Evidence

Question 1

What are the hearsay exemptions?

Answer 1

Non-hearsay by definition:

1. Admission by a party opponent
2. Certain prior statements by a witness (prior consistent statement, prior inconsistent statement, prior identification)

Question 2

What are the requirements for a witness’s prior inconsistent statement to come in as non-hearsay?

Answer 2

(1) the witness must testify, (2) the witness must be subject to cross, (3) the statement was made under oath at a prior proceeding

Note: can come in as BOTH substantive and impeachment evidence

Question 3

What are the requirements for a witness’s prior consistent statement to come in as non-hearsay?

Answer 3

(1) witness must testify, (2) witness must be subject to cross, (3) prior consistent statement must rebut charge of lying or exaggerating AND (4) the statement must have been made before the motive to lie arose

Question 4

What are the requirements for a witness’s prior identification to come in as non-hearsay?

Answer 4

Witness must (1) testify at trial and (2) be subject to cross

Question 5

What are the seven (7) most common hearsay exceptions for which the declarant’s availability does NOT matter?

Answer 5

Present sense impression, excited utterance, present mental state, medical treatment exception, past recollection records, business records, public records

Question 6

What are the three (3) hearsay exceptions for which declarant MUST be unavailable?

Answer 6

Former testimony, dying declaration, statement against interest

Question 7

What renders a declarant “unavailable” for hearsay purposes?

Answer 7

PRISM: privilege (assertion of), refusal (to testify), incapacity (mental or physical), subpoena (failure to comply with), memory (lack of)

Question 8

What are the requirements for the former testimony hearsay exception?

Answer 8

(1) declarant must be unavailable, (2) testimony must be offered against the same defendant (but not necessarily by the same party), (3) party AGAINST whom evidence is offered must have had opportunity and similar motive to develop the testimony

Question 9

What are the requirements for the dying declaration hearsay exception?

Answer 9

(1) declarant must be unavailable, (2) declarant must believe death is imminent at the time of the statement, (3) statement must concern the cause or circumstances of death, (4) statement must be offered in either a civil case or a criminal homicide case

Question 10

What are the requirements for the statement against interest hearsay exception?

Answer 10

(1) declarant must be unavailable, (2) statement must be against one of the three Ps (penal, pecuniary, or proprietary interest), (3) declarant must have personal knowledge, BUT (4) statement can be made by anyone

Question 11

What are the requirements for the present sense impression hearsay exception?

Answer 11

(1) statement must be made contemporaneously with or immediately after event, (2) personal knowledge is REQUIRED when describing or explaining event

Note: this exception does NOT require excitement but has a slightly shorter window than excited utterance

Question 12

What are the requirements for the excited utterance hearsay exception?

Answer 12

(1) the statement must relate to a startling event, (2) the statement must be made while under the stress of excitement, (3) personal knowledge is required, (4) statement must be made while declarant is still stressed (no cool-down time)

Question 13

What are the requirements for the present mental state hearsay exception?

Answer 13

The statement must be made regarding a then-existing physical, mental, or emotional condition

Note: look for present tense verbs

Question 14

What are the requirements for the medical hearsay exception?

Answer 14

(1) the statement must be made for purposes of medical treatment, (2) statement can relate to present OR past condition

Question 15

What are the requirements for the past recorded recollection hearsay exception?

Answer 15

(1) an attempt to refresh witness’s recollection, (2) the failure of that attempt, (3) the writing must have been made or adopted by the witness at a time when the event was fresh in her mind

Note: the witness may read the words of the writing into evidence, but the writing itself cannot come in unless offered by the opposing party

Question 16

What are the requirements for the business records hearsay exception?

Answer 16

(1) the record must be created as a routine practice, (2) it must be made by a person with knowledge AND a business duty to record, (3) it must be made at or near the time of recording of the act, event, or condition, (4) it must be kept in the regular course of the business

Question 17

What are the three (3) categories of statements that fall under the public records hearsay exception?

Answer 17

(1) activities of a public agency, (2) matters observed pursuant to a duty imposed by law, (3) factual findings of an official investigation

Note: police records inadmissible against criminal defendants

Question 18

What are the most common methods of impeaching a witness?

Answer 18

Offer evidence showing bias, dishonesty, motive to lie, sensory defect, etc.

