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134 Cards in this Set
- Front
- Back
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Judicial notice
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Appropriate when the fact is indisputable or when it can be verified by scientific principles; criminal: satisfies prosecutors burden of producing evidence (not persuasion; Jury MAY accept fact as conclusively proven); civil; conclusively establishes
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Expert qualification
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Judge decides whether expert is expert
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Refreshing recollection
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Anything can be used to refresh; if you use a document, you must make it available to opponent who can introduce it if he wants;
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Criminal character evidence rules
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Prosecutor cannot introduce any evidence of the D's bad character to show D probably acted in conformity therewith (propensity); D can show evidence of relevant character traits to show he acted in conformity with his good character and did not commit the crime (rep or opinion; not specific acts); if D presents good character evidence, prosecutor can then present bad character evidence (reputation, opinion and specific acts - just if they have heard not independent evidence); specific acts are admissible for MIMIC
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MIMIC
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When specific acts are allowed in criminal cases: Motive, Identity, Mistake (absence of), Intent, Common scheme
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Offers to pay medical expenses
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Inadmissible; but SEVERABLE from statements made in connection with the offers
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Settlement offers / Offers to compromise
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Completely inadmissible; Statements made in connection are ALSO inadmissible
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When lay opinions are permissible
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When they are rationally based on the perception of the witness, helpful to a clear understanding of the witness' testimony on the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge
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TN - Where do Tenn Rules apply
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In all state courts, including general sessions and juvenile
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Difference between TN and FRE on other crimes evidence
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TN rule requires clear and convincing proof that the other crime was committed. Federal rule does not.
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Difference between TN and FRE: Letting in other child-sex crimes evidence in pending child-sex trial
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TN - It can come in to show character and conformity therewith if past and present crime involve child under 12. In Federal Court - age of child is 14
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TN - benevolent gestures
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Inadmissible! (after a wreck you say, I'm sorry). BUT, this does not exclude statements of fault (I'm sorry, I was speeding - the speeding part comes in)
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Difference between TN and FRE on prior sex conduct of victim
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In TN, it is only excluded in criminal trials, not civil. Under FRE, it is excluded in both
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TN - What privilege applies to situations involving known or suspected child sex abuse?
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NONE, except atty-client. No privilege applies in situations involving known or suspected child sexual abuse, except attorney-client.
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TN - General doctor-patient privilege
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There is NONE!
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TN - Psychotherapist-patient privilege
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There is a shrink-patient privilege
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TN - Confidential communications (spouses) privilege in civil cases
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TN has one!
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TN - Confidential communications (spouses) privilege in criminal cases
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Must satisfy statutory criteria: 1) communications originated in a confidence that they will not be disclosed; 2) element of confidentiality is essential to the full and satisfactory maintenance of the relation between the parties; 3) relation must be one which, in the opinion of the community, ought to be sedulously fostered; and 4) the injury to the relation by disclosure of the communications outweighs the benefit gained for the correct disposal of litigation. NB: If relationship has deteriorated significantly, the privilege does not apply; Whether privilege applies in criminal cases, depends on status of marriage at the time of trial. It does not depend at the status at the time of communication.
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TN - Does privilege apply to atty statements to client
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Yes. An attorney's communication to the client is privileged IF it would reveal the nature of the client's communication
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TN's Dead Man Statute
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Only covers named parties (not interested persons generally); One party must be the estate; A party is incompetent to testify to 1) statement by the deceased, 2) transaction with the deceased; NB: If party's testimony affects only DISTRIBUTION of the estate, not value, there is no problem (statute does not apply); NB: Statute also does NOT apply to a will contest.
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TN - Requirements before impeaching w/ a prior inconsistent statement
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1) Pre-trial written notice, 2) Ruling before testimony (judge must decide whether it comes in before D decides whether to take stand), 3) Balancing test - probative value with unfair prejudice, 4) If accused does not testify, there is no appellate waiver
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TN - Do drug sales convictions involve dishonesty?
