Evidence ✔️

Question 1

Applicability of the Federal Rules of Evidence?

Answer 1

FRE do not apply to:

• Court’s determination of a preliminary question of fact re admissibility,
• Grand jury proceedings, and
• Criminal proceedings for: warrant or summons issuance, preliminary examination, extradition/rendition, bail/other release consideration, sentencing, or probation/supervised release.

Question 2

Who decides what when it comes to evidence?

Answer 2

The judge decides preliminary questions of the competency of evidence.

The jury determines the weight and credibility of evidence.

Question 3

Rules on challenges to an evidence ruling?

Answer 3

The ruling must affect a substantial right of a party, and the party must notify the judge of the error through either:

Objection (if the evidence was admitted) or

Offer of proof (if the evidence was excluded)

⚠️ No need to challenge if it affects a substantial right and is plain error (aka an error obvious to a reviewing court); best practice to challenge anyway

Question 4

What is the Rule of Completeness?

Answer 4

For a piece of evidence partially introduced, an adverse party may compel the omitted portion also be introduced, to help explain it.

Question 5

What is the scope of admissibility of evidence?

Answer 5

Evidence may be admissible for one purpose but not another.

The court must restrict evidence to its proper scope and instruct the jury accordingly.

Question 6

What is judicial notice?

What kind of facts are subject to judicial notice?

Answer 6

Judicial Notice = The court’s acceptance of a fact as true without requiring formal proof.

Adjudicative facts (facts of the case at hand typically decided by a jury) are subject to judicial notice if the fact is not subject to reasonable dispute because:

• it’s generally known within the community, or
• can be accurately and readily determined from reliable sources.

Question 7

How must the judge instruct the jury on judicial notice?

Answer 7

(Civil case) Jury must be instructed to accept the noticed fact as conclusive.

(Criminal case) Jury must be instructed that it may or may not accept any judicially noticed fact as conclusive.

Question 8

What is the scope of cross-examination?

Answer 8

Scope of cross-examination is generally limited to the subject matter of direct examination and witness credibility; redirect and recross may be permitted, the scope is within the court’s discretion.

Question 9

What should you do if a witness’s answer makes the testimony improper?

Answer 9

Move to strike.

Only examining counsel may move to strike an unresponsive answer.

Question 10

What is a leading question?

What are the rules re leading questions?

Answer 10

Leading questions suggest the answer within the question.

They are not permitted on direct ⚠️ unless:

(a) a hostile witness,
(b) needed to develop the witness’s testimony, or
(c) the witness struggles with communication.

Leading questions are generally allowed on cross-examination without restriction.

Question 11

Define these improper questions:

Compound?

Assumes facts not in evidence?

Argumentative?

Calls for conclusion/opinion?

Repetitive?

Foundation?

Answer 11

Compound: Requires multiple answers to multiple questions

Assumes facts not in evidence: Assumes as true facts not yet established

Argumentative: Intended to present an argument, rather than elicit a factual response

Calls for conclusion/opinion: Requires witness to draw a conclusion or state an opinion he’s not qualified to make

Repetitive: aka asked and answered

Foundation: Failure to establish necessary predicate, e.g. authentication of tangible evidence

Question 12

Whom must the court exclude (and who is exempt)?

Answer 12

The court must exclude witnesses from the courtroom so they don’t hear other witnesses’ testimony, ⚠️ except for:

• Parties to the case (natural persons)
• Individual designated as representative of parties (e.g. corporations)
• Persons essential to a party’s presentation of a case, and
• Persons whose presence is permitted by statute (e.g. victims)

Question 13

What are the burdens of proof?

Answer 13

The burden of production = must produce legally sufficient evidence for each element of a claim such that reasonable trier of fact could infer the alleged fact has been proven (aka prima facie case)

The burden of persuasion = either:

Preponderance of the evidence (civil cases), or—at times—clear and convincing, or

Beyond a reasonable doubt (criminal cases)

Question 14

What are presumptions and what do they do?

Answer 14

Presumptions can be rebuttable or conclusive.

