April 28, 2012

EVIDENCE BAR EXAM OUTLINE



There are usually 5 calls of the question in Evidence - key is to first focus on relevancy in any discussion.  The main areas tested include:
1.   Character Evidence
2.   Impeachment
3.      Hearsay

Ten Areas to Know:
1.      General Provisions
2.      Judicial Notice
3.      Presumptions
4.      Relevancy
5.      Privileges
6.      Witnesses
a. Competency
b.Impeachment
7.      Opinion
a. Lay
b.Expert
8.      Hearsay and Its Exceptions
9.      Authentication and Identification
10.  Contents of Writings


I.    General Provisions
A.    Objections - where a trial court admits evidence a timely objection must be made to preserve issue for appeal, unless plain (reversible) error is involved.
1.Objections should be made before the witness answers.
2.After witness makes statement use a motion to strike.
B.     Offers of Proof - concerns exclusions of evidence.  Where trial court excludes evidence no error may be made on appeal unless an offer of proof was made.
1.The offer of proof may be in writing or question and answer format.
C.     Admissibility - preliminary questions of admissibility of evidence are determine by the trial judge as a matter of law.  Affidavits and hearsay are allowed at this point b/c FRE do not apply at preliminary stage.
1.Weight and credibility of evidence is a question of fact for the jury.
D.    Relevancy Conditioned on Fact - court shall admit evidence conditioned upon fulfillment of a condition of fact.
E.     Hearings on Admissibility - usually done outside presence of jury.  Criminal confessions required to be done outside jury presence.

F.      Limited Admissibility - court may allow evidence for one purpose or one party and exclude for another purpose or another party.
G.    Parts of a Writing - once party admits part of a writing the opposing party can admit any other part of the writing.
1.The adverse party can wait until cross to admit writing.
2.The adverse party may also wait until presentation of their own case.
3.There is NO immediate right to introduce.

II. Judicial Notice
A.    A substitute for proof where court accepts certain matters as true.
B.     Judicial notice involves:
1.      Legislative Facts - facts relevant to legal reasoning and the law-making process.  These are not part of FRE but you should be able to distinguish them from adjudicative facts.
2.      Adjudicative Facts - underlying facts involved in a particular case which aid the factfinder in the adjudication.
a.       Judicially noticed facts are not subject to r/b dispute b/c:
(1)  generally known within JX of the court
(2)  capable of being readily ascertained from sources which cannot be questioned
C.     Two types of judicial notice:
1.      Discretionary - court may take judicial notice of:
a.       Laws of foreign countries
b.      Laws of sister-states
c.       Municipal ordinances
d.      Regulations of public / private agencies
e.       Local geography
f.       Current Events
g.      Trademarks
h.      Patents
i.        Economic Data (i.e. insurance rates)
2.      Mandatory - court must take judicial notice of:
a.       State and Federal Law
b.      Indisputable Scientific Facts (i.e. ballistic tests, paternity tests but NOT polygraph)
D.    If party requests judicial notice and supplies court with necessary information then the court must take judicial notice.
E.     The party against whom judicial notice goes may challenge either before or after judicial notice is taken.
F.      Judicial notice is available at any stage of the proceeding.
G.    Procedural Effect
1.      In civil cases judicially noticed facts are indisputable and the jury MUST accept the judicially noticed fact as conclusive.
2.      In criminal cases the jury is to be instructed that it MAY take, but is NOT REQUIRED to take the judicially noticed fact as conclusive.

H.    Approach:
1.      Determine whether judicially notice fact is discretionary or mandatory.
2.      Determine whether it is a civil or criminal case.  

