Evidence Flashcards
Hearsay
“a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Hearsay is inadmissible unless it comes within an exception or exclusion.
Excited Utterance
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
“a statement describing or
explaining an event or condition made while or immediately after the declarant perceived it.” (July 2017, Feb 2016, July 2013, Feb 2013)
Statement for purpose of medical treatment or diagnosis:
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.
(July 2018, July 2013, Feb 2008)
Business Record
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
Recollection Record
enough to testify fully and accurately, which was made while the
matter was fresh in the witness’s memory, may be read into evidence (however, the
proponent may not offer it as an exhibit).
Then Existing State of Mind
if a statement shows a declarant’s mental,
emotional, or physical condition (including motive, intent, or plan) it is not hearsay
Prior Identification
witness’s prior identification is not
considered hearsay.
Opposing Party Statement
a statement made by an opposing party offered against that party is not hearsay.
Statement Against Interests
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 tendancy to expose the declarant to civil or criminal liability. The declarant must be unavailable.
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.
Relevancy
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.
Admissibility
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
Lay Witness
a lay witness must have personal knowledge. Her opinion must be rationally based on her perception; helpful; and not based on scientific, technical, or specialized knowledge.
Expert Witness
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 (e.g., facts not on the record if other experts would rely on them).
Impeachment
any party may impeach a witness to attack there credibility (even if the party called the witness).
Prior Inconsistent Statement (Impeachment)
- These can be used as substantive evidence as well if they fall within a hearsay exception or exclusion.
- The witness must be given the opportunity to explain or deny the statement if extrinsic evidence is used, unless the witness is the opposing party, not in court, or if the interests of justice so require.
Bias and interests
The witness must be confronted on the stand. Extrinsic evidence can only be used if the witness is asked about the bias first.
Conviction of a Crime
Whether the conviction can be used depends on (mnemonic=NAD):
Nature of the crime: (felonies or misdemeanors of dishonesty are automatically admissible; any felony is admissible if it passes a balancing test),
Amount of time that has passed: if more than 10 years after conviction or release has passed, whichever is later, it is generally not admissible), and (only in criminal cases) whether the witness is a
Defendant: (it’s less likely to be admitted if the witness is a defendant because the probative value must outweigh its prejudicial effect).
Bad Acts
Questioning about acts that are probative of truthfulness or untruthfulness (e.g., filing a false tax return) is permitted. Extrinsic evidence is not permitted.
- Note that on both exams when this was tested, the question was whether a party could admit extrinsic evidence that the witness lied on a job application or resume (and the answer is that extrinsic evidence would not be permitted). (July 2014, Feb 2009)
Reputation or opinion for untruthfulness:
yes but the witness cannot testify to specific facts.
(Extrinsic evidence is permitted because the witness is extrinsic evidence.)
Sensory deficiencies:
This is the ability to observe, remember, or relate accurately.
Extrinsic evidence is permitted.
Contradiction:
If the witness made a mistake in her testimony or lied during direct examination, she may be contradicted. Extrinsic evidence can be used if she doesn’t admit her mistake.
Character Evidence
character evidence is inadmissible to prove that someone acted in accordance with his character at the time the event occurred.
Character Evidence - Civil Cases
Character evidence is only permitted when character is an essential element of the case. Character is an essential element in cases involving negligent entrustment or hiring, defamation, or child custody.
- Reputation, opinion, and specific acts can be used to prove character.
Character Evidence - Criminal Cases
Generally, character evidence is inadmissible in the prosecutor’s case-in-chief to prove that the defendant acted in conformity with his own character.
- However, the defendant in a criminal case may introduce evidence of a pertinent (relevant) character trait to prove that he acted in conformity with his character at the time in question by reputation or opinion.
- Then, the prosecutor may rebut by using reputation, opinion, or cross-examining the defendant’s witness by asking about specific acts.
6A Confrontation Clause
If a statement is testimonial, the declarant is unavailable, and the defendant did not have the opportunity to cross-examine the declarant, then admission of the statement will violate the defendant’s right to confrontation.
- Note: a statement is not “testimonial” if the primary purpose of the statement is to address an ongoing emergency
Privileges
privileges such as the attorney-client privilege, the spousal privileges, the physician-patient privilege (recognized in some jurisdictions), or the psychotherapist-patient privilege (recognized federally)can keep otherwise admissible evidence from being admitted.
Offer to settle:
an offer to settle is not admissible to prove the validity of a disputed claim.
Offer to pay medical expenses:
an offer to pay medical expenses is not admissible to prove liability or the existence of an injury. (Feb 2012)
Subsequent remedial measure:
this is not admissible to prove negligence or liability, but may be used for impeachment, or to prove ownership, control, or feasibility of precautionary measures if disputed.
Insurance:
the existence of an insurance policy is not admissible to prove liability, but may be used to prove agency, ownership or control, or impeachment
