LAW
Evidence Outline.docx

A lack of response to a writing is not an adoptive

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A lack of response to a writing is not an adoptive admission. o The burden of proof is on the proponent of the evidence. o Miranda and Adoptive Admissions Page 40 of 65 Nathan Hardymon
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Evidence Spring 2017 Outline Lollar Miranda : Statements made while D is in custody, during interrogation are only admissible for impeachment of D. Doyle : A prosecutor may not impeach a D with silence after being Mirand ized. Jenkins v . Anderson : A prosecutor may impeach a D with pre-arrest, pre- Miranda silence. Fletcher v . Weir : A prosecutor may impeach a D with post-arrest, pre- Miranda silence. Selenas : A prosecutor can impeach a D with pre- arrest, pre- Miranda in case in chief. Authorized Admissions (801(d)(2)(C)) o 104(a) question for the judge. The judge must consider it, but the statement alone does not establish the declarant’s authority. o There should be a 403 analysis. Admissions by an Agent or Employee (801(d)(2)(D)) o This looks at the law of agency. o 104(a) question for the judge. The judge must consider it, but the statement alone does not establish the existence or scope of the relationship. o Consultants are generally not considered agents or employees. Board member notes during a meeting are admissible against the corporation. They are only admissible against the board’s principle though; i.e., not a worker. o Company’s control is key. Admissions by a Coconspirator (801(d)(2)(E) o Three requirements: Declarant conspired with the party; The statement was made during the conspiracy; and The statement was made in furtherance of the conspiracy. o 104(a) question for the judge. The judge must consider it, but the statement alone does not establish the existence of the conspiracy or the participation in it. o Under 104(a), the standard is a preponderance standard. o “During and in Furtherance” “In furtherance” means a statement that is part of the information flow between conspirators intended to help each perform his role. o Conspiracy Law Every conspirator is guilty of every act done by other conspirators in furtherance of the conspiracy. Page 41 of 65 Nathan Hardymon
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Evidence Spring 2017 Outline Lollar A statement made before a conspiracy is still imputable against a coconspirator based on the idea that you take the conspiracy where you find it. A former coconspirator is not liable for statements made after the conspiracy has ended. o Hearsay Exceptions Generally Bootstrapping is okay. 104(a) question for the judge in considering foundational requirements. Corroboration is not required. 803: Whether or Not the Witness Is Available Present Sense Impressions o 803(1). Present Sense Impression The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: (1) A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
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