Evidence Flashcards
Defendant wants to enter evidence that she asked the brake repairman, “Is my scooter safe to ride for a little while?” Hearsay?
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.
Can a gesture (like a thumbs up, head nod, etc.) be hearsay?
Yes, as long as it is intended as an assertion.
For silence to be admissible as an opposing party’s statement, the following requirements must be met:
(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.
A party may be held vicariously responsible for the statement of someone with any of the following relationships to the party:
(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)
The witness’s prior inconsistent statement is not hearsay if it was made at… and the witness is now…
a deposition, a prior hearing, or to a grand jury… testifying and subject to cross examination.
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…
Impeaching the credibility of a witness.
Made while under oath and subject to penalty of perjury in a deposition or prior hearing
A testifying witness’s prior inconsistent statement is admissible as substantive evidence of the facts asserted if…
Made while under oath and subject to penalty of perjury in a deposition or prior hearing (because it is not hearsay)
Extrinsic evidence of a prior inconsistent statement may not be used to impeach a witness if the prior inconsistent statement deals with…
a collateral matter.
T/F: Spousal immunity endures beyond divorce or annulment?
False. The privilege lasts only during the marriage and terminates upon divorce or annulment.
Does spousal immunity exist regarding matters that took place before the marriage?
Yes.
Who can invoke spousal immunity?
Only the witness-spouse.
T/F: Spousal immunity cannot be invoked in civil cases?
True. Spousal immunity may be invoked in criminal cases only.
Confidential marital communications privilege exists…
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.
When E is excluded for policy reasons:
PV substantially outweighed by UP Liability insurance Subsequent remedial measures Settlement offers Withdrawn guilty pleas Offers to pay medical expenses
Balancing test for relevant E
Why else can a judge exclude?
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
In civil and criminal cases, judicial notice means…
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.
Handwriting vs. voice authentication
Handwriting can only be authenticated by person with familiarity BEFORE trial. For voice, can be familiar before trial or can become familiar during trial.
What are the three steps to solve an evidence question?
- Civil or criminal proceeding
- Where are we at in the proceeding (direct, cross, etc.)
- Why is the evidence being offered? (substance/truth, impeach, character)
What are the two examples of out of court statements that are not hearsay?
Statement by a party opponent and prior statements by witnesses who are testifying and subject to cross examination
What are the three types of prior statements that are not hearsay and what must be true of all of them?
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.
What are the 7 main exceptions to hearsay for an available witness?
PSI EU Then-existing physical, mental, or emotional condition Medical condition PRR BRE PRE
What is present sense impression?
A statement that described an event as it was occurring or immediately thereafter (contemporaneous)
What is an excited utterance?
A statement made during a startling event while under the stress of excitement
What tense will then-existing physical, mental, or emotional condition be in?
Present tense
What must be true of a hearsay statement made re: a medical condition?
It must have been intended for purpose of diagnosis and not have included a statement of fault
When is a Past Recollection Recorded admissible and how is it entered into evidence?
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.
What is the tule for the business records exception?
Must have been made
- at or near the time of the event
- in the regular course of business
- by a person with knowledge AND a business duty to record OR
- transmitted by someone with personal knowledge and a duty to report
When are public records not admissible?
If it is a police record being used against a defendant in a criminal case.
What is the mnemonic for why a witness might be unavailable?
Privilege Refusal Incapacity Subpoena (doesn’t comply) Memory (lack)
What are the three types of hearsay that are admissible when the declarant is unavailable to testify?
Former testimony
Dying declarations
Statements against interest
For a co-conspirator’s statement to qualify as a vicarious statement of an opposing party, the statement must…
have been in furtherance of the conspiracy by a participant in it.