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No. Drug sales convictions do not involve dishonesty. You cannot impeach a D with a drug sale conviction in a drug sale trial.
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FRE - Other crimes to impeach non-party witnesses in criminal cases
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Just for impeachment! Any crime punishable by death or imprisonment in excess of one year (felonies)(if probative value outweighs prejudicial effect to D); Any crime involving dishonesty; Subject to ten year rule (may go beyond if more probative than prejudicial AND if advance notice is given to D)
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FRE - Other crimes to impeach D in criminal cases
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Just for impeachment! Any crime involving dishonesty. Subject to ten year rule. (may go beyond if more probative than prejudicial AND if advance notice is given to D)
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Scope of Cross - TN v. Fed
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TN - Wide open rule - as long as material to case; FRE - Scope of Direct
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TN v. FRE on general spousal privilege
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FRE: Spouse cannot be compelled to testify about anything against the D spouse! (privilege belongs to witness) TN: No such rule!
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Impeachment by inconsistent statement - Confrontation TN v. FRE
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TN - Retains rule in Queen Caroline's case: Must first ask witness about inconsistency and give witness a chance to explain or deny BEFORE offering extrinsic evidence. FRE - Not required to immediately confront witness. But after proof by extrinsic evidence, Witness must be given an opportunity AT SOME POINT to return to stand to explain or deny the prior inconsistent statement
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Learned treatises
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FRE: Hearsay exception; TN: Only admissible to impeach
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TN v. FRE on Experts
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In TN, they must "substantially" assist the jury
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Expert opinions TN v. FRE
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TN - McDaniel factors: 1) Peer review and publication; 2) has theory been tested; 3) If so, what is the error rate?; 4) Is the theory generally accepted; 5) Was research conducted indpendent of litigation (this last one distinguishes it from Daubert)
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Prior Inconsistent Statements in TN - When allowed for substantive purposes
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Must be one of three: 1) oral under oath; 2) written and signed by the witness; 3) recorded by audio or video
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TN's present sense impression exception
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There isn't one!! We don't have one!
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TN Admissions of Agents
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Agent statements are the principal's admissions and are admissible only where the agent is speaking against the agent's OWN interests
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TN Statements involving physical condition
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TN - MUST be made for the purpose of medical treatment; If made solely for diagnosis, it CAN come in to federal court, but not in TN state court. Must be made at least, in part, for medical treatment
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TN - Public records
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Law enforcement reports are inadmissible in civil trials as well as criminal trials. Reports of official investigation findings are inadmissible in TN
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TN - Children's statements
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When made out of court, are generally inadmissible. They CAN come in for truth in these types of cases: Civil issues of dependency and neglect; Issues of severe child abuse; Issues of termination of parental rights; Issues of custody or visitation
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TN - When can videotaped interview of a child come in
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Videotaped interview of a child, 12 or younger, who is an alleged sex-crime victim, where the interview is conducted by a forensic interviewer, is admissible hearsay IF the child testifies at trial and vouches for the recording
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TN - confrontation - dealing w/ blood alcohol test
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Prosecution must call as a witness a lab analyst who either performed or observed the test
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Evidence is relevant if...
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It has ANY TENDENCY to make a material fact more probable or less probable than would be the case without the evidence
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All relevant evidence is admissible unless...
