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DE Evidence 2006


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When & how can a W's credibility be attacked? Subject to what limitations?
1. except in 11 Del. C. §§ 3508 and 3509 (sexual history), the credibility of a witness may be attacked or supported by evidence of reputation, but subject to limitations
a. evidence must refer only to truthfulness or untruthfulness, and
b. evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked.
2. In DE, can give evidence of character via opinion, and this is subject to the same limitations as to the subject matter of truthfulness and inadmissibility until the witness is attacked.
3. DE does not allow reputation evidence in the area of sexual history.
What must reputation evidence relate to? When can specific instances be presented, and what must the court consider?
Reputation evidence may only relate to truthfulness and may not be presented as specific instances by extrinsic means. However, specific instances may be presented on XEX in order to probe truthfulness of the witness or another witness. Court must consider
a. if testimony of W being impeached is crucial
b. the logical relevance of the specific impeachment evidence to the question of bias
c. the danger of unfair prejudice, confusion of issues, and undue delay and
d. whether the evidence is cumulative.
These criteria are equally applicable in a civil case.
May a defendant offer evidence of victim's sexual conduct w/ defendant?
Yes. But, Defendant can’t offer opinion, reputation, or evidence of specific instances of victim’s sexual conduct to prove consent by the victim.
What are the Getz factors and when are they used?
Before MIMIC / MOIPPKIAA evidence gets in, in DE look at Getz factors: the evidence of specific instances of misconduct or crimes sought to be introduced must 1. be material to issue or ultimate fact in dispute in the case 2. be introduced for purpose sanctioned by §404(b) or any other purpose not inconsistent with basic prohibition against evidence of bad character or criminal disposition (i.e., some other non-propensity purpose) 3. be proved by plain, clear and conclusive evidence 4. not be too remote from charged offense; and court must balance probative value v. prejudice.
In considering the Getz factors what can the Court consider?
Factors the court can consider in determining admissibility
1. Extent of the dispute over the issue
2. Adequacy of proof of the prior act
3. Probative force of the evidence
4. Proponent’s need for the evidence
5. Availability of less prejudicial proof
6. Prejudicial motive
7. Similarity of present and prior act
8. Effectiveness of limiting instruction
9. Extent to which prior act could prolong the proceedings
If evidence can't be permitted pursuant to 404(b) [other crimes, wrongs, acts, MIMIC], how may it nonetheless be admissible?
If evidence can’t be admitted pursuant to the exceptions listed in 404(b), it may be admitted as “inextricably intertwined” if its absence would create a chronological or conceptual void.

If prior bad acts evidence admitted, must be accompanied by an appropriate limiting instruction.
If a police officer says, upon looking at a photo at trial, testifies it is a "pretty accurate depiction," is this sufficient for the authenticity requirement?
Yes. Case law where a police officer testified that pics were “pretty accurate depiction” was good enough to support finding that they were what they purported to be and therefore satisfied the authenticity requirement of the rule.
What are the rules regarding the competency of child to testify?
DE – kids under 10 yrs can’t be excluded form giving testimony for the sole reason that the kid doesn’t understand the obligation of an oath. The kid’s age and degree of understanding are to be considered by the trier of fact. He is competent if he can demonstrate the ability to differentiate the truth from a lie and promises to tell the truth.
In DE, what do you to with a forgetful witness?
Must show a failure of memory. And, in DE, a writing or object may be used to refresh their recollection. DRE gives the court discretion to admit the memorandum into evidence as an exhibit rather than just having it read, regardless of which side offers it.
When is a lay W permitted to state an opinion/inference?
DE – limits lay W opinions/inferences to 1. when W can’t communicate what he has perceived w/o testifying in terms of inferences or opinions, and his use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party and 2. the opinions and inferences don’t require a special knowledge, skill, experience, or training.

If the jury can be put in to a position of equal vantage with the witness for drawing the opinion, then the witness may not give an opinion.

