Evidence Flashcards
Approach to hearsay questions:
Define hearsay: an out-of-court statement offered in evidence to prove the truth of the matter asserted.
State why it is important to determine if a statement is hearsay: hearsay is not admissible unless it comes within an exception.
Analyze exceptions.
Excited utterance hearsay exception:
Statement relating to a startling event or condition made while the declarant was under the stress or excitement that it caused
Present sense impression hearsay exception
A statement describing or explaining an event or condition made while or immediately after the declarant perceived it.
Statement for purpose of medical treatment or diagnosis—hearsay exception
Must be made for and reasonably pertinent to medical diagnosis or treatment and describe medical history, past or present symptoms/sensations, their inception, or their general cause.
Business records hearsay exception
A record of acts, events, conditions, opinions, or diagnoses is admissible if it is made at or near the time of the event recorded by a person with knowledge of the event.
Further, the making of the record must occur in the course of a regularly conducted business activity, and it must be the regular practice of the business to make such a record.
Recollection recorded hearsay exception
A record that is on a matter that the witness once knew about, but now cannot recall well enough to testify fully and accurately, which was made while the matter was fresh in the witness’s memory, may be read into evidence (proponent may not offer it as an exhibit).
Then-existing state of mind hearsay exception
Statement shows a declarant’s mental, emotional, or physical condition (including motive, intent, or plan)
Prior statement of identification hearsay exclusion
A witness’s prior identification is not considered hearsay
Opposing party’s statement—hearsay exclusion
A statement made by an opposing party and offered against them is not hearsay
Statement against interest
A statement that a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it had a tendency to expose the declarant to civil or criminal liability. Declarant must be unavailable.
Public records hearsay exception
May be admitted in some circumstances but not matters observed by law enforcement personnel when proffered by the prosecutor against the defendant in a criminal case.
Relevancy
Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.
Admissibility
All relevant evidence is admissible unless a statute or rule says otherwise, or the probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Generally, a lay witness must have ___ of the matter she testifies about.
Personal knowledge. Her opinion must be rationally based on her perception, helpful, and not based on scientific, technical, or specialized knowledge.
An expert witness does not need ___ but…
Personal knowledge; can instead testify based on facts he has been made aware of at trial or through some other means (e.g., facts not on the record if other experts would rely on them).
General rule for impeachment
Any party may impeach a witness (Even the party that called the witness).
Seven ways to impeach a witness:
Prior inconsistent statement Bias/interest Conviction of a crime Bad acts Reputation or opinion for untruthful ness Sensory deficiencies Contradiction
Prior inconsistent statements
These can be used as substantive evidence if they fall within a hearsay exception/exclusion.
The witness must be given the opportunity to explain/deny the statement if extrinsic evidence is used, unless the witness is the opposing party, not available, or if the interests of justice so require
Bias/interest
Witness must be confronted on the stand.
Extrinsic evidence can only be used if the witness is asked about the bias first.
Conviction of a crime.
Whether the conviction can be used depends on: the nature of the crime (felonies or misdemeanors of dishonesty are automatically admissible; any felony is admissible if it passes a balancing test), the amount of time that has passed (if more than 10 years after conviction or release, whichever later, generally not admissible) and (only in criminal cases), whether the witness is a defendant (less likely to be admitted if witness is a defendant—probative value must outweigh prejudicial effect).
Bad acts
Questioning about acts that are probative of truthfulness or untruthful ness is permitted.
Extrinsic evidence not permitted.
Reputation or opinion for untruthfulness
Witness cannot testify to specific facts.
Sensory deficiencies
Ability to observe, remember, or relate accurately. Extrinsic evidence is permitted.
Contradiction
If the witness made a mistake in her testimony or lied during direct, she may be contradicted. Extrinsic evidence can be used if she doesn’t admit to her mistake.
Generally, character evidence is not admissible to prove ___.
Conformity.
Character evidence is admissible in civil cases if:
Character is directly at issue—negligent entrustment/hiring; defamation; child custody.
Reputation, opinion, and specific acts can be used.
Character evidence in criminal cases:
Generally inadmissible in the prosecutor’s case-in-chief to prove that the defendant acted in conformity with his own character.
The defendant in a criminal case may introduce evidence of a pertinent character trait to prove that he acted in conformity with his character at the time in question. He can do this by reputation or opinion.
Then, the prosecution may rebut by using reputation, opinion, or cross-examining the defendant’s witness by asking about specific acts.
Sixth Amendment Confrontation Clause
If a statement is testimonial, the declarant is unavailable, and the defendant did not have the opportunity to cross-examine the declarant, then admission of the statement will violate the defendant’s right to confrontation.
A statement is not “testimonial” if the primary purpose of the statement is to address an ongoing emergency.
Rule for opinions by lay witnesses and exception
Opinions by lay witnesses are generally inadmissible.
Opinion testimony by lay witnesses is admissible when (1) it is rationally based on the perception of the witness; (2) it is helpful to a clear understanding of her testimony/to the determination of a fact in issue; and (3) it is not based on scientific, technical, or other specialized knowledge.
The judge will determine whether it is admissible under the exception.
