Shared Flashcard Set

Details

Evidence Flash Cards
Testing the Federal Rules/Hawaii Rules of Evidence
125
Law
12/07/2012

Additional Law Flashcards

 


 

Cards

Term
Admissions FRE Rule # 801(d)(2)
Definition
"Statement is offered against an opposing party; AND
(A) was made by the party in an indiv. or representative capacity;
(B) party manifested that it adopted or believed to be true (adoption by silence - would person have reasonably have been expected to deny the statement if it had been untrue?);
(C) made by a person whom party authorized to make statement on that subject;
(D) made by party's agent or employee (w/in scope of relationship while relationship still exists); OR
(E) made by party's co-conspirator during and in furtherance of the conspiracy"
Term
Admissions HRE Difference
Definition
Has the same exceptions as FRE plus HRE 803(a)(3) Admission by deceased in wrongful death action, (a)(4) admission by predecessor in interest and (a)(5) admission by predecessor in litigation.
Term
Admissions Case of Note
Definition
Doyle v. Ohio - In criminal cases, "adoptive" admissions by Ds in custody are generally ruled out
Term
Authentication FRE Rule #901
Definition
Proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is
Term
Authentication Case of Note
Definition
US v. Castro - a break in the chain of custody affects only the weight and not the admissibility of the evidence
Term
Authentication (Ancient Documents) FRE Rule #901(8)
Definition
"Document or data compilation that:
(1) is in a condition that creates no suspicion about its authenticity;
(2) was in a place where, if authentic, it would likely be; and
(3) is at least 20 years old when offered"
Term
Authentication (Handwriting) FRE Rule #901(8)
Definition
"NONEXPERT: Must have familiarity with handwriting that was not acquired for current litigation
EXPERT: Comparison w/ authenticated specimen
"
Term
Authentication (Public Records) FRE Rule #907(7)
Definition
"(A) a document was recorded or filed in a public office as authorized by law; OR
(B) a purported public record or statement is from the office where items of this kind are kept"
Term
Authentication (Self) FRE Rule #902
Definition
"Do not require extrinsic evidence to authenticate
(1) Domestic public documents that are sealed and signed
(2) Domestic public documents that are not sealed but are signed and certified
(3) Foreign public documents
(4) Certified copies of public records
(5) Official publications
(6) Newspapers and periodicals
(7) Trade inscriptions and the like
(8) Acknowledged documents
(9) Commercial paper and related documents
(10) Presumptions under a federal statute
(11) Certified domestic records of a regularly conducted activity
(12) Certified foreign records of a regularly conducted activity"
Term
Authentication (Telephone Conversation) FRE Rule #906
Definition
"Evidence that a call was made to a number assigned at the time to:
PERSON: particular person, if circumstances, including self-identification, show that the person answering was the one called
BUSINESS: particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone"
Term
Authentication (Voice) FRE Rule #901(5)
Definition
Identification based on hearing voice at any time under any circumstance (even when knowledge of the voice was gained in preparation for litigation)
Term
Authentication (Voice) Case
Definition
State v. Konohia - when the relevancy of a recordeing does not depend on the identification of certain voices, those voices need not be identified to establish the authenticity and admissibility of the recording
Term
Best Evidence Rule FRE Rule #1002
Definition
Original writing, recording or photograph required to prove its content
Term
Best Evidence Rule (Duplicates) FRE 1003
Definition
Okay, unless unfair
Term
Best Evidence Rule (when original not required) FRE 1004
Definition
"Original lost or destroyed, not obtainable, in possession of opponent, or collateral matters. Oral evidence ok in these cases
Collateral = when evidence is offered to prove something other than the content of the document OR when the contents do not relate to a controlling issue"
Term
Best Evidence Rule (when original not required) Hawaii Differences
Definition
State v. Espiritu - testimony of text messages allowed in because cell phone was not available. If writing was lost/destroyed in bad faith this testimony would not be allowed in but here there was no evidence of bad faith
Term
Business Records FRE Rule #803(6)
Definition
(1) made at or near the time; (2) by someone w/ personal knowledge; (3) record was kept in the regular course of business; (4) making the record was a regular practice; (5) custodian of records must testify; AND (6) no indication of lack of trustworthiness
Term
Business Records (Absence) FRE Rule #803(7)
Definition
(1) admitted to prove that matter did not occur or exist; (2) regularly kept record for a matter of that kind; (3) no indication of lack of trustworthiness
Term
Character (Impeachment) FRE Rule #608
Definition
"(a) W's credibility may be attacked with testimony about reputation for truthfulness but evidence of truthful character only allowed after character for truthfulness has been attacked (no bolstering)
(b) no extrinsic evidence of specific instances of W's conduct in order to support or attack character for truthfulness (can be inquired into on CROSS ONLY but if W denies, cannot bring in extrinsic ev.)
