Evidence

Question 1

Hearsay

Answer 1

Hearsay is an out of court statement offered for the truth of the matter asserted.

It is inadmissible unless an exception applies.

Question 2

Commonly Tested Hearsay Exceptions:

Excited Utterance

Answer 2

• SSatement relating to a startling event or condition made while the declarant was under the stress or excitement that it caused.

Question 3

Commonly Tested Hearsay Exception:

Present Sense Impression

Answer 3

A statement describing or explaining an event or condition made while or immediately after the declarant perceived it.

Question 4

Commonly Tested Hearsay Exception:

Statement for the Purposes of Medical Treatment or Diagnosis

Answer 4

Made for the purpose or treatment of diagnosis and describe medical history, past or present symptoms or sensations, their inception or general cause.

Question 5

Commonly Tested Hearsay Exception:

Business Records

Answer 5

A record made at or near the time of the event, by a person with knowledge of the event, in the course of regularly conducted business; and it must be in the regular course of the business to make such a record.

Question 6

Commonly Tested Hearsay Exception:

Recorded Recollection

Answer 6

A record on a matter the witness once knew about, but now cannot recall well enough to testify fully and accurately. It must have been made while the matter was fresh in the witness’s memory and may be read into evidence by the adverse party. (must try to refresh first).

Question 7

Commonly Tested Hearsay Exception:

Then-Existing State of Mind

Answer 7

A statement that shows a declarant’s mental, emotional, or physical condition (including motive, intent, or plan)

Question 8

Commonly Tested Hearsay Exceptions when:

Declarant UNAVAILABLE

Answer 8

1. Former Testimony:
   
   • given under oath at a prior proceeding/deposition and
   • be against a party or someone in privity who had motive and opportunity to develop the statement
2. Statement against Interest
   
   • statement that a reasonable peson in the declarant’s position would have only made if the person believed it to be true beause, when made, it had a tendency to expose the declarant to liability.
3. Dying Declaration
   
   • statement made while declarant believed death was impending, must concern the circumstances/cause of death
   • only for homicide or civil cases

Question 9

When is a Declarant unavailable?

Answer 9

1. invokes a Privilege
2. Refuses to testify
3. Incapacity (death/ill)
4. Beyond the court’s Subpoena power
5. Lack of Memory

Question 10

Commonly Tested Hearsay Exception:

Public Records

Answer 10

May be admitted under the same circumstances as business records

Inadmissible in a criminal case if: it is a matter observed by law enforcement (police report) and offered by prosecution against defendant

Question 11

Non-Hearsay

i.e. Hearsay Exemption

Answer 11

1. Prior Statements of a Trial Witness
   
   1. Prior statemet of ID after preception
   2. Prior inconsistent statement made under oath and declarant is now subject to cross
   3. Prior consistent stmt used to rebut a charge of recent fabrication of improper motive/influence
2. Opposing Party’s Statement (need not be against interest)
   
   1. Judicial statement - made in pleading or testimony
   2. Vicarious Statement: stmt made by someone other than person who the stmt is offered (agent, authorized speaker, co-conspirator)
   3. Adoptive admissions (can be through silence)

Question 12

Relevancy & Its Admissibility

Answer 12

1. All relevant evidence unless a statute or rule says otherwise.
2. It is relevant if it has any tendency to make a fact of consequence more or less probable than without the evidence.
3. 403 balancing test: Relevant evidence may be excluded if its probative value is substantially outweighed by danger of prejudice including; undue delay, confusion of the issues, and waste of time, or misleading the jury.

