Evidence

Question 1

Logical Relevance 29.2%

Evidence MUST be relevant in order to be admissible. Evidence is relevant if it is both

Answer 1

Probative; AND
Evidence is probative if it has any tendency to make a fact more or less probable than it would be without the evidence.
Material.
Evidence is material if it is a fact of consequence in determining the outcome of the action.

29.2%*

Question 2

Legal Relevance 4.2%

The court may exclude relevant evidence if its probative value is **substantially outweighed **by a danger of one or more of the following:

Answer 2

Unfair prejudice;
Confusing the issues;
Misleading the jury;
Undue delay;
Wasting time; OR
Needlessly presenting cumulative evidence.

Question 3

Exclusion of Relevant Evidence for Public Policy Reasons

What are subsequent remedial measures?

SRM’s 4.2%

Answer 3

Subsequent remedial measures are actions taken after an injury or harm that make future injury less likely

(e.g., installing a handrail after a person falls down the stairs)

Question 4

Exclusion of Relevant Evidence for Public Policy Reasons

What are SRM’s not admissible to prove?

SRM’s 4.2%

Answer 4

Negligence;
Defective product or design; OR
Culpable conduct.

Question 5

Exclusion of Relevant Evidence for Public Policy Reasons

What are SRM’s admissible to prove?

SRM’s 4.2%

Answer 5

Admissible to show agency, ownership, OR control of property OR for impeachment purposes.

Question 6

Exclusion of Relevant Evidence for Public Policy Reasons

When are offers, conduct, or statements made during negotiations to settle or compromise NOT admissible?

Compromise Offers or Settlement negotiations 4.2%

Answer 6

To prove a disputed claim;
To prove an amount; OR
For impeachment purposes.

Question 7

Exclusion of Relevant Evidence for Public Policy Reasons

Are guilty pleas admissible?

Guilty Pleas less than 1%

Answer 7

Absent a knowing and voluntary waiver from the defendant, the following are NOT admissible against the defendant:

Withdrawn guilty pleas;
No contest pleas;
Statements made while negotiating with prosecutors; AND
Statements made during plea negotiations.

However, pleas and statements made during negotiations are admissible if fairness dictates or for perjury hearings.

Question 8

Exclusion of Relevant Evidence for Public Policy Reasons

Is Evidence that a person was or was not insured against liability admissible?

Liability Insurance less than 1%

Answer 8

Evidence that a person was or was not insured against liability is NOT admissible to prove whether the person acted negligently or otherwise wrongfully.

However, the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.

Question 9

Character Evidence

What is character evidence?

What are the three forms of character evidence?

25%

Answer 9

Character evidence is evidence of a person’s character or a person’s specific character trait (e.g., he is violent; she is honest; he is a reckless driver; etc.).

There are three forms of character evidence that can be presented:

Reputation in the community (e.g., “Everyone in the community knows Johnny
is violent.”);
Opinion testimony (e.g., “I personally think Johnny is a violent person.”); AND
Specific Instances (e.g., “I saw Johnny get into a bar fight last weekend.”)

Question 10

Character Evidence

Is character evidence admissible in civil cases?

When is character evidence an essential element of a claim or defense?

25%

Answer 10

In civil cases, character evidence is NOT admissible for propensity purposes (i.e., evidence of someone’s character cannot be introduced to show that they have the propensity to act in accordance with the alleged character trait), UNLESS:

Character is an essential element of a claim or defense ; OR

The case is based on the defendant’s sexual misconduct (allowed to introduce evidence of a past sexual assault or child molestation by the defendant).

When is character evidence an essential element of a claim or defense? Defamation, negligent hiring, negligent entrustment, child custody, etc.
If character is an essential element of a claim or defense, it may be shown by reputation, opinion testimony, or specific instances.

Question 11

Character Evidence

Is character evidence admissible in criminal cases?

25%

Answer 11

In criminal cases, the prosecution CANNOT introduce evidence of a defendant’s bad character to prove that the defendant has the propensity to have committed the crime in question.

However, the defendant may “open the door” and present positive character evidence as long as it is:

Pertinent to the crime charged (e.g., if the crime charged involves violence, the defendant may only put on character evidence of non-violence); AND
Through reputation or opinion testimony (NOT specific instances of conduct).

