Mass distinctions: evidence

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habit: Evidence of habit not admissible under similar occurrances exception to relevance rule

Evidence of business practice or custom is admissible if sufficiently uniform and regular
Offers to compromise: Excluded. But admissions of fact made during settlement negotiations are admissible.
Benevolent gestures expressing sympahty: inadmissible as evidence of admission of liability in civil action

Otherwise admissible
When is past behavior of rape behavior admissible as relevant evidence?: 1. past false accusations of rape by victim admissible if corroborating evidence that made

2. love triangle exceptoin--can offer evidence of sexual relationship with third party and d to show motive to lie about consensual nature
admissibility of evidence of prior act of sexual assault or child molestation: no specific exception making them relevant

But admissible when relates to motive, intent, absence of mistake, identity, common plan or scheme
munitipal ordinances administrative rules/regs exec body rules regs Judicial notice?: no, but copies can be admitted as permitted by stattue
admissions: failure of opponent to deny genuineness of instrument in pleadings

means proponent doesn't have to prove authenticity
Best evidence rule application: Only applies to conventional writings and recordings
Business records: Certified copies and identified duplicates are admissible by statute

Supercedes common law hearsay exception
Dead man act: No dead man act. Thus declaration of deceased admissible if proof that declaration made in good faith and with personal knowledge
How can atty get expert to testify about facts of case?: 1. if personal knowledge of info, can be asked "on the basis of the info, what is your opinion?"

2. if no personal knowledge, must pose question as hypo
What info can expert rely on?: 1. admissible info
AND
2. customarily relied on by experts in a particular field
Can expert give testiomny on ultimate issue?: no, except

can give opinion touching on ultimate issue so long as opinion will aid jury in making final determination
polygraph evidence admissible: Not admissible in criminal trials because of lack of acceptance in scientific community.

Might consider admission if can show that test was reliable.
Scope of cross-examination: not limited to scope of direction

-may cross ex on any matter relevant to any issue
private marital communications: Spouses CANNOT testify even if want to

EXCEPTIONS
1. doesn't apply to written communications
2. declarations made by deceased spouse if in good faith and with personal knowledge
3. proceedings involving contract between husband and wife
4. under Support Act
5. proscecutions for nonsupport, desertion, neglect of parental duty
6. criminal proceedings where d charged with crime against spouse or violating abuse prevention order
7. incest involving minor
8. threats by one spouse against another

--if some parts come in accidentally or otherwise, jury can consider evidence for whatever probative value it has
inadvertent disclosure of priivleged info: Consider factors to determine if privilege destroyed:

1. reasonableness of precautions to prevent disclosure

2. amoutn of time it took producing party to discover error

3. scope of production

4. extent of inadvertent disclosure

5. overriding interest of fairness and justice
spousal immunity in criminal cases: --applies in any proceeding except child abuse and incest
--excited utterance of spouse can be admissible when spouse claims testimonial privilege
When child can't testify against parent: Unemancipated minor living with parents can't testify agaisnt that parent

1. in criminal proceeeding
2. unless v is member of parent's family and lives in parent's household
atty work product when used to refresh recollection: protection of doctrine is waived and opponent's atty can inspect document
physician-patient privilege: not recognized in ma.

but physicians have duty not to make out-of-court dislcorues of med infor withotu patient's consent.
psychotherapist/social worker-client privilege: applies even to unlicensed social workers employed by gov

Doesnt apply:
1) commitment hearings

2) court ordered exam where patient warned wont apply

3) where patient places emotional or mental condition at issue

4) patient is deceased and patient's mental or emotional condition at issue and judge decides interests of justice

5) child custody or adoption proceedings

6) actions against psychotherapist where disclosure necessary or relevant
Can fact that d refused to take sobriety test be admitted against him?: No,

but refusal to submit to blood and genetic marker testing in paterntiy case is admissible.
journalist and accountant-client privilege: Not recognized in MA

But courts have established some protection for journalists who intentd to disseminate to public

--disclosure probalby mandatory in crim case to protect d's rights
mediator's privilege: communications relating to subject of mediation and in presence of mediator are inadmissible

work product of mediator is inadmissible
tax returns privileged?: state individual tax returns are privileged

fed returns must be dislcosed on showing of need
domestic violence counselor-victim privilege: Privileged except in actions for discovery of communications that may exculpate the accused
trade secrets privilege: court can issue protective order limiting disclosure of trade secrets, but without prejudicing other party
when can d get records from psychologist or rape counselor: * MA provides broad contrantation rights to criminal defendants

1. D must show good faith, specific, reasonable basis for believing that records will contain exculpatory evidence

2. judge then reviews in camera to determine relevance
(bias, motive to lie, inconsistencies in id of d are all relevant)

3. then relevant portions given to defense and prosecution
when are prior inconsistnet statements admissible as substantive evidence: **Generally admissible for impeachment purposes only.

Only prior inconsistent grand jury testimony when:

1. testifying witness available for cross-ex

2. statement not coerced

3. statemetn clearly that of witness

4. adequate corroboration of testimony if concerns essential element of crime
hearsay evidence and joint venturers and co-conspirators: Must be sufficient non-hearsay evidence to estalish probability that declarant and d in criminal enterprise

This foundaiton must be established as preliminary matter before hearsay statement can be admitted
dying declaratoins: only applies when declarant dies
declarations of deceased persons: Allowed by statute when:

1) made in good faith

2) deceased had personal, firsthand knowledge of matters in statement

* only admissible in civil trial
* includes writings
* hearsay within statement is not admissible bc not within personal knowledge
forfeiture by wrondoing doctrine: lose right to object to admission of out of court statemetns when unavailableiy tthe d had a meaningful role in procuring
present sense impression exception to hearsay rule: not recognized in ma
statement of bodily conditions: 1. then-existing bodily condition is admissible

2. past and present conditions are admissible WHEN statement made to physician for purpose of diagnosis or treatment
ancient documents exception to best evidence rule: docs more than 30 years old that are properly authenticated
statements made by hospital payments: Admissible
1) statements by officers, inspectors, family, attys
2) tape recorded statemetns
3) statemtns given outside hosptial

Inadmissible
(1) no releases or written statemtns made by patient w/in 15 days of injury
(2) no settlements made by patient w/in 15 days of injury

**rule protects injured people in hospital
ADmissibility of hospital records: admissible at discretion of trial court if:

1) made by person with obligation to report

2) certified to be true and complete by person with custody

3) relate to treatment and medical history

**nothing referring to liability is admissible
**in personal injuries action, itemized bill for medical services is admissible but can't refer to injury itself
reputation in nuisance cases: general reputation is admissible as evidence to prove existence of a nuisance
child hearsay rules in 1. care and custody cases 2. other criminal or civil cases 3. special reqs for criminal cases: 1. care and custody
(a) child under 10
(b) concern secual contact
(c) third person testifies in court
(d) material fact

2. crim/civ cases
(a) child unavailable
(b) more probative than other evidence can obtian through reasonable efforts
(c) statement is sufficiently reliable

**child can be unavailable due to lakc of membory or intense trauma

3. special reqs for crim
(a) give prior notice to d
(b) show compelling need
(c) produce independnet evidence of out of court statemetn
allowable forms of testimony for witness with mental retardations: ** when testifying may cause severe trauma

1. allow familiar person to sit next to witness

2. testify off wtiness stand

3. testify out of court on video
when is prior evidence of abuse admissible: to show reasonableness of use of force when self-defesne, defense of other, duress, coerciaon, accidental harm
admissibility of blood alcholol tests: Admissible when:

1) d consents

2) resutls available to d

3) d had reasonable opp to have done by doctor he selected

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