Evidence

Question 1

if there is a hearsay question (which is by far the most highly tested topic in Evidence essay questions), remember to use the DIA approach in your answer to get the most points:

Answer 1

-D: Define hearsay. Hearsay is “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.”

Question 2

I:

Answer 2

-I: State why it is important to determine if a statement is hearsay. Hearsay is not admissible unless it comes within an exception.

Question 3

A:

Answer 3

-Analyze exceptions. Some of the commonly tested hearsay exceptions and exclusions are as follows

Question 4

excited utterance

Answer 4

-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.”

Question 5

present sense impression

Answer 5

-a present sense impression is “a statement describing or
explaining an event or condition made while or immediately after the declarant perceived it.

Question 6

statement for purpose of medical treatment or diagnosis

Answer 6

-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

Question 7

business records

Answer 7

-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.

Question 8

recollection recorded

Answer 8

-a record that is on a matter that the witness once knew about, but now cannot recall well 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)

Question 9

then-existing state of mind exception

Answer 9

-if a statement shows a declarant’s mental, emotional, or physical condition (including motive, intent, or plan) it is not hearsay

Question 10

prior statement of identification hearsay exclusion

Answer 10

-a witness’s prior identification is not considered hearsay

Question 11

opposing party’s statement

Answer 11

-a statement made by an opposing party offered against that
party is not hearsay

Question 12

statement against interest

Answer 12

-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.
-The declarant MUST be unavailable

Question 13

public records

Answer 13

-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

Question 14

relevancy and the 403 balancing test

Answer 14

• 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.

Question 15

admissibility

Answer 15

-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.

Question 16

lay witnesses need personal knowledge to testify; experts do NOT need personal knowledge
-general rule

Answer 16

-General rule: A witness must have knowledge of the matter she testifies about.
-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.
-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).

Question 17

general rule for impeachment then the 7 ways to impeach

Answer 17

-General rule: any party may impeach a witness (even the party that called the witness)

Question 18

1. prior inconsistent statements

Answer 18

-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

Question 19

2. bias and interest

Answer 19

-The witness must be confronted on the stand. Extrinsic evidence can only be used if the witness is asked about the bias first.

Question 20

3. conviction of a crime

Answer 20

-Whether the conviction can be used depends on (NAD):
-the Nature of the crime (felonies or misdemeanors of dishonesty are automatically admissible; any felony is admissible if it passes a balancing test);
-the 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)

Question 21

4. bad acts

Answer 21

-Questioning about acts that are probative of truthfulness or untruthfulness (eg. 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).

Question 22

5. reputation or opinion for untruthfulness

Answer 22

-The witness cannot testify to specific facts.
(Extrinsic evidence is permitted because the witness is extrinsic evidence.)

Question 23

6. sensory deficencies

Answer 23

-This is the ability to observe, remember, or relate accurately.
-Extrinsic evidence is permitted

Question 24

7. contradiction

Answer 24

-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

Question 25

Generally, character evidence is NOT admissible to prove conformity.
-It is rarely admissible in civil cases (it must be an “essential element”) and is only admissible in criminal cases when the defendant opens the door:
-general rule

Answer 25

-general rule: character evidence is inadmissible to prove that someone acted in accordance with his character at the time the event occurred

Question 26

civil cases

Answer 26

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

Question 27

criminal cases

Answer 27

-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. He can do this 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

Question 28

Sixth Amendment Confrontation Clause

Answer 28

-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

Question 29

even if evidence is relevant, it can still be excluded due to a privilege or for policy reasons:
-privileges

Answer 29

-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

Question 30

offer to settle

Answer 30

-an offer to settle is NOT admissible to prove the validity of a disputed claim.

Question 31

offer to pay medical expenses

Answer 31

-an offer to pay medical expenses is NOT admissible to prove liability or the existence of an injury

Question 32

subsequent remedial measure

Answer 32

-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.

Question 33

insurance

Answer 33

-the existence of an insurance policy is NOT admissible to prove liability, but MAY be used to prove agency, ownership or control, or impeachment