Evidence Flashcards
Hearsay: What is hearsay?
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Hearsay is not admissible unless it falls within an exception to the hearsay rule.
Hearsay: What is hearsay within hearsay?
Hearsay within hearsay is an out-of-court statement that incorporates other hearsay, and is admissible only if both the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule.
Hearsay: what is the business records exception to hearsay?
Any writing or record made as a memo of any act, event, condition, opinion, or diagnosis is admissible in evidence as proof of that occurrence if the following elements are met: it was (i) made in the regular course of the business, (ii) the regular practice of the business to make the record, (iii) made at or near the time of the event, (iv) made by a person whose duty it was to make the record and who had personal knowledge of the event, and (v) authenticated.
Hearsay: what is the statements made for purposes of medical diagnosis or treatment hearsay exception?
A statement that describes a person’s medical history, past or present symptoms, or their inception or general cause is admissible as an exception to the hearsay rule if it was made for–and was reasonably pertinent to–medical diagnosis or treatment.
Testimonial Privileges: What is the spousal testimonial privilege?
When the privilege of spousal immunity is invoked, a married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution. Moreover, a married person may not be compelled to testify against the legal interests of their spouse in any criminal proceeding, regardless of whether the spouse is the defendant. What matters is whether the spouses are married at the time of trial and the witness-spouse holds the privilege (so they can testify if they want to).
Testimonial Privileges: what is the privilege for confidential marital communications?
The marital privilege provides that either spouse has a privilege not to testify, and to stop the other from testifying, as to a confidential communication made between spouses during the marriage. The communication must be made in reliance on the intimacy of the marital relationship. The privilege survives the marriage, and the privilege does not apply if the communication is revealed to a third party.
Impeachment: May a hearsay declarant be impeached?
Generally, when a hearsay statement is admitted into evidence, the party against whom the statement is offered has the opportunity to impeach the credibility of the declarant by evidence that would be admissible if the declarant had testified as a witness.
Impeachment: who may impeach a witness and how may a witness be impeached?
Under the Federal Rules, a witness may be impeached by any part, including the party who called them. A witness may be impeached either by (1) cross-examination (eliciting facts from the witness that discredit their own testimony) or (2) extrinsic evidence (calling other witnesses or introducing documents that prove the impeaching facts).
Impeachment: How may a party impeach a witness by prior inconsistent statements?
A party may show, by cross-examination or extrinsic evidence, that the witness has, on another occasion, made statements that are inconsistent with some material part of their present testimony.
Impeachment: when is a prior inconsistent statement admissible as substantive evidence?
Usually, prior inconsistent statements are hearsay, admissible only for impeachment purposes. If, however, a testifying witness’s prior inconsistent statement was made under oath at a prior proceeding, it is admissible nonhearsay and may be admitted as substantive evidence of the facts stated.
Impeachment: when can extrinsic evidence be introduced to prove a prior inconsistent statement?
Extrinsic evidence can be introduced to prove a prior inconsistent statement only if, at some point: (i) the witness is given an opportunity to explain or deny the statement; AND (ii) The adverse party is given an opportunity to examine the witness about the statement. The statement also must be relevant to some issue in the case.
Hearsay: When are prior statements of testifying witnesses nonhearsay and thus admissible?
As a general rule, a witness’s own prior out-of-court statement is hearsay and is inadmissible unless an exception applies. However, under the Federal Rules, a prior statement by a testifying witness who is subject to cross-examination is not hearsay if:
The prior statement is one of identification of a person as someone the witness perceived earlier (even if the witness cannot remember making the identification);
The prior statement is inconsistent with the declarant’s in-court testimony and was given under oath at a prior proceeding; or
The prior statement is consistent with the declarant’s in-court testimony and is (1) offered to rebut a charge that the witness is lying or exaggerating because of some motive OR (2) offered to rehabilitate a witness whose credibility has been impeached on some other ground.
Character Evidence: when can defendant use character in a criminal case?
Although character evidence is generally admissible to prove that a person acted in conformity with a particular character trait, a criminal defendant may introduce evidence of a relevant character trait to show his innocence.
A witness may testify to the defendant’s good reputation for a pertinent trait and may give their personal opinion concerning that trait of the defendant.
Witnesses: when is opinion testimony by lay witnesses permissible?
Opinions by lay (nonexpert) witnesses are generally inadmissible. However, an exception is made if the opinion is: (i) Rationally based on the witness’s perception; (ii) helpful to a clear understanding of the witness’s testimony or helpful to the determination of a fact in issue; AND (iii) Not based on scientific, technical, or other specialized knowledge.
Character Evidence: what is the difference between character evidence and habit evidence?
Character evidence describes a person’s disposition and is generally irrelevant and inadmissible in a civil case unless character is directly in issue.
Habit evidence refers to a regular response to a specific set of circumstances and is admissible to prove that the person acted in conformity with that habit.
Relevance: When is evidence relevant?
Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
