Evidence Flashcards
Hearsay: general rule statement
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Hearsay is not admissible unless it is exempted from the hearsay rule or falls under an exception.
A hearsay statement may be an oral or written assertion and can be nonverbal conduct intended as an assertion.
Excited Utterance
Excited utterances are a hearsay exception. An excited utterance is a statement relating to a startling event or condition, made while the declarant was under the stress or excitement that it caused.
Present Sense Impression
Present sense impressions are exceptions to the hearsay rule. A present sense impression is a statement describing or explaining an event or condition made while or immediately after the declarant perceived it.
Statement for purpose of medical treatment or diagnosis
A statement made for purposes of medical treatment or diagnosis falls under a hearsay exception. These statements must be made for and reasonably pertinent to medical diagnosis or treatment and describe medical history, past or present symptoms or sensations, their inception, or their general cause. These statements need not be made to medical personnel to qualify.
Business records
Business records constitute an exception to the hearsay rule. A record of acts, events, conditions, opinions, or diagnoses is admissible if it is made at or near the time of the event recorded by a person with knowledge of the event. Further, the making of the record must occur in the course of a regularly conducted business activity, and it must be the regular practice of the business to make such a record.
Recollection recorded
A record that is on a matter that the witness once knew about, but now cannot recall enough to testify full and accurately, which was made while the matter was fresh in the witness’s memory, may be read into evidence. The proponent may not offer it as an exhibit.
Then-existing state of mind
A statement that shows a declarant’s then-existing mental, emotional, or physical condition, including motive, intent, or plan, is not hearsay and can be introduced to prove conformity with that state of mind.
Opposing party’s statement
A statement made by an opposing party offered against that party is exempted from the hearsay rule.
Statement against interest
When a declarant is unavailable, the declarant’s statement against interest can be admitted under an exception for hearsay. A statement against interest includes a statement that a reasonable person in the declarant’s position would have made only if the person believed it to be true, because, when made, it had a tendency to expose the declarant to civil or criminal liability.
Public records
Public records may be admitted in some circumstances but not matters observed by law enforcement personnel when proffered by the prosecutor against the defendant in a criminal case.
Relevance: general rule statement
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 inadmissible.
All relevant evidence is admissible unless a statute or rule says otherwise, or the probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Personal knowledge requirement (lay v. expert)
A lay witness must have personal knowledge of the matter she testifies about. Her opinion must be rationally related based on her perception, helpful, and not based on scientific, technical, or specialized knowledge.
An expert witness does not need personal knowledge but can instead testify based on facts he has been made aware of at trial or through some other means.
Impeachment: general rule statement
Any party may impeach a witness; even a party that called that witness. Generally, extrinsic evidence is not admissible to show specific instances of witness’s conduct relating to truthfulness. However, on cross-examination, a witness can be asked about specific instances of conduct to attack or support the witness’s credibility.
Note: 7 ways to impeach prior inconsistent statements bias and interest conviction of a crime bad acts reputation or opinion for untruthfulness sensory deficiencies contradiction
Impeach via prior inconsistent statements
A witness’s prior statement that is inconsistent with the witness’s current testimony is admissible to impeach the witness, as long as the inconsistency involves an issue relevant to the facts of the case.
A witness’s testimony as to lack of memory can be considered an inconsistency for which a prior inconsistent statement may be introduced.
Extrinsic evidence of the prior statement can be admissible for purposes of impeachment only if the witness is given an opportunity to explain or deny the statement and the opposing party is given the opportunity to examine the witness about it.
Impeach via criminal fraud/dishonesty
Any witness can be impeached by evidence that they have been convicted of a crime that involved dishonesty or false statement, regardless of the punishment imposed or the prejudicial effect of the evidence. A crime involves dishonesty or false statement if establishing the elements of the crime requires proof or admission of an act of dishonesty or false statement.