Evidence

Question 1

Key principle #1:

Answer 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.

Question 2

EVIDENCE

Answer 2

HUGH DID THIS!!!

Question 3

D:

Answer 3

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.”

Question 4

I:

Answer 4

State why it is important to determine if a statement is hearsay. Hearsay is not admissible unless it comes within an exception.

Question 5

A:

Answer 5

Analyze exceptions. Some of the commonly tested hearsay exceptions and exclusions are as follows:
* Excited utterance
* Present sense impression
* Statement for purpose of medical treatment or diagnosis
* Business record
* Recollection recorded
* Then-existing state of mind
* Prior statement of identification (hearsay exclusion)
* Opposing party statement
* Statement against interest
* Public records

Question 6

Excited utterance

Answer 6

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.” (J2017, F2016, J2013)

Question 7

Present sense impression:

Answer 7

A present sense impression is “a statement describing or explaining an event or condition made while or immediately after the declarant perceived it.” (J2017, F2016, J2013, F2013)

Question 8

Statement for purpose of medical treatment or diagnosis:

Answer 8

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. (J2018, J2013, F2008)

Question 9

Business records:

Answer 9

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. (J2018, F2013, F2008)

Question 10

Recollection recorded:

Answer 10

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). (J2016)

Question 11

Then-existing state of mind exception:

Answer 11

If a statement shows a declarant’s mental, emotional, or physical condition (including motive, intent, or plan) it is not hearsay. (O2020, F2020, J2017)

Question 12

Prior statement of identification hearsay exclusion:

Answer 12

A witness’s prior identification is not considered hearsay. (F2016)

Question 13

Opposing party’s statement:

Answer 13

A statement made by an opposing party offered against that party is not hearsay. (O2020, F2020, J2018, J2017, J2016)

Question 14

Statement against interest:

Answer 14

A statement that a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it had a tendancy to expose the declarant to civil or criminal liability. The declarant must be unavailable. (O2020, J2020)

Question 15

Public records

Answer 15

May be admitted in some circumstances but not matters observed by law enforcement personnel when proffered by the prosecutor against the defendant in a criminal case. (O2020)

Question 16

Key principle #2:

Answer 16

be able to define relevancy and the 403-balancing test.

Question 17

Relevancy:

Answer 17

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. (F2023, F2020, J2018, F2013, F2012, F2010)

Question 18

Admissibility:

Answer 18

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.

Question 19

Key principle #3:

Answer 19

Lay witnesses must have personal knowledge to testify. Expert witnesses need not.

Question 20

Witnesses - General rules:

Answer 20

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). (J2022, J2018, F2011, F2010)

Question 21

Key principle #4: impeachment is tested frequently—be aware of the seven ways to impeach!

Answer 21

I’d like to smack your peach ;)
xoxo boo

Question 22

Impeachment - General rules:

Answer 22

Any party may impeach a witness (even the party that called the witness). (F2023, J2014, F2010, F2009, F2008)

Question 23

How many ways are there to impeach a witness?

Answer 23

7

Question 24

1) Prior inconsistent statements:

Answer 24

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. (F2011, F2008)

Question 25

2) Bias and interest:

Answer 25

The witness must be confronted on the stand. Extrinsic evidence can only be used if the witness is asked about the bias first. (F2020)

Question 26

3) Conviction of a crime:

Answer 26

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). (F2020, J2014)

Question 27

4) Bad acts:

Answer 27

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). (F2023, J2014, F2009)

Question 28

5) Reputation or opinion for untruthfulness:

Answer 28

The witness cannot testify to specific facts. (Extrinsic evidence is permitted because the witness is extrinsic evidence.) (F2011)

Question 29

6) Sensory deficiencies:

Answer 29

This is the ability to observe, remember, or relate accurately. Extrinsic evidence is permitted.

Question 30

7) Contradiction:

Answer 30

If the witness made a mistake in her testimony or lied during direct examination, she may be contradicted. Extrinsic evidence can be used if she doesn’t admit her mistake.

Question 31

Key principle #5:

Answer 31

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.

Question 32

Character Evidence - General rule

Answer 32

Character evidence is inadmissible to prove that someone acted in accordance with his character at the time the event occurred. (F2010)

Question 33

Civil cases:

Answer 33

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.

Question 34

Criminal cases:

Answer 34

Generally, character evidence is inadmissible in the prosecutor’s case-in-chief to prove that the defendant acted in conformity with his own character. However, the defendant in a criminal case may introduce evidence of a pertinent (relevant) character trait to prove that he acted in conformity with his character at the time in question. He can do this by reputation or opinion. Then, the prosecutor may rebut by using reputation, opinion, or cross-examining the defendant’s witness by asking about specific acts. (J2022, F2020, F2016, F2011, F2010)

Question 35

Key principle #6:

Answer 35

Sixth Amendment Confrontation Clause

Question 36

Sixth Amendment Confrontation Clause

Answer 36

If a statement is testimonial, the declarant is unavailable, and the defendant did not have the opportunity to cross-examine the declarant, then admission of the statement will violate the defendant’s right to confrontation. Note: a statement is not “testimonial” if the primary purpose of the statement is to address an ongoing emergency. (O2020, F2016, J2013)

Question 37

Key principle #7:

Answer 37

Even if evidence is relevant, it can still be excluded due to a privilege or for policy reasons.

Question 38

Privileges:

Answer 38

Privileges such as the attorney-client privilege, the spousal privileges, the physician-patient privilege (recognized in some jurisdictions), or the psychotherapist-patient privilege (recognized federally) can keep otherwise admissible evidence from being admitted. (J2020, J2018, F2008)

Question 39

Offer to settle:

Answer 39

An offer to settle is not admissible to prove the validity of a disputed claim. (F2012)

Question 40

Offer to pay medical expenses:

Answer 40

An offer to pay medical expenses is not admissible to prove liability or the existence of an injury. (F2012)

Question 41

Subsequent remedial measure:

Answer 41

This is not admissible to prove negligence or liability, but may be used for impeachment, or to prove ownership, control, or feasibility of precautionary measures if disputed. (J2020, F2012)

Question 42

Insurance:

Answer 42

The existence of an insurance policy is not admissible to prove liability, but may be used to prove agency, ownership or control, or impeachment.

Question 43

Evidence that Hugh did this:

Answer 43

Hugh made it to the end of this deck!