Evidence

Question 1

When is evidence relevant?

Answer 1

Evidence is relevant if it tends to prove or disprove the existence of a FACT OF CONSEQUENCE

Question 2

What is the test for excluding logically relevant evidence under Rule 403?

Answer 2

court may exclude logically relevant evidence if its probative value is substantially outweighed by the
danger of

1. unfair prejudice
2. confusion of issues
3. misleading the jury
4. undue delay
5. 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).

Question 3

Should relevant evidence be excluded due to the danger of unfair prejudice if the evidence would cause unfair surprise to a party or witness?

Answer 3

No. Unfair surprise to a party or witness is not a valid ground for excluding relevant evidence

Question 4

To what extent can an evidentiary hearing be conducted in the presence of a jury?

Answer 4

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.

Question 5

Can evidence of liability insurance be used to prove that D owned a vehicle in question?

Answer 5

Evidence of insurance is admissible to prove anything else (e.g., ownership, control, etc.)

Question 6

When is evidence of subsequent remedial measures admissible? For what reason would it be inadmissible?

Answer 6

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.

Question 7

To what extent are settlements or offers to settle admissible in civil cases?

Answer 7

In civil cases, compromises, settlements offers, and related statements (including factual admissions) are INADMISSIBLE to prove fault or liability.

Question 8

If introduced to prove guilt, are statements that the D made during plea negotiations admissible in a criminal case?

Answer 8

Criminal cases — pleas, offers to plea, and related statements (including factual admissions) are inadmissible to prove guilt

Question 9

For what purpose would evidence of an offer to pay medical expenses be inadmissible?

Answer 9

Payment or offers to pay medical expenses — inadmissible when offered to prove liability for injuries
Related statements, including factual admissions, are admissible

Question 10

For what reasons could evidence of prior similar occurrences be deemed admissible?

Answer 10

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)

Question 11

What type prior conduct may be admissible as evidence of habit?

Answer 11

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.

Question 12

For what purpose is character evidence generally inadmissible?

Answer 12

Evidence of a person’s character is generally inadmissible to prove that they acted in conformity with that character on a given occasion

Question 13

When can character evidence be admissible?

Answer 13

• when character is at issue
• prior acts of sexual molestation of child molestation in cases for similar claims

Question 14

If D in a criminal trial introduces evidence of her good character, what are potential consequences?

Answer 14

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

Question 15

If D in a criminal trial calls a W to testify to their good character, can W offer opinion evidence?

Answer 15

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).

Question 16

In what instances can the prosecution initiate introduction of evidence of D’s character?

Answer 16

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)

Question 17

Can the prosecution initiate the introduction of evidence of victim’s character to prove conduct?

Answer 17

Only D can “open the door” by introducing evidence of victim’s character to prove conduct

Question 18

What determines whether D, in a civil sexual assault case, may introduce evidence of victim’s character?

Answer 18

(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

Question 19

When may D introduce reputation or opinion evidence of victim in a criminal sexual assault case?

Answer 19

(Rape Shield)
In a criminal sexual assault case, reputation and opinion evidence of victim is inadmissible.

Question 20

In what situations may D introduce specific instances evidence of victim’s sexual behavior in a criminal sexual assault case?

Answer 20

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.

Question 21

If D wants to introduce any evidence of victim’s character in a sexual assault case, what procedure is required?

Answer 21

Parties must disclose intent to offer evidence, describe its purpose and notify the victim 14 days before trial

Question 22

Are specific instances of D’s prior bad acts/conduct admissible? If so, for what purpose?

Answer 22

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

Question 23

What are common ways that evidence of D’s prior acts can be admissible?

Answer 23

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.

Question 24

What is impeachment evidence?

Answer 24

Impeachment casts an adverse reflection on the veracity of W’s testimony

Question 25

In what ways may a witness be impeached (i.e., what are the different methods of impeachment)?

Answer 25

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

Question 26

May evidence supporting a witness’s credibility be introduced if the witness has not been impeached?