Rebuttable presumption shifts the burden of production—NOT persuasion—to the opposing party.

Conclusive presumption cannot be challenged by contrary evidence.

Question 15

What is the effect of destruction of evidence?

Answer 15

Destruction of evidence generally raises a rebuttable presumption that the evidence would be unfavorable to the destroyer, if the other party establishes:

1. destruction was intentional,
2. evidence is relevant, and
3. alleged victim acted with due diligence as to the destroyed evidence.

Question 16

What kind of evidence can come in?

Answer 16

Generally, all relevant evidence is admissible (unless excluded by a rule, law, or constitutional provision).

Question 17

What does relevant mean? (Evidence)

Answer 17

Evidence is relevant if probative and material.

Probative = the evidence has any tendency to make a fact more or less probable than it would be without the evidence

Material = the evidence is of consequence in determining the action

Question 18

When can relevant evidence be excluded?

Answer 18

(Rule 403 exclusion)

Prejudice >>> Probative

If the probative value is substantially outweighed by the danger of unfair prejudice (confusing issues, misleading jury, undue delay, wasting time, needless presentation of cumulative evidence).

Question 19

May evidence be admitted whose relevance is not determined yet?

Answer 19

Yes, evidence whose relevance is dependent on the existence of a fact requires proof sufficient to support a finding that the fact does exist.

It may be admitted on condition that the proof is later introduced.

Question 20

What is the general rule for character evidence (in civil cases)?

Answer 20

Character evidence is typically inadmissible to prove a person acted in accordance with that character/trait on a particular occasion.

⚠️ Character evidence can come in when character is an essential element of a claim/defense instead of a means of proving a person’s conduct (usually defamation, negligent hiring or negligent entrustment, child custody)

Question 21

What is the general rule for character evidence (in criminal cases)?

Answer 21

Prosecution cannot introduce evidence of D’s bad character to prove D has a propensity to commit crimes and so is likely to have committed this crime.

Defense can introduce evidence of D’s good character as being inconsistent with type of crime charged, provided it is pertinent and is reputation or opinion testimony.

⚠️ Once D “opens the door” by offering evidence of his good character (or victim’s bad character), prosecution can rebut by attacking D’s character.

Defense can introduce reputation or opinion evidence of the victim’s character when relevant to the defense asserted (evidence of victim’s sexual conduct is very limited).

Prosecution can rebut evidence of victim’s bad character with evidence of victim’s good character (and in homicides, can offer victim’s trait for peacefulness to rebut evidence that victim was first aggressor)

Question 22

What form must character evidence take?

Answer 22

When character evidence is admissible, it may be proven by testimony about a person’s reputation or by witness opinion.

Question 23

Can character evidence be used to impeach? What kind?

Answer 23

Character evidence of a witness’s untruthfulness is admissible/relevant to impeach that witness.

Question 24

For what purpose(s) is evidence of specific bad acts allowed/disallowed?

Answer 24

Bad acts evidence is not admissible to show D’s criminal propensity to prove he committed the crime in question.

⚠️ It can be admitted for other purposes (including but not limited to M-I-M-I-C):

Motive,

Intent,

absence of Mistake,

Identity, or

Common plan

or other non-propensity purpose(s).

Upon request from criminal D, prosecution must provide reasonable notice, in writing (unless excused by court for good cause) of: the general nature of MIMIC evidence they intend to offer at trial, and the non-propensity purpose it will be offered for.

When character is essential element of claim/defense (civil cases), it can come in as reputation or opinion, but not against criminal D to show propensity.

⚠️ A criminal D can offer specific acts inconsistent with crime charged.

A character witness can be cross-examined about specific acts committed by the person whose character they’re testifying about.

Question 25

What is habit evidence, and what’s the rule?

Answer 25

Habit evidence can generally come in, even to show action in conformity.

Habit evidence is of a person’s particular routine (i.e. semi-automatic) reaction to a specific set of circumstances.

Evidence of a person’s habit (or organization’s routine) is admissible to prove the person acted in accordance with the habit on a particular occasion!

NB: Admissible without corroboration, and without an eyewitness.