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Some exclusionary rule is applicable OR Court determines more prejudicial than probative: Danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, waste of time, unduly cumulative
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Habit
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Admissible as CIRCUMSTANTIAL EVIDENCE of how the person acted on the occasion at issue in the litigation. It is a repetitive response to a particular set of circumstances. Think: FREQUENCY of the conduct & PARTICULARITY of the conduct
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Liability Insurance
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Inadmissible for purpose of proving fault or absence of fault. ADMISSIBLE for some other relevant purpose: Proof of ownership, control of instrumentality or location, if that issue is contraverted by the Defendant OR for the purpose of impeachment of a witness
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Subsequent remedial measures
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Inadmissible to prove negligence, culpable conduct, product defect, or need for warning (policy: to encourage repairs). Admissible: Proof of ownership/control, feasibility of safer condition IF either is contraverted by the D
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Settlement offers, offers to settle, statements of fact made during settlement discussion
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All INADMISSIBLE for the purpose of SHOWING LIABILITY when there is a DISPUTED CLAIM (in TN, add "or is reasonably expected to be disputed.") CAREFUL: This stuff CAN come in for the purpose of IMPEACHMENT ON THE GROUND OF BIAS
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Statements of fact made during settlement discussion in civil litigation with a government regulatory agency
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ADMISSIBLE in a later criminal case (think corporate fraud case in which corporate officers make admissions of fact during civil settlement talks with SEC and are later prosecuted for crimes based on the same facts)
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Offers to plead guilty, withdrawn guilty pleas, nolo contendere
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All inadmissible against D in pending criminal case or in subsequent civil litigation based on same facts... Includes statements of fact made during any of these plea discussions
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A plea of guilty
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Admissible in subsequent litigation based on the same facts under the rule of party admissions
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Offer to pay hospital or medical expenses
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Inadmissible to prove liability. BUT BUT BUT we can sever statements of fact made in connection and admit those!
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Criminal case - Evidence of D's character
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Cannot come in to show conforming conduct (propensity) during PROSECUTION'S CASE-IN-CHIEF. But, note that D, during the defense, may introduce EVIDENCE OF A *RELEVANT* CHARACTER TRAIT (by rep or opinion testimony of character witness) to prove conduct - THIS IS DOOR OPENING
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When character evidence is admissible through a character witness to prove conduct in conformity, what is the form?
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Reputation or opinion
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How can prosecution rebut character witness when D has opened the door?
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Cross-examination with questions like "do you know" or "have you heard" about SPECIFIC ACTS with a limited purpose of trying to impeach AND/OR call its own rep or opinion witnesses to contradict D's witnesses
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Victim's character - self-defense case
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Criminal D may introduce evidence of VICTIM'S *VIOLENT* CHARACTER to prove victim's conduct in conformity, i.e. as circumstantial evidence that the victim was the first aggressor; How? character wit may testify to victim's REPUTATION for violence and may give opinion. Prosecutor can then rebut with evidence of victim's good character for peacefulness AND *** D's character for violence
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Victim's character - Sexual misconduct case
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In both criminal and civil (federal), normally opinion or reputation evidence about the victim's sexual propensity OR evidence of specific sexual behavior of the victim is inadmissible. EXCEPTION: specific behavior to prove that someone other than D was source of semen, victim's sexual activity w/ D if consent is asserted, OR where exclusion would violate D's right of due process (love triangle defense)
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Character evidence in civil cases
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Generally inadmissible to show character in conformity
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When character evidence CAN come in in civil cases
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When a person's character is an ESSENTIAL ELEMENT OF A CLAIM OR DEFENSE (provable by reputation, opinion and specific acts) - examples - tort alleging negligent hiring or entrustment (that D had prior knowledge), Defamation (slander - oral / libel - writing), Child custody dispute
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D's other crimes
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Cannot come in during prosecution's case-in-chief if ONLY PURPOSE is to suggest that because of D's bad character he is more likely to have committed the current crime
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Non-character purposes for character evidence
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MIMIC - Motive, Intent, Absence of Mistake, Identity, Common Scheme or Plan -- upon request, prosecution must give D notice of intent to use MIMIC evidence - Court must balance probative-prejudicial