Answer 26

No- evidence supporting witness credibility is inadmissible unless credibility has been attacked (ie W has been impeached)

Question 27

What is extrinsic evidence? In what way is it prohibited for impeachment purposes?

Answer 27

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.

Question 28

When would an issue be considered a collateral matter for impeachment purposes? How do you determine if an issue is collateral?

Answer 28

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.

Question 29

When would extrinsic evidence of a fact that contradicts a witness’s testimony be admissible?

Answer 29

Generally admissible to impeach W on material, non-collateral matters.

Question 30

What type of evidence may be used to show that a W has made contradictory statements on material issues?

Answer 30

Contradiction — any evidence may be used to show W has made contradictory statements on material issues

Question 31

How can a prior inconsistent statement be used for impeachment purposes?

Answer 31

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.

Question 32

If a prior inconsistent statement constitutes hearsay, is it admissible?

Answer 32

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)

Question 33

To what extent may a witness be impeached by prior instances of misconduct?

Answer 33

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)

Question 34

What requirement must be met to impeach a witness by establishing bias?

Answer 34

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

Question 35

Can a witness be impeached based on their reputation for truthfulness?

Answer 35

W may be impeached by testimony describing his reputation for untruthfulness in the community

Question 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?

Answer 36

Misdemeanors are inadmissible unless it involves dishonesty/false statements.

Question 37

If a witness who is not the D was convicted for fraud six years ago, can the prior conviction be used for impeachment?

Answer 37

With prior convictions involving acts of dishonesty are always admissible. Court has no discretion to exclude under 403. This includes felonies and misdemeanors.

Question 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?

Answer 38

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.

Question 39

When can a prior conviction more than ten years old be used for impeachment purposes?

Answer 39

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.

Question 40

What requirement must be met for any testifying witness?

Answer 40

Witness competency — testifying witnesses must be competent, meaning they must satisfy requirements of basic reliability

Question 41

To be deemed competent, what qualifications must a witness have?

Answer 41

Competency qualifications - to be competent, W must have: 1) personal knowledge 2) memory 3) communication 4) sincerity.

Question 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?

Answer 42

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).

Question 43

In what situations may a witness be excluded from hearing other witnesses’ testimony?

Answer 43

upon a party’s request, the court must order witnesses excluded from hearing other witnesses’ testimony

Question 44

Can a party who is a witness be excluded from hearing other witnesses’ testimony?

Answer 44

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)

Question 45

If a document is used to refresh a witness’s memory during testimony, what rules apply?

Answer 45

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)

Question 46

If a document is used to refresh a witness’s memory during testimony, can the witness read from the document?

Answer 46

W cannot read aloud from a document, but can look at it briefly, then continue testimony unassisted

Question 47

What requirements must be satisfied for a recorded recollection to be read into evidence?

Answer 47

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

Question 48

Can the contents of a document a witness has never seen or heard be read into evidence as a recorded recollection?

Answer 48

No. One of the requirement is that the W once had personal knowledge of the record’s subject matter.

Question 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?

Answer 49

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).

Question 50

If a recorded recollection contains hearsay, it is admissible?

Answer 50

recorded recollection is a hearsay exception (see card 30); as such it may be admitted in to evidence (distinguish from present recollection refreshed)

Question 51

What is a leading question and when is it acceptable? When is it improper?

Answer 51

Leading- question itself suggests the answer; improper on direct unless W is hostile or an adverse party; acceptable on cross-exam

Question 52

In what circumstances would an objection to a question as beyond the scope of direct be proper?

Answer 52

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)

Question 53

Can an objection to the form of a question asked on Day 1 of a trial be made on Day 2?

Answer 53

Note — these objections must be specific and promptly made; otherwise they are deemed waived

Question 54

What requirements must be satisfied for a witness to give lay opinion evidence?

Answer 54

Lay opinion requirements- opinion testimony is admissible if it is: 1) rationally based, 2) helpful, 3) not expert.

Question 55

In what situations can a lay opinion witness offer legal conclusions during testimony?

