Evidence Flashcards
What is logical relevance?
Evidence is relevant if it makes the existence of a consequential fact more/less probable
__________ law in each case determines what facts are of consequence.
Substantive
An item of evidence tends to prove the matter sought to be proved if _______________.
The evidence relates to the time/event/person in controversy in litigation currently before the court
To make a fact more/less probable, evidence only needs to __________.
Affect the probability of consequential fact to any degree
Evidence of similar occurrences is relevant to prove causation if _____________.
It is very similar
Are prior accidents/claims of a plaintiff admissible?
Usually irrelevant and therefore inadmissible
Evidence of prior claims is allowed to prove a pattern of ____________ claims.
Fraudulent
Evidence of a pre-existing condition is allowed to ____________.
Disprove P’s claim that the condition was caused by the later accident in question
Previous similar acts can be used to prove intent in the current act if there is a ____ pattern of ______.
Unbroken
Conduct
Similar circumstances can be used to rebut a defense of ____________, but only after __________.
Impossibility
That defense is alleged
Evidence of sales price of ________ assets at ________ times can be used to establish value.
Similar
Similar
Habit evidence is relevant to show _________.
The person acted in accordance with that habit on the occasion in question.
When is evidence “habit” evidence?
Repeated, specific conduct that is an automatic response to the same stimuli
What is character evidence?
General statement about a person that speaks to moral judgment; typically inadmissible
Routine business practices are relevant to show ___________.
Conduct was in conformity with that practice on the occasion in question
Industrial custom evidence is relevant to prove _______________.
Standard of care in a negligence case
The Court is not bound on evidence for _________ questions.
Preliminary
Preliminary questions to which evidence rules do not apply include:
Whether:
1. A witness is qualified
2. A privilege exists
3. Evidence is admissible
To determine whether evidence is admissible, the judge may ______________.
View evidence that may be inadmissible at trial
When will a court conduct a hearing outside the presence of a jury?
For evidentiary concerns that the jury shouldn’t hear unless the court decides to admit them
When must a hearing be conducted outside the presence of a jury to determine the admissibility of evidence?
Whenever the judge decides that justice so requires
Hearings on the admissibility of a confession shall, in all cases, be conducted _________.
Outside the presence of the jury
On a party’s motion or court determination, a court must order witnesses excluded so _________.
They can’t hear other witnesses’ testimony
Allowing exclusion of prospective witnesses so they can’t hear one another’s testimony does not authorize the exclusion of:
1.Party
2. Party’s representative
3. Person whose presence is essential to presenting the party’s claim/defense
4. Person authorized by statute to be present
If evidence is logically relevant, the court weighs _________ against other concerns.
Probative value of the evidence
The court may exclude relevant evidence if:
- Probative value is substantially outweighed by the danger of unfair prejudice
- Evidence risks confusion of the issue
- Evidence may mislead the jury
- Admission of the evidence would cause undue delay
What are the two most common types of evidence that cause unfair prejudice?
- Emotionally disturbing evidence
- Same evidence both admissible/inadmissible
What is emotionally disturbing evidence?
Will incline the jury to decide based on emotions instead of facts and law
If one item of evidence is logically relevant to prove two things, the court must ________.
Balance the probative value of its admissible purpose against the unfair prejudice of its inadmissible purpose
The standard of review for a trial court’s decision to admit/exclude evidence is __________.
Abuse of discretion
What is judicial notice?
Court may recognize some facts as true without any evidence being presented
A court may recognize as true certain facts if they are:
- Common knowledge within the jurisdiction OR
- Capable of being verified by sources of unquestionable accuracy
A court must take judicial notice if:
- Requested by a party AND
- The court is supplied with the necessary information
Can a court take judicial notice without a request?
Yes, they have that discretion
A reviewing court is required to take judicial notice of any matter that:
The trial court
1. Properly noticed
2. Was obliged to notice but did not
At what time may judicial notice be taken?
At any stage of the proceeding, even on appeal
Is judicial notice conclusive in civil cases?
Yes
Is judicial notice conclusive in criminal cases?
No, because the jury must decide each element beyond a reasonable doubt
Liability insurance is inadmissible to prove:
- Culpable conduct
- D’s ability to pay a judgment
Why should the court be cautious about admitting liability insurance?
