Evidence Flashcards
1
Q
When is evidence relevant?
A
Evidence is relevant if it tends to prove or disprove the existence of a FACT OF CONSEQUENCE
2
Q
What is the test for excluding logically relevant evidence under Rule 403?
A
court may exclude logically relevant evidence if its probative value is substantially outweighed by the
danger of
- unfair prejudice
- confusion of issues
- misleading the jury
- undue delay
- waste of time (FRE 403).
Exclusion of relevant evidence often arises with evidence that is a) emotionally disturbing, b) repetitive or confusing or c) admissible for one purpose but inadmissible for another (excluded to avoid risk of jury using evidence for the improper purpose).
3
Q
Should relevant evidence be excluded due to the danger of unfair prejudice if the evidence would cause unfair surprise to a party or witness?
A
No. Unfair surprise to a party or witness is not a valid ground for excluding relevant evidence
4
Q
To what extent can an evidentiary hearing be conducted in the presence of a jury?
A
Evidentiary hearings — court may conduct a hearing on admissibility of evidence (or other preliminary questions, e.g., witness qualification), but must do so outside the presence of a jury.
5
Q
Can evidence of liability insurance be used to prove that D owned a vehicle in question?
A
Evidence of insurance is admissible to prove anything else (e.g., ownership, control, etc.)
6
Q
When is evidence of subsequent remedial measures admissible? For what reason would it be inadmissible?
A
Evidence of subsequent remedial measures is admissible to defeat a rebut that there was no feasible precaution. Evidence of subsequent remedial measures is inadmissible to prove fault, defect, or inadequate warning.
7
Q
To what extent are settlements or offers to settle admissible in civil cases?
A
In civil cases, compromises, settlements offers, and related statements (including factual admissions) are INADMISSIBLE to prove fault or liability.
8
Q
If introduced to prove guilt, are statements that the D made during plea negotiations admissible in a criminal case?
A
Criminal cases — pleas, offers to plea, and related statements (including factual admissions) are inadmissible to prove guilt
9
Q
For what purpose would evidence of an offer to pay medical expenses be inadmissible?
A
Payment or offers to pay medical expenses — inadmissible when offered to prove liability for injuries
Related statements, including factual admissions, are admissible
10
Q
For what reasons could evidence of prior similar occurrences be deemed admissible?
A
Causation
Prior accidents demonstrating:
A pattern of fraudulent claims
Pre-existing conditions
Intent or absence of mistake
To rebut a defense of impossibility
Value (e.g., similar transactions can establish value)
Industry custom (e.g., to prove standard of care)
Business routine (e.g., to show that a particular event occurred)
11
Q
What type prior conduct may be admissible as evidence of habit?
A
Conduct must be highly specific and frequently repeated (i.e., a person’s regular response to a specific set of circumstances).
Look for regular, instinctive, habitual conduct.
12
Q
For what purpose is character evidence generally inadmissible?
A
Evidence of a person’s character is generally inadmissible to prove that they acted in conformity with that character on a given occasion
13
Q
When can character evidence be admissible?
A
- when character is at issue
- prior acts of sexual molestation of child molestation in cases for similar claims
14
Q
If D in a criminal trial introduces evidence of her good character, what are potential consequences?
A
P’s rebuttal — once D “opens the door,” P may rebut by:
Cross-ex of D’s character W — including knowledge of specific instances of D’s misconduct or prior arrests
Calling W to testify to D’s bad character — limited to D’s character for the trait in question
15
Q
If D in a criminal trial calls a W to testify to their good character, can W offer opinion evidence?
A
In a criminal case, the defense can offer evidence of the D’s good character. The method of doing this includes the D calling W to testify about D’s good character based on reputation and opinion (but NOT based on specific instances).
16
Q
In what instances can the prosecution initiate introduction of evidence of D’s character?