Answer 55

Legal conclusions are inadmissible b/c they are deemed unhelpful

Question 56

For a witness to qualify as an expert, their expert opinion must satisfy what requirements?

Answer 56

Expert Requirements:

1. helpful
2. qualified
3. reasonable certainty
4. proper factual basis
5. reliable principals reasonably relied upon

Question 57

What additional requirements must be satisfied for expert opinion based on science?

Answer 57

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

Question 58

Can expert witness testimony include opinions on ultimate legal issues?

Answer 58

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

Question 59

Under what Federal Rule of Evidence is the attorney-client privilege?

Answer 59

There are no FRE privilege rules; fed. courts have created and adopted these privileges

Question 60

If a case is in federal court under diversity jurisdiction, what testimonial privileges will apply?

Answer 60

State privilege rules (which often vary) apply in fed. cases based on diversity jurisdiction

Question 61

Can a witness in a civil trial envoke the privilege against self-incrimination?

Answer 61

Self-incrimination — under 5th Amend., W cannot be compelled to provide self-incriminating testimony in either civil or criminal cases

Question 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?

Answer 62

Civil cases — jury may draw an adverse inference from W’s assertion of 5th Amend. privilege

Question 63

In what ways can a D be punished for invoking their 5th Amend. right against self-incrimination in a criminal trial?

Answer 63

Criminal cases — D cannot be punished for invoking privilege

Question 64

In what situations would a communication between an attorney and client be protected by attorney-client privilege?

Answer 64

To be protected, a communication must be:
Intended to be confidential; and
Made to facilitate legal services

Question 65

If an attorney represents an organization as a client, to whom in the organization does the attorney-client privilege apply?

Answer 65

Organizational clients — privilege applies to any employee authorized to speak to the attorney

Question 66

In what situations would an otherwise privileged communication not be protected by the attorney-client privilege?

Answer 66

Exceptions- privilege does not apply to: crime or fraud
attorney defending malpractice claim

Question 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?

Answer 67

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

Question 68

Is an attorney’s fee agreement with a client protected under the attorney-client privilege?

Answer 68

Fees not covered — records of fee payments, including fee arrangements and payments, are generally considered outside (i.e., not covered by) attorney-client privilege

Question 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?

Answer 69

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

Question 70

When will a communication between a patient and physician be privileged?

Answer 70

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

Question 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?

Answer 71

Exceptions — privilege does not apply where:
Patient’s condition is a legal issue (e.g., personal injury),

Question 72

What types of communications between a patient and doctor are not protected by the physician-patient privilege?

Answer 72

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)

Question 73

What is the scope of the psychotherapist/social worker-patient privilege and when does it apply?

Answer 73

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

Question 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?

Answer 74

Spousal testimonial privilege — criminal cases only

Question 75

May a spouse who is not the D in a criminal trial invoke the spousal testimonial privilege if called to testify?

Answer 75

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

Question 76

When does the spousal testimonial privilege apply and what is the scope of its protection?

Answer 76

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

Question 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?

Answer 77

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.

Question 78

How does the marital communications privilege work? When does it apply and who may invoke it?

Answer 78

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

Question 79

What exceptions limit invocation of the marital communications privilege?

Answer 79

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

Question 80

What basic requirement must be satisfied for any item of physical evidence to be introduced?

Answer 80

Every item of physical evidence must be authenticated, i.e., the proponent must show that the evidence is what he claims it is

Question 81

When will an ancient document be automatically authenticated?

Answer 81

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

Question 82

How is a non-unique item (i.e., an item indistinguishable from others of its kind) authenticated?

Answer 82

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)

Question 83

What types of writings would be considered self-authenticating? What does that mean?

Answer 83

Self-authenticating evidence — writings that contain identifying information do not need separate authentication
E.g., deeds, notarized documents, newspapers

Question 84

Would comparing an item sought to be introduced as physical evidence with an already-introduced item suffice to prove the item’s authentication?

Answer 84

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

Question 85

What is the Best Evidence Rule and when would it apply to a piece of evidence?

