Transcript Chapter 7: Evidence and Procedure

Chapter 7:
Evidence and
Procedure
Evidence: Proves/Disproves fact in issue
Procedure: Rules of Court
§7.1 Evidence
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Evidence
Tends to prove or disprove a fact in issue
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Direct Evidence:
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Evidence that establishes a fact without
inference (e.g., picture)
Circumstantial Evidence:
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Evidence of one fact requiring inference to
establish another fact (missing person is dead)
Types of Evidence
Direct or Circumstantial Evidence is either:
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Physical Evidence
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Evidence that can be touched
 “tangible” / “demonstrative” evidence (e.g.,
OJ’s glove)
Oral Evidence
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Verbal/ “Testimonial” evidence
§7.3 Evidence & Procedure
Procedural Rules of Court
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= evidence that can/cannot be considered by jury
local rules
 state rules
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each state court has its own rules
 federal rules (FRCP)
 each local federal court has its own rules
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federal appellate rules
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Federal Rules of Appellate Procedure
subject matter rules
Bankruptcy Courts
 Courts of Military Justice
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§7.5 Hearsay
“he said; she said”
In-court testimony of an out-of-court statement
made by someone other than the in-court witness
offered to establish the truth of matters asserted.
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Analysis:
 1. In court testimony
 2. of an out-of-court statement
 3. made by someone other than the in-court witness
 4. offered to establish that truth of the matters asserted.
 Is it offered to prove truth or that statement simply
made?
 5. Question of credibility lies with the out-of-court
declarant
§7.5 Hearsay
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Credibility
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Hearsay is unreliable “he said/she said”
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Statement may be:
taken out of context
misinterpreted
misunderstood
No opportunity to cross-exam the declarant,
therefore can’t determine trustworthiness
Hearsay is inadmissible unless it falls under an
exception
§7.6 Hearsay Exceptions
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Exceptions are based on trustworthiness and
necessity:
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1. Admissions (by a party to the action)
 Statement by party
2. Declaration against interest (by nonparty)
 Statement by non-party
3. Business Entry
 Records kept in normal course of business
(e.g., police report, hospital records)
Hearsay exceptions, continued
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4. Dying Declaration
 Declarant believes their own death is
imminent/Based upon deathbed repentance
5. Declaration of Bodily Symptoms/Conditions
 “My stomach hurts”
6. Declaration of State of Mind
 Statement regarding knowledge and intent of
declarant
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“I’m so mad, I’m going to go over and beat up
Joe”
Hearsay exceptions continued
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7. Declaration of Present Sense Impression
 Statement made immediately before or during
event (e.g., “Look at that car go so fast!” )
8. Excited Utterance
 Spontaneous Declaration
27 federal exceptions plus
 “catchall exception”
evidence that has guarantees of trustworthiness, offered to prove
material fact, is more probative than prejudicial, and
would serve the interests of justice
Analyzing Hearsay
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2-step analysis:
Is the statement hearsay?
 Does it fit into an exception?
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Note: One argument against hearsay is that it
may jeopardize a party’s constitutional right to
confrontation of his or her accuser
§7.8 Privileges
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Privilege
= right to refuse to testify or the right to
prevent someone else from testifying
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Involves Private Communication that
Remains Confidential
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Waiver: If communication is not private or
is later disclosed, privilege is waived
Privileges, continued
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Attorney-client
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Client can refuse to testify about communications with
attorney
Client can prevent attorney from testifying
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However, attorney can reveal communications in
malpractice defense
Doctor-Patient Privilege
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Patient can refuse to testify about private
communication
Patient can prevent doctor’s testimony
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However, doctor can reveal communications in malpractice
defense
Privileges continued
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Clergy/Penitent
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Private communication to spiritual advisor
seeking spiritual counseling
Spousal
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Husband/wife
 Exception: litigation between spouses
Other Privileges
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5th Amendment
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Privilege against self-incrimination
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Person can refuse to testify
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If testify, can’t pick and choose issues to answer
Government Information
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e.g., tax returns (unless fraudulently
prepared)
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No Privilege Exists for:
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Parent/Child
Teacher/Student
Employer/Employee