Evidence Flashcards
Hearsay
Out of court statement to prove the truth of the matter asserted. Not admissible unless it falls within an exception.
The statement must be intended to be an assertion (a question is not an assertion)
Double Hearsay
Admissible only if both layers fall within an exception.
Business Record Exception
(i) Made in the regular course of business (ii) regular practice of the business to make the record, (iii) made by a person with a duty to record + personal knowledge (or informant w/business duty to report had personal knowledge) and (iv) authenticated.
Declarations of Past Bodily Condition
Admissible if made to assist in diagnosis or treating a condition.
Marital Communication Privilege
The spouse has the privilege not to testify as to confidential communication made between spouses during the marriage. Privilege survives the marriage. Does not apply if communication is revealed to a third party.
Impeachment of Unavailable Declarant
Party against whom it is offered may impeach the declarant’s creditability by evidence that would be admissible if the declarant had testified at trial.
Impeachment / Methods
Any party may attack a witness’s creditability.
A witness can generally be impeached on cross-examination by inquiry into a specific act of misconduct that is probative of truthfulness. (Specific bad acts but CANNOT BE IMPEACHED BY EXTRINSIC EVIDENCE OF BAD ACTS)
Felony conviction - witness may be impeached with conviction for (1) any felony or (2) any crime involving dishonesty. If NOT a dishonest felony then Ct does 403 balancing test (probative value substantially outweighed.) Conviction to remote if more than 10 years have elapsed from release or conviction which ever is later.
Prior Statements
Party may impeach with prior statements not consistent with a material part of the testimony. Foundational requirements: witness must be given an opportunity to explain or deny at some point.
Prior identification
Not hearsay if the witness’s prior statement identifying a person as someone the witness perceived earlier if the witness testifies at trial and is subject to cross-examination.
Prior Inconsistent Statement
If a prior inconsistent statement is made under penalty of perjury at a prior proceeding it is admissible as non-hearsay. Otherwise, it is hearsay.
Character evidence (Defendant offers)
A criminal defendant may introduce evidence of a relevant character trait to show his innocence. Permissible methods: Good reputation in the community or witness’s personal opinion.
Lay Witness Opinion
Lay opinions are admissible if (i) rationally based on the perception of the witness, (ii) helpful to a clear understanding of testimony or determining a fact in issue, (iii) not based on scientific, technical, or other specialized knowledge.
Character Evidence (Civil Case) / Habit Evidence
Character evidence is generally inadmissible in civil cases unless directly in issue. Habit is admissible = a person’s regular response to a specific set of circumstances. It can prove a person acted in conformity with habit.
Relevance
Tends to prove or disprove a material fact at issue. But maybe excluded under 403 if it is a waste of time, will mislead the jury, confuse the issues, prejudice.
Refresh Recollection on Stand
Where a witness has used writing to refresh his recollection on the stand, the adverse party can introduce the writing into evidence.
Effect on Listener
Not hearsay (notice knowledge)
Present Sense Hearsay Exception
Statment made describing or explaining an event made while or immediately after the declarant perceives it.
Excluded Public Policy Grounds
Evidence of repairs/precautionary measures is inadmissible to prove negligence but may be admissible for other purposes.
The settlement offers are inadmissible to prove liability for the disputed claim. the rule requires a disputed claim.
party offers to pay medical expenses not admissible to prove fault.
Excited Utterance
(!) a statement that relates to a startling event and (!!) made while the declarant was under the stress of that event.
Confrontation Clause
a hearsay statement will not be admissible if (1) it is offered against the accused (2) declarant is unavailable (3) the statement was testimonial in nature (4) and the accused had no opportunity to cross-examine the statements.
(Non-testimonial if the primary purpose is to assist police in an ongoing emergency. Testimonial if the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.)
