Evidence III

5. Rehabilitating After Impeachment

a. Good reputation (opinion) for truth ONLY IF CHARACTER WAS IMPEACHED.
b. Prior CONSISTENT statement to rebut an express/implied charge of recent fabrication or improper influence/motive. (such a charge would require more than just demonstrating prior inconsistent statement). Must be pre-motive statement, admissible for its truth.

PRIVILEGES

Attorney-Client
Confidential communications between atty and client made during professional legal consultation are privileged from disclosure unless waived by the client (or representative). Privilege survives death. Communication, not objects/documents.
Exceptions:
facilitate future crime or fraud
client affirmatively puts communication in litigation (“Followed Atty’s advice.”)
suit b/w the atty and client

Mass: has asked about inadvertent disclosure. SJC uses balancing test, basically, how negligent was the disclosure (rsbleness of precautions, amt of time to realize disclosure, scope of materials requested that disclosure got included in, extend of disclosure, and interests of fairness & justice)

Physician/Psychiatrist-Patient
Alert: “doctor-patient privilege” in a bar exam Q? - prob. wrong
Mass: has no ordinary “doctor-patient” privilege.

Patient has a privilege against disclosure of confidential information acquired by a physician/psychiatrist in a professional relationship entered into for the purpose of obtaining treatment. (Evaluations made for the purpose of giving expert testimony are not privileged.) The information must be arguably necessary to facilitate treatment -- don’t talk about your tax fraud to your doctor.

Waiver: Privilege is waived if patient sues or defends by putting physical or mental condition in issue.

Spousal
Spousal Immunity - can’t force spouse to testify. (If want to testify, OK.)
criminal cases only!!
Confidential Marital Communication (confidential, made while married)
either spouse can invoke
protects only confidences, not all testimony

Mass: Confidential Marital Communication privilege CANNOT BE WAIVED.

Mass: Parent-Child Privilege - unemancipated minor living w/parent may not testify against parent in criminal proceeding unless victim is member of parent’s family and lives in parent’s household.


APPLICABILITY OF STATE LAW IN FEDERAL COURT

State law applies in federal court on a diversity case, including
1. presumptions and burdens of proof
2. competency of witnesses
3. privileges

HEARSAY

A. Definition of Hearsay

Hearsay: out of court statement offered (via writing, or witness testimony) to prove the truth of whatever the statement says.

Non-hearsay: being offered for some other purpose

• verbal acts or legally operative facts (words of offer, acceptance, defamation, conspiracy, bribery, cancellation, misrepresentation, waiver, permission) - b/c once you say the words, the relationship exists or crime has been committed.
• out of court statement offered to show an effect on the hearer (notice or knowledge, demonstrate probable cause, etc.)
• out of court statement offered to show declarant’s state of mind (only relevant if state of mind is relevant)

Prior statements of the witness
hearsay if offered for its truth, in which case, only admissible if one of the exclusions apply

Non-hearsay by definition

• prior inconsistent statement (under oath at a prior proceeding)
• prior consistent statement (to rebut charge of recent fabrication/motive)
• prior statement of identification made by a witness
• admission of a party

B. The Rule Against Hearsay

Hearsay bad! No allow!

C. Exceptions to the Rule Against Hearsay

• Mass: admission of a party (whether against interest at time or not, any format, includes vicarious admission by agent/servent in scope of employment)
• former testimony of now unavailable W (testimony in earlier proceeding OK if other party had chance/motive to cross at the original proceeding - same issue, some identity of parties)
• statement against interest (against interest at time of statement) (NB: if exposes declarant to criminal charge (penal interest) while exculpating D, corroboration required)
• dying declaration (think dying, statement about circumstances of death, unavailable now, only in homicide/civil cases) (Mass: must die, only allowed into evidence in homicide cases, not civil)
• business records
  • made at or near time of event
  • by or from person w/personal knowledge
  • if record made in the regular course of business
  • and kept in the regular course of business (NB: allows the record to testify in replacement of employee
    
• Mass: doctor’s reports are also exceptions to hearsay, when stating an opinion based on facts that are customarily relied on by doctrs in the field
  
• spontaneous statements (unavailability not reqd)
  • existing state of mind when declarant’s state of mind at issue
  • intent to do X in near future to infer intended act was done
  • excited utterance
    • startling event
    • uttered under excitement of event (time lapse may be OK)
    • about the event itself
  • present sense impression (NOT IN MASSACHUSETTS)
  • describing/explaining event/condition while perceiving event/condition or immediately thereafter
  • declaration of present (at the time) physical condition
  • anyone who hears it may testify - specific kind of present sense impression
  • declaration of past physical condition
  • for purpose of getting diagnosis treatment (not expert testimony)
  
