Evidence

Question 1

Hearsay

Answer 1

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.” Hearsay is not admissible unless it comes within an exception.

Question 2

Confrontation Clause and Hearsay

Answer 2

Under Confrontation Clause, a hearsay statement will not be admitted when it is offered against eh accused; the declarant is unavailable; the statement was testimonial in nature; and the accused has no opportunity to cross-examine the statement

Question 3

Double hearsay (hearsay within hearsay)

Answer 3

Double hearsay (hearsay within hearsay) is admissible only if both layers fall within an exception.

Question 4

Hearsay Exceptions:

Answer 4

Business Records Exception
Medical Diagnosis or Treatment
Present Sense Impression
Excited Utterance

Question 5

A declarant is unavailable if they:

Answer 5

are unable to testify due to death or physical or mental illness; are exempt from testifying because of privilege; refuse to testify concerning the statement despite a court order; testify that they do not remember the subject matter; or are absent (beyond the reach of the court’s subpoena) and the proponent is unable to procure their testimony by process.

Question 6

Nonhearsay when declarant is unavailable

Answer 6

Former Testimony (under oath)
Statement Against Interest
Dying Declarations (homicide and civil cases only)
Statement of Personal or Family History
Statement Against Party Procuring Unavailability

Question 7

Statement Against Party Procuring Unavailability (when declarant is unavailable)

Answer 7

An unavailable declarant’s hearsay statements are admissible against the party who cause their unavailability by deliberate wrongdoing.

Question 8

Statement of Personal or Family History (when declarant is unavailable)

Answer 8

Statements by unavailable declarant concerning birth, death, and other family matters admissible if: declarant is member of or intimately associated with family, and statements are based on declarant’s personal knowledge of facts or family’s reputation

Question 9

Dying Declarations (homicide and civil cases only) (when declarant is unavailable)

Answer 9

Statements made by the Declarant where they believe that death is imminent and concerning the cause or circumstances of their death are exceptions to the hearsay rule. The Declarant does not need to have died as a result.

Question 10

Statement Against Interest (when declarant is unavailable)

Answer 10

Statements against interest are exceptions to the hearsay rule where the Declarant knew that the statement was against her pecuniary, proprietary, or penal interest when made.

Question 11

Non-hearsay (statement against party opponent)

Answer 11

• Statements by an Opposing Party: A statement by or attributable to a party, offered against that party (need not be against interest) is non hearsay.
  
  • An adoptive statement or a party’s silence in the face of an accusation is non hearsay.
  • Statements made by the party’s authorized spokesperson, agent, co-conspirator, etc. are non hearsay (vicarious statements).

Question 12

Non-hearsay (statement of testifying witness)

Answer 12

• Prior Inconsistent Statement of A Testifying Witness, when made under oath at a prior proceeding or deposition, are non hearsay.
• Prior Consistent Statement of a Testifying Witness, in certain circumstances, when offered to rehabilitate an impeached witness are non hearsay.
• Prior Statement of Identification of a Testifying Witness like photo identifications are non hearsay.

Question 13

Logical Relevance (start each evidence essay with this)

Answer 13

• Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence more or less probable than it would be without the evidence.
• All relevant evidence is admissible. However, even relevant evidence may be barred by the hearsay rule.
• A judge also has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by: Unfair prejudice, Confusion of issues, Misleading the jury, and Undue consumption of time.

Question 14

Character Evidence (General Rule)

Answer 14

Generally, character evidence describes a person’s disposition is generally not admissible to prove conformity. It is rarely admissible in civil cases unless character is directly at issue and is only admissible in criminal cases when the defendant opens the door.

Question 15

MIMIC

Answer 15

• Non-character purposes for offering evidence of a person’s other crimes, wrongs, or acts include “MIMIC”: Motive, Intent, Mistake (absence of), Identity, Common plan or scheme

Question 16

Defendant’s Character: (Civil Case)

Answer 16

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 17

Defendant’s Character: (Criminal Case)

Answer 17

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 to show the character witness’s lack of knowledge.

Question 18

Witness’s Character: (Bad Acts and Extrinsic Evidence:)

Answer 18

Generally, a witness can be impeached on cross by inquiry into a specific act of misconduct that is probative of truthfulness. The witness may not be impeached by extrinsic evidence of bad acts. If, on cross, the witness denies the act, extrinsic evidence cannot be offered to refute the answer.

Question 19

Witness’s Character: (Crimes)

Answer 19

• A witness’s character for truthfulness may be attacked by (1) any felony, or (11) any crime, if it can be readily determined that conviction of the crime required proof or admission of an act of dishonesty or false statement
  
  • However, if a conviction is for a felony that does not involve dishonesty or false statement, the court has discretion to exclude it if it fails the Rule 403 balancing test.e., if the probative value of introducing the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, etc.