Evidence Flashcards
Prior Inconsistent Statement
There are two types of prior inconsistent statements under the FRE.
First, a testifying witness’s prior inconsistent statement is NOT hearsay (non hearsay) if it was: (1) made under penalty of perjury at a prior trial or proceeding, or in a deposition; and (2) the witness is currently subject to cross-examination. Such prior statements, if inconsistent with in-court testimony, would be admissible to impeach credibility and as substantive proof (since non hearsay).
Second, to impeach the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. An inconsistent statement may be proved by either cross examination or extrinsic evidence.
To prove a statement by extrinsic evidence, certain requirements must be met: (1) a proper foundation must be laid (the witness must be given a chance at some point to explain or deny the statement and the adverse party must be given the opportunity at some point to cross-examine); and (2) the statement must be relevant to some issue in the case (cannot be collateral matter). The foundation requirement does NOT apply if the prior inconsistent statement is an opposing party’s statement.
Hearsay within Hearsay
Hearsay within hearsay is an out-of-court statement that incorporates other hearsay and is admissible only if both the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule.
Impeaching an unavailable hearsay declarant
Generally, when a hearsay statement is admitted into evidence, the party against whom the statement is offered has the opportunity to impeach the credibility of the declarant by evidence that would be admissible if the declarant had testified as a witness.
[If the court admits into evidence X’s hearsay statement, the opposing party should be given an opportunity to impeach the credibility of X by evidence of any inconsistent statements X may have made regarding ____, even if the statement is hearsay. Unless some independent hearsay exception applies, this inconsistent statement is admissible only to impeach X’s credibility, and not as substantive evidence.]
Impeachment: Specific Instances of Conduct
A witness’s credibility may be attacked on cross-examination
by questioning him with specific instances of conduct
(i.e. prior bad acts) ONLY IF the conduct is probative of the
witness’s character for truthfulness or untruthfulness.
However, extrinsic evidence is NEVER admissible to prove these specific instances of conduct (ie witness may not be impeached by extrinsic evidence of bad acts).
Even if a witness lies or denies a specific instance of conduct, he CANNOT be contradicted by extrinsic evidence (such as documentary evidence or by testimony of another witness) to show that the witness is lying.
Refreshing Recollection
A witness may use any writing or object for the purpose of refreshing their present recollection. They usually may not read from the writing while testifying because the writing is not authenticated and not in evidence (and thus, there is no hearsay concern).
Whenever a witness has used a writing to refresh their memory while on the stand, an adverse party is entitled to:
• Have the writing produced at trial;
• Cross-examine the witness about the writing; and
• Introduce portions of the writing relating to the witness’s testimony into evidence
If the witness refreshed their memory before taking the stand, an adverse party is entitled to the above options only if the court decides that justice requires it.Refre
The Federal Rules of Evidence (except for those r/t privilege) do not apply to
the court’s determination on a preliminary question of fact governing admissibility;
grand-jury proceedings; and
miscellaneous proceedings (incl probation revocation proceedings)
The correct standard for authentication under the FREs is
whether there is sufficient evidence to support a finding that the evidence is what the proponent claims it to be.
Statements made in negotiations related to a claim by a public office in the exercise of its enforcement authority may be admissible in a subsequent criminal prosecution, while statements made in negotiations with a private party
are not admissible in a subsequent criminal prosecution.