Does not operate as a waiver to W's or D's privilege against self-incrimination
See also 405 and 404(a)"
Term
Character (Impeachment) Hawaii Differences
Definition
"HRE 608 (b) does allow extrinsic evidence of specific instances in the discretion of the court. But only regarding the witness on the stand (if character witness, can't bring in extrinsic evidence regarding original witness)
Does not operate as waiver to W's privilege against self-incrimination ONLY"
Term
Character (Reputation) FRE Rule#405(a)
Definition
Testimony allowed to prove reputation or Character W's opinion of person's character; on cross, inquiry can be made into specific instances of person's conduct. SEE ALSO Rule 608
Term
Character (Specific Instances of Conduct) FRE Rule #405(b)
Definition
Person's character or character trait must be an ESSENTIAL element of a charge, claim or defense; then character or trait may be proved by RELEVANT specific instances of person's conduct
Term
Character Evidence (Crimes Permitted) FRE Rule # 404(b)(2)
Definition
"May be admissible to demonstrate motive, opportunity, intent, prep, plan, knowledge, identity, absence or lack of mistake
Must provide reasonable notice of GENERAL NATURE of evidence and intent to use the evidence before trial"
Term
Character Evidence (Crimes Permitted) HRE Differences
Definition
HRE includes Modus Operandi as admissible purpose, FRE does not
Term
Character Evidence (Exceptions for Criminal Defendant) Mercy Rule FRE Rule # 404(a)(2)(A)
Definition
"In a CRIMINAL CASE, D may offer evidence of D's pertinent trait, and prosecutor may rebut (look for ""peaceable"" and ""law abiding"" - most general allowed under mercy rule)
OR if evidence of trait of character of victim is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused can be offered by the prosecution
"
Term
Character Evidence (Exceptions for Criminal Defendant) Mercy Rule HRE Differences
Definition
Evidence of a pertinent trait of character of D offered by D, or by the prosecution to rebut the same
Term
Character Evidence (Exceptions for Victim) FRE Rule #404(a)(2)(B)
Definition
"In a CRIMINAL CASE, D may offer evidence of Victim's pertinent trait, and prosecutor may rebut
D may offer evidence of victim's pertinent trait, subject to 412 (rape shield)
"
Term
Character Evidence (Exceptions for Victim) HRE Difference
Definition
Not limited by Rule 412
Term
Character Evidence (Other Crimes, Wrongs or Acts-- Prohibited) FRE Rule #404(b)(1)
Definition
No propensity arguments
Term
Character Evidence (Prohibited Uses) FRE Rule #404(a)
Definition
Not admissible to prove that on a particular occasion the person acted in accordance w/ the character trait (no propensity arguments)
Term
Child Molestation-- Similar Crimes (Permitted Uses) FRE Rule #414(a)
Definition
"in CRIMINAL CASE (where D is accussed of child molestation) court may admit evidence that D committed ANY OTHER CHILD MOLESTATION
Requires disclosure to D at least (15) days prior to trial"
Term
Competency FRE Rule #601
Definition
"Every person is presumed competent
In a CIVIL case, state law governs witness's competency regarding a claim or defense where state law provides the rule of decision"
Term
Competency FRE Rule Cases
Definition
"State v. Kelekolio - Competency to testify implies some measure of competency at the time of the event witnessed as well as at the time of the trial
State v. Moreno - W may testify as to matters which can be shown to have been recollected, by that witness, prior to hypnosis (refused to apply bright line rule that once hypnosis was done, W can't testify)
Rock v. Arkansas - State's interest barring unreliable evidence does not extend to per se exclusions that may be reliable in an individual case - especially when it implicates a Criminal D's 6th Amend. right to call witnesses in his favor"
Term
Competency (Interpreter) FRE Rule #604
Definition
Interpreter must be qualified and must give oath/affirmation to make a true translation
Term
Competency (Judge) FRE Rule #605
Definition
The Judge is not competent to testify as a witness. Party does not need to object to preserve this error
Term
Competency (Juror's) FRE Rule #606
Definition
"Juror may not testify as a W before the jurors at the trial. If juror is called to testify, opposing party shall be afforded opportunity to object outside of the presence of the jury
Juror can't testify about anything that was said or occurred during deliberation, effect of anything on any juror's vote, or any juror's mental processes concerning the verdict or indictment (when questioning validity of verdict or indictment)
Exceptions: (1) Extraneous prejudicial information; (2) outside influence; (3) Mistake made in entering the verdict on the verdict form"
Term
Competency (Juror's) HRE Differences
Definition
"Doesn't include: if juror is called to testify, opposing party shall be afforded opportunity to object outside of the presence of the jury.
