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184 Cards in this Set
- Front
- Back
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What are the justicability issues?
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Standing,
Ripeness, Mootness, Political Question |
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Requirements for Standing
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Proper plaintiff requires:
i. injury (or imminent injury), ii. causation & redressability, iii. no third party standing, no generalized grievances |
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Best standing
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personal injury such as economic loss
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Injury required for Standing
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personal injury;
injunctive or declaratory relief must show a likelihood of future harm |
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Exceptions to prohibition against third party standing
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i. close relationship (e.g. doctor/patient);
ii. Injured party unlikely to be able to assert his own rights; iii. Organizations may sue for members |
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Requirements for Organizations to Sue on Behalf of Members
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i. members would have standing;
ii. interests are germane to organization's purpose; iii. neither claim nor relief requires participation of individual members |
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General grievances
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Plaintiff must not be suing solely as citizen or taxpayer
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Exceptions to prohibition general grievances
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Taxpayers may challenge govt. expenditures pursuant to federal statutes as violating the establishment clause (but not for equipment)
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Ripeness
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Federal court may grant pre-enforcement review of statute only if:
i. Hardship will be suffered without review; ii. The issue and record are fit for review |
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Mootness
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If events after filing of a lawsuit end plaintiff’s injury, the case must be dismissed as moot
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Exceptions to Mootness
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i. wrong capable of repetition but evading review (e.g. abortion)
ii. voluntary cessation (where activity could resume at any time) iii. class action suits (so long as one member of class is still injured) |
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Political Questions which federal courts will not adjudicate
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1. the republican form of govt. clause
2. Challenges to President’s conduct of foreign policy 3. Challenges to the impeachment/removal process 4. Challenges to partisan gerrymandering |
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Methods of Supreme Court review
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1. Writ of certiorari (final judgment by highest state court or US Court of Appeals)
2. Appeals for decisions of three-judge federal district courts 3. Original jurisdiction for suits between states |
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When Supreme Court will not hear a state case
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i. If there is an adequate state law ground of the decision.
ii. If a state court decision rests on two grounds, one on federal law and one on state law, and the SC’s reversal of the federal law ground will not change the result. |
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Sovereign Immunity
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Federal courts, state courts, and federal agencies may not hear suits against state governments (11th Amendment)
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Exceptions to Sovereign Immunity
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i. Waiver (or consent)
ii. States may be sued pursuant to federal laws if adopted under the 14th Amendment iii. Federal govt. may sue state governments iv. Bankruptcy proceedings |
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Suits against state officers
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Allowed for:
i. injunctive relief ii. money damages to be paid out of their own pockets iii. may not be sued if state treasury would be paying retroactive damages. |
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Abstention
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Federal courts may not enjoin pending state court proceedings
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Express or implied source of Congressional Power
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1. Necessary and proper clause
2. Taxing/Spending power 3. Commerce power 4. Only M.I.L.D. police power (Military bases, Indian reservations, federal Land or territory, D.C.) |
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Necessary and proper clause
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Congress may use any needs reasonably designed to carry out its policy
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Taxing & Spending power
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Congress may enact any taxing and spending for the general welfare
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Commerce Power
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i. Congress may regulate the channels of interstate commerce
ii. Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce iii. Congress may regulate economic activities that have a substantial effect on interstate commerce (but non-economic activity cannot be aggregated) |
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Tenth Amendment effect on Congressional power
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All powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people
Congress cannot compel state regulatory or legislative action (but can incentivize it) Congress may prohibit harmful commercial activity by state govts. |
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Congress’s power under section 5 of the 14th Amendment
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Congress may not create new rights or expand the scope of rights.
Congress may act only to prevent or remedy violations of rights recognized by the courts; such laws must be proportionate and congruent to remedying constitutional violations. |
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Congress’s ability to delegate power
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No practical limitation exists
May not delegate executive power to itself or its officers |
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Legislative vetos and line item vetos
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Legislative vetos and line item vetos are unconstitutional.
All Congressional action requires bicameralism and presentment to the President. |
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Treaties
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Agreements negotiated by the President, ratified by the Senate
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Conflict with Treaties
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a. Treaties prevail over conflicting state law
b. If treaty conflicts with federal statute, the one adopted last in time controls c. If treaty conflicts with US Constitution, treaty is invalid |
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Executive agreements
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Agreements between US and foreign country effective when signed by President and the head of a foreign nation
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Conflict with Executive agreements
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a. Executive agreements prevail over conflicting state laws
b. Executive agreements never prevail over conflicting federal laws or the US Constitution |
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President’s power as Commander in Chief
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This is a non-justicable political question.