Question 26

What are the requirements of a lay witness?

Answer 26

A lay witness (non-expert) must:

have personal knowledge of a matter in order to testify about it, and

give an oath or affirmation to testify truthfully.

Question 27

Can a judge testify at a trial he oversees?

Answer 27

No.

Question 28

Can a juror testify?

Answer 28

A juror generally may only testify after trial about:

• extraneous prejudicial information brought to jury’s attention,
• improper outside influence, or
• mistakes on the verdict form.

Question 29

How old do you have to be to testify?

Answer 29

There is no specific age requirement.

But to testify, the witness must be able to differentiate truth from falsehood and understand the requirement to be truthful.

Federal law rebuttably presumes a child is competent to testify (they’ll put kids on stand via CCTV sometimes).

Question 30

What does a Dead Man’s statute do?

Answer 30

It protects decedent’s estate from parties with financial interest in the estate.

It’s a statute designed to prevent perjury in a civil case by prohibiting a witness who is an interested party from testifying about communications or transactions with a dead person (a “decedent”) against the decedent unless there is a waiver.

Predecessors in interest or those directly affected financially may be disqualified from testifying.

NB: An interested person or protected party can waive the protection by failing to object to a disqualified witness or introduction of protected evidence.

⚠️ It does not apply in criminal cases.

Question 31

Can you bolster a witness’s credibility?

Answer 31

Not out the gate—it must first be attacked (then you can admit evidence of truthful character).

Question 32

What is admissible as impeachment evidence of a witness’s character for truthfulness?

Answer 32

Opinion/reputation testimony? OK to attack witness’s character for untruthfulness.

Specific instances of conduct? Generally not OK on direct. On cross, OK if probative of witness’s truthfulness or that of sb whose character they’re testifying about.

If witness denies a specific act, extrinsic evidence cannot come in to prove the specific act (⚠️ except for criminal convictions). “You can only ask.”

Question 33

What basis can impeachment evidence be made on?

Answer 33

A challenge to a witness’s testimony can be based on

• character for untruthfulness,
• bias,
• ability to perceive or testify accurately,
• contradictory prior statement, or
• another witness.

Question 34

Which criminal conviction evidence is admissible for impeachment?

Answer 34

A crime involving dishonesty/false statement can be used to impeach any witness for any conviction.

Otherwise, a criminal conviction is admissible to impeach witness only if punishable by death or imprisonment >1 year.

⚠️ If the witness is the D in his own criminal trial, it’s admissible only if its probative value outweighs the prejudicial effect (in if Probative > Prejudice) to that D (with any other witness it’s the 403 standard—out if Prejudice >>> Probative)

A conviction or release from over 10 years ago can come in to impeach if:

• (in if Probative >>> Prejudice) probative value substantially outweighs prejudicial effect, and
• reasonable written notice of intent to use evidence.

NB: Evidence of an arrest cannot be used to impeach.

Question 35

Can evidence of pardoned/annulled/etc. convictions come in?

Answer 35

Criminal conviction evidence is not admissible if subject of a pardon, annulment, or other action based on a finding of innocence.

⚠️ Pending appeal does not prevent impeachment.

Question 36

Can a juvenile adjudication come in?

Answer 36

A juvenile adjudication is not admissible to impeach D.

⚠️ but it may impeach other witness’s character for truthfulness in a criminal case if:

• an adult conviction for that offense would be admissible, and
• admitting it is necessary to determine guilt/innocence.

Question 37

Can evidence of a prior arrest (without a conviction) come in to impeach witness?

Answer 37

No.

Question 38

Can evidence of bias come in?

Answer 38

Yes, bias or interest can be used to impeach witness because relevant to credibility.

Question 39

Can evidence of sensory competence come in (to impeach)?

Answer 39

Yes, a witness’s sensory competence can be impeached for deficiency in capacities to perceive, recall, or relate information.

Question 40

Can you impeach a hearsay declarant’s statement(s)?

Answer 40

Yes, the credibility of a declarant can be attacked by any evidence admissible if declarant had testified as a witness.

