Evidence

Question 1

Impeachment:

Answer 1

Impeachment refers to discrediting a witness. When evidence is admissible only to impeach, it is not offered as substantive evidence, its only to show that a witness cant be trusted. It can be done on cross examination or by extrinsic evidence such as other witnesses or introducing documents

Question 2

Prior inconsistent statement

Answer 2

Under the FRE a party may show by cross examination or extrinsic evidence that the witness has on another occasion made statements inconsistent with their present testimony. Extrinsic evidence is admissible only if relevant to a material issue and a proper foundation is laid. Can be admitted as substantive evidence if made under oath.

Question 3

Bias or interest

Answer 3

evidence that a witnesss is biased or has an interest in the outcome of a case tends to show that the witness has a motive to lie.

Question 4

Character for truthfulness

Answer 4

Under the FRE, character for truthfulness is always at issue. A witness’ character for truthfulness may be attacked on cross examination by the introduction of reputation or opinion evidence. However, specific instance of truthfulness can only be entered against the defendant in the form of “did you know” questions. Specific instance of truthfulness or extrinsic evidence is inadmissible.

Question 5

Criminal conviction:

Answer 5

Under the FRE Felony or misdemeanor convictions involving dishonesty are always admissible to impeach. Felonies not for dishonesty have a 10-year limit from latter of conviction or release from confinement. Requires probative value/prejudicial effect determination, and proper notice must be given

Question 6

Refreshing recollection:

Answer 6

A witness may use any writing or object for the purpose of refreshing their present recollection. They may not read from the writing while testifying because of authentication and hearsay issues. Opposing party has the option to have writing produced, cross witness about writing or introduce portions of writing into evidence.

Question 7

*Hearsay

Answer 7

An out of court statement that is offered to prove the truth of the matter asserted. Must be a statement, either verbal or non verbal intended as an assertion

Question 8

Prior statements of Identification:

Answer 8

Under the FRE, prior statements of ID are admissible as an exclusion to the hearsay rule

Question 9

Opposing party statements

Answer 9

Under the FRE, statements that are made by an opposing party are admissible

Question 10

Non-Hearsay Statements

Answer 10

If a statement is offered to prove something other than the truth of the matter asserted, it is non-hearsay and is admissible. Common non-hearsay statements include 1) verbal acts of independent legal significance; 2) statements offered to show the effect on the listener; 3) a prior inconsistent statement used to impeach; and 4) circumstantial evidence of the declarant’s state of mind (these show belief, attitude, knowledge or mental state)

Question 11

Declarant is Unavailable

Answer 11

A declarant is deemed unavailable if 1) exempt due to privilege; 2) if they refuse to testify; 3) they do not remember the events in question; 4) death or illness; 5) they can’t be found by reasonable means.

Question 12

Statement Against Interest

Answer 12

A statement made against one’s penal, proprietary or pecuniary interest when uttered, and would not have been made by a reasonable person unless they believed it to be true. Applies when declarant is unavailable and has no motive to lie. Must be corroborated in criminal cases.

Question 13

Dying Declaration

Answer 13

In homicide or civil case, statement of declarant made while declarant believed they were dying, made about the cause or circumstances of their death. The declarant must be unavailable but does not need to be dead.

Question 14

• Former Testimony Exception

Answer 14

Testimony given as a witness at a trial or hearing/deposition, is now offered against a party who had an opportunity and similar motive to develop it by direct/cross examination. Requires that the witness is unavailable.

Question 15

Excited Utterance

Answer 15

An excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress of the excitement. These are admissible whether or not the declarant is available.

Question 16

Business Records

Answer 16

An admissible business record is a record 1) made at or near the time of occurrence, or from information transmitted from someone with knowledge; 2) kept in the course of a regularly conducted activity of a business; 3) making that record was a regular practice; and 4) all the above are shown by testimony of the custodian. May be inadmissible if the opponent can show its preparation indicates a lack of trustworthiness.

Question 17

Public Records

Answer 17

These records are admissible if 1) they set forth the office activities; 2) about a matter observed while under a legal duty to report (except in a criminal case for a matter observed by police); or 3) shows factual findings of a legal investigation. These are admissible whether or not the declarant is available.

Question 18

Present Sense Impression

Answer 18

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

Question 19

Past Recollection Recorded

Answer 19

A recollection 1) is on a matter the witness once knew about but cannot recall well enough to testify fully and accurately; 2) was made/adopted while the matter was still fresh on the witness’ memory; 3) accurately reflects the witness’ knowledge. May be read to the jury, but received as an exhibit only if from opponent. Admissible whether or not the declarant is available.

Question 20

Confrontation Clause

Answer 20

The 6th Amendment’s Confrontation Clause, applied to the states via the 14th Amendment, gives a criminal defendant the right to confront witnesses against him. The use of an out-of-court statement (even if it falls within a hearsay exception or exemption) violates a defendant’s 6th Amendment rights when 1) the statement is “testimonial”; 2) the declarant is unavailable to be cross examined at trial; and 3) the defendant did not have an opportunity to cross-examine the declarant before trial.

Question 21

Statement made for Medical Diagnosis or Treatment

Answer 21

Exception only if 1) a statement made for and reasonably pertinent to medical diagnosis or treatment, 2) describes medical history; past or present symptoms, their inception or cause. These are admissible whether or not the declarant is available.