President’s military actions have never been declared unconstitutional. |
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President’s appointment power
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i. President appoints ambassadors, federal judges, and officers of the U.S.
ii. Congress may vest appointment of inferior officers in President, the heads of departments, or lower federal courts iii. Congress may not give itself the appointment power. |
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President’s removal power
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President may fire any executive branch office unless limited by statute.
Congress can only limit removal to where there is a) good cause, and b) independence is desirable. |
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Reasons for Impeachment
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President, VP, and federal judges and officers can be impeached and removed for:
i. treason ii. bribery ii. high crimes and misdemeanors |
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Procedure of impeachment
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i. Majority vote of House of Representatives
ii. conviction in Senate by 2/3 vote |
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Presidential immunity
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President has immunity for civil suits for money damages for actions while in office (not prior to taking office.
Executive privilege for presidential papers (but privilege must yield to other important govt. interests President can pardon those accused or convicted of federal crimes. |
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Preemption
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Supremacy Clause of Article VI provides that federal law outranks state law
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Forms of preemption
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1. Express preemption
2. Implied preemption |
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Forms of implied preemption
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a. if federal and state laws are mutually exclusive, federal law preempts
b. if state law impedes the achievement of a federal objective c. if Congress evidences a clear intent to preempt state law (i.e. federal law occupies the whole field) |
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Dormant Commerce Clause
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State/local law is unconstitutional if it places an undue burden on interstate commerce.
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Privileges and Immunities Clause of Article IV
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A state can’t deny citizens of other states the same privileges and immunities that it provides its own citizens.
Includes civil liberties and economic activities. Doesn’t apply to corporations or aliens |
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Privileges and Immunities Clause of Fourteenth Amendment
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Provides the right to travel.
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If state law does not discriminate against out-of-staters…
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a. Privileges and Immunities Clause of Article IV doesn’t apply.
b. If law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed benefits |
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If state law does discriminate against out-of-staters…
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a. it violates the dormant commerce clause unless necessary to achieve and important govt. purpose
b. if it discriminates against their ability to earn a living, it violates the privileges and immunities clause of the Article IV unless necessary to achieve an important govt. purpose |
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Exceptions to Dormant Commerce Clause
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i. Congressional approval
ii. Market Participant exception |
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State taxation of interstate commerce
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1. States cannot use tax system to help in-state businesses
2. State may only tax activities if there is a substantial nexus to the state 3. State taxation of interstate business must be fairly apportioned |
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Full Faith and Credit
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Courts must give FF&C to judgments of courts in another state so long as:
1. the rendering court had proper jurisdiction 2. the judgment was on the merits 3. the judgment was final |
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Constitution applies only to…
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Government action (including actions by government officials)
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Thirteenth Amendment
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Can be used to prohibit private racial discrimination
Authorizes Congress to create anti-racial discrimination statutes |
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Ways Congress can apply constitutional norms to private conduct
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13th Amendment
Commerce power NOT section 5 of the Fourteenth Amendment (which applies only to state and local govt. actions) |
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Situations where private conduct must comply with the Constitution
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Public function exception
Entanglement exception (doesn’t include mere subsidies) |
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Bill of Rights Amendments not applicable to states
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Third Amendment (soldier quartering)
Fifth Amendment (grand jury indictment) Seventh Amendment (jury trial in civil cases) Eighth Amendment (excessive fines) |
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Levels of scrutiny
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1. Rational Basis test
2. Intermediate Scrutiny 3. Strict Scrutiny |
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Rational Basis scrutiny
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Law will be upheld if rationally related to a legitimate government purpose.
Challenger has burden of proof. Govt. usually wins |
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Intermediate Scrutiny
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Law will be upheld if substantially related to an important government purpose.
Must be narrowly tailored. Govt. has burden of proof. |
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Strict Scrutiny
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Law will be upheld if necessary to achieve a compelling government interest.
Must be no less restrictive alternative available. Govt. has burden of proof. Challenger usually wins. |
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Procedural due process questions
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1. Has there been a deprivation of life, liberty, or property?
