Evidence

Question 1

Relevancy

Answer 1

Evidence that tends to make a fact more or less probable

Question 2

Relevancy 403 Balancing Test

Answer 2

probative value of evidence is substantially outweighed by a danger of unfair prejudice either due to emotional response by jury, confusing issues, misleading, undue delay then evidence will be excluded.

Question 3

Hearsay

Answer 3

Out of court statement that is offered to prove the truth of the matter asserted

Question 4

Non Hearsay

Answer 4

1. Effect on Listener
2. State of Mind to show incompetent- show statement was said
3. prior statements of trial witness (identification, under oath, prior consistent statement)
4. Opposing Party’s statement (statement made by opposing party, adoptive statements, agent employee, statement by co-conspirator)
5. Legally operative Words

Question 5

Hearsay exceptions where Declarant must be unavailable

Answer 5

1. forfeiture by wrongdoing
2. former testimony
3. statement against Interest
4. Dying Declaration
5. Personal/Family history

Question 6

Hearsay Exceptions where presence immaterial

Answer 6

1. present sense impression
2. excited utterance
3. then existing mental, emotional, pr physical condition
4. statement made for medical diagnosis/treatment
5. past recollection recorded
6. business records
7. public records
8. learned treatises

Question 7

Legally Operative Words

Answer 7

Statement not being offered for truth of statement but only that statement was said
*Defamation, contract formation, fraud, perjury

Question 8

Effect on Person who hear or read Statement

Answer 8

Not offered for truth but show person had notice of fact or to dispute motive & intent
Tire is flat

Question 9

Circumstantial Evidence of Speaker’s State of Mind

Answer 9

Statements being offered to prove someone’s state of mind- not truth
*God told me to kill

Question 10

Prior Statements of Trial Witness (3)

Answer 10

1. Witness’s prior inconsistent statement- previous statement made under oath, that is now inconsistent with statement at trial & subject to cross; can be used to impeach but must have opportunity to explain or deny
2. Witness’s prior consistent Statement- statement is consistent w/ testimony at trial & used to rebut fabrication of improper motive/influence
3. Witness’s prior identification- must testify and statement is admissible

Question 11

Opposing Party’s Statement (4)

Answer 11

1. any statement made by opposing party
2. adoptive Admissions- party remains silent under circumstances where reasonable person would protest if statement was false; heard/understood/ capable of responding/reasonable person would’ve denied.
3. agent Employee- made by employee, offered against employer, made during the existence of agency and statement concerns matter within scope of agency or employment
4. Statement by co conspirator- made during course of and in furtherance of the conspiracy must prove independently that conspiracy exists.

Question 12

Unavailable Definition SAILS

Answer 12

States claim for privilege
absent from jurisdiction
ill/dead
lacks memory 
stubbornly refuses

Question 13

Hearsay Exception Forfeiture by Wrongdoing

Answer 13

Declarant unavailable
court finds preponderance of evidence party’s conduct was specifically designed to prevent witness from testifying
Party forfeits 6th and hearsay

Question 14

Former Testimony

Answer 14

Oath and opportunity to cross examine present at point before trial statement is reliable if
Declarant unavailable
declarant gave testimony at former proceeding
statement is admissible against party who on prior occasion had opportunity and motive to develop testimony of witness and issues must be same

Question 15

Statement Against Interest

Answer 15

Declarant unavailable
Statement against declarant’s pecuniary, proprietary, or penal interest
against the declarant’s interest when made
declarant knew it was against his interest when statement made

Question 16

Dying Declaration

Answer 16

Declarant unavailable
statement is used in homocide/civil
statement is said when death was impending
statement concerns cause or circumstance of death

Question 17

6th Amendment Confrontation Clause

TUN

Answer 17

Criminal Case ONLY 
Statement is testimonial- primary purpose of questioning is to establish or prove past events potentially relevant to criminal prosecution (grand jury) not help police 
declarant unavailable 
Defendant had no opportunity for cross 
if TUN met statement inadmissible

Question 18

Present Sense Impression

Answer 18

declarant describes or explains an event while event is occurring or immediately after

Question 19

Excited Utterance

Answer 19

Sufficiently startling event

statement made under stress of excitement and statement relates to event

Question 20

Then-Existing Mental, Emotional, or Physical Condition

Answer 20

statement concerning present state of mind not memory or belief
current physical condition- not Dr’s observation
Intent- to do something in the future

Question 21

Statement made for Medical Diagnosis or Treatment

Answer 21

1. Statement concerns past/present symptoms or cause of condition
2. statement made for purpose of diagnosis or treatment
3. Statement can be made to anyone

Question 22

Past Recorded Recollection

Answer 22

Witness must have insufficient recollection showing the writing to witness fails to jog his memory
Witness had personal knowledge at former time
writing was made by witness or adopted
making or adoption occurred when event was fresh
witness can vouch for accuracy of writing when made or adopted
Not an exhibit unless offered by adverse party

Question 23

Business Records