Question 12

Character Evidence

In a criminal case, if the D opens the door by presenting evidence of positive character, what then may the prosecution do?

25%

Answer 12

If the defendant opens the door by presenting evidence of positive character, the prosecution may then introduce negative character evidence (must relate to the same character trait in question) to rebut the defendant in two different ways:

The prosecution can call its own character witness. (The witness is limited to reputation or opinion testimony (NOT specific instances of conduct)); OR

The prosecution can cross-examine the defendant’s character witness (in which case prosecution can bring up D’s specific acts as long as good-faith basis for question; can’t fish)

Question 13

Character Evidence

In a criminal case, if the D opens the door by presenting evidence of positive character, and other side is cross-examining, what then may the prosecution do?

25%

Answer 13

On cross-examination, the prosecution can introduce evidence of specific instances as long as it relates to the same character trait in question (e.g., “Are you aware that the defendant was involved in a bar fight last week? Does this change your opinion of his character?”).

Tip: look for “Are you aware…” and “Have you heard…” to ID when a W is a character W being cross-examined in this fashion, and ask yourself if being properly done acc to these rules

Question 14

Character Evidence

In criminal cases, may a criminal defendant introduce reputation or opinion testimony of the victim’s character if it is relevant to one of the defenses asserted?

25%

Answer 14

A criminal defendant may introduce reputation or opinion testimony of the victim’s character if it is relevant to one of the defenses asserted. If the defendant does so, the prosecution may rebut by presenting evidence that:

The defendant possesses the same character trait; OR
The victim possesses a relevant positive character trait.
If this is done on cross-examination, the prosecution may introduce specific instances of conduct to rebut.

Question 15

Character Evidence

In cases involving rape, is evidence offered to prove a victim’s sexual behavior or predisposition admissible?

25%

Answer 15

In cases involving rape, evidence offered to prove a victim’s sexual behavior or predisposition is NOT admissible.

However, in civil cases involving sexual misconduct, evidence offered to prove a victim’s sexual behavior or misconduct may be admissible if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.

Question 16

Character Evidence

In Homicide Cases, may the prosecution admit evidence of a victim’s character for non- violence?

25%

Answer 16

In homicide Cases, the prosecution may admit evidence of a victim’s character for non- violence only if the defendant claims the victim was the aggressor (i.e., self-defense claim).

Question 17

Character Evidence

Are specific instances of conduct generally admissible to show propensity?
What are they admissible to show?
Requirements?

MIMIC 25%

Answer 17

Specific instances of conduct are generally NOT admissible to show propensity, BUT are admissible to show (M.I.M.I.C.):

Motive or opportunity;
Intent;
Absence of Mistake;
Identity; OR
Common plan or preparation.

Specific instances of conduct are admissible for MIMIC purposes if:

There is sufficient evidence to support a jury finding that the defendant committed the prior act (i.e., cannot “fish” for prior acts without proof); AND
The probative value of the specific instances of conduct is NOT substantially outweighed by the danger of unfair prejudice to the jury.

Question 18

Character Evidence

May Evidence of a person’s habit (e.g., putting on a seatbelt) or an organization’s routine practice (e.g., filing certain paperwork) be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice?

Habit and Routine Practices 8.3%

Answer 18

Yes, Evidence of a person’s habit (e.g., putting on a seatbelt) or an organization’s routine practice (e.g., filing certain paperwork) may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice.

Habit evidence must be in the form of specific instances of conduct to show person acts “semi-automatically; whereas acts like “lawbreaking” and “fighting” would be volitional on every occassion and are forms of character evidence

The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

Tip: Habit and routine practices are more specific than character evidence (look for buzz words like “always” or “every time” to signal a habit or routine practice).

Question 19

Testimonial Evidence - Impeachment – Attacking Witness Credibility

May A witness’s credibility be attacked by introducing character evidence of the witness’s untruthfulness through reputation or opinion testimony?
May a witness’s credibility be bolstered?