2. If yes, what procedures must the govt. supply? (e.g. notice + hearing) |
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Test to determine whether govt. due process procedures are sufficient:
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Balance the following:
i) importance of the interest to the individual ii) ability of additional procedures to increase accuracy of fact-finding iii) the government’s interests |
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Test for laws affecting economic rights
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Rational basis test
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Takings clause
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Government may
a. take private property b. for public use c. if it provides just compensation |
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Types of government takings
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1. possessory taking (confiscation or physical occupation)
2. regulatory taking (regulation leaves NO reasonable economically viable use) |
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Contracts Clause
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No state or local govt. shall impair the obligations of contracts (doesn’t apply to federal law).
Apply intermediate scrutiny |
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Intermediate scrutiny for private contracts
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Does legislation substantially impair a party’s rights under an existing contract?
If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest? |
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Level of scrutiny for government contracts
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Strict scrutiny
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Ex post facto clause applies to…
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Criminal cases only (not civil cases).
Retroactive civil liability only need meet a rational basis test. |
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Fundamental Privacy Rights
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1. right to marry
2. right to procreate 3. right to custody of one’s kids 4. right to keep family together 5. right to raise kids 6. right to contraceptives 7. right to abortion 8. right to homosexual activity 9. right to refuse medical treatment |
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Right to abortion
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Prior to viability, states may regulate but not prohibit abortions
No duty to subsidize abortions Spousal consent laws are unconstitutional |
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Parental notice for unmarried minors ok if there’s an alternative procedure
Levels of scrutiny for laws on right to travel |
1. Laws preventing people from moving into a state: strict scrutiny
2. Durational residency requirements: strict scrutiny 3. Restrictions on foreign travel: rational basis |
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Right to vote
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i. Laws that deny some citizens the right to vote must meet strict scrutiny, but regulations of the electoral process to prevent fraud need only be on balance desirable.
ii. one person/one-vote for all state/local elections iii. at large elections are constitutional unless there is proof of discriminatory purpose |
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Approach to Equal Protection questions
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1. What is the classification?
2. What level of scrutiny should be applied? 3. Does this law meet the level of scrutiny? |
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Equal Protection clause of the 14th Amendment applies to…
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Only state and local governments
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Equal protection applies to the federal government through…
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The due process clause of the 5th Amendment
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Scrutiny level of classifications based on RACE and NATIONAL ORIGIN
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Strict scrutiny
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How is the existence of racial classification proven?
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a. the classification exists on the face of the law; or
b. discriminatory impact AND discriminatory intent (or else only rational basis scrutiny is used) |
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How may racial classifications be applied?
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a. strict scrutiny
b. numerical set-asides require clear proof of past discrimination c. Educational institutions may use race as one factor in admissions decisions to help minorities d. Public schools may not use race in assigning students to schools (unless strict scrutiny is met) |
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Scrutiny level of classifications based on GENDER
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Intermediate Scrutiny
(exceedingly persuasive justification) |
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How is gender classification proven?
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a. the classification exists on the face of the law; or
b. discriminatory impact AND discriminatory intent (or else only rational basis scrutiny is used) |
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How may gender classifications be applied?
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a. gender classifications benefiting women that are based on stereotypes are not allowed.
b. gender classifications designed to remedy past discrimination and differences in opportunity are allowed. |
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Scrutiny level of classifications based on ALIENAGE
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Strict Scrutiny (generally)
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Exceptions to general scrutiny level of classifications based on alienage
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i. Rational basis test for classifications that concern self-government and the democratic process (voting, jury duty, police officer, public teacher, probation officer)
ii. Rational basis test for Congressional discrimination against aliens iii. Intermediate scrutiny for discrimination against undocumented alien children |
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Scrutiny level of classifications based on LEGITIMACY
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Intermediate Scrutiny
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Types of discrimination receiving RATIONAL BASIS review
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Age
Disability Wealth Economic Regulations Sexual Orientation Alienage classifications related to self-govt and democratic process Congressional regulation of aliens |
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Types of discrimination receiving INTERMEDIATE SCRUTINY
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Gender
Illegitimacy Undocumented alien children |
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Types of discrimination receiving RATIONAL BASIS review
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Race
National Origin Alienage (generally) Travel (but not foreign travel Voting |
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Unconstitutional discrimination against non-marital children
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Laws that deny a benefit to all non-marital children, but grant it to all marital children are unconstitutional
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Level of scrutiny for content-based restrictions on speech
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Strict Scrutiny (generally)
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Types of content-based restrictions on speech
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1. subject matter restrictions (topic)
2. viewpoint restrictions (ideology) |
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Level of scrutiny for content-neutral restrictions on speech
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Intermediate Scrutiny
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Level of scrutiny for court orders suppressing speech
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Strict Scrutiny
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What is necessary in order for the government to require license for speech?