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Prior specific sexual misconduct of D
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Admissible as part of Prosecution's case in chief to show propensity for sex crimes in current sex crimes trial
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Other than relevance, three issues to watch for with writings
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Authentication, BER and Hearsay
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Authentication
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If the relevance of a writing depends upon its source or authorship, a showing must be made that the writing is authentic - Foundation required
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Methods of authentication
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Witness' personal knowledge, proof of handwriting, Ancient Document rule (at least 20 yrs old, facially free of suspicion, found in a place of natural custody), Solicited Reply Doctrine (Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author)
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Handwriting authentication
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Lay person opinion based on familiarity from normal course of affairs, Expert comparison opinion, Jury comparison (w/ exemplar)
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Conditional Relevancy standard
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Document is admissible if court determines there is sufficient evidence from which a reasonable juror could conclude document is genuine
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Self-authenticating documents
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Official publications, certified copies of public or private records on file in public office, newspapers or periodicals, trade inscriptions and labels, acknowledged document, commercial paper
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Authentication of Photographs
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Witness may testify on the basis of personal knowledge that a photo is a "fair and accurate representation" of the people or objects portrayed
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Best Evidence Rule
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A party who seeks to prove the contents of a writing must either produce the original writing or provide an acceptable excuse for its absence. If court finds excuse acceptable, party may then use secondary evidence (oral testimony or a copy)
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Writing
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Sound recordings, x-rays and films
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Original writing
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Whatever the parties intended as the original; any counterpart intended to have the same effect, any negative of film or print from the negative; computer print out
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Duplicate
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any counterpart produced by any mechanical means that accurately reproduced the original (photocopy, carbon copy) Rule: duplicate is admissible to same extent as original UNLESS it would be unfair (photocopy of fuzzy fax) or genuine question is raised as to authenticity of original
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Handwritten copy
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Neither an original nor a duplicate
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Excuses for non-production of original
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Lost or cannot be found with due diligence, destroyed without bad faith, cannot be obtained with legal process; must persuade court by PREPONDERANCE - then secondary evidence is admissible (testimony based on memory, handwritten copy)
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Voluminous records
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can be presented through a summary or chart, provided the original records would be admissible and are available for inspection
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Competency of witness
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Personal knowledge and Oath or Affirmation (solemn promise to tell the truth)
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Dead Man's statute, generally (non-TN)
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In a civil action, an *interested* witness is incompetent to testify in support of her own interest against the estate of a decedent concerning communications or transactions between the interested witness and the decedent (NB: In TN, it is *named parties*). CAREFUL: Absent a dead man's statute, a witness is NOT incompetent just because she has a stake in the outcome
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Leading questions
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Now allowed on direct, unless: Preliminary introductory matters, youthful or forgetful witness, hostile witness, adverse party or someone under control of hostile party; YOU CAN ON CROSS.
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Refreshing recollection
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Witness may not read from prepared memorandum; must testify on basis of current recollection; But if witness' memory fails, he may be shown a memo (or any other tangible item) to jog his memory. Adversary may: inspect the memory-refresher, use it on cross, introduce it into evidence
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Past Recollection Recorded (Hearsay Exception)
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Foundation required: Showing writing to witness fails to jog memory, witness had PERSONAL KNOWLEDGE AT FORMER TIME, writing was either made by witness or adopted by witness, making or adoption occurred while event was still fresh in the witness' memory, witness can vouch for accuracy when made or adopted. Can be read to jury, but offering attorney cannot introduce it as evidence; NB: Opponent can!
