evidence

Question 1

Hearsay

Answer 1

The issue is whether the out-of-court statement is admissible.
Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted. Hearsay is not admissible unless it falls under a valid exception. A “statement” includes a person’s oral assertions, written assertions, or nonverbal conduct if the person intended it as an assertion.

Question 2

If an out-of-court statement is not offered to prove the truth of the matter asserted, the statement is not hearsay and is admissible as NON-Hearsay.

Answer 2

Verbal Acts of Independent Legal Significance
Verbal acts of independent legal significance are statements offered to prove that the statement itself was made, irrespective of its truth. Verbal acts of independent legal significance are not offered to prove the truth of the matter asserted and are thus admissible.
Here, _____ [Discuss whether the out-of-court statement was offered to prove the truth of the matter asserted. If not, the statement is non-hearsay and admissible.].

Effect on the Listener
Statements offered to show the effect on the listener are not offered to prove the truth of the matter asserted, and are thus admissible.
Here, _____ [Discuss whether the out-of-court statement was offered to prove the truth of the matter asserted. If not, the statement is non-hearsay and admissible.].

Declarant’s Mental State
Statements offered to show the declarant’s mental state or state of mind are not offered to prove the truth of the matter asserted, and are thus admissible.
Here, _____ [Discuss whether the out-of-court statement was offered to prove the truth of the matter asserted. If not, the statement is non-hearsay and admissible.].

Question 3

What are the non-Hearsay exemptions. PIS

Answer 3

Prior Inconsistent Statements
Prior inconsistent statements are admissible for substantive purposes if: (1) the declarant is testifying at trial and is subject to cross-examination; (2) the statements were previously made under penalty of perjury (i.e., under oath); and (3) the prior statements are inconsistent with present testimony being given at trial. If the statements were not previously made under penalty of perjury, they can be offered only for impeachment purposes – not substantive purposes.
[If a prior inconsistent statement is offered for substantive purposes]
Here, _____ [Discuss whether all three elements are satisfied. If so, the statement is admissible.].
[If a prior inconsistent statement is offered for impeachment purposes]
Here, _____ [Discuss whether elements (1) and (3) are satisfied. If so, the statement is admissible.].

Question 4

Non-Hearsay -PCS?

Answer 4

Prior Consistent Statements
Prior consistent statements are admissible to rebut a claim that the declarant is fabricating or has a recent motive to fabricate the statement in court if: (1) the declarant is testifying at trial and is subject to cross-examination; and (2) the prior consistent statement was made before the declarant had a motive to fabricate the statement.
Here, _____ [Discuss whether both elements are satisfied. If so, the statement is admissible.

Question 5

Non-hearsay - PS of identification.

Answer 5

Prior Statements of Identification
Prior statements of identification (e.g., prior out-of-court identifications in lineups, photo arrays, etc.) are admissible for substantive purposes if the declarant is testifying at trial and is subject to cross- examination.
Here, _____ [Discuss whether the declarant is testifying at trial and subject to cross-examination. If so, the statement is admissible.].

Question 6

Admission by a party opponent

Answer 6

Admissions by a Party Opponent
Prior out-of-court statements made by a party to the current litigation that are offered by the opposing party are admissible as non-hearsay.
Here, _____ [Identify whether the prior out of court statement was made by a party to the current litigation and whether it is being offered by the opposing party. If both are satisfied, the statement is admissible.].
[*If a decision to remain silent is offered as an admission by a party opponent]

Question 7

Adoptive admissions are ?

Answer 7

Adoptive Admissions
Silence is considered an adoptive admission if the party heard and understood the statement and remained silent where a reasonable person would have denied the statement.
Here, _____ [Discuss whether a reasonable person would have denied the statement].
[If a reasonable person would NOT have denied the statement]
Therefore, _____ [the party’s] silence does not constitute an adoptive admission and is not admissible.
[If a reasonable person would have denied the statement]
Therefore, _____ [the party’s] silence constitutes an adoptive admission.
In addition, _____ [Identify whether the person who remained silent was a party to the current litigation and whether the decision to remain silent is being offered by the opposing party.].
[If the person who remained silent was a party to the current litigation and its being offered by the opposing party]
Thus, _____ [the party’s] adoptive admission is admissible as non- hearsay.
[If the person who remained silent was NOT a party to the current litigation and/or its NOT being offered by the opposing party]
Thus, _____ [the party’s] adoptive admission is not admissible as non- hearsay.
[*If an authorized spokesperson, agent, or co-conspirator made a statement]
Vicarious Admissions
Statements made by an authorized spokesperson, an agent within the scope of and during the agency relationship, or co-conspirators during and in furtherance of the conspiracy are considered vicarious admissions and are imputed on the party opponent.
Here, _____ [Discuss whether either of these three apply. If so, the statement is imputed.].