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1. Important reason for licensing
2. clear criteria for license 3. almost no discretion to licensing authority 4. procedural safeguards such as prompt determination of requests and judicial review |
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Vague
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A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed
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Overbreadth
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A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated
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When can the government regulate symbolic speech?
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1. If govt has an important interest unrelated to suppression of the message; and
2. If impact on communication is no greater than necessary to achieve govt’s purpose. |
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Speech that is unprotected (or less protected) by First Amendment
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1. Incitement of illegal activity
2. Obscenity / sexually-oriented speech 3. Commercial speech 4. Defamation 5. Speech by govt. employees on the job |
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Test for Obscenity
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i. material must appeal to the prurient interest (local standard)
ii. material must be patently offensive under the law prohibiting obscenity; and iii. take as a whole, material must lack serious redeeming artistic , literary, political, or scientific value (national standard) |
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Prurient interest
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A shameful or morbid interest in sex
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Permissible government activity regarding obscene materials
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1. may use zoning to regulate location of adult bookstores and movie theaters
2. may ban child porn 3. may not punish private possession of obscene materials (other than child porn) 4. may seize all assets of businesses convicted of violating obscenity laws 5. may not ban profane speech (other than over broadcast media and in schools) |
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Govt regulation of commercial speech
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a. Advertising that is false, deceptive, or for illegal activity may be banned
b. May prevent professionals from using a trade name c. may prohibit attorneys from in-person solicitation of clients for profit d. may regulate other commercial speech of intermediate scrutiny can be met e. regulation must be narrowly tailored, but doesn’t need to be least restrictive alternative |
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Defamation standard for public official (or one running for public office)
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Falsity
+ Actual malice |
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Defamation standard for public figure (Kobe Bryant, Tom Hanks, Lady Gaga, etc.)
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Falsity
+ Actual malice |
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Defamation standard for private person if matter is of public concern
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Falsity
+ Neligence + Actual malice (if π wants punitive damages) |
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Defamation standard for private person if matter is NOT of public concern
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Negligence (no actual malice required)
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Private information
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Truthful reporting of info lawfully obtained from govt. is okay
Media may broadcast tape of illegally intercepted call if the media didn’t participate in the illegality and it involves a matter of public importance Govt. may limit dissemination of info to protect privacy |
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Places for speech
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1. public forums (sidewalks and parks)
2. designated public forums (school facilities) 3. limited public forums 4. non-public forums (airports, military bases, outside prisons, sidewalks on post office property) |
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Regulation of public forums
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a. must be subject matter and viewpoint neutral (or meet strict scrutiny)
b. must be a time, place, or manner regulation c. must serve an important govt interest d. must leave open adequate alternative place for communication e. need not be least restrictive (just narrowly tailored) |
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Regulation of designated public forums
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a. must be subject matter and viewpoint neutral (or meet strict scrutiny)
b. must be a time, place, or manner regulation c. must serve an important govt interest d. must leave open adequate alternative place for communication e. need not be least restrictive (just narrowly tailored) |
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Regulation of limited public forums
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a. must be reasonable
b. must be viewpoint neutral |
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Regulation of non-public forums
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a. must be reasonable
b. must be viewpoint neutral |
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What must be proven to punish membership in a group?