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When lay witness opinion admissible
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When rationally based on the witness' perception AND helpful to the jury in deciding a fact
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Expert witness
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Qualifications - education and/or experience; Subject matter: Scientific, technical or other specialized knowledge that will be helpful (substantially assist in TN) to jury in deciding a fact
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Basis of Expert Opinion
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Personal knowledge, other evidence admitted at trial (testimony, exhibits, made known by hypothetical questions), facts outside the record (hearsay) if it is of a type reasonably relied upon by experts in their particular field in forming opinions
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Court - as gatekeeper - Daubert factors (TRAP)
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Court serves as gatekeeper and will use four principal factors to determine reliability used by experts to reach opinion: Testing of principals or methodology, Rate of error, Acceptance by other experts in the same discipline, Peer review and publication. NB: TN adds a 5th factor: Whether research was conducted independent of litigation
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Learned treatises in aid of experts (hearsay exception)
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On Direct of party's own expert, relevant portions of treatise, periodical or pamphlet can come in as SUBSTANTIVE EVIDENCE!! if established as reliable authority. Must use it in conjunction w/ expert's testimony. On Cross, may be read into evidence to impeach and as substantive evidence. BUT IT MAY NOT BE INTRODUCED AS AN EXHIBIT - MAY ONLY BE READ TO THE JURY
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Ultimate issues
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Opinion (lay or expert) testimony is permissible on ultimate issues. BUT, other requirements must be satisfied, including that it be helpful
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Ultimate issue exception
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Cannot testify directly as to whether or not D had the relevant mental state.
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Bolstering
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Not allowed for own witness until after he has been attacked
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Witness' prior ID (Nonhearsay)
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Comes in as SUBSTANTIVE evidence. Witness who made prior ID must testify at trial
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Impeachment of own witness
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Permitted without limitation
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Seven methods of impeachment
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Prior inconsistent Statements, Bias-interest-motive-to-represent, Sensory deficiencies, Bad reputation or opinion about witness' character for truthfulness, Criminal convictions, Bad acts (w/out conviction) reflecting adversely on witness' character for truthfulness, Contradiction. ALL EXCEPT BAD ACTS AND CONTRADICTION (on collateral facts) MAY BE PROVED WITH EXTRINSIC EVIDENCE
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For impeaching with extrinsic evidence, do you need to ask witness about the impeaching fact before introducing the extrinsic evidence?
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No - except as to bias
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Prior Inconsistent Statements
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Prior material statement made orally or in writing that is inconsistent with trial testimony. CAN ONLY COME IN TO IMPEACH. Exception: Can come in for impeachment AND substantive IF made orally under oath AND as part of a formal, hearing, trial or deposition (hearsay exclusion)
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Bias, interest or motive to misrepresent
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Method of impeachment; Must confront witness with alleged bias while on the stand, then may prove by extrinsic evidence
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Sensory deficiencies
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Method of impeachment; No confrontation required. Extrinsic evidence allowed
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Bad reputation or opinion about witness' character for truthfulness
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Method of impeachment; No confrontation required. Extrinsic evidence allowed.
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Criminal Convictions
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Method of impeachment. No confrontation required. To suggest testimony is false; Person who has been convicted of a crime is more likely to lie under oath than is a person with an unblemished record. Permissible: any crime involving false statement or dishonesty (automatically admissible - court has no discretion), any felony (court may exclude if prejudicial); Time limitation - 10 years since later of conviction or release, unless court decides probative
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Bad acts (without conviction) for impact on character for truthfulness
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Method of impeachment. Confrontation required. No extrinsic evidence. If Witness denies, cannot proceed. NB: Proof with extrinsic evidence may still be allowed if the bad act is relevant for some purpose other than bad character for truthfulness.
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Prior arrests
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You cannot ask a witness about these. An arrest or indictment is nothing more than an accusation. You can ask the witness about the underlying act
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Contradiction
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Method of impeachment. On Cross, ask witness - through confrontation - about statements made on Direct. If witness admits mistake or lie, then he is impeached. If not, you're stuck. Extrinsic evidence CANNOT come in to prove the contradictory fact IF COLLATERAL... so the issue will become whether collateral.
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Rehabilitation
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Showing witness' good character for truthfulness. Only when wit is impeached. Character witness may testify that impeached witness has good character for truthfulness (rep or opinion testimony).