Question 8

Hearsay exception : Declarant unavailable require

Answer 8

-Hearsay is not admissible unless it falls under a valid exception.

The following four exceptions apply only if the declarant is deemed unavailable:
-former testimony;
-dying declarations;
-statements against interest;
-and forfeiture by wrongdoing.

Question 9

A declaring is deemed unavailable if :

Answer 9

A declarant is deemed to be unavailable as a witness if the declarant:
(1) is exempted from testifying because the court rules that a privilege applies;
(2) refuses to testify despite a court order to do so; (3) testifies to not remembering the subject matter; (4) cannot be present or testify because of a death or then-existing infirmity, physical illness, or mental illness;
or (5) is absent and the statement’s proponent has not been able, by process or other reasonable means to procure the declarant’s attendance.

Question 10

Former testimony

Answer 10

Former testimony is admissible if: (1) the declarant is unavailable; (2) the statement was prior testimony given at a trial hearing or deposition; and (3) the opposing party had an opportunity and similar motive to develop the testimony through cross or direct examination.
Here, _____ [Discuss whether all three elements are satisfied. If so, the hearsay statement is admissible under the former testimony exception.].

Question 11

Statement against interest

Answer 11

A statement is admissible if:
(1) the declarant is unavailable; (
2) the statement is against the declarant’s self-interest; and
(3) a reasonable person would not have made the statement unless he believed it to be true.
Here, _____ [Discuss whether all four elements are satisfied. If so, the hearsay statement is admissible under the statements against interest exception.].

Question 12

Present sense Impression

Answer 12

Present Sense Impression
A present sense impression is an admissible statement made by the declarant in which she describes an event as it takes place or immediately thereafter.
Here, _____ [Discuss whether the declarant’s statement was made while she described an event as it took place or immediately thereafter. If so, the hearsay statement is admissible under the present sense impression exception.].

Question 13

Excited Utterance

Answer 13

Excited Utterance
An excited utterance is an admissible statement that concerns a startling event that is made by the declarant when the declarant is still under stress from the startling event.
Here, _____ [Discuss whether the declarant’s statement concerned a startling event, and whether the statement was made while the declarant was still under stress from the startling event. If both are satisfied, the hearsay statement is admissible under the excited utterance exception.].

Question 14

Business Records

Answer 14

Business Records
A business record is admissible as a valid exception to the hearsay rule if the record is: (1) kept in the course of regularly conducted business; and (2) made by a person with knowledge of the matter at or near the time of the matter’s occurrence. However, a business record is not admissible if the opponent can show that the source or preparation of the record lacks trustworthiness.
Here, _____ [Discuss whether both elements are satisfied and whether the opponent can show that the source or preparation of the record lacks trustworthiness. If both elements are satisfied and the opponent cannot show the record lacks trustworthiness, the record is admissible.].

Question 15

Medical Diagnosis Treatment

Answer 15

Medical Diagnosis or Treatment
A statement of a person’s past or present condition is admissible so long as it is made for the purpose of medical diagnosis or treatment, regardless of whether the statement is made to a medical professional.
Here, _____ [Discuss whether the statement was made for the purpose of medical diagnosis or treatment. If so, the hearsay statement is admissible under the medical diagnosis or treatment exception, even if the statement is made to a non-medical person.].

Question 16

Then existing State of Mind

Answer 16

State of Mind
A statement of the declarant’s then-existing state of mind or emotional, sensory, or physical condition is admissible to prove the declarant’s state of mind or the declarant’s conduct. A statement regarding memory, a past belief, or a past state of mind to prove the fact remembered or believed is not admissible unless it relates to the validity or terms of the declarant’s will.
Here, _____ [Discuss whether the statement concerned the declarant’s then-existing state of mind or emotional, sensory, or physical condition, and whether the statement was offered to prove the declarant’s state of mind or conduct. If both are satisfied, the hearsay statement is admissible under the state of mind exception.].