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a. actively affiliated with group
b. knowing of group’s illegal activities; and c. with specific intent of furthering those illegal activities |
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Laws requiring disclosure of group membership where disclosure would chill association
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Must meet strict scrutiny
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Laws prohibiting a group from discriminating are constitutional unless
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Unlesshe law intereferes with
1. intimate association (e.g. dinner party) 2. expressive activity (e.g. Nazis, KKK) |
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Free exercise clause
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a. free exercise clause cannot be used to challenge a neutral law of general applicability
b. government may not deny benefits to individuals who quit their jobs for religious reasons |
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Establishment clause test to determine if laws are constitutional
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i. must be a secular purpose
ii. effect must neither advance or inhibit religion; and (no symbolic endorsement or religion or a particular religion) iii. must not be excessive entanglement with religion |
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Govt. regulation of speech under the Establishment Clause
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Govt. may not discriminate against religious speech or among religions unless strict scrutiny is met
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Govt. support of parochial schools
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Govt. may give assistance to parochial schools, so long as it is not used for religious instruction
Govt. may provide vouchers which parents use for parochial schools |
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Effect of Establishment Clause on public schools
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Govt sponsored religious activity (like school prayer) is unconstitutional
Religious student and community groups must have same access to school facilities as non-religious groups |
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Relevance
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Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence
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Discretionary reasons a court may exclude relevant evidence
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1. substantially outweighed by unfair prejudice
2. substantially outweighed by confusion 3. substantially outweighed by waste of time |
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Public policy reasons to exclude relevant evidence
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1. Liability insurance
2. Subsequent remedial measures or repairs 3. Settlements or settlement offers 4. Pleas 5. Payment or offers to pay medical expenses |
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Subsequent remedial measures or repairs
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1. Inadmissible to prove culpable conduct
2. Inadmissible to prove defective product design 3. Admissible to prove anything else (like responsibility for maintenance) 4. Admissible to rebut defense of no feasible precaution or alternative |
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Admissibility of settlements or settlement offer discussions
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a. inadmissible to prove culpable conduct
b. related statements are also inadmissible c. Exception 1: admissible if no claim filed or threatened d. Exception 2: admissible if no dispute as to liability or damages |
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Payment/offer to pay medical expenses
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a. offer is inadmissible
b. admissions and related statements are admissible |
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Similar occurrences
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i. may be admissible to prove causation
ii. prior accidents or claims of plaintiff usually irrelevant (except for fraudulent claims or preexisting conditions) iii. previous similar acts may be relevant to prove intent iv. admissible to rebut defense of impossibility v. comparable sales admissible to establish value vi. habit evidence admissible vii. routine practice evidence admissible viii. industrial custom evidence relevant to standard of care admissible in negligence case |
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Habit
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Specific, frequently repeated conduct
Makes no moral judgment |
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Approach to Character Evidence questions
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1. What is the purpose for which the character evidence is offered?
2. What method or technique is used to prove character? 3. Is it a civil or criminal case? 4. Does the evidence prove a pertinent character trait? |
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Character evidence in civil cases
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Character evidence is inadmissible to prove conduct except where claim is sexual assault/child molestation, or when character is in issue.
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Cases where character is in issue
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a. Defamation
b. negligent entrustment c. child custody d. loss of consortium e. Defendant’s state of mind |
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Permissible methods to prove character when character is in issue
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All methods (specific instances of conduct, opinion, and reputation)
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Character evidence in criminal cases
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Two doors initially closed: defendant’s character and victim’s character.
Usually only defendant can open these doors Doors are opened separately. |
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Admissibility of Defendant’s character to prove conduct
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1. Door initially closed
2. Only defendant can open door a. Exception for sexual assault/child molestation b. Exception if defendant has offered evidence of victim’s character, prosecution may offer evidence that defendant has same trait 3. Prosecution can rebut once door is open |
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Methods of proving character on direct examination
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Reputation
Opinion |
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Methods of proving character on cross- examination
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Reputation
Opinion Specific Instances |
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Admissibility of Victim’s character to prove conduct
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Defendant may open the door by offering evidence of victim’s character
In homicide case, if defendant offers evidence that victim attacked first, prosecution may offer evidence of victims character for peacefulness |
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Rape shield statute for criminal cases
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Reputation and opinion of victim are inadmissible.
Specific instances admissible only to prove: i. third party is source of semen or injury ii. prior acts of consensual intercourse between defendant and alleged victim |
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Rape shield statute for civil cases
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Reputation, opinion, and specific instances are all admissible if probative value outweighs unfair prejudice.
In the case of reputation evidence, plaintiff must have put her reputation in issue. |
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When may specific instances of defendant’s bad conduct be admitted?