Doesn't include any of the exceptions"
Term
Competency (Juror's) FRE Rule #606 Cases
Definition
State v. Furutani - when a criminal D makes a prima facie showing that improper juror comments during deliberations have been used as circumstance against him or her there is a presumption of prejudice and the verdict will be set aside unless it is clearly shown that the juror's comments could not have affected the verdict
Term
Competence (Oath/Affirmation) FRE Rule #603
Definition
W must give an oath or affirmation to testify truthfully (W can promise to tell the truth)
Term
Competency (Personal Knowledge) FRE Rule #602
Definition
Must show evidence that W has personal knowledge of the matter. This evidence may, but does not need to be from the W's own testimony
Term
Compromises Offer & Negotiations FRE Rule #408
Definition
"Not admissible by ANY party to dis/prove validity or amount of dispute or to impeach by PIS or contradiction: (1) offer/acceptance of valuable consideration to compromise or settle claim; (2) conduct or statement made during compromise negotiations about the claim - EXCEPT in criminal case in negotiation relating to exercise by public office
Court may admit for other purpose (i.e. bias, prejudice, negating contention of undue delay, etc.)
INCLUDES any other conduct or statement made during compromise negotiations"
Term
Compromises Offer & Negotiations FRE Rule #408 Differences
Definition
"Allowed to impeach through PIS
In addition to (1) and (2), includes (3) mediation or attempts to mediate a claim which was disputed"
Term
Conditional Relevance FRE Rule #104(b)
Definition
Court may admit proposed evidence on the condition that the proof necessary to make the evidence relevant is later introduced
Term
Criminal Conviction (Impeachment) FRE Rule #609
Definition
"Any felony (doesn't need to be crimen falsi), w/in past 10 years (conviction or release from prison)
Can be used in civil case or in crim case against witness, admissible against D if probative value OUTWEIGHS prejudicial effect
If more than 10 years old, can be admitted if probative value SUBSTANTIALLY OUTWEIGHS prejudicial effect.
no balancing test needed for crimes of crimen falsi
For juvenile adjudications, convictions can only come in for witnesses other than the D, and must be necessary to fairly determine guilt or innocence."
Term
Criminal Conviction (Impeachment) HRE Differences
Definition
"Criminal D wears a halo - no prior conviction evidence admitted against Crim D
Evidence of prior convictions can be admitted against anyone in CIVIL case and W in criminal case if CRIMEN FALSI"
Term
Criminal Conviction (Impeachment) Cases
Definition
"U.S. v. Bracken - Dishonesty means crimes that factually or by definition entail some element of misrepresentation or deceit.
Luce v. U.S. - To raise and preserve a claim of improper impeachment by prior conviction, a defendant must first testify.
Ohler v. United States - If D preemptively introduces prior conviction on direct, D cannot appeal court's decision to admit it.
