Evidence – PA Distinctions 1. Overview a. Competency i. Dead Man b. Judicial notice i. No 2. RELEVANCE a. Discretionary Exclusion of Relevant Evidence: i. PRE 403: ct may exclude evidence if its probative value is outweighed by danger of unfair prejudice, confusion of the issues, or misleading to the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence ii. Certain kinds of evidence (evidence of accused’s other crimes, wrongs, or acts) admitted only if probative value outweighs prejudice b. Character Evidence: A Special Relevance Problem: i. Opinion Testimony regarding character is not admissible (even where directly in issue) 1. Character W may only testify to what he has heard about a person’s Reputation only (not what he knows about the person’s character) ii. Cross-Examination of a Character Witness 1. FRE – convictions, arrests and bad acts 2. PRE 405 – defense character witness may not be asked on cross-examination whether he knows or has heard of a Δ’s arrest or criminal misconduct 3. Only convictions 4. Rule silent to whether witness may be asked about Δ’s noncriminal misconduct iii. Specific Acts of Misconduct: criminal case, prosecution must provide reasonable pretrial notice of any specific act evidence that it intends to introduce (unless excused for good cause) 1. Fed – balancing test; presumptively admissible (Δ must convince that danjer of prej outweighs PV) 2. PA – Pros must convince that PV outweighs Prej iv. Prior Acts of Sexual Assault or Child Molestation: PA has not adopted special rules, it is governed by PRE 404(b) which regulates the admission of evidence of other crimes, wrongs, or acts 1. 404(b) (rather than relevance, as in FRE 413-415) determines Admissibility of Δ’s prior sexual activity. v. Proving Self Defense 1. Same as FRE with one exception a. May offer Victim’s convictions, even if he does not know about them. b. FRE requires knowledge before introduction. 3. JUDICIAL NOTICE a. Judicial Notice of Fact: both criminal and civil cases, judicially noticed fact is not conclusive; adverse party not deprived of opportunity to disprove the noticed fact b. Judicial Notice of Law- Mandatory or Permissive: i. Mandatory Judicial Notice: required to judicially notice regulations of PA Bulletin and Code, ordinances of municipal corps, and law of other states and jurisdictions ii. Permissive Judicial Notice: may judicially notice rules of US S. Ct and gov’t and judicial seals; laws of foreign countries traditionally not judicially noticed 4. DOCUMENTARY EVIDENCE PA Evidence Distinctions1
a. Authentication: Ancient Documents: at least 30 years old 5. TESTIMONIAL EVIDENCE a. Competency of Witnesses: i. Dead Man Acts: 1. Applicable to civil cases ONLY a. Prohibits only testimony b. Does not bar documentary evidence or testimony to authenticate a writing 2. Interested Person: in PA, Act does not apply: a. Where claim/interest belongs to someone other than deceased/protected party; b. To prevent testimony against a corp whose single SH dies w/o an interest; c. Where П’s wrongful death action is based on П’s losses due to decedent’s death; OR d. To prevent testimony of purported transferee if valid transfer proven by prior independent evidence 3. EXCEPTIONS and Waiver of the Act a. Otherwise incompetent witness not barred from testifying against his own interest or when he relinquishes his interest; b. Witness may testify for or against the surviving parties to matters that occurred b/w them; c. Cases involving distribution of property by descent/will, all witnesses are competent i. Common law spouse must 1st prove status by independent evidence to fit w/in Act’s exception d. Witness who has been deposed or subject to interrogatories may not be barred from testifying; AND e. Where decedent’s estate/protected party calls witness who testifies to something that occurred in presence of witness and surviving party, survivor’s testimony not barred by Act b. Forum of Examination of Witnesses: i. Open rules for parties ii. Where party calls and cross-examines adverse witness, witness should be questioned by all other parties as to whom witness not adverse, as if under redirect iii. Use of Memoranda by Witness: 1. Present Recollection Revived – Refreshing Recollection: witness’s memory may be refreshed at deposition AND trial 2. Past Recollection Recorded – Recorded Recollection: may not be admitted or read into evidence unless declarant: (1) Testifies at trial or hearing; (2) Subject to cross-examination concerning the recorded recollection; AND (3) Testifies that recorded recollection correctly reflects his knowledge a. Adverse party (if exceptional circumstances proponent) may show document to jury c. Opinion Testimony: i. Opinion Testimony by Expert Witnesses: **(BAR)** 1. FRE – Daubert PA – Frye a. Expert testimony admissible if based on scientific, technical or other specialized knowledge, beyond that possessed by a layperson, which will assist the trier of fact. b. PA permits scientific expert testimony only on subject that has gained general acceptance in particular field. c. Expert’s methodology and principles (NOT conclusions) must be generally accepted