Question 19

May a witness’s prior inconsistent statement be admitted for impeachment purposes?

Answer 19

Yes, whether sworn or unsworn

Note: only SWORN statements can come in as substantive evidence

Question 20

What are the three (3) major categories of witness impeachment evidence?

Answer 20

Prior inconsistent statements, prior bad acts, prior convictions

Question 21

May a witness’s prior convictions be admitted for impeachment purposes?

Answer 21

Yes:
(1) in cases where dishonesty is an element of the claim or charge, convictions for crimes of dishonesty or false statements ten years old or less are automatically admissible
(2) in all cases, felony convictions may come in subject to a balancing test BUT are excluded if it has been more than ten years since (i) the date of conviction OR (ii) the date of release from confinement, whichever is later

Question 22

May a witness’s prior bad acts be admitted for impeachment purposes?

Answer 22

Yes, if the prior bad act bears on truthfulness then the witness can be asked about it on cross

Note: arrests do NOT count, prior bad acts may NOT be proven by extrinsic evidence

Question 23

What is the general rule of character evidence?

Answer 23

Evidence of a person’s crimes, wrongs, or acts are generally inadmissible to prove character or propensity

Question 24

What are the exceptions to the general rule of character evidence in civil cases?

Answer 24

Character evidence may only be offered to prove something substantive in the case (i.e., when character is at issue in the case) (e.g. defamation, child custody, fraud, negligent entrustment)

Question 25

What are the exceptions to the general rule of character evidence in criminal cases?

Answer 25

(1) If defendant opens the door by offering evidence of good character, prosecutor may offer rebuttal evidence for same trait

(2) If defendant offers evidence of VICTIM’S bad character where relevant to a defense, prosecution can rebut with evidence of victim’s good character or defendant’s bad character for the same trait

(3) Prosecution may offer evidence of specific bad acts if there is an independent good faith basis for admission [MIMIC: motive, intent, (absence of) mistake, identity, common plan or scheme]

Question 26

What is the effect of judicial notice?

Answer 26

Judicial notice allows a party to “prove” a fact by the court’s recognizing that the fact is a matter of common knowledge within the jurisdiction or that it can be quickly determined by resorting to sources whose accuracy cannot reasonably be questioned

Question 27

Are statements by an agent admissible against the principal?

Answer 27

Yes, provided (1) the statement concerns a matter within the scope of the agency AND (2) is made during the existence of the employment relationship

Question 28

What is the completeness rule (FRE 106)?

Answer 28

When a statement or part of a statement is introduced, the adverse party may introduce any other statement or part of the statement which ought, in fairness, to be considered at the same time (even if the original statement was improperly admitted)

Question 29

What are the elements of spousal immunity?

Answer 29

(1) applies in criminal trials, (2) is held by the witness spouse, and (3) the parties must be married at the time of trial

Question 30

What are the elements of the confidential communications privilege?

Answer 30

(1) it applies in a civil or criminal trial, (2) it is held by both spouses, (3) the communication must be confidential, and (4) the communication must be made during the marriage

Question 31

What are the elements of the attorney-client privilege?

Answer 31

The communication must be a confidential communication between an attorney and client (or either’s agent) or prospective client, made for the purposes of obtaining legal advice

Question 32

What is the work product doctrine?

Answer 32

Doctrine excluding any material prepared in anticipation of litigation from discovery absent a showing of “substantial need” AND “undue hardship”

Question 33

Is insurance coverage admissible evidence?

Answer 33

Yes, to prove agency, ownership, control, bias, etc.

NOT to prove negligence

Question 34

Are offers to pay medical bills admissible?

Answer 34

Not to prove liability or the existence of an injury.

Question 35

Are guilty pleas admissible?

Answer 35

Yes, BUT (i) offers to plead guilty, (ii) withdrawn pleas, (iii) no contest pleas, and (iv) statements made during negotiations that did NOT result in a guilty plea are INADMISSIBLE

Question 36

What does the Sixth Amendment Confrontation Clause require?

Answer 36

It requires that statements be excluded if (1) the statement is testimonial, (2) the declarant is unavailable, and (3) the defendant did not have the opportunity to cross examine the declarant

Note: a statement is not “testimonial” if the primary purpose of the statement is to address an ongoing emergency