If declarant is called as a witness, he can be examined as if under cross-examination.

Question 41

Can prior inconsistent statements be used to impeach?

Answer 41

Yes, prior inconsistent statements can be used to impeach if inconsistent with material part of the witness’s testimony.

⚠️ Extrinsic evidence of a prior inconsistent statement is admissible only if:

• the witness has a chance to explain/deny statement, and
• opposing party can examine witness about it

(NB: this opportunity is not required for hearsay declarants or opposing party statements).

Question 42

Can you bring evidence of a witness’s religious opinions and beliefs?

Answer 42

Religious opinions and beliefs cannot be used to impeach credibility, but they are admissible to show bias/interest.

Question 43

Can contradictory evidence come in to impeach?

Answer 43

Yes, if it contradicts witness’s testimony. This includes contradictory material extrinsic evidence.

Question 44

Can you impeach a witness’s credibility on a collateral matter with extrinsic evidence?

Answer 44

No, as this risks the creation of “mini-trials” on, e.g., whether this witness likes hot dogs.

Question 45

What is rehabilitating a witness?

What may be brought to do so, and when?

Answer 45

Rehabilitation of a witness is that witness explaining/clarifying on redirect.

You can offer opinion/reputation evidence of the witness’s character for truthfulness (ONLY if character was attacked on that ground!)

You can offer a prior consistent statement (from before existence of alleged motive) to rebut the express/implied charge that witness lied due to improper motive/influence.

Question 46

What is a present recollection refreshed?

Answer 46

Witness may examine any item to refresh witness’s present recollection.

The testimony must be based on refreshed recollection, not item.

Adverse party may inspect item and enter relevant portions as evidence.

Item may be redacted by court, and is admissible for substantive purposes only if satisfies other restrictions on admissibility.

Question 47

What is a past recollection recorded?

Answer 47

Memo/record about matter witness once had knowledge of but now has insufficient recollection of to testify about may be admissible under recorded recollection hearsay exception.

It may be read into evidence, but can be received as an exhibit only if adverse party offers it.

Question 48

What subject matter may a lay witness testify give an opinion about?

Answer 48

A lay witness opinion is admissible if:

1. rationally based on the witness’s perception,
2. helpful to a clear understanding of witness’s testimony or determination of a fact in issue, and
3. not based on scientific, technical, or specialized knowledge.

Question 49

What subject matter may an expert witness testify about?

Answer 49

Expert witness subject matter must be scientific, technical, or some other specialized knowledge (reliable) that helps the trier of fact understand the evidence or determine a fact at issue (relevant).

Some courts hold that expert testimony going to a witness’s credibilty steps on the jury’s toes (it’s their job to decide whether witness is telling the truth).

Question 50

What is an expert forbidden from testifying about?

Answer 50

Whether a criminal defendant had the requisite mental state.

(Plus, some courts prevent expert testimony about a witness’s credibility).

Question 51

What are the requirements for a qualified expert witness?

Answer 51

Must be:

1. qualified as an expert by knowledge, skill, experience, training, or education,
2. testimony must be based on sufficient facts/data,
3. testimony must be the product of reliable principles and methods,
4. the witness must have applied those principles and methods reliably to the facts of the case, and
5. to a reasonable degree of certainty (i.e. “probably”).

Question 52

What can an expert witness base his opinion on?

Answer 52

Any admissible facts, plus

inadmissible facts if experts in the field would reasonably rely on those kinds of facts & data in forming an opinion on the subject.

May disclose underlying facts to the jury if probative value substantially outweighs prejudicial effect.

The adequacy of the expert’s knowledge may be challenged on cross.

Question 53

When is it forbidden to pay a witness?

Answer 53

A lawyer may not offer to pay a witness any consideration:

• In excess of the reasonable expenses of the witness incurred and the reasonable value of the witness’s time spent in providing evidence (⚠️ except that an expert witness may be offered and paid a noncontingent fee);
• Contingent on the content of the witness’s testimony or the outcome of the litigation; or
• Otherwise prohibited by law.

Question 54

What payment is a witness entitled to?