  
  

  Admission of a Party	Statement Against Interest
  nope	against interest at time statement made
  made by party	made by anyone
  nope	based on personal knowledge
  party is usually there	W must be unavailable

  
  
  THE 6TH AMENDMENT RIGHT OF CONFRONTATION
  
  6th Am right may block even a hearsay-exception-admissible statement, in the case of a
  
  • criminal case
  • unavailable declarant
  • “testimonial” statement (declarant makes statement that they anticipate will be used in the prosecution or investigation of the crime)
  • accused had no chance to cross when statement made
  • unless prosecution demonstrates D forfeited Conf. Cl. objection by wrongdoing that caused the declarant’s unavailability
  
  
  RECURRING TEST ISSUES
  
  • preliminary questions upon which admissibility depends do not fall under rules of evidence -- hearsay OK.
  • impeaching the hearsay declarant -- just as if they were in the courtroom, say, via prior inconsistent statement
  • mixing hearsay and writings (e.g., dictaphone recording present sense impression as V killed by D, officer wants to testify - hearsay exception OK - but bad under best evidence rule unless can account for why not enter the recording into evidence)
  • business records - germane to business and multiple hearsay Q’s (ask yourself whether employee could testify, rather than document)

Evidence II

Best Evidence Rule - if using writing to prove content of writing (rather than something else, like, that X was able to write on that day, or that contract existed at all) - General preference for original - either produce it, or account for its absence

1. Applies to legally operative documents (documents creating legal relationship in dispute) and when the witness’ sole knowledge comes from the document (so, witness doesn’t actually have personal knowledge).
2. Does not apply to facts independent of the writing (personal knowledge of W) and collateral documents (writings of minor importance, not involved in dispute)
3. Certified copies of public records, summaries of voluminous documents, duplicates that “accurately reproduce the original” (unless there’s a genuine Q raised about the original’s authenticity or it would be unfair to admit the duplicate in lieu of original), are all OK to admit.

Mass: Uniform Photographic Copies of Business and Public Records Act - primary evidence ok if the record made, kept, or recorded in the ordinary course of business.

Witnesses and Testimonial Evidence

A. Competency

1. Personal Knowledge and Oath
a. perception/observation of witness (saw event)
b. memory of witness (remember seeing it)
c. communication (can tell you)
d. sincerity (under oath)

2. Obsolete Forms of Witness Disqualifications
a. Lack of Religious Belief
b. Infancy
c. Mental Incompetency
d. Prior Conviction(s)
e. Interest in Outcome

3. Dead Man Acts - You’ll be told if there is one applicable
An interested survivor cannot testify for his interest against the decedent or decedent’s representatives about communications or txns w/the decedent in a civil case unless there is a waiver.

There is no Dead Man Statute in MA.

B. Form of Examination
1. Leading Q’s permitted when cross-examining, on direct for preliminary matters, or necessity otherwise requires it (difficulty eliciting testimony, adverse party or someone under their control, or genuinely hostile witness).
2. Witness use of writings in Aid of Testimony
a. refreshed recollection
W doesn’t remember, refreshes memory w/document (a writing, song, smell, etc.), resumes testimony. Must show refresher to opposing counsel, and they can use on cross, and put into evidence.
b. recorded recollection
W doesn’t remember, but used to know, wrote it tdown themselves, when fresh in their memory, and it was accurate then. The writing is read aloud into evidence.

C. Opinion Testimony

1. Lay
Rationally based on perception of witness
Helpful to the trier of fact
2. Expert
Subject matter appropriate for expert testimony, assists the trier of fact (reliable methodology, relevant)
Qualified (skilled, not necessarily ph.d)
Possess rsble certainty/probability regarding opinon (more than guessworkd)
Supported by proper factual basis
facts in personal knowledge of expert
facts supplied to expert in court (through a hypo)
facts of a type experts in that field rsbly rely on in the course of making professional decisions (doctors relying on technician’s reports)

Mass: as long as those facts are of a type experts in the field rsbly rely on AND those facts could be admissible if offered.

Learned Treatise - used to impeach other side’s expert, OFFERED FOR ITS TRUTH, under FRE may be used to support own expert’s opinion - is read into evidence
Establish by
* opposing expert used this src themselves
* eliciting admission from expert on cross that it is learned treatise
* call own expert to get them to admit it
* judicial notice (so well known in field ask judge to take notice it is authoritative and reliable)

D. Credibility and Impeachment

1. Cross-Examination
FRE: cross doesn’t exceed scope of direct
Mass: cross is wide open
Collateral Matters Doctrine - can’t bring extrinsic evidence to contract a witness on a collateral matter (b/c it’s a collateral matter, not material to the case)

2. Accrediting Your Own Witness
Wait until your witness is impeached
Prior Consistent Statement would be admissible if the statement was one of identification (hearsay exclusion). Anybody can testify to the i.d., doesn’t have to be person who made it. But, the person who made i.d. must be avail for cross.