III. Presumptions
A.    Burden of Production - burden placed on party to introduce initial evidence on particular evidence or risk a directed verdict against them. 
1.      “The burden of going forward.”
2.      Usually on the P except with regard to affirmative defenses and presumptions which shift burden to D.
3.      In criminal cases a directed verdict for the prosecution in unconstitutional.
B.     Burden of Persuasion - the degree to which a party must convince the trier of fact.
1.      In a civil case this is preponderance of the evidence.
2.      In a criminal case this is beyond a reasonable doubt (each element of the crime).
3.      In certain criminally related civil proceedings (i.e. fraud) use clear and convincing standard.
C.  Affirmative Defenses
1.      These include:
a.       Insanity
b.      Self-defense
c.       Duress
d.      Provocation
2.      Two ways they operate procedurally:
a.       D has burden of proof by showing preponderance of evidence, OR
b.      P has burden of proof by showing all issues beyond a r/b doubt.

C.     Presumption - an inference the jury must draw which shifts burden of producing evidence to opposing party.
1.      Two ways presumption arise (two components):
a.       Basic Facts once established gives rise to another set of facts called presumed facts.
b.      Once established the presumption shifts burden of production to opposing party.  An inference does not shift the burden of production.
2.   Conclusive Presumption - rule of law where the basic facts conclusively establish the presumed facts (i.e. child born during wedlock).
3.      Bursting Bubble Theory - under majority, once D has established evidence to sustain finding of nonexistence of presumed fact, the presumption disappears or “bursts.”  This is followed in some JXs.
4.      Criminal Cases:
a.       For permissive presumptions, in criminal cases the jury may but need not find the presumed fact from the basic fact.
b.      If the presumed fact establishes guilt or is an element of the offense the court shall instruct the jury that the presumed fact must be proved beyond a reasonable doubt.


IV. Relevancy
A.    Logical Relevancy - concerns the helpfulness of the evidence; probative value.  Relevant evidence must have some logical tendency to prove a fact of consequence.
1.      Materiality - refers to whether the proffered evidence bears on the matter at issue in court.  It is a more narrow concept than relevancy.  The FRE merges it with relevant evidence.
B.     Relevant Evidence is that which has the tendency to make the existence of any fact which is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
1.      Two strands:
a.       Relevancy - tendency to support the existence of any fact
b.      Materiality - fact must be of consequence; relates to the action itself
2.      Direct Evidence - that which does not depend on any inference for its relevancy.
3.      Circumstantial Evidence - that which depends on the drawing of an inference.
C.    Prior Acts / Accidents
1.      Similar Prior Accidents - evidence of prior accident admissible to prove dangerous condition existed or D was aware of the condition if P establishes a substantial identity of material circumstances.
2.      Absence of Similar Acts - courts are reluctant to admit such evidence. 
a.       If admitted, then two requirements:
(1)  Substantial identity of material circumstances, AND
(2)  If an accident had occurred it would have been observed.
3.      Other areas where prior acts are admissible:
a.       Prior Tort Claims (previously similar claims to show common plan or scheme)
b.      Prior Ks between two parties (Ks between one party and a third party are admissible to show trade usage and customary dealing)
c.       Prior Sale of Land (circumstantially to show value if materiality of circumstances)
d.      Prior Sale of Unique Items requires expert testimony.
D.    Reasons Why Otherwise Relevant Evidence is Excluded Where Probative Value is Outweighed by:
1.      Unfair prejudice
2.      Confusion of issues
3.      Misleading the jury
4.      Undue delay (not likely heard on appeal)
5.      Waste of time (not likely heard on appeal)
6.      Needless presentation of cumulative evidence (not likely heard on appeal)

E.     Character Evidence
1.      Approach:
a.       Determine form of evidence.
b.      Determine type of case - civil or criminal.
c.       Determine purpose for which evidence offered.