- Don’t want to discourage people from buying liability insurance
- Don’t want jurors to decide cases or assess damages based on whether there is liability insurance available to pay
Is liability insurance always inadmissible?
No; only if used for culpability or ability to pay
After an accident, evidence of safety measures/repairs that would have made the harm less likely are inadmissible to prove:
- Culpable conduct
- Defective product design in product liability action
Evidence of safety measures taken after harm cannot be used to show culpable conduct. What is the policy reason for that?
Want to encourage people to:
1. Fix dangerous conditions
2. Provide warnings of potential dangers
Evidence of safety measures taken after harm cannot be used to show defective product design in product liability action. What is the policy reason for that?
Encourage people to fix dangerous products
For what purpose can evidence of safety measures taken after harm be used?
To rebut defense that there was no feasible precaution
Settlements and related proceedings are inadmissible for:
- Proving culpability in a civil case
- Proving guilt in a criminal case
Evidence of a settlement or compromise are inadmissible to prove culpability if:
- Claim has been asserted or implied
- Dispute exists as to liability/damages
Why is evidence of pleas inadmissible?
To encourage settlements to ease burden on the court
Evidence of payments of medical expenses are inadmissible for _______.
Proving liability for those injuries
Why is evidence of paying/offering to pay medical expenses inadmissible?
To encourage the payment of victim’s medical expenses
What are the requirements for witness competency?
- Ability to observe
- Ability to remember
- Ability to communicate
- Appreciation of oath obligation
To testify, a witness must:
- Be competent
- Have personal knowledge of the matter
- Take/appreciate the oath obligation
A judge cannot testify in a trial in which _________
The judge is sitting
Jurors cannot testify at trials except ________.
To give testimony about matters tainting the jury
When does a witness have personal knowledge of an occurrence?
Witness has
1. Observed the fact testified to
2. Present recollection
Observation by a witness must be based on __________.
Sensory perceptions
What is the burden of proof for finding that a witness has personal knowledge?
Sufficient to support a finding
When a witness quotes an out-of-court statement, the witness has personal knowledge, but there may be a ______ issue.
Hearsay
A witness must declare, by oath or affirmation, that she will _________.
Testify truthfully
On direct examination, what kind of questions may a lawyer ask?
Structured but relatively open-ended questions about foundational or relevant matters
Cross-examination is limited to:
- Subject matter of the direct examination
- Matters affecting the credibility of the witness
What is a call for narrative answer?
A question is too broad, allowing the witness to respond in a narrative fashion
What is an objection based on an unresponsive answer?
Witness’s answer goes well beyond the question or doesn’t actually respond to the question
What can opposing counsel do if a witness gives an unresponsive answer?
Move to strike
What is a leading question?
One that suggests the answer to the witness
No leading questions are allowed on ________.
Direct examination
When are leading questions allowed on direct examination?
- Opposing party
- Hostile witness
- Witness who needs help
- Unimportant matters
Leading questions are permitted on cross-examination as long as those questions ___________.
Stay within the scope/subject matter of the direct examination
A question cannot assume a fact to be true if ____________.
That fact has yet to be established by the evidence
What is an argumentative question?
One in which the lawyer argues the facts/issues of the case rather than just eliciting a direct response from the witness
A lawyer may not use direct examination to argue ______.
Facts or issues in a case
What is the compound question rule?
Can’t ask more than one question at a time
What is a substantive objection?
Calls for an answer that violates an evidence rule
When a witness cannot remember without the assistance of a writing, which two distinct doctrines may apply?
- Refreshing recollection with writing OR
- Recorded recollection hearsay exception
What happens when a witness’s recollection is refreshed?
Lawyer provides a witness with writing to read silently. Lawyer then asks if witness remembers well enough to testify based on her memory.
Once a witness’s memory is refreshed via writing, what must happen before the witness may testify?
The writing must be taken away
If a writing is used to refresh a witness’s uniform, the writing must not be _________.
Read aloud
A writing used to refresh a witness’s memory may only be admitted if:
- The adverse party inspects it AND
- offers it into the evidence
What is the recorded recollection hearsay exception?
When the witness doesn’t have sufficient memory to testify:
1. A recorded recollection may be admitted as substantive evidence AND
2. The document will be read aloud to the jury
When will the recorded recollection hearsay exception be used?