3. Impeaching Your Own Witness

Mass: can only use prior inconsistent statement

4. Impeaching Your Adversary’s Witness

Things to ask yourself:
can I use extrinsic evidence?
If I can, what foundation do I need to lay?

a. prior inconsistent statement
generally admissible only to impeach W
but if given under oath in a prior proceeding, may be allowed in for its truth
extrinsic evidence admissible to prove prior inconsistency
W must have opportunity to deny/explain inconsistency
Prior Inconsistent Statement qualifies as an admission

Mass: prior inconsistent statement only to impeach, but grand jury testimony can come in for the truth of the matter if it was not coerced, if the statement was the W’s own (not responding to leading Q), and some reliability satisfied.

b. showing of bias/interest/motive

great way to sneak stuff in

c. prior conviction (character)

Only if the right sort of crime: involving dishonesty, or any felony (upon court’s discretion), but not too remote (not > 10 years)
Extrinsic Evidence OK

Mass: Any crime OK to impeach W, but court has discretion to exclude D’s convictions. Also, if > 10 yrs, too remote, unless W committed another crime w/in the past 10 yrs. For misdemeanors, it’s a 5-yr rule.

d. specific acts of deceit/lying (character)

NOT IN MASSACHUSETTS AT ALL

in discretion of court
must ask in good faith (can’t go fishing for acts you don’t know about)
acts inquired must involve deceit/lying
NO EXTRINSIC EVIDENCE; cross-exam only

e. bad rep or opinion (FRE) as to truthfulness/veracity (char.)

MASS: REPUTATION ONLY, NOT OPINION

5. Rehabilitating After Impeachment

Evidence I

I. Relevance

A. Logical Relevance - evidence that has any tendency to make a material fact more or less probable.

* similar occurrences (so, different time/event/person, which normally are not relevant) may be used to

• prove cause and effect
  (show prior accidents or claims) to show a common plan or scheme of fraud, or where the prior accident/claim is relevant on the issue of damage
  NB: accidents involving the same instrumentality and occurred under the same or similar circumstances are admissible to whos notice to or knowledge of a D, or that the instrumentality is dangerous
  
• show intent or state of mind in issue (e.g., discrim intent)
  
• to rebut a defense of impossibility
  
• to establish value of chattels or parcels of real property
  must be of same general description, sales about the same time period, and in about the same location
  
• to show habit (specific, detailed conduct, and recurring often enough to be automatic - always, automatically) (NOT IN MASS)
  
• to show business routine
  
• to show industrial or trade custom, but non-conclusive as to standard of care

B. Pragmatic/Policy/Discretionary Relevance - even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of:

1. unfair prejudice
2. confusion of the issues
3. misleading jury
4. undue delay
5. waste of time
6. cumulative evidence

NB: "unfair surprise" is not on this list.

* Liability Insurance - not to show negligence, wrongful act, or ability to pay
but, show ownership or control, or impeach witness by showing interest or bias/motive.
* Subsequent Remedial Measures - not to show negligence, culpability, defect in product, or need for warning

• but, show ownership or control, or to rebut/impeach statements re: feasibility of precautionary measures

(MASS: in products liability cases, subseq. rem. measures are on the table automatically, don't have to wait to rebut.)
* Settlements - not to prove fault, liability, or amount of damage

• Admissions of fact, liability, or damage made in the course of an offer are not admissible - not severable from offer itself. MASS DOES NOT FOLLOW THIS RULE. Unseverable only if you say "for settlement purposes only".
• There must be a claim, with dispute as to either liability or amount.
• A naked offer to pay medical expenses is not admissible, even though it's not a settlement offer. But a fact accompanying it is severable and may be admitted.

II. Character Evidence (as substantial evidence -- to show disposition or propensity to commit the act in question)

Always ask:
* purpose of offer of character evidence

• character is directly in issue in case (direct evidence)
• character is circumstantial (offered to prove conduct in conformity w/character)
• character used to impeach a witness (i.e., propensity for untruthfulness)

* method of proving character

• specific acts
• opinion (of witness)
• reputation (in community)

* type of case (civil v. criminal)
* what trait of character is involved (peacefulness/violence for assault, truthfulness for perjury)


A. Civil Cases (basically, not going to happen)

1. Not admissible as circumstantial evidence
2. Admissible as direct evidence when character in issue (rare)

• defamation action where truth is defense
• negligent entrustment case
• wrongful death action (what kind of spouse was the deceased?)