Question 13

Lay v. Expert Witness

Answer 13

• Laywitness
  
  • Must have personal knowledge of the matter she testifies about.
  • Laywitness opinion shoud be rationally ased on her perception; helpful to the trier of fact; and not based on scientific, technical, or specialized knowledge
  • Opinions generally inadmissible unless the above.
• Expert Witness
  
  • Does not need personal knowledge but can testify based on facts he has been made aware of at trial or though some other means not on the record as long as other experts would rely on them
    *

Question 14

7 Methods of Impeachment

& whether extrinsic evidence is allowed

Answer 14

ANY party may impeach ANY witness; a W’s character for truthfulness may be atacked by:

1. Prior Inconsistent Statement (need not be under oath)
   
   • Extrinsic Evidence allowed if given witness given opportunity to explain or deny unless witness is opposing party or not in court (or interests of justic so requires)
2. Bias: to suggest witness has motive to lie
   
   • Extrinsic evidence permitted if the witness is confronted and denies
3. Conviction of a Crime
   
   1. Felony/Misdemeanor of dishonesty are automatically admissible (perjury, forgery, criminal fraud)
   2. Any felony is admissible if its probative value outweighs danger of prejudice
      
      1. Witness is criminal D - court must weigh
      2. Witness is not criminal D - court has discretion to weigh
   3. Limit - cannot be more than 10 years since the latter of conviction or release
   4. Extrinsic Evidence Permitted
4. Specific Instances of Misconduct
   
   1. Questions of bad act probative of truthfulness (filing false tax return) is permitted
   2. Extrinsic evidence not permitted
5. Sensory Deficiencies
   
   1. Anything that concerns the witness’s ability to observe or remember.
   2. Extrinsic Evidence permitted
6. Contradiction
   
   1. Witess can be impeached on cross if she made a mistake or lied about anything said during direct
   2. Extrinsic evidence permitted if witness doesn’t admit to mistake on direct
7. Reputation/Opinion Testimony for Untruthfulness
   
   1. Rep/Opinion on untruthfulness allowed but not specific facts
   2. Witness IS the extrinsic evidence

Question 15

Character Evidence

in

Civil v. Criminal Cases

Answer 15

• General Rule: Character Evidence is inadmissible to prove that someone acted in conformity with his character at the time the event occured
• Civil Cases:
  
  • CE permitted only when character is an essential element of the case
    
    • Negligence entrustment/hiring, defamation, child custory
    • Reputation, opinion, and specific acts can only then be used to prove character
• Criminal Cases:
  
  • D can open the door by providing relevant character trait - by rep/opinion testimony only
  • P can then rebut by rep/opinion OR cross examining the D’s witness by asking about specific facts.
• Specific Instances admissible for Non-Character Purposes: MIMIC
  
  • Motive, Intent, Mistake (absence of, Knowledge), Identity, Common Plan or Scheme

Question 16

6th Amendment Confrontation Clause

Criminal Cases Only

Answer 16

• In a Criminal Case, a Defendant’s 6th Amendment Right to Confrontation is violated when:
  
  1. When the declarant is unavailable,
  2. D has no opportunity to cross-examine a declarant, and
  3. The statement is testimonial statement
     
     1. Testimonial = one could anticipate it would be used in court
     2. Exception: Testimonial stmt made in ongoing emergency is not testimonial

Question 17

Privileges

Answer 17

• Attorney Client - Protects confidential communications for the purpose of rendering legal services
  
  • Doctor-Patient is similar
• Spousal Communications - Criminal Cases Only
  
  • Protects confidential communications between spouses during their marriage
  • Privilege is invoked by the W-spouse, so that defendant spouse cannot prevent spouse from testifying
• Marital Communications - Criminal & Civil Cases
  
  • Confidential comms made during marriage are privileged in a later proceeding even if the parties divorce
  • Privilege is invoked by either spouse

Question 18

Relevance Evidence that is excluded for Public Policy Reasons

Answer 18

The following are INADMISSIBLE to prove negligence, or liability; but
ADMISSIBLE to prove ownership, control, agency

• Insurance
• Subsequent Remedial Measures
  
  • If disputed, may be used to prove feasability of precautonary measures
• Settlement, Offers to Settle, Plea Bargaining
  
  • If disputed claim, not admissible to prove validity
  • If no dispute, admissible
• Payment/Offer to Pay Medical Expenses
  
  • also not addmissible to prove existence of an injury

Question 19

8th Amendent Right to Confrontation

Question 20

Conviction of a Crime

Answer 20

Felony/Misdemeanor of dishonesty are automatically admissible

Any felony is admissible if its probative value outweighs danger of prejudice

Limit - cannot be more than 10 years since the latter of conviction or release

Extrinsic Evidence Permitted