It is permissible for a lay witness to opine on speed of a vehicle in an auto accident case.
How does a Court determine the admissibility of Expert Scientific Evidence/Testimony?
5 step test to determine admissibility of expert scientific evidence. Court must decide

1. the W is “qualified as an expert by knowledge, skill, experience, training, or education.
2. the evidence is relevant and reliable
3. the expert’s opinion is based upon information “reasonably relied upon by the experts in the particular field
4. the expert testimony will not create unfair prejudice or confuse or mislead the jury
5. The specialized knowledge being offered will assist the trier of fact to understand the evidence or determine a fact in issue.

DESC has ruled that expert testimony regarding profiles of sexual abusers is inadmissible.
Can an Expert give his opinon on the ulitmate issue? Is this different from the FRE?
DE & FRE differ because on DE, the expert can give his opinion on the ultimate issue to be decided by the trier of fact. Under FRE, only trier of fact can resolve such matters.

Testimony if the form of an opinion on an ultimate issue is not admissible if it does not meet criteria of DRE 701 (look at the standard for DE lay opinion testimony above) and not misleading to the prejudice of the objecting party.

Also, in DE, the expert can’t give his opinion until he provides the basis and reasons for the opinion, unless Court requires otherwise. Under FRE, an expert CAN give an opinion w/o 1st testifying about the underlying facts or data, unless the court requires otherwise. Under both, the expert may be required to disclose underlying facts or data on XEX.
When may a court take Judicial Notice of a Fact?
a. JN of adjudicative Facts: Instructing the Jury – upon request, the court shall instruct the jury to accept as conclusive any fact judicially noticed.
i. Civil - court shall instruct the jury to accept as conclusive any fact judicially noticed.
ii. Criminal – court shall instruct the jury that it may, but is not required to, accept as conclusive fact any fact judicially noticed.
iii. Counsel must request a jury instruction on a judicially noticed fact, court’s failure will probably not constitute reversible error.
When may a court take Judicial Notice of a Law?
i. Every Court in DE shall take JN of the US Constitution and USSC caselaw, common law, case law and statutes of DE.
ii. JN may also be taken of the common law, case law and statutes of the US, and every state, territory, and jurisdiction of the US.
iii. In every case of a request for JN, reasonable notice of the request shall be given to the adverse party.
iv. Court can inform itself of the laws or it can call upon attorneys to help.
v. The determination of the laws are made by the court (not the jury) and they shall be reviewable.
When can a court take Judicial Notice w/o a request from a party?
vi. Court can take JN of the following w/o request from a party
1. Private acts
a. (US Congress, DE Gen Assembly, and other states Gen. Assemblies, ordinances and regulations of fed & other states)
b. records of the court in which the action is pending and of any other court in DE or federal court sitting in or for DE.
2. Each matter specified in this rule if party requests and
a. Gives judge enough info to enable him to properly comply with the request and
b. Has given each adverse party notice thereof in the pleadings or at least 20 days before trial.
c. Judge, however, can permit JN to be given at any time in the trial in the interest of justice.
vii. Notice, info, rulings on laws of foreign country
1. the party who wants to raise it must give notice in pleadings or other written notice
2. Court can consider any relevant material source, including testimony, whether or not submitted by a party or admissible under these rules. The Court’s determination will be treated as a ruling on a question of law (reviewable).
Describe when 3507 Applies
DE – if a witness does not clearly admit that he has made the prior inconsistent statement, extrinsic evidence of such statement is admissible.

§3507 – (a) and (b): in a criminal prosecution, the voluntary out of court prior statement of a witness who is present and subject to XEX may be used as affirmative evidence with substantive independent testimonial value. This rule applies whether the W’s in-court testimony is consistent with the prior statement or not. This rule also applies with or without a showing of surprise by the introducing party. However, §3507 (c) states “This section shall not be construed to affect the rules concerning the admission of statements of defendants or of those who are codefendants in the same trial. This section shall also not apply to the statements of those whom to XEX would be subject to possible self-incrimination.”

To admit under §3507, the W must be present in court and subject to XEX, the prior statement must have been voluntary, and the W must touch on the subject matter of the statement.

