Evidence Flashcards
Hearsay** [ MOST TESTED TOPIC, TESTED FEB 2021]
Hearsay is a statement a declarant does not make while testifying at current hearing/trial and party offers in evidence to prove truth of the matter asserted.
Hearsay is inadmissible unless an exception or exclusion applies
ON essay then discuss relevancy & 403 test
Nonhearsay - effect on person who heard or read statement *
Statement offered not to prove truth of the matter asserted but generally used to prove that person had notice, or to dispute intent or motive
Nonhearsay - Opposing party statement***[heavily tested, and in Feb 2021]
An opposing party statement is nonhearsay used to prove truth of the matter asserted. A statement by an opposing party is any statement made by the opposing party if offered against that party.
- adoptive admissions
- agent/employee statements
- statement by co-conspirator
Hearsay Exception - Where declarant is unavailability
Forfeiture by Wrongdoing
If decl. is unavailable and the court finds by a PREP. OF EVIDENCE that the party’s conduct was specifically designed to prevent the witness from testifying, then the party forfeits the hearsay objection
Hearsay Exception - Where declarant is unavailability
Statement against interest
Decl. is unavailable but made statement that is against their pecuniary, proprietary or penal interest, it was against the decl. interest when it was made, and decl. knew it was against his interest when the statement was made
Hearsay Exception* - Present Sense Impression
Decl. describes or explains an event while the event is occurring or immediately thereafter
Hearsay Exception* - Excited Utterance
- There is a sufficiently startling event
- Decl. makes statement while under the stress of excitement
- and statement relates to startling event
Hearsay Exception* - Statement made for medical diagnosis or treatment
Statement made to anyone re past or present symptoms or the cause of condition, for the purpose of diagnosis or treatment.
Not an exception if doctor is paid to testify.
Hearsay Exception** - Business records
Records of a business made in the regular course of business, made at the time of event recorded, which contains content that consist of information observed by employees of the business
Hearsay Exception* - Public records
Records of a public office or agency that set forth the activities of the office, matters observed pursuant to a duty imposed by law
Relevance*** [NEED TO KNOW THIS]
Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.
Irrelevant evidence is not admissible. Relevant evidence is admissible unless there is a statute that says otherwise or the probative value is substantially outweighed by the prejudicial effect such as unfair prejudice, confusing the issues, misleading the jury, undue delay, or wasting time
Authentication
The proponent must produce evidence to sufficient to support a finding that the item is what the proponent claims it is.
Requirement satisfied by testimony by a witness with knowledge.
Self - Authenticating Documents
Business records accompanied by a sworn declaration that business record hearsay exception elements are met
2) official publications
3) copies of records filed in a public office
4) newspapers
5) trade inscriptions and the like ( ie. signs, tags, labels)
6) acknowledged documents ( certified by notary)
7) commercial paper
Witness Competency*
Every person is competent to be a witness unless the rules provide otherwise.
Lay Opinions * [MAY TEST THIS]
A lay witness’s opinion is admissible if it is rationally based on the witness’s perception, helpful to a clear understanding of the witness’ testimony or determining a fact in issue AND not based on scientific, technical or otherwise specialised knowledge
Expert Witnesses** [NEED TO KNOW, LIKELY TESTED]
A witness who is qualified as an expert by knowledge, skill, trailing, experience or education may testify in the form of an opinion or otherwise if it is
1) helpful to the trier of fact and
2) it is based on sufficient facts or data which means expert’s opinion is based on personal knowledge of the facts or data or based on facts that are iN THE RECORD and made known to the expert by a hypothetical question or testimony at trial
The testimony must b the product of reliable principles and methods which the expert has reliably applied to the facts of the case.
Impeachment
Any party may impeach a witness by:
1) prior inconsistent statements
2) bias ( must confront witness while on stand first, and then if they deny bias then can bring in extrinsic evidence)
3) conviction of a crime (special rules in michigan)
4) Sensory deficiencies
5) contradiction
6) specific instances of conduct probative of truthfulness on cross examination
7) R/O for untruthfulness
- party can call its own character witness to testify
When is extrinsic evidence not allowed for impeachment?
prior bad acts or collateral contradictory facts
Using Conviction of a crime for Impeachment ***[ LIKELY TO BE TESTED]
Crimes that require proof of dishonesty or false statement ( ie. tax fraud, perjury, embezzlement)
OR
Felony conviction fo a theft crime ( ie. robbery, larceny)
- must have sign. probative value on issue of credibility based on age ( more recent = better) and extent to which crime is indicative of truth-telling
- if witness is D, court will only admit conviction IF prob. outweighs prej. based on similarity o conviction & possibility D wouldn’t testify if admitted
10 year rule: if more than 10 years past conviction or release from confinement ( whichever is later), not admissible unless proponent can show probative value substantially outweighs prej. effect and adverse party given reasonable written notice of intent to use it.
Specific instances of conduct probative of truthfulness *
- must satisfy 403
- can inquire into this during cross exam
- must relate to truthfulness
- cant be too remote in time
- extrinsic evidence not admissible to prove
Sensory Deficiencies
- anything that concerns witness’ perception or memory
Contradiction
- impeached during cross if mistake /lie during direct
- if witness doesn’t admit mistake, extrinsic evidence can be used to prove she contradicted herself as long as it is not a collateral fact
When is evidence of truthful character appropriate?
Only after witness’s truthfulness is attacked
Character - Criminal cases*
Character evidence is inadmissible in the prosecutor’s case in chief to prove that D acts in accordance with his own character/ using it as propensity evidence. However D in a criminal case may introduce evidence of a PERTINENT character trait through reputation or opinion witness testimony to prove he acted in conformity with his character at the time in question.
Prosecutor may then rebut D’s testimony by calling its own witness to testify as to D’s reputation/ or offer an opinion, or they can cross examine D’s witnesses by asking about specific acts to impeach.]]