Answer 54

An appearance fee, and

A travel allowance.

Question 55

What is the standard for authentication of tangible evidence?

Answer 55

All tangible evidence must be authenticated with sufficient evidence to support a finding that the thing is what its proponent claims it is.

Question 56

How are physical objects usually authenticated?

Answer 56

Through personal knowledge, distinctive characteristics, or—when applicable—chain of custody.

Reproductions (photos, diagrams, maps) are authenticated by testimony of witness with personal knowledge that the object accurately depicts what proponent claims it does.

X-rays, EKGs are authenticated with proof that the process used was accurate, the machine works, and that the operator was qualified.

Question 57

How is documentary evidence usually authenticated?

Answer 57

By stipulation (almost always), eyewitness testimony, or handwriting verification.

Question 58

Under what circumstances can ancient documents come in?

Answer 58

When they are at least 20 years old, in a condition unlikely to create suspicion, and found in a likely place if it were authentic.

Question 59

How is handwriting usually verified?

Answer 59

Via comparison or by a non-expert with personal knowledge (who didn’t just get knowledge of the handwriting to prepare for trial).

Question 60

What does self-authenticating mean? Examples?

Answer 60

Self-authenticating document = doesn’t require extrinsic evidence.

(e.g. gov’t authorized documents, certified public records, or newspapers)

Question 61

What is the rule for a reply letter?

Answer 61

A reply letter is documentary evidence that is taken to be authenticated, as it was written in response to a communication.

Question 62

Can public records come in?

Answer 62

Yes, and they are authenticated by nature of being recorded/filed in a public office.

Question 63

How are oral statements usually authenticated?

Voice identification? Telephone conversations?

Answer 63

Voice ID can be identified by any person who has ever heard the voice at any time.

A party to a phone conversation may authenticate statements made during the conversation if:

• the caller recognized the speaker’s voice,
• the speaker knew facts only a particular person would know,
• the caller dialed a number believed to be the speaker’s and the speaker identified himself upon answering, or
• the caller dialed a business and spoke about business regularly conducted over the phone.

Question 64

What is the Best Evidence Rule?

Answer 64

BER = The original document or a reliable duplicate* must be produced to prove contents of writing when the contents are at issue or when a witness is relying on contents when testifying.

⚠️ The original is not required when:

• originals are lost or destroyed in good faith,
• the party against whom original would be offered failed to produce it, or
• the document is not closely related to a controlling issue.

⚠️ Contents of the original may be proven by admission by the party it is offered against, without needing to account for the original.

* NB: Handwritten copies of original are not duplicates. Duplicates are reliable unless there is a genuine question as to the authenticity of the original, or the circumstances make it unfair to admit the duplicate. Contents of a public record are generally proved by certified copy.

Question 65

What can be done with voluminous documents?

Answer 65

Contents of voluminous documents may be presented as a summary if such contents cannot be conveniently examined in court.

Proponent must make originals/duplicates available for examination & copying by other parties at a reasonable time and place. Court may also order proponent to produce the originals/duplicates in court.

Question 66

What is the Parol Evidence Rule? What exceptions?

Answer 66

The Parol Evidence Rule operates to exclude evidence that, if introduced, would change the terms of a written agreement.

A complete integration contains all terms to which the parties agreed—PER in effect, no extrinsic evidence is admissible.

A partial integration contains some, but not all agreed-upon terms.—extrinsic evidence that adds to the writing is admissible; evidence that contradicts is inadmissible.

⚠️ Extrinsic evidence is always admissible to clarify ambiguity, prove course of dealing, show fraud/duress/mistake, or show presence/absence of consideration.

Question 67

When is a privilege waived?

Answer 67

If the privilege holder:

• fails to timely assert it,
• voluntarily discloses communication, or
• contractually waives it in advance.

Question 68

What kind of communication, generally, is privileged?

Answer 68

Communication must be confidential for any privilege to apply.

Question 69

If a confidential communication is overheard, what happens?

