Module 3

Which are something a court may or may not take judicial notice of. Can you decide?

Address of a hospital Yes. This is a fact and not disputable. It can be easily recognized in a news report or address directory. Weather conditions on a particular date Yes. This is a fact cited in a recognized report, like a weather report in a paper, and the court can properly take judicial notice. The effect of a particular witness's testimony No. The court cannot take judicial notice of the effect of a witness's testimony. DNA evidence offered to prove defendant's guilt No. The court cannot take judicial notice of evidence set forth to prove or disprove a dispositive fact in the case. Definition of "desktop" pulled from Merriam-Webster online dictionary Yes, a court might take judicial notice of this.

Under the Federal Rules of Evidence and in a number of jurisdictions, which of the following is specifically defined as not being hearsay, even though it may appear to be hearsay?

Admission by a party opponent

The oldest confidential communication privilege known to the common law was the ____________ privilege.

Attorney-Client

Barry worked as a high-level manager at a clothing store. In a trial against him for embezzlement, financial statements were introduced to show questionable and allegedly manipulated numbers. The records are considered to be a(n) ___________.

Business Record

In terms of hearsay, the ________is the person who makes the statement.

Declarant

Paul was weak and on his deathbed. A religious man, he suddenly confessed to defrauding his company for five years with the help of his boss, stating "the stress of all the fraud is what is causing my death." Paul later recovered, but he fled the country and authorities cannot locate him. The statement was entered into evidence in a civil fraud action against his boss under ___________.

Dying Utterance

Rachel was walking down the street when she fell to the ground after Derek stabbed her. Jennifer was walking down the same street and heard Rachel scream. Jennifer turned to where she heard the noise and saw Derek running away. "He stabbed me!" yelled Rachel. The scenario demonstrates ___________.

Excited Utterance

The privilege holder for the spousal testimonial privilege and the marital communications privilege is the witness' spouse.

False

True or false: A judge can take judicial notice of facts that are known solely to the judge.

False

True or false: The privilege against self-incrimination applies to handwriting and speech exemplars.

False

Spousal Testimonial Privilege

First, the spousal testimonial privilege acts as an immunity for a spouse who may be called to testify against his or her spouse. Under the FRE, this privilege was limited to criminal cases but some states, such as California, allow this privilege for criminal and civil cases. The spousal testimonial privilege prevents the spouse from testifying even if testimony is about communications made before the spouses were married. However, if the witness spouse chooses to testify, he or she may do so. The witness spouse is the holder of the privilege and may testify against his or her spouse. Further, this privilege only lasts while spouses are married. If they get divorced, the privilege is lost.

__________ is an out-of-court statement made by the declarant asserted for its truth.

Hearsay

The Hearsay Rule and its Exceptions

Hearsay is one of the most common objections to introduction of evidence, but it can be a complicated thing to identify. At its most basic, hearsay is an out-of-court statement asserted for its truth. The statement can be verbal or written, or it can be some kind of physical communication, such as nodding one's head. The problem with hearsay is the person who made the statement, known as the declarant, is not cross-examined by the adverse party. Because the declarant is not cross-examined, the credibility of the statement is called into question. As a result, the general rule is that hearsay is not admissible as evidence. Some statements meet the definition of hearsay but are not hearsay under the Federal Rules of Evidence. These are considered exemptions to the hearsay rule and include prior inconsistent statements of a witness under various criteria and admissions of a party opponent. There are also exceptions to the hearsay rule. These hearsay exceptions are considered reliable because of the circumstances under which they were made.

The doctrine of _______________ allows the court to accept something as factual without presenting it to the jury.

Judicial Notice

Which of the following privileges protects confidential communications made during the marriage and survives after the marriage is over?

Marital communications

Jill was called to the stand to testify about seeing a suspect in a robbery flee down the street. The crime happened two years ago, and Jill could not recall some specific answers to the prosecution's questions. The prosecutor introduces statements Jill made to him during an interview years after the crime occurred. This is an example of ___________.

Record Recollection

Yara heard some commotion next door, including glass breaking. She looked over and saw two men breaking into her neighbor's house by going in a first-floor window. At the same time, one of the men, Chris, stated, "Come on, man! I am not going back to prison over this one!" The statement is an example of ___________.

Statement against interest

People can assert the privilege against self-incrimination only for ___________ evidence.

Testimonial or communicative

The Confrontation Clause

The Confrontation Clause is found in the Sixth Amendment. The rule prohibiting hearsay is closely related to the right of confrontation derived from the U.S. Constitution because both recognize the importance of face-to-face contact between defendant and the witness as necessary for reliability of the evidence presented. In Maryland v. Craig, the U.S. Supreme Court opined the function of the Confrontation Clause is to "ensure the reliability of the evidence against a defendant by subjecting it (the evidence) to rigorous testing" (497 U.S. 836, 1990).

Judicial Notice

The doctrine of judicial notice allows the court to accept something as factual without presenting it to the jury. The most common areas where a court may take judicial notice include matters of general knowledge, such as the location of a place. Courts also take judicial notice of recognized reports, newspapers, and other credible publications.

Marital Communications Privilege

The marital communications privilege protects communications made in confidence during the marriage. It does not protect communications made between the spouses before they were married. This privilege survives death or divorce and both spouses hold this privilege equally. Thus, one party may assert the privilege even if the other spouse is willing to testify.

Privileges

The public policy behind privileges is to encourage freedom of communication between specific parties, such as husband and wife or doctor and patient. For this reason, privileged communications are protected, which means they remain confidential and cannot be admitted as evidence. If the holder of the privilege discloses the information, then the privilege is waived, and the information is no longer protected.

The rule prohibiting hearsay is closely related to the right of confrontation derived from the U.S. Constitution because both recognize the importance of face-to-face contact between defendant and the witness as a necessity for reliability of the evidence presented.

True

True or false: The introduction of hearsay evidence can raise serious issues under the confrontation clause.

True

To fall within the hearsay rule, the testimony must be offered to prove the _________.

Truth of the matter asserted in the statement

Prosecutors generally have a privilege not to reveal the _________.

identity of confidential informants

Judicial notice is permitted __________.

in all jurisdictions

The problem with hearsay testimony is that the person who actually saw the events _________.

is not on the witness stand

The general rule is that hearsay is _________.

not admissible

The primary purpose of judicial notice is to _________.

save time and effort