Evidence

Question 1

Relevant Evidence

Answer 1

To be admissible, evidence must be relevant. Relevant evidence is any evidence that tend to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.

Question 2

Rule 403

Answer 2

Relevant evidence can be excluded if it is unduly prejudicial, confusing, cumulative, a waste of time, or a source of undue delay in the proceedings.

Question 3

Lay Witness Testimony

Answer 3

May offer an opinion only if:

(1) the opinion is rationally based on the witness’s perception of what happened;
(2) the opinion helps determine a fact in issue; and
(3) the opinion is not based on scientific, technical, or other specialized knowledge…

Question 4

Character Evidence

Answer 4

Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except in three situations:
1. Criminal defendant may introduce evidence of a relevant character trait to show his innocence;
2.
3.

Question 5

Habit Evidence

Answer 5

Admissible to prove that a person acted in conformity with that habit.

Question 6

Hearsay

Answer 6

An out of court statement offered to prove the truth of the matter asserted. It is not admissible unless it falls within an exception to the hearsay rule.

Question 7

Hearsay Within Hearsay

Answer 7

An out of court statement that incorporates other hearsay, and is admissible only if both the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule.

Question 8

Business Records (Hearsay Exception)

Answer 8

Admissible if it was: (1) made in the regular course of business; (2) the regular practice of the business to make the record at the time of the event; (3) made by a person whose duty it was to make the record and who had personal knowledge of the event; and (4) authenticated.

Question 9

Marital Communications Privilege

Answer 9

Either spouse has a privilege not to testify as to a confidential communication made between spouses during the marriage. Communication must be made in reliance on the intimacy of the marital relationship.Privilege survives the marriage. Privilege does not apply if the communication is revealed to a third party.

Question 10

Prior Statement of Identification (Non-Hearsay)

Answer 10

A declarant’s prior statement identifying a person as someone the declarant perceived earlier is not hearsay if the declarant testifies at trial and is subject to cross-examination about the statement.

Question 11

Present Sense Impression (Hearsay Exception)

Answer 11

A statement made describing the event as it happens or within a reasonable time thereafter

Question 12

Excited Utterance (Hearsay Exception)

Answer 12

A statement made by a person describing a startling event while being “excited” by the startling event.

Question 13

Confrontation Clause

Answer 13

Requires that criminal defendants be afforded an opportunity to confront witnesses against them. This arises where the witness is unavailable, has not been subject to cross-examination, and where the statement is testimonial in nature. One is unavailable where (1) refuse to testify; (2) are outside the jurisdiction; (3) have died; (4) cannot be found; (5) have forgotten; or (6) enjoy some privilege. A statement is testimonial where it was collected in preparation for a future prosecution rather than to assist in ending an ongoing emergency.

Question 14

Recollection Refreshed

Answer 14

If a witness fails to remember an instance about which she is being asked to testify, the witness may have her memory refreshed by anything that may stimulate her memory.

Question 15

Recorded Recollection

Answer 15

If a witness is still unable to remember the events after having her memory refreshed via Recollection Refreshed, she may read a recorded recollection of the event into evidence, provided that the recorded recollection is accurate, clear, and was made contemporaneously with the events.

Question 16

Testimonial Statements

Answer 16

Testimonial statements will not be admitted (even if it falls within a hearsay exception) under the Confrontation Clause of the Constitution.

A statement is testimonial if the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution.

A statement is NOT testimonial if the primary purpose of police interrogation is to enable the police to help in an ongoing emergency.

Question 17

Physician-Patient Privilege

Answer 17

A physician is foreclosed from divulging in judicial proceedings information that he acquired while attending a patient in a professional capacity, which information was necessary to enable the physician to act in his professional capacity.

Question 18

Learned Treatise (Exception to Hearsay)

Answer 18

May be substantively admissible if it is: (1) called to the attention of the expert witness upon cross-examination; and (2) established as reliable authority by the testimony or admission of the witness, by other expert testimony, or by judicial notice.

Question 19

Statement Against Interest (Exception to Hearsay)

Answer 19

Statements of a person, now unavailable as a witness, against that person’s pecuniary, proprietary, or penal interest when made are admissible as an exception to the hearsay rule.