A
The prosecution generally can’t “open the door” to discuss the D’s character, except for SEXUAL ASSAULT/child molestation and IF THE D OFFERS EVIDENCE OF THE VICTIM’S CHARACTER. (Prosecution can then offer evidence that the D has the same character trait)
17
Q
Can the prosecution initiate the introduction of evidence of victim’s character to prove conduct?
A
Only D can “open the door” by introducing evidence of victim’s character to prove conduct
18
Q
What determines whether D, in a civil sexual assault case, may introduce evidence of victim’s character?
A
(Rape Shield)
Civil cases — reputation, opinion, and specific instances of victim’s character are admissible if:
Probative value substantially outweighs unfair prejudice; and
In the case of reputation evidence, P puts her reputation at issue in some way
19
Q
When may D introduce reputation or opinion evidence of victim in a criminal sexual assault case?
A
(Rape Shield)
In a criminal sexual assault case, reputation and opinion evidence of victim is inadmissible.
20
Q
In what situations may D introduce specific instances evidence of victim’s sexual behavior in a criminal sexual assault case?
A
In a criminal case, specific instances of victim’s sexual behavior is admissible to show a) a third party is the source of injury or source of DNA evidence, or b) prior acts of consensual intercourse between victim and D.
21
Q
If D wants to introduce any evidence of victim’s character in a sexual assault case, what procedure is required?
A
Parties must disclose intent to offer evidence, describe its purpose and notify the victim 14 days before trial
22
Q
Are specific instances of D’s prior bad acts/conduct admissible? If so, for what purpose?
A
In civil and criminal cases, specific instances of D’s bad conduct are generally INADMISSIBLE to prove character (ie action in conformity) but admissible if independently RELEVANT
23
Q
What are common ways that evidence of D’s prior acts can be admissible?
A
MIMIC- common non-character uses of prior acts evidence:
Prior acts evidence IS ADMISSIBLE to prove:
1. motive
2. intent
3. mistake (absence of mistake, knowledge)
4. identity (extremely similar or unique prior act)
5. common plan or scheme
Usually arises in criminal cases, but may arise in civil cases.
24
Q
What is impeachment evidence?
A
Impeachment casts an adverse reflection on the veracity of W’s testimony
25
In what ways may a witness be impeached (i.e., what are the different methods of impeachment)?
Methods of impeachment:
1. Contradiction
2. Prior inconsistent statement
3. bias or interest
4. sensory deficiencies
5. reputation and/or opinion of untruthfulness
6. prior acts of misconduct
7. prior criminal conviction
26
May evidence supporting a witness's credibility be introduced if the witness has not been impeached?
No- evidence supporting witness credibility is inadmissible unless credibility has been attacked (ie W has been impeached)
27
What is extrinsic evidence? In what way is it prohibited for impeachment purposes?
Extrinsic evidence may not be used to impeach W on collateral matters. Extrinsic evidence = any evidence other than W’s testimony at the current proceeding
Includes evidence of out-of-court prior inconsistent statements.
28
When would an issue be considered a collateral matter for impeachment purposes? How do you determine if an issue is collateral?
Collateral matter = a fact not material to issues in the case. Test — to determine if evidence is collateral, ask: would the evidence be material to the given issue if not for W’s contrary assertion?
If not, it is likely collateral.
29
When would extrinsic evidence of a fact that contradicts a witness's testimony be admissible?
Generally admissible to impeach W on material, non-collateral matters.
30
What type of evidence may be used to show that a W has made contradictory statements on material issues?
Contradiction — any evidence may be used to show W has made contradictory statements on material issues
31
How can a prior inconsistent statement be used for impeachment purposes?
W's prior inconsistent statement may be used to impeach W's present testimony. Establishing prior inconsistent statement- may be established through cross-exam or extrinsic evidence. Foundation requirement- W must have an opportunity to explain or deny the statement.
32
If a prior inconsistent statement constitutes hearsay, is it admissible?
Prior inconsistent statements & hearsay — if PIS is hearsay, it is admissible for impeachment purposes, but inadmissible as substantive evidence (to prove the truth of the matter asserted)
33
To what extent may a witness be impeached by prior instances of misconduct?