Only if reading a document silently won’t sufficiently refresh the witness’s memory
Lay opinion is only admissible if:
- Rationally based on witness’s perception
- Helpful to the trier of fact
- Not based on scientific or other specialized knowledge
What is a lay opinion usually admitted for?
- General appearance/condition of a person
- Voice/handwriting ID
- Speed of an automobile/other moving object
- Intoxication
- Sanity
- Emotions
- Value of witness’s own property/services
Lay opinions are traditionally inadmissible for:
- Agency or authorization
- Contract or agreement
- Other legal opinions
What are the requirements for expert testimony to be admitted?
- Helpful to the jury
- Qualified experts
- Proper factual basis
- Based on reliable principles/methods
- Believe opinion with reasonable certainty
When is an expert helpful to a jury?
Subject matter must be one where specialized knowledge would help the river of fact in understanding evidence or determining a fact
A witness isn’t just qualified based on education or training; they can also be qualified exclusively based on _______.
On-the-job work experience
An expert’s opinion must be supported by a proper factual basis. A proper factual basis may be predicated upon:
- Admitted evidence
- The expert witness’s personal knowledge
- Inadmissible evidence reasonably relied upon by the expert
Principles applied by scientific experts are reliable if:
- Can be/has been tested
- Peer reviewed/published
- Known error rate
- Existence/maintenance of standards/controls
- General acceptance
An expert witness must not state an opinion related to a defendant’s mental state if ________.
That mental state constitutes an element of a crime or defense
What is the learned treatise hearsay exception?
An excerpt from a learned treatise is admissible to prove anything stated in it, as long as the treatise is an accepted authority in the field
All books are technically ________.
Hearsay
Even if a court relies on the learned treaty hearsay exception, the publication may not _______.
Be read into evidence
Every item of non-testimonial evidence must be __________.
Authenticated
Authentication of non-testimonial evidence requires __________.
Proving that the evidence is what the proponent of the evidence claims it to be
What is the burden of proof for authenticating evidence?
Evidence is sufficient to sustain a finding that the item is what its proponent claims it to be
If there is conflicting evidence as to authenticity, what happens?
All of that evidence is admitted, and the jury must weigh it and decide who to believe
What is an admission as evidence of authenticity?
The party admits that a signature/writing in question is hers
How can the testimony of eyewitnesses provide evidence of authenticity?
Witness testifies that she saw the person sign the document in question
How can a handwriting expert provide authenticity?
By comparing a disputed writing/signature with a genuine example before declaring whether the signature is authentic
A layperson can authenticate someone’s handwriting and thus a document, but only if ________.
That layperson has prior familiarity with the person’s handwriting
An established example of _________ may be admitted into evidence for the purposes of authentication.
The signature in question
Authenticity of an ancient document is established if the document:
- Is 20+ years old
- Doesn’t present any irregularities on its face AND
- Is found in a place of natural custody
How can a photograph be authenticated?
A witness may testify that:
1. She took the photograph in question OR
2. The photograph fairly/accurately depicts what it purports to show
Certified copies of ______ are self-authenticating documents
Public documents
If a document’s original signature was attested before a _______, it is self-authenticating.
Notary
Official _________ are self-authenticating documents
Publications
Newspapers are _______ documents.
Self-authenticating
________ business records are self-authenticating documents.
Certified
_________ inscriptions are self-authenticating documents.
Trade
In order to authenticate a non-unique item, the proponent of the evidence must ________.
Establish a chain of custody, demonstrating that this is the specific item the proponent claims it to be
What is the Best Evidence Rule?
Where the contents of the writing are at issue, the original OR a duplicate must be admitted to prove the contents
The ________ rule is California’s distinction from the Best Evidence Rule.
Secondary Evidence Rule
What is the Secondary Evidence Rule?
Same as the Best Evidence Rule
What is the exception to the Best Evidence Rule?
Proponent of evidence shows that the original and all duplicates have been lost/destroyed for some reason other than the proponent’s intentional misconduct
A mechanical reproduction of a document is admissible under the Best Evidence Rule as long as __________.
There is no genuine question about its authenticity
What are writings under the Best Evidence Rule?