2.      Three forms character evidence takes:
a.       Reputation
b.      Opinion
c.       Specific Forms of Conduct /Acts
3.      Character Evidence in Civil Trials
a.       Inadmissible to prove conduct in conformity therewith on a particular occasion.
b.      Exceptions:
(1)  Where character is essential element of claim, defense, or cause of action. (i.e. defamation, child custody, mental condition)
(2)  Where knowledge of the character of another is at issue. (i.e. self-defense or negligent entrustment).  Likely to be the character of the entrustee NOT the entrustor.
4.      Where admissible, all three forms of character evidence comes in.
a.       With reputation, the cross is allowed to probe for specific instances of conduct.
5.      Character Evidence in Criminal Trial
a.       D may use circumstantial character evidence in three ways:
(1)  opening the door - D may offer evidence of good character by reputation or opinion evidence to prove his innocence and the prosecution may so rebut.  The evidence must relate to the type of crime charged (i.e. gentle --> murder; honesty --> fraud).
(2)  bad character of victim - D may use all three forms of character evidence to prove bad character of victim and the prosecution may so rebut (i.e. in self-defense case the D may show evidence of victim’s violent temper).
(3)  rape cases - In rape cases reputation and opinion evidence is inadmissible but specific acts of sexual behavior by victim are admissible where:
(a)  Behavior with other person which would explain signs of rape or source of semen.
(b)  Past behavior with the D which tend to show consent.                                
a.      MIMIC Rule
(1) Circumstantial evidence may be offered by the prosecution in rebuttal and not in the case-in-chief.
(2)  The specific trait to be proved by the circumstantial evidence must be at issue.
(3)  Rule: Evidence of other crimes, wrongs or acts is not admissible to prove character of person to show he acted in conformity therewith.  However it may be offered to show MIMIC.
a.       “M” - motive
b.      “I”   - Intent
c.       “M” - absence of mistake
d.      “I”   - identity
e.       “C”  - common plane or scheme
(4)  MIMIC evidence is never admissible to prove criminal disposition or propensity to commit a crime.


F.      Habit Evidence - circumstantial evidence of a person’s regular response to a repeated, specific situation.  May also be the routine practice of an organization. 
1.      It is relevant to prove conduct in conformity with the habit and need not be in the presence of eyewitnesses.
2.      May be proved by testimony in form of opinion or specific acts.
3.      Evidence does not need to be corroborated.

G.    Subsequent Remedial Measures - inadmissible to prove negligence or culpable conduct in connection with the event.
1.      Exceptions:
a.       To prove ownership and control (i.e. D cuts tree down after P injured and after stating tree was on public property)
b.      To show feasibility of precautions if controverted
c.       For Impeachment

H.    Offers to Settle - inadmissible to prove liability for the claim or its amount.
1.      Exceptions:
a.       To prove bias or prejudice of a witness
b.      To controvert a contention of undue delay by one of the parties
c.       To prove a party attempted to obstruct a criminal investigation
2.      No severance - any statement made in connection with an offer to settle or inadmissble.

I.       Offers to Pay Medical Bills - inadmissible to prove liability for an injury.  Statements made in connection to pay for medical bills are admissible (here there is severance).

J.       Offers to Plead Guilty - plea of guilty later w/drawn; plea of nolo contendere; any plea in any criminal proceeding.
1.      Exceptions:
a.       Prosecution for Perjury
b.      Purposes of Impeachment
2.      Evidence of a guilty plea resulting in a felony conviction is admissible as a hearsay exception after final judgment.

K. Insurance Evidence - evidence of not being insured against liability is not admissible as to issue of negligence or liability.
1.      However, admissible to show:
a.       Agency
b.      Ownership or control
c.       Bias or prejudice
2.      Statements made in connection with liability insurance are inadmissible (no severance).