Character for Truthfulness 8.3%

Answer 19

Yes, A witness’s credibility may be attacked by introducing character evidence of the witness’s untruthfulness through reputation or opinion testimony.

A witness’s credibility CANNOT be bolstered. This means that evidence of truthful character may NOT be introduced until credibility has first been attacked.

Question 20

Testimonial Evidence - Impeachment – Attacking Witness Credibility

How many a witness’s credibility be attacked?
Can L use extrinsic evidence?

Character for Truthfulness 8.3%

Answer 20

On cross-examination, a witness’s credibility may be attacked with specific instances of conduct, provided that:

The specific instance regards the truthfulness of the witness;
There is a good faith belief in the prior misconduct; AND
The specific instance does NOT involve an arrest or a consequence of an arrest.

Generally, extrinsic evidence of specific instances of conduct is NOT admissible (e.g., a job application the witness lied on could be asked about on cross-examination, but the application itself could not be introduced as extrinsic evidence).

Question 21

Testimonial Evidence - Impeachment – Attacking Witness Credibility

Is evidence of a prior felony OR misdemeanor conviction involving dishonesty admissible to attack a witness’s credibility?

Prior Convictions 4.2%

Answer 21

Evidence of a prior felony OR misdemeanor conviction involving dishonesty is usually always admissible to attack a witness’s credibility (subject to the 10-year restriction).

Question 22

Testimonial Evidence - Impeachment – Attacking Witness Credibility

Is evidence of a prior felony (crime is punishable by death or imprisonment for more than one year) that does NOT involve dishonesty admissible?

Prior Convictions 4.2%

Answer 22

If the W is the criminal D, evidence of a prior felony (crime is punishable by death or imprisonment for more than one year) that does NOT involve dishonesty is admissible IF it is legally relevant (i.e., probative value is not substantially outweighed by the danger of unfair prejudice). (see evi Q47 in “Strategies and Tactics” for ex)

For other W’s, convictions for felonies are allowed whether or not they involved dishonesty (as long as within 10 years).

However, if more than 10 years has elapsed since conviction or release (whichever is later) of ANY crime, the prior conviction is subject to a reverse legal relevance test. The party introducing the evidence must show that the probative value of the conviction substantially outweighs the danger of unfair prejudice.

Evidence of a prior conviction is NOT admissible if the conviction was:
Pardoned;
Annulled; OR
Later found innocent.

Question 23

Testimonial Evidence - Impeachment – Attacking Witness Credibility

May a witness’s credibility be attacked by introducing the witness’s prior inconsistent statements?

Prior Inconsistent Statements 4.2%

Answer 23

A witness’s credibility may be attacked by introducing the witness’s prior inconsistent statements. Extrinsic evidence may only be introduced if the witness is given an opportunity to explain or deny the prior inconsistent statement.

However, extrinsic evidence of a prior inconsistent statement CANNOT be used to attack the witness’s credibility regarding a collateral matter (i.e., an irrelevant matter).

Question 24

Testimonial Evidence - Impeachment – Attacking Witness Credibility

To discredit W, what types of questions may be used?

Prior Inconsistent Statements 4.2%

Answer 24

There are five general types of questions that may be used to elicit intrinsic impeachment from a witness. They are questions seeking to show (1) bias or interest; (2) prior inconsistent statements; (3) certain prior convictions; (4) bad character for honesty (including unconvicted bad acts); and (5) sensory deficiencies (e.g., eyesight, memory, mental disability).

Question 25

Testimonial Evidence - Impeachment – Attacking Witness Credibility

May a witness’s credibility be attacked by showing that the witness has a deficiency in her ability to perceive, recall, or relate information?

Sensory Competence 4.2%

Answer 25

A witness’s credibility may be attacked by showing that the witness has a deficiency in her ability to perceive, recall, or relate information (e.g., memory loss) that is NOT collateral (i.e., must be a relevant matter).

Question 26

Testimonial Evidence - Impeachment – Attacking Witness Credibility

When a hearsay statement has been admitted in evidence, may the declarant’s credibility be attacked?
May the attack be supported by evidence?

Attacking and Supporting the Declarant 4.2%

Answer 26

When a hearsay statement has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness.