Statements admitted pursuant to § 3507 must be offered into evidence no later than at the conclusion of the direct examination of the declarant.
When are past convictions admissible?
DRE doesn’t say “other than the accused” – meaning, the defendant’s felony convictions can come in. Also, FRE says it has to be a felony punishable by death or imprisonment in excess of one year under the law under which the witness was convicted are admissible. But, DRE only says “felony”.

Felony (10 yrs. or under unless court thinks probative & must give other side advance notice & fair opportunity to contest) convictions and as well as crimes of dishonesty (no time limit) , applicable to defendant and other Ws, and has only one standard of proof for all witnesses regarding the introduction of felony convictions, that probative value must outweigh prejudice.

Drug convictions are not considered “crimes of dishonesty” so these can come in only when a court feels that probative value outweighs prejudicial effect.

Shoplifting is a crime of dishonesty so it comes in.

Remember, no balancing is required for a crime of dishonesty.

Robbery, burglary, and theft have been deemed crimes of dishonesty by the DESC
What may XEX cover regarding past convictions?
XEX can include 1. whether a witness previously has been convicted of a felony or crime of dishonesty and 2. if so, what those crimes were and 3. where and when those convictions were obtained. The details of the convictions may not be explored.
When are convicitons inadmissible?
Conviction not admissible if
1. pardon, annulment, certificate of rehabilitation of the person convicted, or other equivalent procedure based on finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent felony (punishable by death or imprisonment in excess of 2 years) or
2. the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

Juvenile convictions – not admissible generally.
But in criminal case, court can allow evidence of a juvenile adjudication of a W other than the accused if the conviction of the offense would be admissible to attack the credibility of an adult and the Court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

Conviction that has been appealed and appeal is pending admissible.
When is it proper to request sequestration of Ws?
Exclusion of Ws – Sequestration

“At the request of a party the court may (FRE says “shall”) order Ws excluded so that they can’t hear the testimony of other Ws…”

Victim’s Bill of Rights gives victim the right to be present whenever defendant has a right to be present, other than GJ proceeding.

Chief investigating officer in a criminal case is also permitted to be present at all times during trial other than jury selection.
When is a person disallowed from invoking a privilege?
except as otherwise provided by USSC or statute, or by court decision, or these or other rules of the court, no person has a privilege to 1. refuse to be a witness 2. refuse to disclose any matter 3. refuse to produce any object or writing or 4. prevent another from being a witness or disclosing any matter or producing nay object or writing.
What does the A-C privilege extend to in DE?
extends to written and oral communications; appellate review is de novo; client’s id. is privileged in only exceptional cases.
No privilege for:
1. furtherance of crime or fraud
2. claimants through same deceased client
3. breach of duty by a lawyer or client
4. Document attested by a lawyer
5. Joint clients
-Absent mutuality of interest, legal advice to a partnership and to a limited partner is separately privileged.
What is the physician-patient privilege in DE?
patient: for treatment or diagnosis
Physician: a person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be.

There is a duty to report cases of child abuse.

Psychotherapists Duty to Warn: Mental health professionals have a duty to warn potential victims of the patient’s dangerous propensities
When is the physician-patient privilege waived?

Waiver of the physician patient privilege is common especially because of the Patient Litigant Exception. Privilege is waived if patient sues or defends by putting physical or mental condition in issue. – for DE too

By claiming insanity defense, defendant places his competency in issue thereby waiving the psychotherapist-patient privilege.
What is a confidential communication among spouses?
DE – A communication is confidential if it is made privately by any person to his or her spouse and is not intended for disclosure to any other person. Any party or witness in any proceeding has a privilege to prevent his spouse from testifying as to any confidential communication b/w himself and his spouse.

Privilege can be claimed by the party or witness or by the spouse on behalf of the party or witness. The authority of the spouse to do so is presumed.

There is no privilege where one spouse is charged with a wrong against the person or property of 1. the other 2. a child of either 3. a person living in either’s house or 4. a 3rd person committed in the course of committing a crime against any of them.

A wife or husband may testify for or against each other in any court of this Sate. Applies in criminal and civil cases. The testimony is allowed unless it involves a confidential communication and a privilege is asserted to it. “Relatedly, interspousal immunity has been abrogated in DE.”