V.    Privileges
A.    There are two parts to privilege:
1.      Diversity Cases and Cases Arising under State law the privilege is determined by state law
2.      In Criminal cases, Federal question cases and cases arising under federal law follow the modern common law.
B.     Approach
1.      What type of case?
2.      Apply rule corresponding to that type of case.
C. Four categories of privilege:
1.      Confidential Communication Privileges
2.      Incompetency Type Privileges
a.       Deadman Statutes - there is no federal deadman statute.  Typically they state that in action commenced or defended on behalf of deceased, testimony concerning any transaction with the deceased is inadmissible.  Federal courts are required to follow state deadman statutes if the case is controlled by state law (i.e. diversity case).
3.      Constitutional Privileges
4.      Public Policy Privileges
D.    Approach to Essay Questions Involving Privilege
1.      Relationship - Does a protected relationship exist?  Test is if client is seeking professional advice.  No compensation must be paid and the professional need not take the case.
2.   Communication - The privilege applies to the communication not the information.
3.      Confidentiality - Only confidential communication are privileged. 
a.       Third Parties
(1)  Nonessential third parties destroy confidentiality (if 3rd party furthering purpose of relationship they are essential and confidentiality will not be destroyed).
(2)  Eavesdroppers, if known or anticipated, destroy confidentiality.
b.      Communications made in public are never confidential.
4.      Holder - Person who privilege operates in favor of.  Only the holder or authorized representative may assert it.
a.       Waivers permit questioning by opposing party r/b necessary to scrutinize the disclosed information.
5.      Exceptions

E.   Attorney Client
1.      Protects from client to attorney and attorney to client during existence of relationship.
2.      The attorney must be actually licensed or r/bly believed to be licensed by the client.
3.      Holder is the client but attorney may assert it.
4.      Exceptions:
a.       Suits between attorney and client.
b.      Suits between joint clients.

c.       Disputes regarding a client’s will after the client’s death.
d.      Communications made in furtherance of future crime or fraud.
5.      Work Product - material prepared by attorney himself for his own use is not protected under the A-C privilege but may be protected from unjustified disclosure or discovery under work product rule.
6.      Simply handing over pre-existing documents to attorney does not make the documents privileged.
7.      Basic facts (name, address) are never privileged.
8.      Corporations may claim A-C privilege as well.
a.       Federal Court - A-C privilege applies to statements even given by ordinary employees to attorneys investigating relevant issues.
b.      State Courts use Control Group Test where only high officials having authority to decide corporate policy have privilege.

F.     Doctor Patient
1.   Protects statements made between doctor and patient for purpose of obtaining medical diagnosis and treatment.
2.      Communications include verbal communications and observations (scar, gunshot wound, etc.).
3.      Exceptions:
a.       No privilege where physical condition is at issue.
b.      No privilege in criminal proceedings.
c.       No privilege in malpractice.
d.      No privilege in competency or commitment proceedings.

G.    Psychotherapist
1.      Broader than Doctor Patient b/c more professionals included under it.
2.      Exception:
a.       No privilege where mental state is at issue.
3.      Duty imposed to warn as to any immediate threat of harm by the patient.

H.    Priest-Penitent
1.      Both clergy and penitent are holders.

I.       Husband-Wife
1.      Marital Communication - protects confidential verbal communications made during marriage.  Applies in both civil and criminal cases.
a.       Upon divorce the confidential communications made during marriage remain privileged.
b.      Under modern trend, both observations and impressions are protected.
c.       Both spouses are holders.
d.      Exceptions:
(1)  No privilege for crimes against other spouse or children.

(2)  No privilege for statements made in furtherance of future crime or fraud.
2.      Spousal Communication - protects ALL communications regardless of confidentiality both prior to and during marriage.
a.       Upon divorce the entire privilege is lost.
b.      At CL the party spouse was holder; but in Federal Courts the witness spouse is the holder.
c.       Exceptions:
(1)  crimes against other spouse
(2)  crimes against children of either spouse

VI. Witnesses
A.    Competency
1.      Requires:
a.       Oath
b.      Mental Capacity to Understand
c.       Personal Knowledge
2.      At CL the following were prevented from testifying:
a.       Felons
b.      Atheists
c.       Spouses
d.      Mental Incompetents
e.       Financially Interested Parties
3.      Modern rule is that everyone is competent to testify except where state law applies the rule of decision.
4.      In Federal Court the Minimum Competency Test requires:
a.       Minimal Credibility
b.      Personal Knowledge
c.       Declaration to Testify Truthfully
5.      Use of Interpreters permitted as long as interpreter is an expert and takes oath to tell truth.
6.      Competency of Judge and Jury - Neither presiding judge nor any jury member may testify in the trial in which they are sitting (an attorney may be called as a witness).