Impeachment by prior instances of misconduct — W may be questioned on cross-exam about any prior misconduct probative of truthfulness (i.e., lying or deceit)
34
What requirement must be met to impeach a witness by establishing bias?
Impeachment by establishing bias — may be established through cross-exam or extrinsic evidence
Foundation requirement — W must be questioned on cross-exam regarding the facts that show bias or interest so that W has an opportunity to explain or deny
35
Can a witness be impeached based on their reputation for truthfulness?
W may be impeached by testimony describing his reputation for untruthfulness in the community
36
If a witness has a recent misdemeanor conviction for assault, can the prior conviction be used for impeachment? What about if the witness is the D?
Misdemeanors are inadmissible unless it involves dishonesty/false statements.
37
If a witness who is not the D was convicted for fraud six years ago, can the prior conviction be used for impeachment?
With prior convictions involving acts of dishonesty are always admissible. Court has no discretion to exclude under 403. This includes felonies and misdemeanors.
38
If a D-witness has a felony conviction for battery from last year, can the prior conviction be used for impeachment? What about if the witness is not the D?
Felonies not involving dishonesty:
If W is the D: admissible if govt shows probative value outweighs prejudicial effect.
If W is a non-D: admissible but court can exclude under 403 balancing.
39
When can a prior conviction more than ten years old be used for impeachment purposes?
Convictions more than 10 years old (felonies and misdemeanors) are not admissible, unless the probative value substantially outweighs unfair prejudice (note- inverse of 403 balancing) and adverse party is given notice.
40
What requirement must be met for any testifying witness?
Witness competency — testifying witnesses must be competent, meaning they must satisfy requirements of basic reliability
41
To be deemed competent, what qualifications must a witness have?
Competency qualifications - to be competent, W must have: 1) personal knowledge 2) memory 3) communication 4) sincerity.
42
If a witness cannot recall exact specifics of an event, but has basic memory of the event, will the witness be deemed competent to testify?
Diminution of the capacities (including memory) usually goes only to the weight of testimony (ie makes the W less persuasive, but they are still competent to testify).
43
In what situations may a witness be excluded from hearing other witnesses' testimony?
upon a party’s request, the court must order witnesses excluded from hearing other witnesses’ testimony
44
Can a party who is a witness be excluded from hearing other witnesses' testimony?
Excluding witnesses — upon a party’s request, the court must order witnesses excluded from hearing other witnesses’ testimony
Does not apply to parties or party representatives (e.g., where party is a non-person entity)
45
If a document is used to refresh a witness's memory during testimony, what rules apply?
Present recollection refreshed — use of documents to refresh W’s memory during testimony
Anything can be used to refresh W’s memory
W cannot read aloud from a document, but can look at it briefly, then continue testimony unassisted
Opponent may inspect and offer into evidence anything used to refresh W’s memory
Document is not read into evidence (distinguish from recorded recollection)
46
If a document is used to refresh a witness's memory during testimony, can the witness read from the document?
W cannot read aloud from a document, but can look at it briefly, then continue testimony unassisted
47
What requirements must be satisfied for a recorded recollection to be read into evidence?
A recorded recollection may be read into evidence IF:
1. W once had personal knowledge of the record's subject matter;
2. W’s memory is insufficient to testify as to the record’s contents (i.e., present recollection refreshed was ineffective)
3. Record was made or adopted by W when the matter was fresh in W’s memory; and
4. Record accurately reflects W’s knowledge
48
Can the contents of a document a witness has never seen or heard be read into evidence as a recorded recollection?
No. One of the requirement is that the W once had personal knowledge of the record's subject matter.
49
If a document is used to refresh a witness's memory during her testimony (i.e., present recollection refreshed), is the document read into evidence?
Present recollection refreshed- use of documents to refresh W's memory during testimony--- the document IS NOT READ INTO EVIDENCE (this is different from recorded recollection).