Disclosure by a speaker-spouse to a 3rd party of subject matter that parallels that of an earlier, otherwise privileged marital communication constitutes waiver.
What are the rules governing presumptions and burdens of proof?
civil actions: a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence. Inconsistent presumptions: Look to see which one is founded upon a greater policy. If both presumptions are equally weighted, neither one applies.
Are other state laws applicable in civil actions and proceedings?
No applicability of other state laws in civil actions and proceedings
Are there conclusive or rebuttable presumptions in a criminal case?
Criminal – No conclusive presumptions in DE criminal code; all have been abolished.

Rebuttable presumptions formerly existing in the criminal code are preserved except to the extent that they are inconsistent with the Criminal Code.
Expressly preserved rebuttable presumptions
1. A person is presumed to intend the natural and probable consequences of his acts
2. A person found in possession of goods acquired as a result of the commission of a recent crime is presumed to have committed the crime.
Court can tell jury of the presumption and then defendant is entitled to instruction that the presumption doesn’t relieve the State of its burden of proving guilt BRD.
Do people who handle evidence have to appear at trial?
People who handle evidence don’t have to appear but this doesn’t lessen the State’s burden in a criminal case to establish authentication and identification as a condition precedent to admissibility.
What are DE's laws concerning res ipsa?
Res Ipsa: a rule of circumstantial Evidence that permits, but does not require, inference of negligence to be drawn. 4 prerequisites
1. accident does not ordinarily occur if proper care was used by those in management and control.

2. the facts warrant an inference of negligence “of such force as to call for an explanation or rebuttal form the defendant”

3. The thing or instrumentality that caused injury must have been under management and control (not necessarily exclusive) of the defendant or his agents when the negligence likely occurred and

4. If the victim/plaintiff participated in the event leading up to the accident, the evidence must exclude his own conduct as a probable cause.

The applicability of res ipsa is determined at the close of plaintiff’s case and defendant isn’t entitled to a directed verdict unless evidence has been produced to destroy inference of negligence on his part. No directed verdict just because defendant has introduced explanatory evidence and such evidence hasn’t been rebutted.
Describe the DE religious privilege.
clergyman, or an individual reasonably believed so to be by the person consulting him. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as a spiritual adviser. Clergyman can claim the privilege on behalf of defendant and his authority to do so is presumed in the absence of evidence to the contrary.
Describe the DE Political Vote privilege.
every person has a privilege to refuse to disclose the tenor of his vote. Does not apply if Court finds that the vote was cast illegally or determines that the disclosure should be compelled pursuant to the election laws of this State.
Describe the rules surrounding the Trade Secret privilege.
person or his agent or employee can refuse to disclose and prevent others from disclosing trade secrets he owns, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. If disclosure is directed, the Court shall take such protective measures as the interest of the holder of the privilege and of the parties and the interest of justice may require.
Describe the rule governing secrets of State and other official information privilege.
governmental privileges. If the law of the US creates a governmental privilege that the Courts of DE must recognize under the Constitution, the privilege may be claimed as provided by the law of the US.

If a claim of governmental privilege is sustained and it appears that a party is thereby deprived of material evidence, the Court shall make any further orders the interest of justice require, including striking the testimony of a witness, declaring a mistrial, finding upon an issue as to which the evidence is relevant or dismissing the action.
Describe the rule governing the identity of informers.
privilege to not disclose identity. US or a state subdivision thereof can refuse. Privilege can be claimed by an appropriate representative of the public entity to which the information was furnished. The holder of the privilege or the informer can voluntarily disclose identity, or if the informer appears as a witness for the gov’t. Proceedings before a GJ are deemed covered by this rule.
What is a Flowers hearing?
codifies the state’s privilege of nondisclosure of the identity of a confidential informant. Court determines in camera whether the confidential informant could provide testimony at trial that would materially aid defendant’s case.