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Prior Consistent Statement
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To rebut a charge of recent fabrication, or as a product of improper influence. Prior statement must have been made BEFORE THE MOTIVE TO FABRICATE AROSE. (NON HEARSAY) Comes in for impeachment and as substantive evidence
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TN Privileges
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Clergy-Penitent, Accountant-Client, Journalist-source
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What "privilege law" will federal court apply sitting in diversity
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Privilege law of the state whose substantive law is applicable. NB: Courts will also apply state law on competency, burdens of proof and presumptions
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Atty-client privilege
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Fed privilege: Privilege applies to confidential communications between attorney and client or a representative of either made during professional legal consultation, unless privilege is waived by the client or if an exception is applicable. Two or more clients - communications are privileged as to third parties, but not between each other. Also, privilege does not extend to underlying info, pre-existing docs, or physical evidence
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Waiving atty-client privilege
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Only client can waive; Voluntary waiver of the privilege as to some communications will also waive privilege as to other communications if: the partial disclosure is INTENTIONAL, the disclosed and undisclosed communications concern the SAME SUBJECT MATTER and FAIRNESS requires that the disclosed and undisclosed communications be considered together
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Inadvertent waiver of atty-client privilege
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An inadvertent disclosure of a privileged communication will not waive privilege so long as the privilege-holder: took REASONABLE STEPS TO PREVENT the disclosure and TAKES REASONABLE STEPS TO CORRECT the error
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Exceptions to atty-client privilege
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Future crime or fraud, if client puts legal advice in issue, atty-client dispute
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Physician-Patient privilege
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None in TN, None in Fed Courts; Usually created by state statute; Privilege applies to confidential communications acquired by physician from patient FOR PURPOSE OF DIAGNOSIS OR TREATMENT of medical condition; waived when D puts his physical condition in issue
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Psychotherapist-Patient privilege
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Applies in TN and in Fed Courts
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Hearsay
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Out of court statement made by a person (oral or written) offered to prove the truth of the matter asserted in the statement; Hearsay is inadmissible unless an exception or exclusion applies
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Non Hearsay
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Verbal Act (Legally operative words), To show effect on person who heard or read the statement, Circumstantial evidence of speaker's state of mind, Prior statements of trial witness (Prior statement of identification, Prior inconsistent statement (if oral, made under oath), Witness' prior consistent statement if being used to rebut charge of recent fabrication or improper motive or influence), Party Admissions
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Examples of Nonhearsay in FRE treated as hearsay exclusion under TN rules
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Prior inconsistent statement, party admissions
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Hearsay exceptions - availability of declarant immaterial
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Present sense impression, excited utterance, then existing mental, emotional or physical condition, statements for purposes of medical diagnosis or treatment, recorded recollection, records of regularly conducted activity, absence of entry in records kept, public records and reports, records of vital stats, absence of public record or entry, records of religious organizations, marriage, baptismal, and similar certificates, family records, records affecting an interest in property, statements in docs affecting an interest in property, statements in ancient documents, market reports, commercial publications, learned treatises, reputation concerning personal or family history, reputation concerning boundaries or general history, reputation as to character, judgment of previous conviction, judgment as to personal, family or general history
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FIVE hearsay exceptions where the declarant must be unavailable
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Former testimony, Statement under belief of impending death, Statement against interest, Statement of personal or family history, Forfeiture by wrongdoing
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Present sense impression
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Does not exist in TN; Description of an event made while the event is occurring or immediately thereafter
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Forfeiture by wrongdoing
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Declarant unavilable due to D's wrongdoing. Hearsay admissible against a D if the court finds: by a PREPONDERANCE OF THE EVIDENCE that the D's conduct WAS DESIGNED TO PREVENT THE WITNESS FROM TESTIFYING
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Former testimony
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Declarant unavailable. Former testimony from proceeding/deposition admissible against a party WHO on the prior occasion had an OPPORTUNITY AND MOTIVE to cross-examine or develop the testimony of the witness. Issues in both proceedings must be essentially the same