3. when admissible, use opinion, reputation, specific acts - any of the three methods.

B. Criminal Cases (MASS - reputation only) - Character in criminal cases is not on the table until D puts it there

1. Bad character is not admissible by P if to show action in conformity w/that bad character, unless the D opens the door by offering evidence of good character for the pertinent trait.
P may then cross a W giving that good char evidence, by asking if they've heard of acts that D has committed that would tarnish reputation (or opinion, under FRE). Naturally, W can still be impeached as any W can be impeached. P may also call prosecution Ws to testify to bad opinion/reputation, now that "door is open".

2. Victim's character, by D, in cases of self-defense argument. P can then cross, impeach, call other Ws to testify to good opinion/rep. And, may now attack D's character on the same trait. MASS: specific acts of V OK, but not reputation for violence.

3. Victim's character in sex cases
Specific acts only, to prove some 3d party source of semen/injury/physical evidence, or to show prior consensual intercourse b/w V and D.

MASS: reputation of V for violence may not be admitted (state of mind of D upon hearing rep still OK)
specific acts of V's violence may be admitted to infer that V was first aggressor in a self-defense case.

4. Specific Acts of prior misconduct may not be offered during P's case in chief to show criminal disposition, but may to show some other material fact, i.e., motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

• Motive
• Intent
• Mistake, absence of
• Identity (including by m.o.)
• Common Plan or Scheme

NB: still could be outweighed by prejudicial nature, etc., of evidence, and excluded.

NB: Prior Similar Acts Allowed to Show Propensity in Sexual Assault and Child Molestation Cases.

III. Writings - authentication


A. Writing must be authenticated to admit as evidence. Must lay foundation that writing is what it purports to be.

1. Methods to Authenticate

Admission
Eyewitness Testimony
Handwriting Proof

• lay witness (recognize signature from pre-existing familiarity - not familiarity acquired just for litigation)
• expert witness (compare disputed signature with known genuine one)
• jury comparison (ditto)

Ancient Document rule (if it's 20 yrs (MASS: 30), regular on its face, and found in place of natural custody)
Solicited Reply Doctrine: disputed document came in reply to some prior communication.

2. How much authentication? Sufficient evidence to justify a jury finding of genuineness. Rsble jury could find genuine.

3. Self-Authenticating documents

• certified copies of public or business records
• official publications
• newspapers/periodicals
• trade inscriptions or labels (to indicate ownershop or control)
• acknowledged documents (certificate of acknowledge attached to a contract)
• signatures on certain commercial paper under UCC

4. Authenticating Photographs
Witness testimony that photo is a "fair and accurate representation" of the thing/place in the photo.

Store surveillance camera - photo speaks for itself.

• Need proof operating properly
• Need proof of time it was functioning
• Need proof how film was handled up until time of trial

Agency and Partnership

Agency and Partnership

Agency

1. Principal's Liability for Agent's Torts
a. assent, benefit, control, plus scope of agency
b. no vicarious liability for independent contractor's torts unless ultra-hazardous activity or estopped from denying liability
c. intentional torts generally outside scope of agency (but not for bouncers)

2. Principal's Liability for Agent's Contracts
a. actual express authority - oral, except land, revocable unless durable (explicit survival language).
b. implied authority - necessity, custom, or prior dealings.
c. apparent authority - P cloaks A, plus 3rd party relies.
d. ratification - P has knowledge of A's dealing, and accepts benefits.
e. authorized agents are not liable unless there is an undisclosed principal.

3. Duties Agent owes Principal
a. reasonable care
b. reasonable obedience
c. loyalty

Partnership

1. Formation
a. no formalities for general pship
b. association of 2 or more people, to carry on as co-owners of a business for profit.

2. Liabilities to 3rd Parties
a. general partners liable personally for pship obligations/debts.
b. estoppel - if you represent as partners, liable as if general partners
c. limited partners plus registered limited liability partners have limited liability.

3. Relationships Between Partners
a. Fiduciaries - file an action for accounting
b. Only a share of the profits (not control or pship assets) is liquid personal property of the partner
c. Absent an agreement, partners share equal control, receive no salary, receive equal profits, and share losses in the same way they share profits.

4. Dissolution
a. Dissolution: absent an agreement, the death or express will of a partner dissolves a pship
b. Priorities in payment:
Outside and inside creditors (must pay, even require partners to pay money into pship)
Capital contributions (must pay, even require partners to pay money into pship)
Profits (shared equally absent an agreement)
c. Distribution rule: Each partner must be repaid their loans and capital contributions, plus their share of the profits, but also minus their share of the losses.