Question 17

Recorded Recollection

Answer 17

Recorded Recollection
The record may be read into evidence if the witness cannot recall events or information, provided that: (1) the record is about a matter the witness once had personal knowledge of; (2) the record was made or adopted by the witness when the matter was fresh in the witness’s mind. (3) the record accuratelyreflects the witness’s personal knowledge; and (4) the witness can no longer recall the events or information well enough to testify, even after reviewing the writing while on the stand. Under recorded recollection, the record may be read into evidence, but only opposing counsel can decide to enter it as an exhibit.
Here, ____ [Discuss all four elements to determine whether the record may be read into evidence. Remember, only opposing counsel can decide to enter it as an exhibit.].

Question 18

Relevance

Answer 18

RELEVANCE
The issue is whether the evidence is relevant.
LOGICAL RELEVANCE
Evidence must be relevant to be admissible. Evidence is relevant if it is both probative and material. Evidence is probative if it has any tendency to make a fact more or less probable than it would be without the evidence. Evidence is material if it is a fact of consequence in determining the outcome of the action.
Here, _____ [Discuss whether the evidence is both probative and material.].
In conclusion, the evidence [is/is not relevant], because _____ [Identify whether both elements are satisfied.]. LEGAL RELEVANCE
The court may exclude relevant evidence if its 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.
Here, _____ [Discuss whether the evidence’s probative value is substantially outweighed.].
In conclusion, the court [may/may not] exclude the evidence, because _____ [Identify whether the evidence’s probative value is substantially outweighed.].

Question 19

Character Evidence

Answer 19

CHARACTER EVIDENCE
The issue is whether the character evidence is admissible.
Character evidence is evidence of a person’s character or a person’s specific character trait. There are three forms of character evidence that can be presented: (1) reputation in the community; (2) opinion testimony; and (3) specific instances of conduct.

Question 20

Character if is is a civil Case

Answer 20

PROPENSITY EVIDENCE IN CIVIL CASES
In civil cases, character evidence is not admissible for propensity purposes (to show that the party has the propensity to act in accordance with the alleged character trait), unless: (1) character is an essential element of a claim or defense; or (2) the case is based on the defendant’s sexual misconduct. If character is an essential element of a claim or defense, it may be shown by reputation, opinion testimony, or specific instances of conduct. If the case is based on the defendant’s sexual misconduct, evidence of a past sexual assault by the defendant is admissible.

If propensity evidence is introduced and character is NOT an essential element of the claim or defense and the case is NOT based on the defendant’s sexual misconduct]
Here, _____ [Identify that the evidence is being introduced to show that the party has the propensity to act in accordance with the alleged character trait.]. In addition, _____ [Identify that character is not an essential element of the claim or defense and that the case is not based on the defendant’s sexual misconduct.].
Therefore, _____ [the evidence] is inadmissible, because it is being introduced for propensity purposes and neither exception is satisfied.
[If propensity evidence is introduced and character is an essential element of the claim or defense (e.g., defamation, negligent hiring, child custody, etc.) and/or the case is based on the defendant’s sexual misconduct]
Here, _____ [Identify that the evidence is being introduced to show that the party has the propensity to act in accordance with the alleged character trait.]. While character evidence is usually not admissible for propensity purposes in civil cases, _____ [Identify the exception that applies.].
Therefore, _____ [the evidence] is admissible, because _____ [Identify the exception that applies.].
[*If evidence of a victim’s character is introduced in a sexual misconduct civil case]

Question 21

EVIDENCE OF THE VICTIM’S CHARACTER IN SEXUAL MISCONDUCT CIVIL CASES

Answer 21

In civil cases involving sexual misconduct, evidence may be offered to prove a victim’s sexual behavior or misconduct so long as the evidence’s probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.
Here, _____ [Balance the evidence’s probative value against the danger of harm to the victim and unfair prejudice to any party to determine admissibility.].

Question 22

if the case is criminal

Answer 22

In criminal cases, the prosecution cannot introduce evidence of a defendant’s bad character to prove that the defendant has the propensity to have committed the crime in question. However, the defendant may “open the door” and present positive character evidence so long as it is: (1) pertinent to the crime charged; and (2) through reputation or opinion testimony (not specific instances of conduct).
If the defendant opens the door by presenting evidence of positive character, the prosecution may then introduce negative character evidence, so long as it relates to the same character trait in question, to rebut the defendant in two different ways: (1) the prosecution can call its own character witness; or (2) the prosecution can cross-examine the defendant’s character witness. If the prosecution calls its own character witness, the witness is limited to reputation or opinion testimony (not specific instances of conduct). On cross-examination, the prosecution can elicit evidence of specific instances of conduct so long as it relates to the same character trait in question.