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MIMIC (so long as prejudicial effect doesn’t outweigh probative value):
Motive Intent Mistake (absence of) Identity (similarity and uniqueness) Common plan or scheme |
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Evidence to support witness credibility
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i. Inadmissible unless credibility is attacked
ii. Prior consistent statement made before event used to attack credibility is admissible for all purposes |
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Approach to admissibility of impeachment evidence
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1. Is source of impeachment extrinsic evidence or testimony at this proceeding of witness being impeached?
2. If extrinsic, is it admissible given impeachment technique? 3. Any other foundation requirements? |
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Extrinsic evidence
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Any evidence other than testimony given at this proceeding by the witness being impeached
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Collateral matter
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A fact not material to the issues.
Extrinsic evidence is inadmissible to contradict a collateral matter. |
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Methods of impeachment
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1. Impeachment by contradiction
2. Impeachment by Prior Inconsistent Statement 3. Impeachment with evidence of bias, interest, motive 4. Impeachment with conviction for crime involving false statement 5. Impeachment with felonies 6. Impeachment with Non-conviction Misconduct Bearing on Truthfulness 7. Impeachment with Reputation and Opinion Regarding Truthfulness |
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Prior inconsistent statement given under oath
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Not hearsay and admissible for all purposes
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When is extrinsic evidence admissible to impeach
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1. matter must not be collateral
2. witness must have opportunity to explain or deny (cross-examination) |
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Impeachment with conviction of crime for false statement
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Admissible with no discretionary balancing (unless conviction is more than 10 years old)
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Impeachment with convictions more than 10 years old
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Probative value must outweigh unfair prejudice
Burden is on party admitting the evidence |
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Impeachment with Non-Conviction Misconduct Bearing on Truthfulness
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Acts must involve lying.
Extrinsic evidence inadmissible. Impeacher may only cross-examine witness about misconduct |
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Impeachment with Reputation & Opinion Regarding Truthfulness
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Extrinsic evidence admissible
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Hearsay
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Out-of-court statement introduced to prove the truth of the matter asserted.
Speaker cannot be cross-examined |
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Statement
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Verbal or written expression or conduct by a person intended to communicate
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Approach to determine whether statement was offered to prove the truth of the matter asserted
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1. find statement
2. ask what it is being offered to prove 3. given what it’s offered to prove, will jury be misled if the speaker was lying or mistaken? (if yes, this is hearsay) |
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Acts of independent legal significance
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Not hearsay (e.g. contract formation, defamation, adverse possession, delivery of a gift, etc.)
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Examples of statements not offered to prove truth of matter asserted (and therefore not hearsay)
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a. to show acts of independent legal significance
b. to show effect on listener c. to show speaker’s knowledge d. to show speaker’s state of mind |
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Hearsay exemptions (“not hearsay”)
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1. Admission by party opponent
2. Prior inconsistent statement given under oath 3. Prior consistent statement offered to rebut charge of recent fabrication or improper influence or motive 4. Statement of identification of a person made after perceiving the person |
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Admission of Party Opponent
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Not hearsay.
Needn’t be against party’s interest when made. Not subject to personal knowledge Elements: i. statement by a party (or someone whose statement is vicariously attributable to a party) ii. offered by a party opponent |
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Authorized party admissions
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Not hearsay
i. statement by authorized spokesperson, or ii. statement by employee of party concerning matter within scope of employment and made during employment relationship |
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Examples of vicarious party admissions
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i. authorized parties (express or implied)
ii. employees iii. adoptive admissions iv. co-conspirator statements |
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Adoptive Party Admissions
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Not hearsay
Nonparty makes statement and party indicates belief in its truth |
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Co-conspirator Adoptive Admissions
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Not hearsay
Statement made during course and in furtherance of conspiracy. |
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Hearsay exceptions (“hearsay but admissible”)
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1. former testimony
2. declaration against interest 3. dying declaration 4. excited utterance 5. present sense impression 6. declaration of existing physical or mental condition (including state of mind) 7. statement for medical diagnosis 8. business records 9. public records 10. judgment of previous conviction |
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When is former testimony admissible hearsay
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i. declarant is unavailable
ii. party against whom the testimony is now offered had an opportunity and similar motive to examine that person; or iii. in a civil case, the party against whom the testimony is now offered was not present but has a close privity-type relationship with someone who had an opportunity and similar motive to examine |
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When is a Declarant “unavailable”?
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i. he is exempted due to privilege
ii. he is dead or sick iii. his attendance cannot be procured by process or other reasonable means iv. he refuses to testify v. his memory fails |
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When is declaration against interest admissible hearsay?