50
If a recorded recollection contains hearsay, it is admissible?
recorded recollection is a hearsay exception (see card 30); as such it may be admitted in to evidence (distinguish from present recollection refreshed)
51
What is a leading question and when is it acceptable? When is it improper?
Leading- question itself suggests the answer; improper on direct unless W is hostile or an adverse party; acceptable on cross-exam
52
In what circumstances would an objection to a question as beyond the scope of direct be proper?
Beyond scope of direct- arises on cross-exam. Attorneys must confine their questions during cross-exam to scope of direct (ie they cannot ask questions involving matters not discussed on direct)
53
Can an objection to the form of a question asked on Day 1 of a trial be made on Day 2?
Note — these objections must be specific and promptly made; otherwise they are deemed waived
54
What requirements must be satisfied for a witness to give lay opinion evidence?
Lay opinion requirements- opinion testimony is admissible if it is: 1) rationally based, 2) helpful, 3) not expert.
55
In what situations can a lay opinion witness offer legal conclusions during testimony?
Legal conclusions are inadmissible b/c they are deemed unhelpful
56
For a witness to qualify as an expert, their expert opinion must satisfy what requirements?
Expert Requirements:
1. helpful
2. qualified
3. reasonable certainty
4. proper factual basis
5. reliable principals reasonably relied upon
57
What additional requirements must be satisfied for expert opinion based on science?
Scientific evidence — if expert opinion is based on science, court also considers whether evidence is:
Peer tested and capable of retesting;
Published;
Has a low error rate; and
Reasonably accepted in the field of study
58
Can expert witness testimony include opinions on ultimate legal issues?
Scope — experts may render an opinion on any ultimate legal issue
Exception — experts cannot give opinion on D’s mental state in a criminal trial if it is an element of a crime or defense
59
Under what Federal Rule of Evidence is the attorney-client privilege?
There are no FRE privilege rules; fed. courts have created and adopted these privileges
60
If a case is in federal court under diversity jurisdiction, what testimonial privileges will apply?
State privilege rules (which often vary) apply in fed. cases based on diversity jurisdiction
61
Can a witness in a civil trial envoke the privilege against self-incrimination?
Self-incrimination — under 5th Amend., W cannot be compelled to provide self-incriminating testimony in either civil or criminal cases
62
If a witness in a civil trial envokes their 5th Amend. right against self-incrimination, may the jury draw any inferences as a result?
Civil cases — jury may draw an adverse inference from W’s assertion of 5th Amend. privilege
63
In what ways can a D be punished for invoking their 5th Amend. right against self-incrimination in a criminal trial?
Criminal cases — D cannot be punished for invoking privilege
64
In what situations would a communication between an attorney and client be protected by attorney-client privilege?
To be protected, a communication must be:
Intended to be confidential; and
Made to facilitate legal services
65
If an attorney represents an organization as a client, to whom in the organization does the attorney-client privilege apply?
Organizational clients — privilege applies to any employee authorized to speak to the attorney
66
In what situations would an otherwise privileged communication not be protected by the attorney-client privilege?
Exceptions- privilege does not apply to: crime or fraud
attorney defending malpractice claim
67
If a client admits to his attorney that he committed a crime three years ago and got away with it, will the crime exception to the attorney-client privilege apply?
Crime or fraud — privilege does not apply if a client seeks legal services to aid in the planning or commission of a fraud or a crime
68
Is an attorney's fee agreement with a client protected under the attorney-client privilege?
Fees not covered — records of fee payments, including fee arrangements and payments, are generally considered outside (i.e., not covered by) attorney-client privilege
69
Two business partners meet with an attorney, who they have jointly hired to form their business. They later get into a lawsuit with each other over the business and their respective roles. Can either party claim attorney-client privilege to prevent testimony from the attorney?
Joint representation of parties in a lawsuit — no privilege
Where an attorney acts for both parties in a transaction, no privilege can be invoked in a lawsuit between the parties
70
When will a communication between a patient and physician be privileged?
