The existence and usefulness of curative jury instruction.
What are the Harmless Error Factors?
Its guarantee of trustworthiness requires that information come from one with a business duty to report.
What is the Business Records Exception?
This exception applies to statements against penal and pecuniary interests (and at common law social interests); and are not those that shift blame or attempt to curry favor with law enforcement.
What statements are against interest?
This rule was seen in Bakker, where 200 hours of tapes were accurately condensed for jury cognition.
What is the summarization of voluminous records 1006?
This doctrine can be invoked when testimonial statements of privileged attorney-client communications are given in court to obligate the party to provide a remainder of the communications that properly contextualize the statements; such cannot be invoked for extrajudicial statements.
What is the Fairness Doctrine?
These kinds of facts relate to the matter at hand and can be noticed by the court if they are of such type that they are generally known within a jurisdiction, or that their efficacy can be readily determined by a source that cannot reasonably be disputed; but notice of such facts is not conclusive in criminal cases.
What are adjudicative facts?
When a person declares their intention to do something with another person, such statement is admissible to prove that that act was done by those people, even where the mental state of the declarant is not an issue in the matter.
What is the Hilmon Doctrine/Coordinated Acts Doctrine?
This rule requires that the opposing party wrongfully procures a witness's absence, forfeiting all but-their Rule 403 objections to the testimony.
What is Rule 804(4) When the Opponent Wrongfully Procures the Witness's Absence?
The court may take notice of these facts at any time, they do not change from case-to-case, and may be given as conclusive to the jury even in a criminal case.
What are legislative facts?
This exception applies to communications privileges, and is justified that persons should take care to safeguard the confidentiality of their communications.
What is the eavesdropper exception?
It would cover: 1. Whether evidence is admissible; 2. Whether a privilege exists; or 3. Whether an expert is qualified. In addition, its scope is not bound by anything other than testimonial privilege.
What is the process/scope of a preliminary hearing on the evidence?
This rarely-used exception requires: 1. That the evidence be material and necessary; 2. That That notice be given to the opposing party; 3. That the evidence is trustworthy; and 4. That it be in the interests of justice to allow admission of the evidence.
What is the Residual Exception 804(b)(7)?
Requires: 1. That the statement be made at a prior trial, deposition, or other hearing; 2. That the declarant is unavailable; 3. The party opponent had an opportunity to develop the testimony at the prior trial/hearing; 4. The party opponent had similar motive to develop the testimony then as now.
What is Former Testimony?
It means that in the absence of the original/duplicate any other evidence may be brought forward.
What is a lack of hierarchy for secondary evidence to prove content of a writing?