B.     Impeachment
1.      Any party may attack the credibility of a witness, including the party calling him (at CL the party could not impeach there own witness).
2.      When opposing party called as adverse witness, they can be immediately impeached and then the party’s own counsel can do direct.
3.      Two types:
a.       Intrinsic Impeachment - evidence brought out from actual testimony of the witness.
b.      Extrinsic Impeachment - all other evidence not from the mouth of the witness.

4.      Collateral Matter Rule - collateral evidence offered to attack credibility of witness may be inquired into on cross intrinsically, subject to court’s discretion (i.e. prior inconsistent statement); but extrinsic evidence on the same question concerning collateral matters may not be introduced.

5.      Four methods of Impeachment:
a.       Sensory Defects - go to credibility of witness.  May  use extrinsic evidence concerning inability of the witness to remember.  However, before using extrinsic evidence you must set a foundation.
b.      Bias - always material never collateral.  Many forms to show bias:
(1)  interest in the outcome
(2)  economic or marital relationship
(3)  hostility or favoritism
(4)  fee paid to expert witness
c.       Character
(1)  four ways to impeach using character evidence:
(a)  reputation and opinion - at CL only reputation but FRE allows opinion.  It must go towards untruthfulness.
(b)  bad act impeachment - Questions on cross may inquire into prior unconvicted acts which relate to truthfulness.  Must be done in good faith.
(c)  felony convictions - Felony convictions are crimes punishable by death or imprisonment for more than 1 year.  They are permissible to impeach if probative value outweighs prejudice created.
(d) crimes bearing on untruthfulness - involves any crimes of dishonesty or misrepresentation.  The judge has no discretion to exclude these crimes.
(2)  Convictions
(a)  Convictions are inadmissible if more than ten years have elapsed unless probative value outweighs prejudicial effect. 
(b)  Advance written notice must be given to opposing party.
(c)  Procedurally there are two ways to impeach:
i.        Ask witness intrinsically.
ii.      Offer certified copy of prior conviction extrinsically.
(d) pardons - convictions subject to pardon are inadmissible to impeach.
(e)  Juvenile Adjudications - split
i.        Inadmissible if offered against D.
ii.      Discretion on admissibility if offered against witness.
(f)  conviction under appeal - admissible to impeach but pendency of the appeal is also admissible.
d.      Prior Inconsistent Statements (most common form of impeachment)
(1)  Only foundation requirement is that witness is afforded opportunity to explain or deny the statement (either before or after examination).

6.      Presentation of Evidence

a.       Cross examination is limited to subject matter of direct examination and matters affecting the credibility of the witnesses.  Basically three areas:
(1)  Questions examining scope of direct exam
(2)  Leading Questions
(a)  generally not allowed on direct examination EXCEPT for:
i.        Preliminary Background Information
ii.      Examination of Expert Witnesses
iii.    Child Witnesses
iv.    Hostile or Adverse Witnesses
v.      Refreshing Recollection
(1)  memory may be refreshed by writing or leading question either before or while testifying
(2)  witness must testify without referring to the writing
(3)  adverse council has right to examine and cross examine, and introduce relevant portions of the writing
(4)  the witness need not have prepared the writing themselves
(3)  Impeachment - see above


VII.     Opinions and Expert Testimony
A.    Lay Opinion
1.      May testify in the form of opinions or inferences if they are:
a.       Rationally based on the perception of the witness, and
b.      Helpful to a clear understanding of the testimony (helpful = relevant)
2.      May testify as to:
a.       Speed and Measurements
b.      Identity
c.       Sensory Descriptions
d.      Value of Property
e.       Familiarity with Handwriting
f.       Sanity
g.      Physical Condition (condition but not diagnosis)
3.   May not testify as to legal conclusions (i.e. car driving recklessly or bridge improperly construct)
B.     Expert Opinions
1.      Qualifications:
a.       Must have special, knowledge, skill, training, education, or experience.
b.      Opinion must be helpful or assist the trier of fact in understanding the evidence.
c.       Must be within the experts field of expertise.
2.      Basis for Expert Opinion is founded on:
a.       Facts perceived by her or made known to her at or before trial
(i.e. the Coroner’s report).  Note that an expert need not have personal knowledge whereas a lay witness must.