Any tangible collection of data/information
The Best Evidence Rule will often be triggered in what circumstances?
- Writing is of consequence in the matter
- Witness’s knowledge comes from reading a writing
- Witness has independent knowledge
What is the voluminous documents exception to the best evidence rule?
If too numerous to bring in all the originals, a witness may be called to summarize the contents, so long as the originals are available for inspection
In a diversity case, _______ governs privilege regarding a claim or defense for which state law supplied the rule of decision.
State law
What is attorney-client privilege?
Any communication made in confidence between an attorney and client (or their representatives) to facilitate legal services is privileged unless the privilege is waived by the client
What is communication under attorney-client privilege?
Any form of communication with a client - but not the identity of a client
What communication is intended to be confidential under attorney-client privilege?
Would a reasonable person in the client’s position intend the communication to be confidential?
Communication is never intended to be confidential under attorney-client privilege if _______.
3rd parties are present
Who is a client under attorney-client privilege?
Any person/entity seeking professional legal services or advice
Who is an attorney under attorney-client privilege?
Person authorized - or who the client reasonably believes is authorized - to practice law in any state/nation
Who is a representative of a client for purposes of attorney-client privilege?
Anybody authorized to obtain legal services or to act on advice rendered by an attorney on behalf of the client
Who is a representative of an attorney for purposes of attorney-client privilege?
Anybody hired by the attorney and authorized to help render legal services.
How does attorney-client privilege affect corporate clients?
Applies to communications by corporate employees/agents if the corporation authorized them to communicate with the attorney.
A corporation authorizes an agent to communicate with an attorney. Who holds the attorney-client privilege?
The corporation
For a privilege to apply, a client must have made the communication in an effort to ________.
Facilitate professional legal services
Informal conversations in _____ settings are not intended to facilitate professional legal services, so attorney-client privilege does not apply.
Social
Who holds attorney-client privilege?
The client
Attorney-client privilege survives even if:
- Attorney-client relationship is terminated
- The client passes away
Who holds attorney-client privilege if the client dies?
The client’s estate
What are the exceptions to attorney-client privilege?
- Legal services are sought to further crime/fraud
- There is an alleged breach of duty between the attorney or client
- The parties are both clients in a matter of common interest
- Evidence to show competency/intention of a client
What is the rule of confidential marital communications?
All communications are privileged that are:
1. Made during a valid marriage AND
2. Intended to be confidential between the spouses
To what kinds of cases do confidential marital communications apply?
Both criminal and civil cases
The Confidential Marital Communications doctrine applies to all communications made during marriage, even if the marriage has _______.
Has ended by the time of trial
Who holds privilege under the confidential marital communications rule?
Both spouses - one spouse may prevent another from testifying
Are non-verbal communications privileged under the confidential marital communications rule?
Not under the majority view
What effect does divorce have on communications during marriage?
Still privileged
What are the exceptions to the Confidential Marital Communications doctrine?
- Civil action between spouses
- One spouse charged with crime against other spouse or children
- Both spouses jointly participate in criminal acts
What is spousal testimonial privilege in a criminal case?
A spouse may refuse to testify against her spouse as to anything, period. Only in criminal cases.
For spousal testimonial privilege to be used in a criminal case, when must the marriage must be legally valid?
At the time of the trial
Who holds spousal testimonial privilege in a criminal case?
The federal view: witness spouse
In some states: D spouse
Spousal testimonial privilege applies to all testimony in a criminal matter, including ______ testimony.
Grand jury
What are the exceptions to spousal testimonial privilege in criminal cases?
- Civil actions between spouses
- One spouse charged with crime against spouse/children
What jurisdiction has adopted doctor-patient privilege?
Most states
What is the rule for doctor-patient privilege?
Patient has the privilege to prevent disclosure of any communication to a physician that is:
- Intended by the patient to be confidential
- Conveyed for the purpose for receiving medical diagnosis/treatment
And the information conveyed was pertinent to medical diagnosis/treatment
What standard is applied to determine whether information communicated by a patient to a doctor was meant to be confidential?
Objective reasonable person standard
Communications with doctors who _____________ are not privileged.
Will serve as expert witnesses
What are the exceptions to patient-doctor confidentiality?