Answer 85

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.)

Question 86

What is the Completeness Doctrine and when does it apply?

Answer 86

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

Question 87

Are duplicates acceptable to prove a writing’s contents for purposes of the Best Evidence Rule?

Answer 87

Duplicates — must be a machine or carbon copy
Admissible unless there is a genuine question as to the authenticity of the original itself

Question 88

When must a court take judicial notice of laws?

Answer 88

Judicial notice of laws — court must take judicial notice of fed. and state laws and regulations

Question 89

What is judicial notice and what effect does it have?

Answer 89

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

Question 90

What types of facts are appropriate for judicial notice?

Answer 90

Facts that are manifest facts or notorious facts.

Question 91

In what situations would it be appropriate for a presiding judge to be called by a party to testify at trial?

Answer 91

Judicial testimony — a presiding judge can not testify as a witness at trial (i.e., no party can call the trial judge to testify)

Question 92

What is the definition of hearsay and what is considered a “statement” for hearsay purposes?

Answer 92

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

Question 93

What is the practical difference between a hearsay exception and hearsay exemption?

Answer 93

Exemptions — deemed “non-hearsay” and thus admitted
Exceptions — deemed hearsay, but still admitted

Question 94

Can a witness’s own prior out-of-court statement be hearsay?

Answer 94

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

Question 95

When are out-of-court statements not considered hearsay?

Answer 95

Out-of-court statements are not hearsay if offered to prove anything other than the truth of the matter they assert

Question 96

What are statements of independent legal significance and why might they not be considered hearsay?

Answer 96

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.

Question 97

In what common ways can out-of-court statements be admissible as non-hearsay (as opposed to a hearsay exception or exemption)?

Answer 97

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

Question 98

What is an adoptive admission statement and when can it arise?

Answer 98

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

Question 99

What are vicarious admissions and in what situations can they frequently arise?

Answer 99

Vicarious statement — statement by someone other than the person against whom the statement is offered; arises with:
Agency
Authorized Speaker
Co-Conspirator

Question 100

When can a prior consistent statement be introduced as a non-hearsay exemption?

Answer 100

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

Question 101

When can a co-conspirator’s statements be admissible as a statement of party-opponent?

Answer 101

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.

Question 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?

Answer 102

Agency — statement by agent/employee on matters within scope of agency/employment is admissible against principal

Question 103

When can a declarant-witness’s prior statement be admissible?

Answer 103

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

Question 104

What are the hearsay exceptions where declarant’s unavailability is required?

Answer 104

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

Question 105

What are the hearsay exceptions where it does not matter whether declarant is unavailable?

Answer 105

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

Question 106

In what situations would a declarant be unavailable for hearsay purposes?

Answer 106

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

Question 107

When is former testimony admissible?

Answer 107

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

Question 108

What is a predecessor in interest for purposes of the former testimony hearsay exception?

Answer 108

Predecessor in interest is one who has a close privity-type relationship with the party in the earlier proceeding

Question 109

What is a statement against interest for hearsay purposes? What requirements must be met for it to be admissible?

Answer 109

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

Question 110

For a statement against interest to be admissible, must the declarant be a party in the proceeding?

Answer 110

No requirement that the declarant is a party in the proceeding

Question 111

What is a dying declaration and when would it be admissible for hearsay purposes?

Answer 111

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

Question 112

To qualify as a dying declaration must declarant of the statement be deceased?

Answer 112

Unavailability does not equal death — death of declarant is not required

Question 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?

Answer 113

Only available in:
Civil cases
Homicide cases

Question 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?

Answer 114

Timing is key — the statement must be made while, or immediately after, the declarant perceives the condition or event described in the statement

Question 115

When is a hearsay statement admissible under the present sense impression exception?

Answer 115

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

Question 116

When would a hearsay statement be admissible under the excited utterance exception?

Answer 116

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

Question 117

For what purposes may a hearsay statement of then-existing state of mind be admissible?

Answer 117

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