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2. Expert must testify to NOVEL underlying info on which opinion based (even when otherwise not admissible) 3. Disclosure not prohibited to factfinder of otherwise inadmissible underlying data relied on by expert forming his opinion. 4. Allow expert to express opinion on ultimate issue in a case (including a criminal Δ’s mental state) a. Cannot comment on witness’s credibility or edit or review and trial testimony b. Differs from Federa Standard 5. Statements from Learned Treatises are not admissible for substantive purposes a. Admissible to impeach an expert witness and as source upon which expert relied in forming opinion b. No H Exception for Learned Treatises – Differs from Federal standard d. Credibility – Impeachment: i. Accrediting or Bolstering – EXCEPTIONS: 1. Statement of identification admissible: a. for its substantive truth if declarant testifies at trial to the making of it AND is subject to cross-examination concerning the identification b. to impeach witness’s failure to identify, OR c. to bolster witness’s in-ct testimony ii. Impeachment Methods – Cross-Examination and Extrinsic Evidence: 1. Prior Inconsistent Statements: a. Extrinsic Evidence of prior inconsistent statement admissible only if during crossexamination of witness: i. Statement disclosed or shown to witness; ii. Witness given opportunity to explain/deny statement; AND iii. Opposite party given opportunity to question witness about statement b. Admissible as Substantive Evidence if witness testifies and is available for crossexamination and prior statement i. Differs from FRE 1. Made under oath; (same as FRE) 2. Written, signed, and adopted by witness; OR 3. Contemporaneous audio or video recording of witness’s statement 2. Bias or Interest: No foundation is required to intro extrinsic evidence of bias, prejudice, interest or other motive to testify falsely 3. Conviction of a Crime: a. Unless claim of bias/improper motive, Unsentenced convictions are inadmissible to impeach witness b. Witness may be impeached only by crimes involving dishonesty or false statement. i. Admissible w/o ct balance of probative value/prejudice c. Juvenile convictions admissible if would be for adult d. Can only cross-examine accused about conviction if i. Δ Refers to conviction on direct; ii. Δ witness offered testimony about Δ character; OR PA Evidence Distinctions3
iii. Δ Testified against co-Δ e. Otherwise, proof of Accused’s conviction shown only by extrinsic evidence f. Witness may not be asked about prior bad acts not convicted, even if probative of truthfulness 4. Rehabilitation: Prior Consistent Statement admissible to rehabilitate where a. Statement predates charged motive to lie; b. Statement predates onset of charged bad memory; OR c. Witness has denied or explained prior inconsistent statement and prior consistent statement supports witness’s denial/explanation e. Objections, Exceptions, and Offers of Proof f. Testimonial Privileges: i. Attorney-Client Privilege: 1. Belongs to the client a. Covers oral and written communications b/w attorneys (their agents) and clients b. Covers notes may by both attorney and client, does not protect physical evidence c. Challenger has burden of proving not privileged d. Disclosure of otherwise privileged info to 3rd person isn’t waiver e. Covers attorney’s work product 2. Not covered a. Observations b. ID c. Fee arrangement d. Pre-relationship physical/documentary evidence e. Statements made in front of 3P who is not an agent of the Lawyer. 3. Crime Fraud Exception a. If purpose of the communication is to utilize lawyer/services to perpetrate criminal acts, A-C P does not apply. b. Co-Conspirators may spill. ii. Physician-Patient Privilege: 1. Covers only communications b/w patient and physician a. Narrowly read – cannot “blacken reputation” i. Alcoholism, mental illness –not privileged ii. HIV, STDs – not privileged 2. Operates only in civil cases 3. Non-Applicability of Privilege a. Does not apply to communications offered in proceedings regarding child abuse b. Does not protect reports or testimony regarding injuries from criminal acts or deadly weapons iii. Psychotherapist-Patient Privilege: governs confidential communications b/w psychiatrists and licensed therapists and patients on same basis as attorney-client 1. Does not apply to ct related examinations or consultations 2. Does not apply in communications offered in proceedings regarding child abuse iv. Husband-Wife Privilege: 1. Spousal Immunity Rule (aka Privilege Not to Testify ) a. Criminal: waivable privilege not to testify against (then valid) spouse