Answer 69

If overheard, privilege is destroyed, ⚠️ unless:

• no knowledge of third party’s presence; or
• third party is necessary to assist in communication (e.g., a translator)

Question 70

What are the two spousal privileges?

When do they apply?

Answer 70

Spousal immunity means a married person cannot be compelled to testify against his spouse in a criminal proceeding (regardless of who D is). The witness spouse holds the privilege (majority). It applies to testimony about events before/during marriage and expires when the marriage ends.

Confidential marital communications is privileged, both spouses hold the privilege in civil and criminal cases (majority) and either spouse may assert and refuse to testify about it and can prevent the other spouse from testifying. The privilege begins with marriage and continues indefinitely.

⚠️ Neither privilege applies it’s spouse suing spouse, or when spouse is charged with crime against spouse or either one’s children!

Question 71

What is the attorney-client privilege? How long does it last? Exceptions?

Answer 71

Attorney-client privilege protects confidential communication between client (who holds privilege) and attorney made for the purpose of obtaining legal advice/representation.

NB: The attorney doesn’t need to give advice or agree to represent for privilege to apply.

The privilege exists until waived by client/guardian/successor in interest. It can survive termination of the attorney-client relationship and even client death.

⚠️ The following communications are not privileged:

• Made to enable or aid commission of what client knew/should have known was crime or fraud,
• Relevant to dispute between attorney and client/former client,
• Releveant to dispute between parties claiming through the same deceased client,
• Between former co-clients who are now adverse to each other.

Question 72

What is “work product” doctrine? (Evidence)

Answer 72

An attorney’s work product (not “communication”) is generally protected ⚠️ unless the party seeking disclosure:

1. demonstrates substantial need, and
2. cannot obtain the information by other means without undue hardship.

Question 73

When does the doctor-patient privilege apply?

Answer 73

Statement is privileged so long as it is made for the purpose of obtaining medical treatment.

The patient holds the privilege.

⚠️ It does not exist if:

• patient’s physical condition is at issue in the case,
• the statement is part of a crime,
• a dispute exists between the patient and physician,
• the patient contractually waives it, or
• in a Federal question case.

Question 74

When does the psychotherapist-patient privilege not apply?

Answer 74

The privilege doesn’t exist if:

• the patient’s mental condition is at issue,
• the statement was the result of a state-ordered exam, or
• in a commitment proceeding against the patient.

The patient holds the privilege.

Question 75

What statements are covered by Fifth Amendment protection?

Answer 75

Only covers current statements made by natural persons.

⚠️ Does not apply to physical characteristics/mannerisms, nor to corporations or other organizations.

Fifth Amendment protection allows a witness to refuse to give testimony that may tend to incriminate him.

Question 76

Does a journalist have a federal privilege re his sources?

Answer 76

No.

Question 77

What are the rules re subsequent remedial measures?

Answer 77

Subsequent remedial measures cannot come in to prove: negligence, culpability, defective product/design, or need for warning/instruction.

⚠️ They can come in for other purposes, such as impeachment, ownership/control, or feasibility of precautionary measures.

Question 78

What are the rules re compromise offers and negotiations?

Answer 78

Compromise offers and negotiations cannot come in (by either party) to prove/disprove validity or amount of a disputed claim, nor for impeachment by prior inconsistent statement/contradiction.

They cannot come in (by a third party) to prove/disprove validity or amount of a disputed claim that the third person has asserted against the party involved in settlement.

⚠️ They can come in to prove bias/prejudice of a witness, negate a claim of undue delay, or prove obstruction of criminal investigation/prosecution.

⚠️ They can come in in a subsequent criminal case if made during compromise negotations with a gov’t agency during its regulatory, investigative, or enforcement authority.

Question 79

What are the rules re evidence of payment, offers/promises to pay medical expenses?

Answer 79

Offers to pay medical expenses are inadmissible to prove liability for the injury.

⚠️ Statements that accompany the payment/offer/promise to pay are admissible.

Question 80

What are the rules re the admissibility of plea negotiations?

Answer 80

These are inadmissible:

• withdrawn guilty pleas,
• nolo pleas,
• statements made while negotiating plea bargain/during plea proceeding.