State v. Schnabel - HI declined to follow Luce, can't use juvi proceeding for any purpose (under 609)
State v. Balisbisana - W's prior conviction may be introduced if needed to prove bias, interest, motive (under 609.1)
Michelson v. US - Only a conviction (not arrest) may be inquired about to undermine the trustworthiness of a witness"
Term
Cross Examination FRE Rule 611(b)
Definition
The Scope of cross is limited to subject matter of direct, or credibility of witness
Term
Declarant Unavailable FRE Rule 804(a)
Definition
Declarant is unavailable as W if (1) W is exempted from testifying due to privilege; (2) W refuses to testify despite court order; (3) testifies to not remembering sbj matter; (4) cannot testify due to death, infirmity, physical or mental illness; (5) W is absent and statement's proponent has been unable to procure (a) the declarant's attendance for 804(b)(1) or (6), or (b) the declarant's attendance or testimony for 804 (b)(2)(3) or (4)
Term
Declarant Unavailable Cases
Definition
State v. Kim - unless the state can show a good faith attempt to use this statute to assure attendance of hte W, the state may not introduce the pre-trial testimony of the absent witness
Term
Declarant Unavailable (Attacking/Supporting Declarant's Credibility) FRE Rule 806
Definition
"When a hearsay statement has been admitted into evidence, declarant's credibility may be attacked, then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a W
Court may admit evidence of declarant's PIS or conduct, regardless of when it occurred or whether declarant had an opportunity to explain or deny"
Term
Declarant Unavailable (Former Testimony) FRE Rule #804(b)(1)
Definition
(a) was given at a trial, hearing, deposition; and (b) is now being offered against a party (or predecessor in interest) who had an opportunity and similar motive to develop on direct, cross or redirect
Term
Declarant Unavailable (Statement Against Interest) FRE Rule #804(b)(3)
Definition
"(a) Reasonable person would have made statement only if true b/c so contrary to declarant's proprietary or pecuniary interest or had so great a tendency to expose the declarant to civil or criminal liability; and
(b) if criminal case, and exposes declarant to criminal liability, requires corroborating circumstances to indicate trustworthiness"
Term
Dying Declaration FRE Rule #804(b)(2)
Definition
(1) Declarant believed death was imminent; (2) statement regarding cause of death; (3) used by prosecution in homicide case or in civil case
Term
Dying Declaration HRE Differences
Definition
No case limitation
Term
Excited Utterance FRE Rule #803(2)
Definition
Relating to startling event or condition while still under stress of excitement
Term
Excited Utterance Case
Definition
State v. Machado - courts have held that lengthy, narrative statements are not admissible as excited utterances
Term
Habit FRE Rule #406
Definition
Evidence of person's habit or org's routine practice may be admitted to prove that person acted in accordance w/ habit on a particular occasion. Doesn't need to be corroborated
Term
Hearsay Definition FRE Rule #801(C)
Definition
Statement a declarant makes while not testifying in the trial or hearing, and is offered to prove truth of matter asserted.
Term
Prior Statements FRE Rule #801(D)(1)
Definition
Declarant testifies and is subject to cross about a prior statement and the statement is either (a) inconsistent and given under oath, or (b) consistent and offered to rebut express or implied charge of fabricated testimony, or biased motive.
Term
Prior Statements HRE Differences
Definition
Statement can be admitted if declarant is sbj to cross about the subject matter of the statement and for Prior Inconsistent Statements, if they are reduced to writing & signed OR recorded verbatim even if not under oath. FRE requires it to be under oath.
Term
Prior Statements Cases
Definition
"US v. Richardson - W's prior statement need not directly contradict, only needs to be inconsistent
US v. Vaughn - W may be impeached by prior silence or less detailed prior statement"
Term
Hearsay Exceptions FRE Rule #802
Definition
Hearsay only admissible if exception is provided by statute, these rules or Supreme Court.
Term
Hearsay Exceptions HRE Differences
Definition
HRE 802.1 (3) - Hearsay exception for prior identification - if statement is made for identification after perceiving that person, and declarant is subject to cross
Term
Hearsay within Hearsay FRE Rule #805
Definition
Each part of the combined statements must conform to an exception for statement to be admissible.