- Patient’s physical/mental condiition is in issue
- Services sought to aid in crime/fraud or to escape capture after crime/tort
- Alleged breach of duty between doctor and patient
What is psychotherapist-patient and social worker-client privilege?
Protects communication that is:
1. Intended by a client to be confidential AND 2. Made to facilitate professional psychological services
What are the exceptions to psychotherapist-patient privilege?
- Patient’s mental/physical condition in issue
- Services sought to aid in crime/fraud or to escape capture after crime/tort
- Alleged breach of duty between psychotherapist and client
What is the privilege against self-incrimination?
Witness cannot be compelled to reveal information (in civil or criminal cases) that could subject her to criminal prosecution
Character evidence is not admissible for the purpose of proving _________.
That a given action is in conformity with that character on a particular occasion
Character evidence may be used where ______ is an ultimate issue in the case.
Character
Character evidence may be introduced to _____ or _____ the credibility of a witness
Impeach
Support
What is reputation character evidence?
Testimony regarding the person’s general reputation in the community
What is opinion character evidence?
Witnesses who know the person testify as to their opinion of that person’s character
What is specific instance character evidence?
Evidence of specific acts of the person in question that demonstrate her character
Give examples of civil cases in which character itself is an issue in the case
- Defamation of character
- Negligent entrustment
- Child custody dispute
Where character is at issue in the case, what types of character evidence are admissible?
All
Character evidence is inadmissible to prove _____ in a civil case.
Conduct
In what civil cases can character evidence be admitted to prove conduct?
- Sexual assault
- Child molestation
What are rape shield statutes?
In rape and sexual assault civil cases, character evidence may only be admitted to prove consent
In order to use reputation evidence to show consent in a civil rape/sexual assault case, what must be true?
- Victim put her own reputation at issue AND
- Probative value substantially outweighs unfair prejudice or harm to any victim
In order to use opinion evidence & specific instances to show consent in a civil rape/sexual assault case, what must be true?
Probative value substantially outweighs unfair prejudice or harm to any victim
Any character evidence offered in a criminal case will be offered to prove ________, because ________ is never the issue.
Conduct
Character itself
Which party cannot introduce character evidence first in a criminal case?
Prosecution; they can only rebut
In a criminal case, prosecution may introduce character evidence if:
- Sexual assault or child molestation (prior acts)
- Evidence of victim’s character has been offered by D (evidence of same trait)
In a criminal case, D is given the privilege of offering pertinent character evidence to prove ________.
She didn’t commit the crime
In a criminal case, if D offers character evidence, P’s rebuttal is limited to __________.
That specific pertinent character evidence
On direct examination of D, what character evidence is admissible?
Reputation and opinion evidence only
On direct examination, what character evidence is admissible?
Reputation and opinion evidence only
On cross-examination, what forms of character evidence are allowed?
Any
Which party can introduce character evidence about a victim?
Defendant; prosecution can rebut
In a homicide case, defendant can use character evidence to show ________.
Victim attacked first
If a defendant uses character evidence to show that victim attacked first, prosecution can rebut with __________.
Evidence of the victim’s peaceful character
In criminal cases, rape shield statutes allow character evidence to prove victim’s consent. Under these statutes, specific instances are admissible when offered to prove:
- Third-party cause of semen/injury
- Prior acts of consensual intercourse between D and alleged victim
What is “mimic” evidence?
Specific instances of D’s prior bad conduct are offered to prove anything relevant other than character
What is the burden of proof for admission of “mimic” evidence?
Court must find that a jury could reasonably find that:
1. the act was committed AND
2. D was responsible for the act
________ is not required under the burden of proof for admitting “mimic” evidence
Conviction
Before admitting “mimic” evidence, the court must balance ________ against ________.
Probative value of evidence
Potential unfair prejudice of evidence
What does the “MIMIC” in “mimic evidence” stand for?
Motive
Intent
absence of Mistake or accident
Identity
Common plan or scheme
These are the purposes for which “mimic” evidence may be admitted.
Evidence of prior misconduct that connects D to the crime in question is admissible if:
- Similar
- Uniqueness in modus operandi
Use of “mimic” evidence requires _________ by the prosecutor.
Notice
Evidence of ______________ cannot be used to bolster a witness’s credibility until the witness’s credibility is attacked.
