Evidence

Question 1

Defendant wants to enter evidence that she asked the brake repairman, “Is my scooter safe to ride for a little while?” Hearsay?

Answer 1

No. A statement for purposes of the hearsay rule must be intended as an assertion. D merely asked a question–she did not make an assertion.

Question 2

Can a gesture (like a thumbs up, head nod, etc.) be hearsay?

Answer 2

Yes, as long as it is intended as an assertion.

Question 3

For silence to be admissible as an opposing party’s statement, the following requirements must be met:

Answer 3

(i) the party must have heard and understood the statement; (ii) the party must have been physically and mentally capable of denying the statement; and (iii) a reasonable person would have denied the accusation under the same circumstances.

Question 4

A party may be held vicariously responsible for the statement of someone with any of the following relationships to the party:

Answer 4

(1) Authorized spokesperson
(2) Partner
(3) Co-conspirator (in furtherance of and during conspiracy)
(4) Principal-agent (on matter w/in scope of employment and made during existence of relationship)

Question 5

The witness’s prior inconsistent statement is not hearsay if it was made at… and the witness is now…

Answer 5

a deposition, a prior hearing, or to a grand jury… testifying and subject to cross examination.

Question 6

a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony for the purpose of…

Furthermore, a testifying witness’s prior inconsistent statement is not hearsay if…

Answer 6

Impeaching the credibility of a witness.

Made while under oath and subject to penalty of perjury in a deposition or prior hearing

Question 7

A testifying witness’s prior inconsistent statement is admissible as substantive evidence of the facts asserted if…

Answer 7

Made while under oath and subject to penalty of perjury in a deposition or prior hearing (because it is not hearsay)

Question 8

Extrinsic evidence of a prior inconsistent statement may not be used to impeach a witness if the prior inconsistent statement deals with…

Answer 8

a collateral matter.

Question 9

T/F: Spousal immunity endures beyond divorce or annulment?

Answer 9

False. The privilege lasts only during the marriage and terminates upon divorce or annulment.

Question 10

Does spousal immunity exist regarding matters that took place before the marriage?

Answer 10

Yes.

Question 11

Who can invoke spousal immunity?

Answer 11

Only the witness-spouse.

Question 12

T/F: Spousal immunity cannot be invoked in civil cases?

Answer 12

True. Spousal immunity may be invoked in criminal cases only.

Question 13

Confidential marital communications privilege exists…

Answer 13

In any civil or criminal case, either spouse, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were validly husband and wife (not before marriage). The privilege does not exist if the communications occurred in the KNOWN presence of a third party.

Question 14

When E is excluded for policy reasons:

Answer 14

PV substantially outweighed by UP
Liability insurance
Subsequent remedial measures
Settlement offers
Withdrawn guilty pleas
Offers to pay medical expenses

Question 15

Balancing test for relevant E

Why else can a judge exclude?

Answer 15

Relevant evidence is admissible unless its prejudicial impact substantially outweighs its probative value

Confusion of the issues, or misleading the jury, by considerations of undue delay, waste of time, or needless presentation of cumulative evidence

Question 16

In civil and criminal cases, judicial notice means…

Answer 16

In civil cases, a fact judicially noticed is conclusively established, and thus binding on the jury.

In criminal cases, a judicially noticed fact is not binding on the jury; the jury is permitted to find facts that have been judicially noticed, but never is required to do so.

Question 17

Handwriting vs. voice authentication

Answer 17

Handwriting can only be authenticated by person with familiarity BEFORE trial. For voice, can be familiar before trial or can become familiar during trial.

Question 18

What are the three steps to solve an evidence question?

Answer 18

1. Civil or criminal proceeding
2. Where are we at in the proceeding (direct, cross, etc.)
3. Why is the evidence being offered? (substance/truth, impeach, character)

Question 19

What are the two examples of out of court statements that are not hearsay?

Answer 19

Statement by a party opponent and prior statements by witnesses who are testifying and subject to cross examination

Question 20

What are the three types of prior statements that are not hearsay and what must be true of all of them?

Answer 20

PIS (if made under oath)
PCS (rehab/rebut charges of lying if statement was made before motive to fabricate arose)
PI

In all instances, the declarant must be a witness at the proceeding subject to cross examination.

Question 21

What are the 7 main exceptions to hearsay for an available witness?

Answer 21

PSI
EU
Then-existing physical, mental, or emotional condition 
Medical condition
PRR
BRE
PRE

Question 22

What is present sense impression?

Answer 22

A statement that described an event as it was occurring or immediately thereafter (contemporaneous)

Question 23

What is an excited utterance?

Answer 23

A statement made during a startling event while under the stress of excitement

Question 24

What tense will then-existing physical, mental, or emotional condition be in?

Answer 24

Present tense

Question 25

What must be true of a hearsay statement made re: a medical condition?

Answer 25

It must have been intended for purpose of diagnosis and not have included a statement of fault

Question 26

When is a Past Recollection Recorded admissible and how is it entered into evidence?

Answer 26

Where a witnesses memory fails even after it has been refreshed. The statement must have been made or adopted at a time when the declarant’s memory was fresh. The PRR will be read into evidence.

Question 27

What is the tule for the business records exception?

Answer 27

Must have been made

1. at or near the time of the event
2. in the regular course of business
3. by a person with knowledge AND a business duty to record OR
4. transmitted by someone with personal knowledge and a duty to report

Question 28

When are public records not admissible?

Answer 28

If it is a police record being used against a defendant in a criminal case.

Question 29

What is the mnemonic for why a witness might be unavailable?

Answer 29

Privilege
Refusal
Incapacity
Subpoena (doesn’t comply)
Memory (lack)

Question 30

What are the three types of hearsay that are admissible when the declarant is unavailable to testify?

Answer 30

Former testimony

Dying declarations

Statements against interest

Question 31

For a co-conspirator’s statement to qualify as a vicarious statement of an opposing party, the statement must…

Answer 31

have been in furtherance of the conspiracy by a participant in it.