Term
Impeachment (Who Can Impeach) FRE Rule #607
Definition
Credibility of W may be attacked by any party, including the party calling the witness
Term
Judgment of Prior Conviction FRE Rule #803(22)
Definition
Final judgment of conviction for felony after trial or guilty plea (not nolo)
Term
Judicial Notice (Adjudicative Facts) FRE Rule #201
Definition
"Governs judicial notice of an adjudicative fact only, not a legislative fact
Fact must not be subject to reasonable dispute, and generally known OR readily ascertainable
Notice may be taken by the court on its own or at party's request -- at any time during proceeding"
Term
Judicial Notice (Of Law) HRE #202
Definition
"HRE 202 - (b) Mandatory - Court shall take notice of (1) common law, (2) constitutions & statutes of every state & United States,(3) rules of US and HI supreme Courts, (4) city & county ordinances.
(b) Optional - court may take notice of (1) fed and state court rules, (2) federal and state agency regulations, (3) municipal ordinances of other states"
Term
Jury Instructions (Limiting Evidence) FRE Rule #105
Definition
If court admits evidence that is admissible against party for one purpose, but not another, court, on timely request, must restrict evidence to its proper scope and instruct jury accordingly
Term
Jury Instructions (Limiting Evidence) Cases
Definition
State v. Konohia - Limiting instruction may be necessary to prevent potential prejudice to a D
Term
Leading Questions FRE Rule #611(C)
Definition
Okay when used on cross or against hostile, adverse witness
Term
Learned Treatises, Periodicals, or Pamphlets FRE Rule #803(18)
Definition
"(1) Statement called to attention of expert on cross OR relied upon by expert on direct; AND (2) established as reliable authority
Can be read into evidence, not admitted on its own"
Term
Liability Insurance FRE Rule #411
Definition
Evidence that person was not insured against liability is not admissible to prove person was negligent or wrongful. Court may admit it for other purposes, such as bias, prejudice, proving agency, ownership or control
Term
Medical Diagnosis or Treatment (Statements Made for) FRE Rule #803(4)
Definition
Made for purpose of medical treatment/diagnosis - doesn't need to be to doctor, or made by patient
Term
Mental, Emotional, or Physical Condition FRE Rule #803(3)
Definition
Statement made regarding then existing mental, emotional or physical condition. Not including statement of memory unless it relates to validity of declarant's will
Term
Mental, Emotional, or Physical Condition Cases
Definition
"Hillmon: Statements of intent by a declarant are admissible to prove DECLARANT'S future conduct, not the future conduct of another person
Shepard v. US: State of mind hearsay exception does not apply to statements of memory or belief about past actions or events"
Term
Offers to Pay Medical & Similar Expenses FRE Rule #809
Definition
Evidence of paying, or offering to pay medical/hospital expenses is NOT admissible to prove liability for the injury (only covers the actual statement or offer, not collateral statements/actions)
Term
Opinions (Bases of Expert Opinion) FRE Rule #703
Definition
"Expert can base opinion on facts/data that they have been made aware of, personally observed, or something that is reasonably relied upon by experts in the particular field (not just this expert)
Need not be based on admissible evidence
Proponent of the opinion may disclose inadmissible basis to jury only if probative value to help jury evaluate opinion SUBSTANTIALLY OUTWEIGHS their prejudicial effect (judge has to decide)"
Term
Opinions (Bases of Expert Opinion) HRE Differences
Definition
Court may DISALLOW TESTIMONY in the form of opinion or inference if the underlying facts/data indicate a lack of trustworthiness
Term
Opinions (Court appointed Experts) FRE Rule #706
Definition
Court can appoint expert sua sponte or on a motion
Term
Opinions (Disclosing Facts & Data Underlying Opinion) FRE Rule #705
Definition
Expert may state opinion without disclosing underlying data, but can be made to disclose it on cross
Term
Opinions (Experts) FRE Rule #702
Definition
Daubert - expert must have scientific, technical or other specialized knowledge, must be helpful to jury, based on sufficient data, product of reliable principles which have been reliably applied to facts of the case
Term
Opinions (Experts) HRE Differences
Definition
Montalbo - different language but same standard as Daubert
Term
Opinions (Lay) FRE Rule #701
Definition
Must be rationally based on witness' perception, be helpful to understand witness' testimony or fact at issue, and not based on scientific, technical or specialized knowledge
Term
Opinions (Ultimate Issue) FRE Rule #704
Definition
Opinon can still be admitted if it embraces ultimate issue BUT in a criminal case, expert must not state opinion about whether D had mental state that constitutes an element of the crime (this is for trier of fact)
Term
Opinions (Ultimate Issue) HRE Differences
Definition
HRE does not contain exception for crim D's state of mind
Term
Past Recollection Recorded FRE Rule #803(5)
Definition
"Records made that (A) is on a matter the witness once knew about but cannot recall now well enough to testify accurately, (B) was made while fresh in the W's memory, and (C) accurately reflects the W's knowledge.