The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it.
If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

Question 27

Testimonial Evidence - Opinion Testimony

What is a lay W?

Lay W 4.2%

Answer 27

A lay witness is any person who gives testimony that is not termed as an expert. Lay witnesses are presumed competent unless proven otherwise. Questions about mental competence go to the weight of the evidence, not admissibility.

Question 28

Testimonial Evidence - Opinion Testimony

What testimony may a lay witness offer?

Lay W 4.2%

Answer 28

If a witness is NOT testifying as an expert, testimony in the form of an opinion is limited to one that is:

Rationally based on the witness’s perception;
Helpful to clearly understanding the witness’s testimony or to determining a
fact in issue; AND
NOT based on scientific, technical, or other specialized knowledge within the scope of an expert witness.

Question 29

Testimonial Evidence - Opinion Testimony

Who is an expert witness?
What form can they testify in?

Expert W less than 1%

Answer 29

Expert witnesses may testify in the form of an opinion or otherwise if:

The expert witness is qualified by possessing sufficient knowledge, skill,
experience, training, or education;
The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
The testimony is based on sufficient facts or data;
The testimony is the product of reliable principles and methods; AND
The expert has reliably applied the principles and methods to the facts of the case.

Question 30

Testimonial Evidence - Opinion Testimony

May an expert may give an opinion regarding an ultimate issue?
Opinion on whether a criminal defendant had the requisite mental state for the crime charged?

Expert W less than 1%

Answer 30

An expert may give an opinion regarding an ultimate issue

However, an expert CANNOT give an opinion as to whether a criminal defendant had the requisite mental state for the crime charged (i.e., an expert cannot make decisions intended for the jury).

Question 31

Testimonial Evidence - Testimonial Privileges

Under federal law, may a witness in a valid marriage refuse to testify against her spouse in a criminal proceeding?
Who holds the privilege and may choose whether or not to testify?

Spousal Immunity 4.2%

Answer 31

Under federal law, a witness in a valid marriage may refuse to testify against her spouse in ANY criminal proceeding (including a grand jury).
Must be married at the time of the proposed testimony.

In federal court and the majority of states, the witness-spouse holds the privilege and may choose whether or not to testify.
In a minority of states, the defendant-spouse holds the privilege and may prevent the witness-spouse from testifying.

Question 32

Testimonial Evidence - Testimonial Privileges

Are communications between spouses privileged?

How is this different from spousal immunity?

Confidential Marital Communications 4.2%

Answer 32

Communications between spouses are privileged if the communications were:
Made DURING the course of a valid marriage; AND
Intended to be confidential (e.g., “pillow talk”).

Unlike spousal immunity, this privilege:
Is held by both spouses (i.e., either spouse may assert it and BOTH must waive it);
Applies to BOTH criminal AND civil proceedings; AND
Extends beyond the end of the marriage (i.e., may be asserted even if the spouses are divorced).

Question 33

Testimonial Evidence - Testimonial Privileges

When does the A-C privilege not apply?

A-C priv less than 1%

Answer 33

The attorney-client privilege does NOT apply when:

Legal services are sought to further a crime or fraud;
There is litigation involving a dispute between the attorney and client (e.g., malpractice suits); OR
Co-clients are later adverse parties involved in civil litigation against each other.
The client holds the privilege and it exists until the client waives it (even after the client’s death). Intentional disclosure of confidential communications to a third party constitutes a valid waiver of attorney-client privilege. Inadvertent disclosure does NOT waive privilege if the client took reasonable steps to prevent and rectify the disclosure.

Question 34

Testimonial Evidence - Testimonial Privileges

When are communications between an attorney and client privileged?

What if the client is a corporation?

A-C priv less than 1%

Answer 34

Communications between an attorney and a client or a person seeking to become a client are privileged if the communications were:
Made to facilitate legal services; AND
Intended to be confidential.
If the client is a corporation:
Some states limit attorney-client privilege to the control group members (e.g., directors and officers).
Under federal law, attorney-client privilege extends to non-control group members if they are communicating to seek legal advice for the corporation.

Question 35

Documentary Evidence - Authentication of Tangible Evidence

What is required for authentication with an automatic device such as a camera that takes pictures?