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Grounds of Unavailability PAILS
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Privilege, Absence from jurisdiction, Illneses or death, Lack of memory, Stubborn refusal to testify
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Statement against interest
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An unavailable declarant's statement against his or her pecuniary, proprietary or penal interest
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How "statement against interest" differs from party admission
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A statement against interest: Must be against interest when made, any person (not merely party) can make statement against interest, personal knowledge is required, declarant must be unavailable
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Dying declarations (statement made under a belief of impending death)
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Declarant unavailable; statement concerns the cause or surrounding circumstances of the declarant's death (must be more than MERE SUSPICION, must be ACTUAL KNOWLEDGE); theory: expectation of imminent death is a solemn occasion; Criminal cases - ONLY ALLOWED IN HOMICIDE; Civil cases - allowed in any type
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Excited utterance
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Availability immaterial; spontaneous statements; statement concerning a STARTLING EVENT and made while declarant IS STILL UNDER THE STRESS OF EXCITEMENT CAUSED BY THE EVENT
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Present state of mind
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Contemporaneous statement concerning declarant's present state of mind, feelings, emotions; availability immaterial
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Declaration of intent
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Availability immaterial; statement of declarant's intent to do something in the future, including the intent to engage in conduct with another person
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Present physical condition
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Availability immaterial; statement made to ANYONE about declarant's current physical condition
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Statement made for the purpose of obtaining medical treatment or diagnosis [FOR TRIAL]
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Availability immaterial; statement made to ANYONE about declarant's PRESENT SYMPTOMS, PAST SYMPTOMS, GENERAL CAUSE OF DECLARANT'S CONDITION (but NOT including statements about fault or ID of the tortfeasor); NB: This does NOT include oral statements BY doctor or nurse TO patient (unless in writing, then business record)
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Business Records
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Records of a business of any type, made in the regular course of business, the business regularly keeps such records, made contemporaneously, contents consist of information observed by Ees of business OR a statement that falls within an independent hearsay exception; NB: Witness need not be author of the report, can be records custodian or any other kNOWLEDGEABLE PERSON w/in the business OR a written certification under oath attesting to elements of the exception
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Public records
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Records of a public office or agency setting forth: activities of the agency, matters observed pursuant to a DUTY IMPOSED BY LAW, findings of fact or opinion resulting from an investigation authorized by law -- NOT POLICE REPORTS PREPARED FOR PROSECUTORIAL PURPOSES IN CRIMINAL CASES
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Evidence of misdemeanor convictions
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INADMISSIBLE. A misdemeanor conviction is hearsay not admissible under ANY exception (remember, felony convictions CAN come in under a hearsay exception)
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Burden of persuasion
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The burden of persuasion is the BURDEN OF A PARTY TO PERSUADE THE JURY TO DECIDE AN ISSUE IN ITS FAVOR. If, after all the proof is in, the issue is equally balanced in the mind of the jury, then the party with the burden of persuasion must lose. It does NOT shift between parties during the course of a trial.
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Burden of going forward with the evidence
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This is the burden of producing sufficient evidence to create a fact question of the issue involved. If a plaintiff makes out a prima facie case, he has met his burden of going forward with the evidence and the burden shifts to the defendant.
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Using interpreter/translator
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An interpreter must meet the qualifications of an expert witness and must take an oath or affirmation that she will make a true translation
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Dying declarations
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Only come in during prosecution of homicide OR civil case; under belief of impending death --> Also, must concern the CAUSE OR CIRCUMSTANCES OF DEATH
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When does the confidential marital communications privilege NOT apply
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to actions BETWEEN SPOUSES
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Party opponent admissions (IMPORTANT)
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Under FRE, NON HEARSAY
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Can you introduce evidence of a prior ADVERSE civil judgment against a D in a criminal prosecution
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No, under FRE. There are different standards of proof.
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