Record can only be read into evidence but may be entered as an exhibit only by the adverse party"
Term
Pleas, Plea Discussions FRE Rule #410
Definition
"In civil or criminal case, not admissible against D who made the plea or participated in plea discussions:
(1) guilty plea that was later withdraw;
(2) nolo contendere plea;
(3) statement made during a proceeding on either of those please under FRCP 11 or comparable state procedure;
(4) statement made during plea discussion w/ prosecuting authority IF NOT reulting in guilty plea or later-withdrawn guilty plea
EXCEPTIONS: (3) or (4) statements may be admitted in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness, ought to be considered together; or in a criminal proceeding for perjury or false statement"
Term
Present Sense Impression FRE #803(1)
Definition
Describing or explaining an event or condition, while or immediately after the declarant perceived it
Term
Presumptions (Bursting Bubble/Burden of Production) HRE #303
Definition
"A presumption established to implement no public policy - creates bursting bubble presumption
Requires the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence
EXAMPLES:
(1) Owner of legal title is owner of beneficial title
(2) Official duty regularly performed; lawful arrest
(3) Intention of ordinary consequences of voluntary act
(4) Doing of an unlawful act
(5) Any court, any judge acting as such
(6) Ceremonial marriage
(7) Death
"
Term
Presumptions (Civil) FRE #301
Definition
"Unless otherwise stated, Bursting Bubble Presumption:
burden of PERSUASION only to rebut; burden of persuasion remains on the party who originally had it
"
Term
Presumptions (Continuing Effect/Burden of Proof) HRE #304
Definition
"A presumption established to implement a public policy (other than the one at hand) - creates a continuing effect presumption
Requires the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced sufficient to convince the trier of fact of the nonexistence of the presumed fact"
Term
Presumptions (Criminal Proceedings) HRE #306
Definition
"When a presumed fact establishes an element of the offense or negatives a defense, court may submit presumption to jury only if a reasonable juror on the evidence as a whole, could find the presumed fact BEYOND A REASONABLE DOUBT
Court may NOT direct the jury, but can instruct that they MAY presume"
Term
Presumptions (Source of Law) FRE #302
Definition
In a CIVIL case, State law governs the effect of a presumption regarding a claim or defense for which state law supplies the rule of decision
Term
Presumptions (Source of Law) HRE Differences
Definition
"HRE 302
(a) could be either bursting bubble or continuing effect
(b) if inconsistent presumption, weightier presumption will win
(c) in a CIVIL case, federal law governs the effect of a presumption regarding a claim or defense for which federal law supplies the rule of decision"
Term
Prior Inconsistent Statement (Impeachment) FRE #613
Definition
"(a) Party introducing evidence does not need to disclose contents to witness but must show to opposing attorney if asked.
(b) Extrinsic evidence of PIS only admissible if W given a chance to explain it (does not need to be before evidence offered) and opposing party given chance to cross if justice requires.
SEE ALSO 801(d)(1) for hearsay exception to PIS when statement is being offered to prove truth of matter asserted."
Term
Prior Inconsistent Statement (Impeachment) HRE Differences
Definition
"(b) W must be made aware evidence BEFORE it is used
(c) Evidence of consistent statement only admissible after PIS has been entered to attack credibility and consistent statement was made before the PIS, after a charge the W's testimony is fabricated, or is used to refresh memory."