⚠️ Exception: another statement made during the same pleas/negotiation has already been admitted and fairness requires that the statement in question also be admitted (Rule of Completeness)

⚠️ They are also admissible in a subsequent perjury prosecution if they were false statements made under oath, on the record, and with counsel present.

Question 81

What are the rules re admissibility of liability insurance?

Answer 81

Insurance is not admissibleto prove whether the person actednegligently or wrongfully.

⚠️ Insurance is admissible to prove: agency, ownership/control, or a witness’s bias/prejudice.

Question 82

What is hearsay?

Answer 82

An out-of-court statement offered to prove the truth of the matter asserted.

Question 83

What are the admissibility rules for sexual conduct evidence?

Answer 83

Rape shield laws forbid evidence of a victim’s sexual behavior/predisposition in any proceeding involving sexual misconduct.

⚠️ Specific sex acts of victim are admissible to prove criminal D is not the source of physical evidence.

⚠️ Sexual behavior/predisposition of victim is admissible in civil case if probative value substantially outweighs unfair prejudice. (Reverse 403)

Sexual reputation evidence is admissible only if placed in controversy by victim.

Evidence of a defendant’s sexual assault in criminal/civil case is admissible to prove any relevant matter (not just convictions)!

Question 84

What does “offered for the truth” mean?

Answer 84

An out-of-court statement is hearsay only if offered to prove the truth of the matter asserted.

If offered to prove something else (legally operative facts, effect on recipient,
state of mind, identification, and impeachment and rehabilitation), not hearsay.

Question 85

What do you do with multiple hearsay?

Answer 85

Hearsay within hearsay is only admissible if each part of the combined statement conforms to a hearsay exception.

e.g. “Walt told me that he heard Jesse say ‘Hank did it!’”

Question 86

What kinds of prior statements are admissible?

Answer 86

Prior statements will not be hearsay if made by witness at present trial (aka declarant-witness, not dead or otherwise unavailable):

• offered to rebut express/implied charge that declarant recently fabricated it or acted with improper motive (but must be made before declarant had reason to fabricate),
• prior inconsistent statements under oath (admissible both for impeachment and substantively), or
• prior identification of a person after perceiving them (admissible even if the witness has no memory of the identification).

Question 87

When can an opposing party’s statement come in?

Answer 87

A statement made by a party oppponent can come in anytime as long as it’s relevant (it’s excluded from hearsay).

It doesn’t need personal knowledge and can be in the form of an opinion.

Question 88

When is silence admissible?

Answer 88

Silence is considered an adoptive admission when offered against a party opponent and:

• the person was present, heard, and understood the statement,
• the person had the ability and opportunity to deny it, and
• a reasonable person would have denied it.

Question 89

What hearsay exceptions require the witness to be unavailable?

Answer 89

Former testimony,

Dying declaration,

Statement against interest,

Statement of personal/family history,

Statement against party that caused Def’s unavailability.

Question 90

When is former testimony admissible?

Answer 90

When the witness is unavailable, and the party against whom it is offered had an opportunity and similar motive to develop testimony.

Question 91

When is a dying declaration admissible?

Answer 91

In a homicide case or civil case, when the witness is unavailable, the declarant believes her death is imminent, and the statement pertains to the cause/circumstances of his death.

⚠️ The declarant doesn’t have to actually die. Dying declaration is not allowed in a non-homicide criminal case.

Question 92

When is a statement against interest admissible?

Answer 92

When the witness is unavailable, the statement was against declarant’s proprietary/pecuniary interest when made, and a reasonable person would not have made the statement unless it was true.

(The statement against interest exception applies to hearsay statements that (1) are contrary to an unavailable declarant’s proprietary or pecuniary interest, (2) tend to invalidate the declarant’s claim against someone else, or (3) expose the declarant to civil or criminal liability.)

Question 93

What happens if a party causes a declarant to be unavailable?

Answer 93

Statements made against that party are admissible, if the party wrongfully caused the declarant to be unavailable.

Question 94

What is a present sense impression? Excited utterance?

