Evidence Flashcards
What is hearsay?
Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted. A hearsay statement may be an oral or written assertion and can be nonverbal conduct intended as an assertion. Hearsay evidence is generally inadmissible unless it falls within a hearsay exception or exclusion.
What is present sense impression?
A present sense impression is an out-of-court statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it. A present sense impression is an exception to the hearsay rule and admissible regardless of the declarant’s availability to testify.
What is excited utterance?
An excited utterance is a statement made about a shocking or startling event made while the declarant is under the stress of excitement that it caused. An excited utterance is an exception to the hearsay rule and admissible regardless of the declarant’s availability to testify.
When may a hearsay exception admitting a non-testifying witness’s out-of-court statement violate the sixth amendment?
For an out-of-court testimonial statement (i.e., hearsay) to be admissible against a criminal defendant, the Sixth Amendment Confrontation Clause requires that the declarant must be unavailable and the defendant must have had a prior opportunity to cross-examine the declarant.
To determine whether a statement is testimonial requires an objective analysis of the circumstances regardless of the subjective purpose of the participants.
A statement that is made for the primary purpose of ascertaining past criminal conduct is testimonial. By contrast, a statement made primarily to enable police to render aid to meet an ongoing emergency is not testimonial.
Is a previous out-of-court identification after perceiving that person hearsay?
No, it is not hearsay and may be admissible as substantive evidence by the testimony of the declarant-witness. Even if the witness has no memory of the prior identification, it will be admissible because the witness is subject to cross-examination about the prior identification.
When may evidence of a criminal defendant’s crimes or other wrongful acts be admissible?
Evidence of a defendant’s crimes or other wrongful acts are admissible for a non-propensity purpose such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
When is evidence relevant?
Evidence is relevant if (i) it has any tendency to make a fact more or less probable than it would be without the evidence (i.e., probative), and (ii) the fact is of consequence in determining the action (i.e., material).
What may a lay witness’s testimony be about?
(2 factors)
A lay witness (non-expert) is generally not permitted to testify as to his opinion, except with respect to the lay witness’s common-sense impressions. To be admissible, a lay witness’s opinion must be (i) rationally based on the witness’s perception, and (ii) helpful to a clear understanding of the witness’s testimony or a fact in issue.
When is an expert witness’s opinion testimony admissible? (4 factors)
By contrast, an expert witness’s opinion testimony is admissible when (i) the witness is qualified as an expert by knowledge, skill, experience, training, or education, (ii) the testimony is based on sufficient facts or data, (iii) the testimony is the product of reliable principles and methods, and (iv) the witness applied the principles and methods reliably to the facts of the case.
What is the business record hearsay exception? (3 factors)
A business record is excepted from the hearsay rule if the record was (i) kept in the course of a regularly conducted activity, (ii) made as a regular practice for that activity, and (iii) made at or near the time of the act or event by someone with knowledge.
When can a party’s own statement be used against themself?
An out-of-court statement made by a party to the current litigation is not hearsay when offered for its truth by an opposing party.
Are statements describing past or present symptoms made for purpose of seeking medical treatment or diagnosis excluded as hearsay?
No. A statement that is made for the purpose of describing medical history or past or present symptoms, pain, or other sensation is admissible if it is made to a physician or other medical personnel for the purpose of medical diagnosis or treatment. A statement of the cause or source of the condition is admissible if it is reasonably pertinent to diagnosis or treatment.
What is habit evidence and when may it be used?
A habit is a person’s particular routine reaction to a specific set of circumstances to the point of being semi-automatic in nature. Evidence of a person’s habit is admissible to prove conduct in conformity with the habit on a particular occasion. Habit evidence may be admitted without corroboration and without an eyewitness.
What is the Confidential Marital Communications Privilege?
The confidential marital communications privilege provides that communications made between spouses while they were married are privileged if the communication was made in reliance on the sanctity of marriage. The privilege protects communications made during the marriage, even if the marriage no longer exists or if one of the parties to the marriage is dead. Under the majority view, both spouses hold the privilege for all communications between them. When one spouse has revealed the content of those communications to a third party, then confidentiality no longer exists and the privilege should not apply.
How may a declarant be impeached?
Once a hearsay statement is admitted into evidence, the hearsay declarant’s credibility may be attacked by any evidence that would be admissible if the declarant had testified as a witness. Any inconsistent statement, even a hearsay statement, made by the hearsay declarant may be admitted to impeach the declarant’s credibility.