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b. Civil: neither husband nor wife is competent to testify against other unless both spouses waive the privilege c. 3rd party may testify to hearsay statements made by souse if fall w/in a valid hearsay exception d. Lasts only during marriage e. O – may a spouse even be called as a W. i. Civil – Generally incompetent to testify, with exceptions 1. Divorce, support, custody, abuse cases ii. Criminal – belongs to testifying spouse 1. Exceptions – no right to invoke immunity (must testify) when involving domestic/sexual violence 2. Privilege for Confidential Marital Communications a. Must be waived by both parties b. Civil OR Criminal, confidential communications during a valid marriage are privileged c. Marital relationship must exist when communication made (after marriage still have privilege, but communications no longer privileged) d. Can apply to proper common law marriage e. Waived when regarding abuse or co-conspiracy between the couple. 3. Nonapplicability of Privileges a. Spousal Immunity i. Criminal: 4 areas compelled to testify: 1. Desertion/maintenance; 2. Attempted/threatened/actual violence against spouse/minor child in care of either spouse 3. Proof of fact of marriage in bigamy case; AND 4. Deviate sexual intercourse or rape ii. Civil: not incompetent for divorce, support, custody or abuse b. Marital Communication Privilege i. Privilege waived if nontestifying spouse fails to object to testimony at trial or at preliminary hearing ii. Privilege continues to exist even if spouse later tells 3rd party same info that contained in confidential conversation, although 3rd party may testify to info g. Exclusion and Sequestration of Witnesses 6. THE HEARSAY RULE a. Do not recognize “non-hearsay”, all considered hearsay, but admitted under an exception i. Prior Consistent Statements admissible only are rehabilitative NOT substantive evidence b. Hearsay Exceptions – Declarant Unavailable: i. Former Testimony: admitted if party against who testimony is now offered had adequate opportunity and similar motive to develop testimony at prior hearing ii. Statements Against Interest: admitted by either party in a criminal case if there is corroborating circumstantial evidence of statement’s trustworthiness iii. Dying Declarations: available in ALL cases iv. Statements of Personal or Family History: admissible if declarant is dead and statements made before controversy in issue arose c. Hearsay Exceptions – Declarant’s Availability Immaterial: i. Past Bodily Condition: only admit statements of past bodily condition made by patient/patient’s family to medical personnel in contemplation of obtaining medical treatment PA Evidence Distinctions5
1. Differs from FRE ii. Business Records: does not cover entries in hospital record concerning opinions or diagnoses relating to patient’s treatment or reports made in anticipation of litigation 1. May be excluded if evidence of lack of trustworthiness iii. Public Records and Reports: prepared pursuant to an official duty iv. Judgments v. Accident Reports: inadmissible in criminal or civil cases vi. Learned Treatise vii. Tender Years Exception: 1. Governs statements made by children under 12 who are victims of sex crimes. 2. ADM if a. Judges finds statement to be reliable b. Child must testify or judge must determine that the child is unavailable for tender years purposes i. Different than “unavailable” for 801(a) 1. Emotional Testimony – Testimony would emotionally cripple the child. c. Proper notice of statement must be served to the Δ. 3. child’s out-of-ct statements of sexual abuse admissible if a. Ct determines time, content, and circumstances of statement demonstrate reliability and relevancy; AND b. Child testifies or is unavailable and proponent provides corroborative evidence of abuse viii. NO Residual “Catch-All” Exception 1. Differs from FRE 7. PROCEDURAL CONSIDERATIONS a. Presumptions relating to intoxication, knowledge of minor’s age, knowledge of insufficient funds, deception as to intention to pay, and theft arising from concealment of merchandise
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