Answer 94

Present sense impression is a statement explaining/describing an event/condition made while or immediately after declarant perceived it. It is a hearsay exception.

Excited utterance is a statement about a startling event/condition made while declarant is still under stress of excitement it caused. It is a hearsay exception.

Question 95

What is a recorded recollection?

Answer 95

A record is not excluded if on a matter that witness once knew, was made when matter was fresh in witness’s memory, accurately reflects witness’s knowledge, and witness states that he cannot recall even after consulting the record on the stand.

(This is a hearsay exception).

Question 96

Rule re statement of mental, emotional, or physical condition?

Answer 96

A statement of then-existing state of mind (present intent, motive, or plan) or of emotional, sensory, or physical condition can come in (as a hearsay exception).

Question 97

Rule re statements made for medical diagnosis/treatment? (Hearsay)

Answer 97

A statement describing medical history or past/present symptoms is not excluded as hearsay if it is made for purpose of medical diagnosis or treatment.

⚠️ It can be made to physicians, other medical personnel, or even to family
members; it doesn’t have to be madeby the patient.

Question 98

When can a business record come in?

Answer 98

To come in under a hearsay exception:

1. the record must be kept in course of regularly conducted business activity,
2. making of record was regular practice, and
3. record was made at or near the time by someone with knowledge.

This exception applies for any organization, including nonprofits.

Question 99

When can a public record come in?

Answer 99

To come in under a hearsay exception:

• Activities—must be a statement of public office/agency that sets out activities of office,
• Observations—of person under duty to report (⚠️ but not police in a criminal case), or
• Findings—factual findings of a legal investigation

Question 100

When can a learned treatise come in?

Answer 100

A statement in a learned treatise, periodical, or pamphlet is not excluded under hearsay if:

1. expert witness relied on the statement under examination, and
2. the publication is reliable authority.

Question 101

When is a judgment of a previous conviction not hearsay?

Answer 101

• Final judgment must be entered after trial or guilty plea
• Conviction was for crime punishable by death or imprisonment for > 1 year
• Evidence can be offered to prove any fact essential to sustain judgment

Question 102

What is the residual hearsay exception?

Answer 102

It is a “catch-all” exception for statement not otherwise covered by the FRE.

The statement must be:

1. supported by sufficient guarantees of trustworthiness, and
2. more probative than any other evidence that the proponent can obtain through reasonable efforts

Question 103

What are the constitutional limits on evidence?

Answer 103

The Confrontation Clause and hearsay evidence under the 6th Amend, and the Due Process Clause under the 14th Amend.

Testimonial statements (objective analysis) are unconstitutional without these safeguards.

⚠️ If the primary purpose is emergency assistance, not testimonial, then it is constitutional to admit.

Question 104

When does a defendant “open the door” for the opponent to introduce evidence of his bad character?

Answer 104

A criminal defendant opens the door for the prosecution to introduce evidence of the defendant’s bad character by introducing:

• evidence of his/her own good character for a trait pertinent to the charged crime or
• evidence of the alleged victim’s bad character.

Question 105

Once the defendant has “opened the door,” what may the prosecution do?

Answer 105

A criminal defendant may call a witness to testify that the defendant’s character is inconsistent with the charged crime. The prosecution may then:

(1) ask the witness about a specific act committed by the defendant (that prosecutor knows happened), or
(2) call another witness to provide reputation or opinion testimony on the defendant’s corresponding bad-character trait.

Question 106

When can a prior conviction involving dishonesty come in?

Answer 106

Any witness can be impeached with evidence of a prior conviction for a crime involving dishonesty (e.g., embezzlement) if the conviction occurred within the previous 10 years.

Question 107

Can evidence of a plea deal come in?

Answer 107

No, a statement made by a criminal defendant during plea discussions with a prosecuting attorney is generally not admissible as evidence against the defendant.

Question 108

Can you bring evidence of a juvenile conviction in a civil case to attack a witness’s truthfulness?

Answer 108

No. Evidence of a juvenile conviction is never admissible in a civil case to attack a witness’s character for truthfulness.