b.      Facts reasonably relied upon by experts in the particular field.  This can include otherwise inadmissable hearsay.
3.      Examination - an expert need not give reasons for opinion on direct examination but may be required to on cross examination.
4.      Opinion on Ultimate Issues - experts can comment on the ultimate issue in the case.  a.      Limitations:
(1)  The general limitation is that the questions cannot state issues which are directly the responsibility of the jury.
(2)  In criminal cases an expert may not give an opinion as to whether a criminal defendant did or did not have a particular mental state constituting an element of the crime charged or a defense thereto.

VIII. Hearsay
A.    Definitions
1.      Statement - either an oral or written assertion; or nonverbal conduct intended as an assertion.  Statements must be made by humans.
2.      Admission - statement of a party offered against that party.
3.      Declarant - person who makes the statement or assertion.
4.      Hearsay - an out of court statement other than one made by the declarant while testifying at the trial or hearing offered to prove the truth of the matter asserted.
B.     Approach
1.      Analyze the statement.
2.      Determine who made the statement.
3.      Determine the purpose for which the evidence is being offered.  If for the truth than go onto step #4.
4.      Is there a hearsay exception?

C.     Nonhearsay
1.      Federal Rule 801(d):
a.       Prior Inconsistent Statements (declarant must be available and subject to cross)
(1)  Prior sworn inconsistent statements are admissible both substantively and to impeach.
(2)  Prior inconsistent statements not sworn are only admissible to impeach.  The key is that “sworn” is considered to be at a proceeding under oath.
b.      Prior Consistent Statements (declarant must be available and subject to cross)
(1)  Prior consistent statements are offered to rebut charge of recent fabrication or improper influence.  These statements are offered substantively.
c.       Prior Identifications (declarant must be available and subject to cross)
(1)  Prior statement of identification of a person made after perceiving him.  This is admissible substantively.
d.      Admissions

(1)  Direct or General Admission - a statement of a party offered against him by his opponent.  At CL admissions were hearsay exceptions but under FRE admissions are nonhearsay.  Required to be a statement of a party, NOT a bystander.
(2)  Admission by Conduct or Silence / Adoptive Admission - evidence of conduct of a party which r/bly supports an inference inconsistent with the party’s position is admissible as an admission.  Requires circumstances such that a r/b person would have denied the statement.  Silence of accused party not an admission b/c protected by Miranda rights.
(3)  Authorized Admission - statement of any person specifically authorized by a party to speak which may be offered against the party as an admission.
(4)  Vicarious Admission - statement of agent or employee made during the existence of the relationship concerning a matter within the scope of employment.  At CL the statement had to related to employment duties. 
(5)  Co-conspirator’s Admission- statement of a co-conspirator made during the course and in furtherance of the conspiracy.  Each co-conspirator is viewed as an agent of the other co-conspirators.  Before using a co-conspirator admission proof of the conspiracy must be established by a preponderance of independent evidence.

2.      Verbal Acts - statements whose relevance is independently significance of their truth.
a.       Two types:
(1)  Transactional words (K, deed, etc.)
(2)  Tortious words (actual defamatory words in libel or slander situation)

3.      Nonassertive Conduct - behavior which the actor does not intend to operate as a communicative statement but which may in fact be so interpreted.  This is nonhearsay, whereas assertive conduct is hearsay.

4.      State of Mind
a.       Independently relevant circumstantial evidence may be used to prove:
(1) knowledge; (2) intent; (3) attitude; or (4) belief of the listener.
b.      It is coming in to prove state of mind of the D.