1. extent of privilege against the disclosure of the i.d. of a confidential informant. 4 situations that Courts examine
a. informer is used merely to establish PC for search – no disclosure
b. Informer witnesses the criminal act – disclosure
c. Informer participates but is not a party to the illegal transaction & when informer is an actual party to the illegal transaction
i. The trial court holds a private in camera examination of the informant. If the court determines that disclosure of i.d. would materially aid defense, his i.d. must be disclosed by the State or the case is dismissed. If not, the case proceeds to trial w/o the D knowing the i.d. of the informant. Flowers case must be read in conjunction w/ DRE 509
What is the effect of a voluntary disclosure regarding privileged information?
Waiver of privilege by voluntary disclosure: can voluntarily disclose or consent to disclosure. This rule does not apply if the disclosure itself is privileged. Disclosure of even part of the contents of privileged communication waives the privilege as to the communication.
If one of 2+ clients w/ common interest waives the a-c priv in a dispute w/ a 3rd party, the one client’s waiver doesn’t act as a waiver to the others’ a-c privilege.

A claim of privilege is not defeated by a disclosure which was erroneously compelled or made w/o opportunity to claim the privilege.
E.g., witness blurts out privileged information on the stand unexpectedly. Failure to recognize legal existence of priv isn’t deemed to be a lack of opportunity. Must recognize and timely object.
What is a judge or attorney's duty regarding the invocation of a privilege?
Comment upon or inference from claim of privilege; instruction. Judge or lawyer shouldn’t comment on someone taking a privilege, as no inference should be drawn. Upon request, can request jury instruction for no adverse inference to be drawn.
What is DE's rule surrounding prior inconsistent statements?
DE- no requirement that the prior inconsistent statement or the statement to rebut a charge of recent fabrication be given under oath or that the statement of the identification be made after perceiving the person. Also, in DE, look to § 3507 when dealing with the admissibility of prior consistent and inconsistent statements of a witness in a criminal prosecution.
Discuss DE rules surrounding vicarious admissions.
The adverse testimony of experts acting in the capacity of agents for a party-opponent may qualify as admissions under the DE version of this Rule.

Both DE & FRE talk about statement of co-conspirators – the difference is that under the FRE, a statement by a coconspirator of a party during the course and in furtherance of the conspiracy is considered “non-hearsay” but in DE, it says after this, “provided that the conspiracy has 1st been established by the POE to the satisfaction of the court. Also in DE, the record of a proceeding may support the finding of a conspiracy even if the trial court enumerates an incomplete standard or fails to articulate all of the elements in this section.
What are DE rules surrounding a dying declaration?
DE – dying declaration exception to hearsay applies to all criminal (not just homicide) and civil cases.
Discuss DE's rules governing present sense impressions.
present sense impression (remember, availability of declarant immaterial)
1) Declarant must have personally perceived the event described
2) Declaration must be an explanation or description of the event, rather than a narration
3) Declaration and the event described must be contemporaneous
Discuss DE's rules surrounding a declaration of a then existing physical condition.
does not require a finding of unavailability of the declarant to withstand a challenge that such exception is violative of the protection of either the federal or Delaware confrontation clauses.
Discuss DE's rules governing Public Records or Reports.
The following do NOT fall under this exception to the hearsay rule:
1) Investigative reports by police and other law enforcement personnel
2) Investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party
3) Factual findings offered by the government in criminal cases
4) Factual findings resulting from special investigation of a particular complaint, case, or incident.
5) Any matter as to which the sources of information or other circumstances indicate lack of trustworthiness.

Absent res judicata or collateral estoppel a judgment in a previous case is inadmissible.