To be protected, communication must be:
Made for purposes of obtaining diagnosis or treatment;
Pertinent to diagnosis or treatment; and
Intended by the patient to be confidential
71
A motorcyclist has sued another driver for injuries sustained in a crash. Can he protect his communications with his physician under physician-patient privilege?
Exceptions — privilege does not apply where:
Patient’s condition is a legal issue (e.g., personal injury),
72
What types of communications between a patient and doctor are not protected by the physician-patient privilege?
Exceptions — privilege does not apply where:
Patient’s condition is a legal issue (e.g., personal injury),
Physician’s services were sought to aid in a crime, tort, or to escape capture, or
Dispute between doctor and patient (e.g., malpractice)
73
What is the scope of the psychotherapist/social worker-patient privilege and when does it apply?
Psychotherapist/social worker-patient privilege — material conveyed by patient is privileged in all civil or criminal cases if:
Client intends the communication to be confidential; and
Communication is made to facilitate therapy or social work
74
If a person's spouse is the D in a civil trial, to what extent can the spousal testimonial privilege protect communications between the spouses?
Spousal testimonial privilege — criminal cases only
75
May a spouse who is not the D in a criminal trial invoke the spousal testimonial privilege if called to testify?
A person whose spouse is a D in a criminal case cannot be:
Called as a witness by the prosecution, or
Compelled to testify against his spouse in a criminal proceeding
76
When does the spousal testimonial privilege apply and what is the scope of its protection?
Spousal testimonial privilege — criminal cases only
A person whose spouse is a D in a criminal case cannot be:
Called as a witness by the prosecution, or
Compelled to testify against his spouse in a criminal proceeding
77
If a husband tells his friend about a conversation he had with his wife, will it still be protected by the marital privilege in a later proceeding?
No, a spouse can lose the privilege if he breaks confidentiality (i.e., relays a marital communication to a third party).
The other spouse still retains the privilege.
78
How does the marital communications privilege work? When does it apply and who may invoke it?
Marital communications privilege — civil and criminal
Confidential communications made during marriage are privileged in any later proceeding
Applies even if spouses divorce after confidential communication was made
Either spouse may invoke the privilege
79
What exceptions limit invocation of the marital communications privilege?
Exceptions where privilege does not apply:
Suits between spouses
Suits in which one spouse is charged with a crime or tort against children
Suits in which spouses are co-defendants
80
What basic requirement must be satisfied for any item of physical evidence to be introduced?
Every item of physical evidence must be authenticated, i.e., the proponent must show that the evidence is what he claims it is
81
When will an ancient document be automatically authenticated?
Ancient documents — automatically authenticated if:
20 or more years old;
Does not present any irregularities on its face; and
Found in a place of natural custody
82
How is a non-unique item (i.e., an item indistinguishable from others of its kind) authenticated?
Non-unique items — item facially indistinguishable from others of its kind (e.g., bag of white powder, generic syringe)
Proponent must establish “chain of custody,” i.e., that the proffered evidence is the same item it is claimed to be (will be admissible absent large breaks in chain)
83
What types of writings would be considered self-authenticating? What does that mean?
Self-authenticating evidence — writings that contain identifying information do not need separate authentication
E.g., deeds, notarized documents, newspapers
84
Would comparing an item sought to be introduced as physical evidence with an already-introduced item suffice to prove the item's authentication?
Proving authentication — may be proved by any means that serve to establish authenticity (low burden)
E.g., item may be compared with already-authenticated item
85
What is the Best Evidence Rule and when would it apply to a piece of evidence?
Applicability — rule only applies if evidence is offered to prove its contents (e.g., W’s knowledge is obtained from a writing, case turns on contents of a legal instrument, etc.)
86
What is the Completeness Doctrine and when does it apply?