Prior consistent statements
Evidence of timely complaint can be used to bolster credibility for alleged victims of:
- Rape
- Sexual assault
- Coerced confession
Prior consistent statements of _______ are generally admissible.
Identification
Prior consistent statements are admissible for all purposes if made before:
- Bribe OR
- Inconsistent statement
Extrinsic evidence of a prior inconsistent statement is inadmissible for impeachment on ____________.
A collateral matter
What is a collateral matter?
A fact not material to the issues in the case that just purely contradicts the witness
A prior inconsistent statement made out-of-court is only admissible to ________.
Impeach a witness
A prior inconsistent statement is admissible to prove anything if __________.
It is given under oath
What is the extrinsic evidence foundation requirement?
If a prior inconsistent statement is admitted, the witness must have an opportunity to explain/deny the inconsistency; confrontation is required
If a person is impeached via evidence of a prior conviction, it needs to be a conviction for:
- Felony OR
- Any crime for which an element is “dishonest act/false statement.”
Felonies that don’t involve false statements can be admitted as character evidence in civil and (against witnesses) criminal cases unless ________
Probative value is substantially outweighed by the danger of unfair prejudice
D’s prior conviction can be used against them in a criminal case if __________
Probative value outweighs the danger of unfair prejudice.
“outweighs,” not “substantially outweighs”
Conviction evidence regarding crimes that involve false statements is admissible even if ________ is pending.
An appeal of the underlying conviction
Convictions of crimes that involve false statements are generally inadmissible if they are __________ old.
10 years old
This can be overcome with “substantial probative value”
Acts of misconduct by a witness that didn’t result in conviction are admissible to impeach if those acts involved _______.
Lying
Reputation/opinion evidence regarding a witness’s truthfulness is admissible for impeachment through either ______ or _______.
Cross-examination
Extrinsic evidence
Impeachment by sensory deficiencies can take the form of either ______ or ______
Defects in capacity
Lack of knowledge
Defects in capacity that qualify as sensory deficiencies include:
- Perceptive disabilities
- Lack of memory
- Lack of capacity
Lack of knowledge that qualifies as sensory deficiency includes:
Knowledge base of the following witness is too limited:
1. Expert witness
2. Opinion witness
3. Character witness
How can an impeached witness be rehabilitated?
- Explanation on redirect
- Prior consistent statement
- Good reputation/opinion for truthfulness
Evidence of good reputation/opinion for truthfulness may not be admitted to rehabilitate a witness if made before:
- The alleged bribe of the witness
- Alleged inconsistent statement
What is hearsay?
An out-of-court statement offered to prove the truth of the matter asserted in that statement
What is a statement?
Verbal or written expression of a person, or assertive conduct that is intended to communicate
What is assertive conduct?
Conduct that substitutes for a statement - nodding, pointing, etc.
Hearsay statements are made out of court, but specifically, that means out of ____________.
This specific court
Is hearsay generally admissible or inadmissible?
Inadmissible
Why is hearsay generally inadmissible?
Speaker cannot be cross-examined, making it hard for the fact-finder to assess whether speaker is lying/mistaken
Is it still hearsay when an in-court witness quotes her own out-of-court statements?
Yes
How should courts handle multiple hearsay?
Hearsay included within hearsay may be admissible only if each “level” of hearsay in the combined statement satisfies a hearsay exception/exemption
When merely uttering certain words/phrases has a ____ effect, the utterance is not hearsay.
Legal
Give examples of utterances that have legal effect.
- Contracts
- Defamation
- Adverse possession
- Dispute over ownership of personal property
- Criminal utterances
A statement offered to show ___________ or ___________ is not hearsay.
- Effect on listener
- Knowledge of the stated facts
Statements offered as circumstantial evidence of ___________ are not hearsay.
Speaker’s state of mind
What are the hearsay exemptions? (not hearsay)
- Opposing party statements/admissions
- Certain prior statements of a witness
What statements by an opposing party are admissible under hearsay exemptions?
Any statement
For purposes of hearsay exemptions, statements of another will be treated as if made by the party if:
- Speaker is an authorized spokesperson
- Speaker is an employee acting in the scope of their employment
- Party indicates she believes nonparty’s statement
- Co-conspirator’s statement in furtherance of conspiracy
What prior statements of witnesses fall under hearsay exemptions (and thus are not hearsay)?
