Evidence

Question 1

Hearsay** [ MOST TESTED TOPIC, TESTED FEB 2021]

Answer 1

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

Question 2

Nonhearsay - effect on person who heard or read statement *

Answer 2

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

Question 3

Nonhearsay - Opposing party statement***[heavily tested, and in Feb 2021]

Answer 3

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

Question 4

Hearsay Exception - Where declarant is unavailability

Forfeiture by Wrongdoing

Answer 4

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

Question 5

Hearsay Exception - Where declarant is unavailability

Statement against interest

Answer 5

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

Question 6

Hearsay Exception* - Present Sense Impression

Answer 6

Decl. describes or explains an event while the event is occurring or immediately thereafter

Question 7

Hearsay Exception* - Excited Utterance

Answer 7

1. There is a sufficiently startling event
2. Decl. makes statement while under the stress of excitement
3. and statement relates to startling event

Question 8

Hearsay Exception* - Statement made for medical diagnosis or treatment

Answer 8

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.

Question 9

Hearsay Exception** - Business records

Answer 9

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

Question 10

Hearsay Exception* - Public records

Answer 10

Records of a public office or agency that set forth the activities of the office, matters observed pursuant to a duty imposed by law

Question 11

Relevance*** [NEED TO KNOW THIS]

Answer 11

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

Question 12

Authentication

Answer 12

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.

Question 13

Self - Authenticating Documents

Answer 13

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

Question 14

Witness Competency*

Answer 14

Every person is competent to be a witness unless the rules provide otherwise.

Question 15

Lay Opinions * [MAY TEST THIS]

Answer 15

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

Question 16

Expert Witnesses** [NEED TO KNOW, LIKELY TESTED]

Answer 16

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.

Question 17

Impeachment

Answer 17

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

Question 18

When is extrinsic evidence not allowed for impeachment?

Answer 18

prior bad acts or collateral contradictory facts

Question 19

Using Conviction of a crime for Impeachment ***[ LIKELY TO BE TESTED]

Answer 19

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.

Question 20

Specific instances of conduct probative of truthfulness *

Answer 20

• 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

Question 21

Sensory Deficiencies

Answer 21

• anything that concerns witness’ perception or memory

Question 22

Contradiction

Answer 22

• 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

Question 23

When is evidence of truthful character appropriate?

Answer 23

Only after witness’s truthfulness is attacked

Question 24

Character - Criminal cases*

Answer 24

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.]]

Question 25

Character evidence rules for self defense in criminal homicide cases

Answer 25

D can offer evidence (R/O) of victim’s violent character in self defense cases

Question 26

Habit Evidence

Answer 26

Evidence of a person’s habit or a business’s routine practise can be used to show that the person or or business acted in accordance with their habit or routine on a particular occasion. This evidence does not need to be corroborated nor does there need to be an eye witness.

Question 27

MIMIC [VERY LIKELY TO BE TESTED]**

Answer 27

1. A Defendant’s PRIOR BAD ACTS can be admissible to prove motive, intent, identity, mistake, common scheme. The prosecutor only has to produce enough evidence so a reasonable juror could conclude that D committed the prior bad act ( D does not need to be convicted).
2. Then go on to discuss whether it is relevant
3. Then use 403 test

Question 28

Policy Exclusions

Answer 28

1) Insurance
- not admissible to prove person was negligent but can be used for impeachment, to show ownership/control/agency

2) Subsequent remedial measures*
- not admissible to prove person was negligent/design defect/need for warning but can be used for impeachment, to show ownership/control or feasibility of precautionary measures

3) Offers to settle [HIGHLY TESTED]

4) Offer to pay medical expenses*
- not admissible to prove liability for the injury but admissible for impeachment, control, etc.
- conduct/statements that are not part of act of offering/promising to pay medical bills are admissible.

5) plea bargaining

Question 29

Policy Exclusion - Offers to settle [HIGHLY TESTED]

Answer 29

1) Promising/offering/accepting or promising to accept consideration to compromise a claim or
2) Conduct or a statement made during compromise negotiations about a claim

CANNOT COME IN to prove validity of a DISPUTED ( as to liability or amount) claim