Authentication 4.2%

Answer 35

When an automatic device takes a picture, only a limited type of authentication is needed. A witness must testify about how the machine works, and that testimony must somehow tie the photo to the issue under question (e.g., “The photo was taken at 2:45 a.m. on Aug. 23rd, the same time a burglar alarm went off indicating that the premises had been broken into.”)

Beyond that, no expert witness is required to point out the similarities between the photo and the defendant — the jury is entitled to make the comparison itself.

Question 36

Documentary Evidence - Authentication of Tangible Evidence

What is tangible evidence?
What tangible evidence must be authenticated?
What does authentication require?

Answer 36

Tangible evidence is any evidence not presented as oral or verbal testimony (e.g., letters, contracts, weapons, drug paraphernalia, videos, photographs, etc.).
All tangible evidence must be authenticated.

Authentication requires that a party show that the item being introduced as evidence is what the party claims it to be.

Question 37

Documentary Evidence - Authentication of Tangible Evidence

How does a party authenticate physical evidence?

Authentication 4.2%

Answer 37

Physical evidence (e.g., weapons, clothing, videotapes, etc.) may be authenticated through:

Witness testimony (i.e., personal knowledge of the witness who has familiarity with the object); OR
Chain of custody (i.e., witness can verify the whereabouts of the evidence from collection to trial)

Question 38

Documentary Evidence - Authentication of Tangible Evidence

How does a party authenticate documentary evidence (e.g., letters, contrats, etc.)?

Authentication 4.2%

Answer 38

Documentary evidence (e.g., letters, contracts, etc.) may be authenticated through:

Stipulation (both parties agree);
Witness testimony; OR
Handwriting verification

For handwriting verification:

An expert witness or trier of fact can verify handwriting by comparing the writing in question with another writing that has been proven to be genuine.
A non-expert witness with personal knowledge of the handwriting in question can verify the handwriting (e.g., a father may be able verify his son’s handwriting). A non-expert cannot become familiar with the handwriting in order to prepare for litigation.

Question 39

Documentary Evidence

What documents are self-authenticating?

Authentication 4.2%

Answer 39

The following documents are self-authenticating and do NOT require extrinsic proof of authenticity:

Public documents bearing a seal;
Certified copies of public records;
Official publications issued by a public authority;
Newspapers and periodicals;
Notarized documents;
Commercial paper;
Trade inscriptions (i.e., affixed signs, tags, or labels indicating origin, ownership, or control – e.g., clothing tags); AND
Records of regularly conducted business activity certified by a custodian of the records.

Question 40

Documentary Evidence

How are oral statements authenticated?

Authentication 4.2%

Answer 40

Oral statements may be authenticated by any person who has heard the person’s voice through any means (e.g., electronic recordings or live). It is irrelevant whether the voice was heard in preparation for litigation.

“An opinion identifying a person’s voice — whether heard firsthand or through mechanical or electronic transmission or recording — based on hearing the voice at any time under circumstances that connect it with the alleged speaker.”

No requirement that the giver of the opinion must be positive in the ID (can just say the voice was similar or not sure)

Question 41

Does BER apply to events that have by happenstance been recorded?

Answer 41

No, only applies where the terms of the recording, per se, are what are being sought to be proved.

Eg, V made tape of call and testifying as to the distinctness of D’s voice (BER does not require intro of tape)
EG, extortion occurred when someone sent a threatening tape to victim — then the recording would be subject to the BER, because the prosecution’s case would require it to show what the contents of the tape were.

Question 42

Best Evidence Rule (Original Document Rule)

When must a party provide the original document or an accurate duplicate?
What documents does this apply to?
When is a handwritten copy of an original admissible?

Best Evidence Rule less than 1%

Answer 42

A party MUST provide the original document (applies to writings, recordings, photographs, electronic documents, x-rays, and videos) or an accurate duplicate when:

The contents of the document are at issue; OR
The witness is relying on the document when testifying.

A handwritten copy of an original is NOT an accurate duplicate and is only admissible when the original or duplicate is lost, destroyed, or otherwise unobtainable.