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i. declarant is unavailable
ii. at the time it was made, statement was against his financial interest or subject him to criminal liability iii. if statement made to exculpate, there must be corroborating evidence |
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When is a Dying Declaration admissible hearsay?
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i. declarant must be unavailable (but need not die)
ii. declarant must believe he is about to die iii. statement must be describing cause or circumstances of death iv. must be a civil action or homicide prosecution |
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When is an Excited Utterance admissible hearsay?
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Statement relating to startling event or condition made while declarant was still under stress of excitement caused by event or condition.
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When is a Present Sense Impression admissible hearsay?
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Statement described or explained an event or condition while declarant was perceiving the event or condition (or immediately thereafter)
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When is a business record admissible hearsay?
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i. record of events, conditions, opinions, or diagnoses
ii. kept in course of regularly conducted business activity iii. made at or near time of matters described iv. by a person with knowledge of the facts in the record v. it was a regular practice of business to make such a record (Courts may exclude if untrustworthy) |
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When is a public record admissible hearsay?
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i. record describes activities/policies of office
ii. record describes matters observed pursuant to duty imposed by law (excluding police reports in criminal cases); or iii. record contains factual findings resulting from investigation made pursuant to authority granted by law (unless untrustworthy, or unless it’s a criminal case) |
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Confrontation clause
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Applies in criminal cases.
No out-of-court statements by an unavailable witness are admissible if i. statement was testimonial, and ii. defendant had no chance to cross-examine declarant about the statement |
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Testimonial statements
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i. are made to further a police investigation aimed at producing evidence for a prosecution
ii. are not made to deal with an ongoing emergency |
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Burden of proof for authenticating non-testimonial evidence
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Low burden.
“Sufficient to sustain finding” (i.e. reasonable person test) |
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Ways to authenticate handwriting or signatures
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a. admission
b. eyewitness testimony c. expert opinion d. lay opinion familiar with it e. circumstantial evidence f. genuine exemplar |
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Ancient documents rule
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Authenticity is established if :
i) document is 20 years old or more ii) document does not have any irregularities on its face (e.g. erasures) iii) document was found in a place of natural custody (i.e. where you’d expect such documents to be found) |
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Authentication is not needed for these documents
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1.
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Authentication of non-unique items
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Must be a chain of custody demonstrating that this is the specific item proponent claims it to be
Small breaks in the chain are okay (but not large breaks) |
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Best Evidence Rule
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Applies where evidence offered to prove the contents of a writing.
Writings = documents, videos, photos, x-reays, audio recordings, computer disks, or any tangible collection of data Rule requires the original (with exceptions) |
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Exceptions to Best Evidence Rule
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1. voluminous documents can be summarized
2. duplicates are admissible (e.g. copies made by carbon or machine) 3. if there is a genuine issue about authenticity of original, copies are not admissible 4. testimony about contents is admissible where original is lost or destroyed (unless bad faith by proponent of testimony) |
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Privileges
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1. attorney-client
2. Psychotherapist-patient 3. social worker-client 4. spousal testimony 5. spousal confidential communication |
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attorney-client privilege
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i. Communication between attorney and client OR their representatives,
ii. Intended to be confidential iii. Made to facilitate professional legal services |
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Exceptions to attorney-client privilege
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i. professional services sought to futher crime or fraud
ii. communication relates to alleged breach of duty between lawyer and client iii. two or more parties consult attorney on a matter of common interest, and that communication is offered by one of these parties against the other |
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Doctor-patient privilege
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NOT listed in the federal rules
Applies to information confidentially conveyed for purpose of diagnosis or treatment, and info was pertinent to diagnosis or treatment |
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Spousal testimonial privilege
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Permits witness to refuse to testify against his/her spouse
Applies only when they are married Testifying spouse holds the privilege |
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Spousal confidential communication privilege
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Protects confidential spousal communications made during marriage
Continues after divorce Both spouses hold the privilege |
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Facts appropriate for JUDICIAL NOTICE
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Facts that aren’t subject or reasonable dispute either because
i. generally known within the jurisdiction, or ii. capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned |
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Procedure for taking judicial notice
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a. in civil case, jury must accept noticed fact as conclusive
b. in criminal case, jury may, but is not required to accept judicially noticed facts |