D.    Exceptions to Hearsay
1.      Unavailability not required:
a.       Present sense impression - statement describing or explaining an event while the declarant was perceiving the event of condition or immediately thereafter. 
(1)  The event need not be startling (unexcited utterance).
(2)  Key is the time element (usually moments; ten minutes are too long).
b.      Excited Utterance - statement relating to a startling event made while declarant was under stress of excitement cause by the event.  The declarant need not be available.  Time element is slightly more lenient (statement at police statement is too far removed).
c.       Statement of Present Mental or Physical Condition
(1)  usually involves:

(a)  statements of intent
(b)  statements of pain
(c)  statements of bodily health
(2)  look for “present tense” language
(3)  statements may be made to anyone, not just a doctor
(4)  past statements concerning past mental states regarding a will are admissible
(5)  statements describing medical history or symptoms are admissible if made for the purpose of medical diagnosis or treatment
(6)  declarant need not be the person seeking treatment herself (i.e. a family member such as a parent talking about a child).
(7) severance often comes up with past physical state and is permissible
d.      Past Recollection Recorded - where witness’ memory has failed to have been refreshed, the witness may read into evidence statements from a writing provided that:
(1)  the witness once had knowledge about the matter
(2)  the writing was made by the witness or adopted by her
(3)  at a time when it was fresh in her memory
*key is that attempt to refresh failed! (writing itself not admitted into evidence although the writing is authenticated to satisfy BER)
e.       Business Record Exception - a record or report of acts or events kept in the ordinary course of a regularly conducted business may be admissible subject to the following limitations:
(1)  circumstances such that there is no indication of untrustworthiness (i.e. documents prepared in preparation for litigation are untrustworthy)
(2)  business record itself prepared by custodian or a qualified person with knowledge
(3)  record must have been prepared at or near the time of event
(4)  must have been prepared by someone with a business duty to record
(5)  absence of an entry may be used to prove nonoccurrence of event or nonexistence of a record
f.       Public Record
(1)  Public Office or Agency Activity - police reports not included.
(2)  Record of a Legal Duty
(3) Factual Findings of Official Investigation - may be used in either civil or criminal cases against the government.  The reporter must be under official duty to record.
g. Types of Records which are excepted:
(1)  Vital Statistics
(2)  Religious Records
(3)  Family Records
(a)  family bibles
(b)  engravings on tombstone
(c)  writings on family pictures

(4)  Ancient Records - more than 20 years old, some form of authentication required, and found in place it is supposed to be make something admissible.
h.   Learned Treatise Exception - statements in published periodicals admissible if found to be authoritativeness (established by expert testimony or by judicial notice) and the treatise is called to witness’ attention during cross or relied on during direct examination.  The treatise itself is read into the record and usually not admitted itself unless offered by the party.
i.        Final Judgment - evidence of final judgment entered after a trial or upon a plea of guilty to a felony is admissible as a hearsay exception.
j.        Catch-All Exception (Equivalency Exception) - this is usually the wrong answer on the multi-state.  In order for it to work the following limitations must be satisfied:
(1)  the evidence offered is more probative than any other evidence on point
(2)  the court must find circumstantial guarantees of trustworthiness equivalent to other hearsay exceptions
(3)  admission of the statement must best serve the interests of justice
(4)  advance written notice must be given to opposing party

E.     Hearsay Exceptions
1.      Unavailability required.  It may arise in the following ways.
a.       Assertion of Privilege
b.      Refusal to Testify
c.       Lack of Memory
d.      Absence Due to Death, Illness, or Injury
e.       Absence from the Court’s Jurisdiction
2. Three Main Hearsay Exceptions
a.       Former Testimony - testimony given at an earlier proceeding by a now unavailable witness if the party against whom the testimony is being offered had an opportunity to examine the person at the earlier proceeding and had the motive to examine similar to the reasons now presented.
(1)  identity of the parties is not required (at CL it was)
(2)  opportunity for prior examination could be direct, cross, or redirect
(3)  party against whom evidence is offered must have been a party to the earlier proceeding
b.   Dying Declaration - declaration made by an unavailable declaration while under an imminent belief of death concerning the cause of circumstances of the purportedly imminent death.
(1)  can be used in any civil or criminal homicide case (at CL only admissible in criminal homicide cases and declarant died)
c.       Declaration Against Interest - statement of an unavailable non-party which is against interest when made.
(1)  the interest is against pecuniary, penal or proprietary