Question 43

Best Evidence Rule (Original Document Rule)

May a witness refer to collateral documents without having to produce the documents themselves?

Less than 1%

Answer 43

Yes, while BER requires when witness testifying relying on a writing or when the terms of the writing are being proven for the document to be produced, a witness may refer to collateral documents without having to produce the documents themselves.

For example, the only relevance the writing has is that it reinforces the defendant’s memory (eg, I remember when he called because I had just read in the newspaper about the death of JFK)

Question 44

For the excited utterance exception to hearsay, can the utterance be made in response to a officer’s question who just arrived on the scene soon after occurrence?

Answer 44

Yes, this would usually have no impact on whether excited utterance exception applies, unless the police questioning was suggestive

Question 45

When does the use of an out-of-court statement by the prosecutor violate a defendant’s Sixth Amendment rights, even if the statement falls within a hearsay exception

Answer 45

if (1) the statement was “testimonial,” (2) the witness who made the statement is unavailable to testify at trial, and (3) the defendant has not had an opportunity to cross-examine the witness before trial.

Question 46

What statements are considered “testimonial”?

Answer 46

testimonial statements are “made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial”

“interrogations by law enforcement officers fall squarely into that class [of testimonial statements]”

Question 47

What statements are NOT considered testimonial?

Answer 47

Non-testimonial statements are made under circumstances that would lead an objective witness reasonably to believe that the statement would be NOT available for use at a later trial

statements to the police “under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency” are nontestimonial

a range of factors that might be used to determine the existence of an “ongoing emergency” include
(1) the nature of the dispute,
(2) the scope of the potential harm to the victim,
(3) the threat to additional identifiable victims,
(4) the existence of a more generalized threat to the public,
(5) the suspect’s choice of weapon, and
(6) whether the suspect remained “at large” or had been located (but not yet apprehended) by the police and/or any other “first responders.”

Question 48

Is lay witness voice identification admissible?

Answer 48

“[a] statement . . . is not hearsay [when] [t]he declarant testifies and is subject to cross-examination about a prior statement, and the statement . . . identifies a person as someone the declarant perceived earlier.”

Lay witness voice identification based on prior familiarity with a voice is typically admissible unless it has been tainted by impermissibly suggestive questioning or investigative procedures

Expert testimony is not normally required.

Question 49

Generally, is character evidence allowed?

Answer 49

“[e]vidence of a person’s character or a character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.”

Question 50

When is evidence of crimes, wrongs, or other acts committed by the D allowed?

Answer 50

evidence of crimes, wrongs, or other acts “may be admissible for another [non-propensity] purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

Question 51

Hearsay

What statements are considered “Non-hearsay”?

Statements that are non-hearsay 33.3%

Answer 51

an out-of-court statement is NOT offered to prove the truth of the matter asserted, the statement is NOT hearsay and is admissible

Prior inconsistent statements

Prior consistent statements

Prior statements of identification

Admissions by a party opponent

Question 52

Hearsay

What are some common examples of statements that are NOT offered to prove the truth of the matter asserted (thus are admissible)?

Statements that are non-hearsay 33.3%

Answer 52

Common examples of statements that are NOT offered to prove the truth of the matter asserted (thus are admissible) include:

Verbal acts of independent legal significance (i.e., the statement is offered to prove that the statement itself was made, irrespective of its truth – e.g., defamatory statements, threats, notice etc.);
Statements offered to show the effect on the listener;
Statements offered to show the declarant’s mental state or state of mind; AND
Statements offered for impeachment purposes.

Question 53

Hearsay

When are Prior inconsistent statements admissible?
What purposes are they admissible for?

Statements that are non-hearsay 33.3%

Answer 53

The declarant is testifying at trial and is subject to cross-examination;
The statements were previously made under penalty of perjury (i.e., under oath); AND
The prior statements are inconsistent with present testimony being given at trial.

If fit all of above, then admissible for substantive purposes;
If the statements were NOT previously made under penalty of perjury, they can be offered only for impeachment (or rehabilitative) purposes (not substantive purposes).