Completeness doctrine — if a party introduces part of a writing or record into evidence, an adverse party may introduce evidence that should be fairly considered with it
87
Are duplicates acceptable to prove a writing's contents for purposes of the Best Evidence Rule?
Duplicates — must be a machine or carbon copy
Admissible unless there is a genuine question as to the authenticity of the original itself
88
When must a court take judicial notice of laws?
Judicial notice of laws — court must take judicial notice of fed. and state laws and regulations
89
What is judicial notice and what effect does it have?
A court may recognize a fact as true without formal presentation of evidence, either on its own or upon formal request of a party. Effect of judicially-noticed facts/laws: civil- jury must take judicially noticed facts as conclusive. Criminal- jury MAY take judicially-noticed facts as conclusive, but it not required to
90
What types of facts are appropriate for judicial notice?
Facts that are manifest facts or notorious facts.
91
In what situations would it be appropriate for a presiding judge to be called by a party to testify at trial?
Judicial testimony — a presiding judge can not testify as a witness at trial (i.e., no party can call the trial judge to testify)
92
What is the definition of hearsay and what is considered a "statement" for hearsay purposes?
Hearsay—an out-of-court statement offered to prove the truth of the matter asserted—is generally inadmissible, subject to certain exceptions and exemptions
“Statement” — an oral or written assertion, or non-verbal conduct intended as an assertion
93
What is the practical difference between a hearsay exception and hearsay exemption?
Exemptions — deemed “non-hearsay” and thus admitted
Exceptions — deemed hearsay, but still admitted
94
Can a witness's own prior out-of-court statement be hearsay?
Note — W’s own prior out-of-court statement can be hearsay; thus, an answer that a statement is “not hearsay b/c it is W’s own statement” is incorrect
95
When are out-of-court statements not considered hearsay?
Out-of-court statements are not hearsay if offered to prove anything other than the truth of the matter they assert
96
What are statements of independent legal significance and why might they not be considered hearsay?
Common non-hearsay out-of-court statements:
Statements of independent legal significance — statement contains legally operative words; not hearsay b/c offered to show that the statement was said, not whether it was true.
97
In what common ways can out-of-court statements be admissible as non-hearsay (as opposed to a hearsay exception or exemption)?
Common non-hearsay out-of-court statements:
1. statements of independent legal significance
2. statements offered to show their effect on the listener or reader
3. statements offered to show speaker's knowledge
4. statements offered to show state of mind
98
What is an adoptive admission statement and when can it arise?
Statement of party-opponent:
Adoptive statement — acquiescence in another’s statement
Silence — can be a statement/admission if:
Party heard, understood, and was capable of responding; and
Reasonable person in the party’s position would have responded
99
What are vicarious admissions and in what situations can they frequently arise?
Vicarious statement — statement by someone other than the person against whom the statement is offered; arises with:
Agency
Authorized Speaker
Co-Conspirator
100
When can a prior consistent statement be introduced as a non-hearsay exemption?
Declarant-W’s prior statement — a prior statement by a declarant who testifies and is subject to cross-examination is admissible where the statement is either:
Prior consistent statement — admissible to rebut charge of fabrication, improper motive or influence, or rehabilitate credibility
101
When can a co-conspirator's statements be admissible as a statement of party-opponent?
Statement of party-opponent — out-of-court statements by a party are admissible if offered against that party
Vicarious statement — statement by someone other than the person against whom the statement is offered; arises with:
Co-conspirator — co-conspirator’s statements are admissible against D if made in furtherance of conspiracy.
102
Can a statement made by a gas station employee be admissible as a party-opponent statement offered against the gas station owner? If so, when?
Agency — statement by agent/employee on matters within scope of agency/employment is admissible against principal
103
When can a declarant-witness's prior statement be admissible?
Declarant-W’s prior statement — a prior statement by a declarant who testifies and is subject to cross-examination is admissible where the statement is either:
Inconsistent with declarant’s testimony and given under oath,
Prior consistent statement — admissible to rebut charge of fabrication, improper motive or influence, or rehabilitate credibility, or
Prior statement of identification after perception — admissible to identify a person as someone declarant perceived earlier
104
What are the hearsay exceptions where declarant's unavailability is required?