(2)  if declaration against penal interest offered to exculpate then corroborating circumstances must be shown which indicate trustworthiness of statement
(3)  Declaration Against Interest v. Admission (the differences)
(a)  admission is always statement of a party while declaration against interest is statement of non-party
(b)  unavailability not required for admission
(c)  admission need not be against interest when made
(d) declarant need not have personal knowledge of facts stated for admission whereas they must have personal knowledge for the declaration against interest
(e)  as a general rule an admission cannot be used as a declaration against interest

F.      Multiple Hearsay -
1.   Approach - look at each layer separately; as long as each layer is separately admissible can be admitted the whole statement with multiple hearsay can be admitted.


IX. Authentication and Identification
A.    For all real evidence and demonstrative evidence a foundation must be layed to authenticate by a showing of evidence “sufficient to sustain a finding that the matter in question is what its proponents claim”
B.     Real Evidence includes both documentary evidence (i.e. a writing) and physical evidence (i.e. the murder weapon).
C.     Demonstrative Evidence is that used to assist in the explanation (i.e. charts)
D.    Forms of Authentication
1.      Testimony Based on Personal Knowledge
2.      Distinctive Markings
3.      Chain of Custody - an accounting of an items whereabouts from the time of issue until the trial.
E.     Authentication of Scientific Tests - requires all three:
1.      Device in question is in proper working condition
2.      Device is operated by a qualified individual
3.      Technique is generally excepted in the scientific field
F.      Handwriting - three ways to authenticate:
1.      Lay person with familiarity (no time limit as to how long person was familiar); improper if the familiarity was acquired for purposes of litigation.
2.      Comparison by an expert witness.
3.      Comparison by the trier of fact.
G.    Telephone Conversations - two types:
1.      Phone Calls to Residence
a.       Must show call made to number assigned by telephone company.
b.      Self-identification.
2.      Phone Calls to Business

a.   Must show call made to number assigned by telephone company.
b.   Show that conversation related to business reasonably transacted over the phone.
H.    Photograph - requires that photograph be an accurate portrayal of what depicts.  The photographer herself need not testify.  Age of photograph is irrelevant.

I.       Self Authentication - extrinsic evidence as a condition precedent not required for:
1.      Domestic Public Documents Under Seal
2.      Certified Foreign Public Documents
3.      Certified Copies of Public Records
4.      Official Publication
5.      Newspapers and Periodicals
6.      Trade Inscriptions (can labels)
7.      Notorized Documents
8.      Commercial Paper


X.    Contents of Writings, Recordings, and Photographs
A.    Best Evidence Rule (BER) - to prove contents of writings, recordings, or photographs the original is required.
1.      Situations where BER does not apply:
a.       Merely to prove writing did not exist.
b.      Merely to prove a statement was made.
c.       Where contents of the writing are collateral to issues being litigated
2.      Situations where BER does apply:
a.       Where writing itself has independent legal significance (i.e. words of deed or will)
b.      Where writing offered into evidence to prove event (i.e. x-ray to prove injury)
c.       Where testimony is reliant on the writing and not personal knowledge
(i.e. looking in notebook to testify as to how many hours somebody worked)
3.      If BER applies then there is a good chance you may also have to apply a hearsay exception to get the writing the testimony relies on also into evidence.
4.      Duplicates - duplicates and photocopies are admissible and treated just as original unless there is a general question of authenticity.
5.      Voluminous Records - situations where there are so many records that they cannot be conveniently brought into evidence.  In this case the court allows (1) charts; (2) summaries; (3) calculations provided that both the original and the summary are separately authenticated (usually by self-authentication or judicial notice).  Summaries of Voluminous Records once admitted are admitted as substantive evidence.