[If the prosecution introduces propensity evidence before the defendant opens the door]
Here, _____ [Identify that the evidence is being introduced for propensity purposes.]Therefore, _____ [the evidence] is inadmissible, because the prosecution cannot introduce character evidence against a defendant for propensity purposes before the defendant introduces her own character evidence.
[If the defendant introduces evidence of positive character]
Here, _____ [Discuss whether the defendant’s character evidence is: (1) pertinent to the crime charged; and (2) through reputation or opinion testimony (not specific instances of conduct). If either of these elements are not satisfied, the evidence is inadmissible.].

Question 23

[*If the prosecution rebuts the defendant’s evidence of positive character]

Answer 23

[If the prosecution rebuts the defendant’s evidence of positive character]
Here, _____ [Identify whether the prosecution is rebutting with their own character witness or by cross- examining the defendant’s character witness.].
[If the prosecution rebuts with their own character witness]
Here, _____ [Discuss whether the prosecution limits their character witness’s testimony to: (1) the same character trait raised by the defendant; and (2) reputation or opinion testimony (not specific instances of conduct). If either of these elements are not satisfied, the evidence is inadmissible.].
[*If the prosecution rebuts by cross-examining the defendant’s character witness]
Here, _____ [Discuss whether the prosecution limits their cross-examination to the same character trait raised by the defendant. Remember, on cross-examination, the prosecution can elicit evidence of specific instances of conduct so long as it relates to the same character trait in question.].

Question 24

[*If evidence of a victim’s character is introduced in a criminal case]

Answer 24

EVIDENCE OF THE VICTIM’S CHARACTER IN CRIMINAL CASES
A criminal defendant may introduce reputation or opinion testimony of the victim’s character if it is relevant to one of the defenses asserted. If the defendant does so, the prosecution may rebut by presenting evidence that: (1) the defendant possesses the same character trait; or (2) The victim possesses a relevant positive character trait. If this is done on cross-examination, the prosecution may introduce specific instances of conduct to rebut.
[If the defendant introduces evidence of the victim’s character]
Here, _____ [Discuss whether the evidence is reputation or opinion testimony (not specific instances of conduct) and whether the evidence is relevant to one of the defenses asserted. If either is not satisfied, the evidence is inadmissible.].
[If the prosecution rebuts the defendant’s evidence of the victim’s character]
Here, _____ [Discuss whether the prosecution’s rebuttal presents evidence that the defendant possesses the same character trait, or the victim possesses a relevant positive character trait. If neither apply, the evidence is inadmissible. Remember, on cross-examination, the prosecution may elicit specific instances of conduct.].
[*If evidence of a rape victim’s character is introduced in a criminal case]

Question 25

Rape shield laws

Answer 25

In cases involving rape, evidence offered to prove a victim’s sexual behavior or predisposition is not admissible.

Question 26

NON-PROPENSITY EVIDENCE (M.I.M.I.C.)

Answer 26

Specific instances of conduct are generally not admissible to show propensity but are admissible to show (M.I.M.I.C.): motive or opportunity; intent; absence of mistake; identity; or a common plan or preparation. Specific instances of conduct are admissible for MIMIC purposes if: (1) there is sufficient evidence to support a jury finding that the defendant committed the prior act; AND (2) the probative value of the specific instances of conduct is NOT substantially outweighed by the danger of unfair prejudice to the jury.
Here, _____ [Identify that the specific instance of conduct is not being introduced for propensity purposes.]. Rather, _____ [the evidence] is being introduced to show _____ [Insert applicable M.I.M.I.C. purpose]. Further, _____ [Discuss whether there is sufficient evidence to support a jury finding that the defendant committed the prior act and whether the probative value of the specific instance of conduct is substantially outweighed by the danger of unfair prejudice.].
Therefore, _____ [the evidence] _____ [is/is not] admissible, because _____ [Identify whether the evidence is being introduced for propensity purposes and whether both elements are satisfied.].