Declarant unavailability required (see card 31):
Former testimony exception\*
Statements against interest\*
Dying declarations\*
Statements of personal or family history
Statements offered against party procuring declarant’s unavailability
105
What are the hearsay exceptions where it does not matter whether declarant is unavailable?
Declarant unavailability is immaterial:
Present state of mind\*
Excited utterances\*
Present sense impressions\*
Physical condition (for medical diagnosis or treatment)\*
Past recollection recorded\*
Business records\*
Public records or reports\*
Judgments and prior convictions\*
Ancient documents
Documents affecting property interests
Learned treatises
Family records
Market reports
106
In what situations would a declarant be unavailable for hearsay purposes?
Declarant is unavailable if either:
Privilege — exempt from testifying due to a privilege
Death or physical/mental sickness
Refusal to testify despite a court order
Lack of memory
Absent — beyond reach of court’s subpoena power and the statement’s proponent has not been able to procure attendance or testimony
107
When is former testimony admissible?
Requirements — former testimony is admissible if:
Declarant is currently unavailable;
Declarant’s prior testimony was given under oath; and
Party against whom testimony is now offered was either:
A party in the previous action and had an opportunity to cross-examine declarant
Motive for cross-examining declarant in former hearing must be similar to the current motive
A predecessor in interest of a party in the previous action, in which there was an opportunity to cross-examine declarant and a similar motive for doing so
108
What is a predecessor in interest for purposes of the former testimony hearsay exception?
Predecessor in interest is one who has a close privity-type relationship with the party in the earlier proceeding
109
What is a statement against interest for hearsay purposes? What requirements must be met for it to be admissible?
A hearsay statement is admissible if, at the time it was made, it was against the pecuniary or legal interests of the declarant
Requirements — statement admissible if:
Declarant is currently unavailable;
Statement was contrary to declarant’s pecuniary, proprietary, or penal interest when made; and
A reasonable person would not have made the statement unless he believed it to be true
110
For a statement against interest to be admissible, must the declarant be a party in the proceeding?
No requirement that the declarant is a party in the proceeding
111
What is a dying declaration and when would it be admissible for hearsay purposes?
A hearsay statement is admissible if the declarant made the statement under the belief of impending death and the statement describes the cause or circumstances of the impending death
Requirements — statement admissible if:
Declarant is currently unavailable
Unavailability does not equal death — death of declarant is not required
The out-of-court statement was made under the belief of impending death
Again, death is not required; declarant must only have believed he was dying when the statement was made
The statement was made regarding the cause or circumstances surrounding the belief of impending death
112
To qualify as a dying declaration must declarant of the statement be deceased?
Unavailability does not equal death — death of declarant is not required
113
Could a hearsay statement be admitted as a dying declaration in a criminal trial where D is accused of fraud? What about a civil trial?
Only available in:
Civil cases
Homicide cases
114
Would a hearsay statement describing a crime witnessed by declarant be admissible as a present sense impression if the statement was made the day after the crime occurred? Why or why not?
Timing is key — the statement must be made while, or immediately after, the declarant perceives the condition or event described in the statement
115
When is a hearsay statement admissible under the present sense impression exception?
Present sense impression
A hearsay statement is admissible if it:
Describes or explains an event or condition; and
Is made contemporaneously with the event or immediately thereafter
116
When would a hearsay statement be admissible under the excited utterance exception?
Excited utterance
A hearsay statement is admissible if it:
Relates to a startling or exciting event or condition; and
Was made while the declarant was under the stress or excitement of the event
117
For what purposes may a hearsay statement of then-existing state of mind be admissible?
Statement of then-existing state of mind — usually offered to show a declarant’s intent at the time the statement was made or as a circumstantial inference that declarant’s intent was likely carried out
118