Judgment of a previous conviction: must be a felony under the law pursuant to which the person was convicted.
Describe the interplay between hearsay testimony & the Confrontation Clause.
Attacking and supporting credibility of declarant
1) The admission of a hearsay statement of a deceased victim in State’s rebuttal case was not held violative Confrontation Clause. In order for hearsay testimony to be admissible and non-offensive to the Confrontation Clause, the offering party must establish
a) The declarant is unavailable for XEX at trial and
b) The statement bears adequate indicia of reliability.
2) The reliability can be inferred if the statement falls within a firmly rooted hearsay exception. Where it doesn’t, the offering party has the burden of demonstrating particularized guarantees of trustworthiness.
What are DE statutory hearsay exceptions?
i) 11 Del. C. § 3507: Criminal prosecutions – “voluntary out of court prior statement of a who is present and subject to XEX may be used as affirmative evidence with substantive independent testimonial value.
ii) This rule in (i) shall apply regardless of whether the W’s in-court testimony is consistent with the prior statement or not. The rule shall likewise apply with or without a showing of surprise by the introducing party.
iii) This section shall not be construed to affect the rules concerning the admission of statements of those whom to XEX would be subject to possible self-incrimination.”
b) §3507 predates the DRE. DRE says “it is not intended that these rules change the provisions of § 3507.
What is the procedure for admitting a 3507 statement?
c) The declarant must be called as a witness by the party introducing the statement and the direct examination of the party should touch both on the events perceived and the out of court statement itself.
d) The offering party must establish by a POE that the statement was voluntary either during the direct examination or if the W denies the statement was voluntary, on voire dire. The trial judge must make an explicit finding to that effect before admitting statement for jury’s consideration.
e) §3507 requires not just the opportunity to XEX the declarant, but the opportunity to XEX the declrant about the out of court statement.
f) The statement may be offered by someone other than the declarant
g) The statement must be offered into evidence no later than at the conclusion of the direct examination of the declarant. The introduction of a §3507 statement can’t be timed so as to place a strategic burden on the non-offering party.
What is the exception regarding a child victim's out of court statement of abuse?
11 Del. C. § 3513
a) DE has a statutory hearsay exception for child victim’s out of court statement of abuse. Hearsay statements made by child witness under 11 yrs old at the time of the proceeding concerning an act that is a material element of the offense relating to the sexual abuse or physical abuse are admissible even if they do not fit into any evidentiary hearsay exception if
i) Defendant is given sufficient advance notice of the content and proponent’s intent to offer the statement so defendant has a fair opportunity to prepare a response (no specific time requirement nor form of notice. The purpose of this is to avoid unfair surprise and permit trial preparation) and
ii) Child is present in court, the child’s testimony touches on the event, and the child is available for XEX pursuant to § 3507 or
iii) If not present, child is found by the court to be unavailable
What are the circumstances regarding a child's unavailability in a 11 Del. C. 3515 situation?
(1) Child’s death
(2) Child’s (C) absence from the jurisdiction
(3) C’s total failure of memory
(4) C’s persistent refusal to testify despite judicial requests
(5) C’s physical or mental disability
(6) Existence of a privilege involving the c
(7) C’s incompetency, including the c’s inability to communicate about the offense because of fear or similar reason or
(8) Substantial likelihood that the c would suffer severe emotional trauma from testifying at the proceeding or by means of a videotaped deposition or closed-circuit TV (must be supported by expert testimony) and iv) Child’s out of court statement is shown to possess particularized guarantees of trustworthiness. There is no specific test for this; the Court has leeway in making the determination with the guiding principal being whether the child was likely to be telling the truth.
v) §3513 implicitly mandates a hearing for a finding on victim’s unavailability
What are the rules governing the applicability of the DRE?
except as otherwise provided in paragraphs (b) and (c) of this rule, these Rules apply to all actions and proceedings in all courts of this state.
b) Rules inapplicable
i) Preliminary questions of fact – the determination of questions of fact preliminary to the admissibility of evidence when the issue is to be determined by the Court
ii) Grand Jury – proceedings before GJ
iii) Misc. Proceedings – proceedings for extradition or rendition; detention hearing in criminal hearings, sentencing or granting or revoking probation; issuance of warrants for arrest, criminal summonses and search warrants; and proceedings with respect to release on bail or otherwise
iv) Contempt proceedings – contempt proceedings in which the Court may act summarily.
v) Preliminary Hearings – in criminal cases the Court is not bound by these rules of evidence except with respect to privileges.
c) The Rules of Evidence are not applicable to administrative agency hearings which are governed by Title 29 of the Delaware Code

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