Term
Privilege (Against Self-Incrimination)
Definition
HRE 509: Person has a privilege to refuse to disclose any matter that may tend to incriminate the person
Term
Privilege (Attorney-Client, Work Product) FRE #502
Definition
"DISCLOSURE IN FEDERAL PROCEEDING: If (1) in a federal proceeding AND (2) waives the attoryney-client privilege or work-product protection, waiver extends to undisclosed communication or info ONLY IF: (1) waiver is intentional; (2) same subject matter; AND (3) ought in fairness to be considered together
INADVERTENT DISCLOSURE: If made in a federal proceeding or to a federal office/agency, not waiver in federal OR state proceeding if: (1) inadvertent; (2) holder of privilege took reasonable steps to prevent disclosure; AND (3) holder promptly took reasonable steps to rectify the error
DISCLOSURE IN STATE PROCEEDING: If in a state proceeding and is not subject to state-court order concerning waiver, does NOT operate as a waiver in FEDERAL proceeding if: (1) would not be waiver if made in federal proceeding; or (2) not a waiver under law of state where disclosure OCCURRED
"
Term
Privilege (Attorney-Client, Work Product) HRE Differences
Definition
"HRE 503: Privilege if consulted lawyer w/ view to obtain professional legal services
Privilege claimed by client
EXCEPTIONS: Furtherance of crime or fraud, preventiong of crime or fraud, claimants through same deceased client, breach of duty by lawyer or client, document attested by lawyer, joint clients"
Term
Privilege (Clergy) HRE #506
Definition
HRE 506: Person can refuse to disclose (or prevent others from disclosing) a confidential communication by a person to a member of the clergy in the latter's professional character as spiritual advisor
Term
Privilege FRE Rule #501
Definition
"Follow common law, unless modified by US Const, fed statute, or SCOTUS prescribed rule
In Civil Case: STATE LAW governs if state law supplies the rule of decision"
Term
Privilege (Physician-Patient) HRE Rule #504
Definition
"HRE 504: Patient can refuse to disclose (or prevent others from disclosing) confidential communications made for the purpose of diagnosis or treatment of physical, mental, or emotional condition
EXCEPTIONS: (1) Proceedings for hospitalization; (2) Examination by court; (3) Condition an element of claim or defense; (4) Proceedings against physician; (5) Furtherance of crime or tort; (6) Prevention of crime or tort"
Term
Privilege (Psychologist-Patient) HRE Rule #504.1
Definition
"HRE 504.1: Patient can refuse to disclose (or prevent others from disclosing) confidential communications made for the purpose of diagnosis or treatment of the client's mental or emotional condition
EXCEPTIONS: (1) Proceedings for hospitalization; (2) Examination by court; (3) Condition an element of claim or defense; (4) Proceedings against psychologist; (5) Furtherance of crime or tort; (6) Prevention of crime or tort"
Term
Privilege (Spousal) HRE Rule #505
Definition
(a)In Criminal proceedings, spouse of accused has privilege not to testify against the accused (b) Either spouse can refuse to disclose and prevent another person from disclosing a confidential marital communication.
