Evidence Flashcards
Key principle #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.
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.”
- I: State why it is important to determine if a statement is hearsay. Hearsay is not admissible unless it
comes within an exception.
Exception to Hearsay :
Opposing party statement
Present sense impression
Excited Utterance
Opposing party’s statement: a statement made by an opposing party offered against that
party is not hearsay.
Present sense impression: a present sense impression is “a statement describing or
explaining an event or condition made while or immediately after the declarant perceived
it.”
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.”
Statement for purpose of medical treatment or diagnosis
Business records.
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.
Business records: 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.
Recollection recorded
A record, witness knew about but can’t recall, which was made, used to refresh, proponent can offer it in the record but opponent can .
Recollection recorded: 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).,
Exclusion
State of mind hearsay exclusion: if a statement is offered to show state of mind and not
truth, it is not hearsay.
Prior statement of identification hearsay exclusion: a witness’s prior identification is not
considered hearsay.
Relevancy
Key principle #2: be able to define relevancy and the 403-balancing test.
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 of relevant evidence
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.
Key principle #3: Lay witnesses must have personal knowledge to testify. Expert witnesses need not.
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).
Key principle #4: impeachment is tested frequently—be aware of the “seven (7) “ ways to impeach!
What is the General rule to impeachment
General rule: any party may impeach a witness (even the party that called the witness).
Prior inconsistent statement
Bias and interest
There are seven ways to impeach a witness:
Prior inconsistent statements: 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 interest: 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
Conviction of a crime: Whether the conviction can be used depends on (mnemonic=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).
Bad acts :
Lied on a job application - not allowed - extrinsic evidence not allowed.
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).
Reputation or opinion for untruthfulness :
Reputation or opinion for untruthfulness: The witness cannot testify to specific facts.
(Extrinsic evidence is permitted because the witness is extrinsic evidence.)
Character evidence
Key principle #5: 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.”
CIVIL = ESSENTIAL ELEMENT Crim = D “opens the door”
General rule: character evidence is inadmissible to prove that someone acted in accordance with his
character at the time the event occurred.
Civil Cases for Character :
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.