- Prior inconsistent statements given under oath
- Prior consistent statements
- Prior statements of identification
What is the difference between a hearsay exception and exemption?
Exemptions are not hearsay; exceptions are hearsay but are allowed anyway
If a declarant is _______, then hearsay is admissible
Unavailable
A declarant will be unavailable if exempted from testifying due to the court’s recognition of __________.
Privilege
A declarant is unavailable if they cannot testify due to:
- Death
- Serious physical/mental illness
A declarant is unavailable if they cannot be procured by:
- Process
- Other reasonable means
A declarant is unavailable due to refusal if ___________.
She refuses to testify despite court order
A declarant is unavailable if she has a _____ failure.
Mmeory
What is the former testimony exception?
Former testimony is offered against:
1. Someone with similar motives who had an opportunity to examine OR
2. Predecessor in interest (civil cases only)
Hearsay statements are admissible if, at the time made, the unavailable speaker knew/reasonably believed the statement was either:
- Against speaker’s interests
- Would subject speaker to criminal liability
To admit a statement against interest that exposes D to criminal liability in a criminal case, the statement must have _________.
Corroborating circumstances that clearly indicate the trustworthiness of the declarant’s statement
The dying declaration hearsay exception applies to ______
Statements made when speaker believes she. is dying that describes the cause/circumstances leading to her impending death
Dying declarations do not require _______, only that ________.
Speaker die
Speaker is unavailable
Dying declarations are not hearsay exceptions in _____ cases.
Non-homicide criminal cases
If a speaker is unavailable because the other party ________, their statements are admissible.
Deliberately acted to make them unavailable
Excited utterances are admissible hearsay if:
- Related to a startling event/condition AND
- Declaration is made under stress of excitement
Present sense impressions are admissible hearsay if:
- Statement describes/explains an event/condition AND
- Made while/immediately after speaker was perceiving event/condition
A hearsay statement of the declarant’s _________ state of mind is admissible to show that ________.
State of mind
State of mind is equivalent to _______, but not to ____ or _____.
Intention
Memory or belief
Statements of past/present mental/physical conditions are admissible if ____________.
made for/pertinent to medical diagnosis/treatment
Records of regularly conducted activity are admissible hearsay if:
- Kept in ordinary course of business
- By person with duty to record
- By person with knowledge of the information on the record
- Made at/near the time of matters described AND
- Not shown to be untrustworthy
Public records are admissible hearsay as long as they:
- Describe activities of the office
- Describe matters observed pursuant to a legal duty to report
- Contain factual findings resulting from legally authorized investigations
Even under the public records hearsay exception, facts in police reports and authorized investigations may NOT be used if _______.
Used against D in a criminal trial
Statements in learned treatises are admissible hearsay if:
- Used by expert witness AND
- Established as a reliable authority
If a statement in a learned treatise is ruled to be admissible hearsay, how is it presented to the court?
Read aloud only; no exhibit
Any previous _____ is admissible hearsay to prove any fact essential to the judgment
Felony conviction
What are the requirements of the recorded recollection exception?
- Witness once had knowledge of the facts
- Document was created by the witness, under her direction, or adopted by the witness
- Written/adopted at time when facts were fresh in witness’s memory
- Accurate when made AND
- Current recollection insufficient to testify to matters contained in the document
A statement not specifically covered by the hearsay exceptions under the FRE is not excluded by the hearsay rule if:
- Sufficient guarantees of trustworthiness
- Statement is more probative on the point for which it is offered than any other evidence AND
- Advance notice to adverse party
What is the confrontation clause?
6th Amendment provides D with right to confront witnesses
What is the confrontation clause?
6th Amendment provides D with right to confront witnesses
Even if hearsay rules would make it admissible, the Confrontation Clause excludes an out-of-court statement if:
- Speaker doesn’t testify at trial
- Speaker is now unavailable
- Statement was testimonial when made AND
- D had no opportunity to cross-examine speaker about statement when made
When is a statement testimonial?
- Statements made in court
- Statements made to further a police investigation
Statements to the police for _________ are not testimonial.
Dealing with an ongoing emergency