Term
Privilege (Waiver by Voluntary Disclosure) HRE Rule #511
Definition
HRE 511: If the holder of the privilege (or person's predecessor) voluntarily discloses or consents to disclose any SIGNIFICANT part of the privileged matter
Term
Public Records FRE Rule #803(8)
Definition
Sets out (1) office's activities; (2) matter observed while under legal duty to report; OR (3) factual finding from a legally authorized investigation; AND no indication of lack of untrustworthiness
Term
Public Records (Absence) FRE Rule #803(10)
Definition
Testimony or certification that diligent search has failed to produce a result
Term
Public Records (Copies) FRE Rule #1005
Definition
Proved by copy, certified as correct
Term
Rape Shield (Prohibited Uses) FRE Rule #412(a)
Definition
"Not admissible in a civil or criminal case involving alleged sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual behavior
(2) evidence offered to prove a victim's sexual predisposition
"
Term
Recorded Recollection FRE Rule #803(5)
Definition
(1) witness once knew; (2) witness can't recall; (3) made or adopted while matter was fresh in mind; (4) accurately reflects witness's knowledge
Term
Refresh Witness's Memory (Writing) FRE Rule #612
Definition
"If W uses writing to refresh memory (1) while testifying; or (2) before testifying (if court decides that justice requires)
Adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the W about it, and to introduce in evidence any portion that relates to the W's testimony"
Term
Relevance (Balancing) FRE #403
Definition
"Kaeo v. Davis - Evidence of earlier drinking, even if D wasn't legally drunk, can be relevant to impairment - 4 beers
Kaeo v. Davis - Unfair prejudice means an undue tendency to suggest decision on an improper basis, commonly an emotional one
State v. Edwards - the fact that a photograph may be considered gruesome does nto necessarily render the photo inadmissible
Old Chief v. US - Failure to allow stipulation of prior conviction was irrelevant under 403 when it generalized D's earlier bad act into bad character and took that as raising the odds that he did the later bad act now charged"
Term
Relevance (Balancing) Cases
Definition
"Kaeo v. Davis - Evidence of earlier drinking, even if D wasn't legally drunk, can be relevant to impairment - 4 beers
Kaeo v. Davis - Unfair prejudice means an undue tendency to suggest decision on an improper basis, commonly an emotional one
State v. Edwards - the fact that a photograph may be considered gruesome does nto necessarily render the photo inadmissible
Old Chief v. US - Failure to allow stipulation of prior conviction was irrelevant under 403 when it generalized D's earlier bad act into bad character and took that as raising the odds that he did the later bad act now charged"
Term
Relevance (Conditional) FRE #104(b)
Definition
When relevance depends on whether a fact exists, proponent of evidence must provide evidence sufficient to support a finding that the fact exists. Existence of fact can be proved later.
Term
Relevance (General) FRE #401
Definition
Any tendency to make a fact more or less probable; must be of consequence in determining action
Term
Religious Beliefs or Opinions FRE Rule #610
Definition
Evidence of W's religious beliefs or opinions not admissble to attack or support W's credibility
Term
Residual Exception FRE Rule #807
Definition
"Hearsay statement is not excluded even if not specifically covered by another hearsay exception if:
(1) statement has equivalent circumstantial guarantees of trustworthiness;
(2) offered as evidence of material fact;
(2) more probative on the point for which it is offered than any other evidence that proponent can obtain through reasonable efforts; AND
(4) admitting would best serve purposes of these rules and the interests of justice
Requires advance notice"
Term
Residual Exception Cases
Definition
State v. Durry - when a court relies on HRE 803(b)(24), it should state on the record the basis for its determination of trustworthiness, probative value, and necessity
Term
Sexual Assault-- Similar Crimes (Permitted Uses) FRE #413(a)
Definition
"In CRIMINAL CASE (where D is accussed of a sexual assault) court may admit evidence that D committed ANY OTHER SEXUAL ASAULT
Requires disclosure to D at least (15) days prior to trial"
Term
Sexual Assault/Child Molestation- Civil Cases FRE #415
Definition
"In CIVIL CASE involving a claim for relief based on a party's alleged sexual assault to child molestation, court may admit evidence that the party committed ANY OTHER SEXUAL ASSAULT OR CHILD MOLESTATION
Requires disclosure to other party at least (15) days prior to trial"
Term
Subsequent Remedial Measures FRE #407
Definition
"Must have been after an injury or harm occurred
Measures taken that would have made earlier injury or harm less likely to occur are not admissible to prove: (1) negligence; (2) culpable conduct; (3) a defect in a product or its design; or (4) a need for a warning or instruction
Court may admit for other purposes (i.e. impeachment, ownership, control, feasibility of precautionary measures)"
Term
Subsequent Remedial Measures HRE Differences
Definition
"HRE 407 states ""after an event"" - doesn't require injury or harm
Allows evidence to prove dangerous defects in products liability cases
"
Term
Summaries FRE #1006
Definition
Okay if voluminous writings. Other side must have opportunity to examine
Term
Witness Exclusion FRE #615
Definition
"At party's request, or on its own, court may exclude Ws so that they cannot hear other Ws' testimony
EXCEPT:
(a) a party who is a natural person; (b) an officer or employee of a party that is not a natural person, after being designated at the party's representative by its attorney; (c) a person whose presence a party shows to be essential to presenting the party's claim or defense; or (d) a person authorized by statute to be present"