For instance, suppose a teller was an eyewitness to a robbery, and gave an informal statement to the police one day later (“The robber had red hair.”) At trial, the lawyer for the red-haired accused calls the teller, who testifies, “The robber had brown hair.” The prosecution, in cross, asks the teller, “Didn’t you tell the police that the robber had red hair?” This prior inconsistent statement is hearsay that is not substantively admissible (i.e., not admissible to prove that the robber actually had red hair), because a prior inconsistent statement is admissible under FRE 801(d)(1) (A)’s hearsay exclusion only if it was made “under penalty of perjury at a trial, hearing, or other proceeding or in a deposition,” and the statement to the police here doesn’t qualify. But the statement is admissible for the non-substantive purpose of impeaching the teller’s credibility.

Question 54

Hearsay

What are prior consistent statements admissible for?
When are prior consistent statements admissible?

Statements that are non-hearsay 33.3%

Answer 54

to rebut a claim that the declarant is fabricating or has a recent motive to fabricate the statement in court

if:
The declarant is testifying at trial and is subject to cross-examination;
AND
The prior consistent statement was made before the declarant had a motive to fabricate the statement.

Question 55

Hearsay

What are they admissible for?

When are prior statements of identification admissible?

Statements that are non-hearsay 33.3%

Answer 55

Prior statements of identification (e.g., prior out-of-court identifications in lineups, photo arrays, etc.) are admissible for substantive purposes

if the declarant is testifying at trial and is subject to cross-examination.

Question 56

Hearsay

What is the common factor in the requirements for the substantive use of prior inconsistent statements, prior consistent statements, and statements of identifications.

Statements that are non-hearsay 33.3%

Answer 56

The one commonly-encountered factor that makes prior statements of these three types inadmissible is that the facts do not satisfy the “presently testifying witness” requirement

TIP: therefore, whenever an answer choice on the MBE mentions a prior identification, prior inconsistent statement, or prior consistent statement, you can eliminate common distractors easily by checking to see if the declarant is currently testifying. If he isn’t, that answer can’t possibly be correct!

Question 57

What are admissions by a party opponent?

Does this include adoptive admissions?

Vicarious admissions?

Statements that are non-hearsay 33.3%

Answer 57

Admissions by a party opponent are prior out-of-court statements made by a party to the current litigation that are offered by the opposing party

admissible as non-hearsay.

Yes, Adoptive Admissions. Silence is considered an adoptive admission if the party heard and understood the statement and remained silent where a reasonable person would have denied the statement.

Yes, Vicarious Admissions. Statements made by an authorized spokesperson, an agent within the scope of and during the agency relationship (or on a matter that occurred during their scope of employment and still employed by the company), or co-conspirators during and in furtherance of the conspiracy are considered vicarious admissions and are imputed on the party opponent.

Question 58

Hearsay Exceptions — Declarant Unavailability is Required

When is a declarant deemed to be unavailable as a witness

Unavailability Requirement 8.3%

Answer 58

A declarant is deemed to be unavailable as a witness if the declarant:
Is exempted from testifying because the court rules that a privilege applies;
Refuses to testify despite a court order to do so;
Testifies to not remembering the subject matter;
Cannot be present or testify because of a death or then-existing infirmity, physical illness, or mental illness; OR
Is absent and the statement’s proponent has not been able, by process or other reasonable means to procure the declarant’s attendance.

Question 59

Hearsay Exceptions — Declarant Unavailability is Required

What are the four hearsay exceptions that apply only if the declarant is deemed unavailable?

Unavailability Requirement 8.3%

Answer 59

The following four hearsay exceptions apply only if the declarant is deemed unavailable:

Former testimony;
Dying declarations;
Statements against interest; AND
Forfeiture by wrongdoing.

Question 60

Hearsay Exceptions — Declarant Unavailability is Required

When is former testimony admissible?

4.2%

Answer 60

Former testimony is admissible if:
The declarant is unavailable;
The statement was prior testimony given at a trial hearing or deposition; AND
The opposing party had an opportunity and similar motive to develop the testimony through cross or direct examination.
Prior testimony at a grand jury does NOT qualify as former testimony

Question 61

Hearsay Exceptions — Declarant Unavailability is Required

When is a dying declaration admissible

<1%

Answer 61

The dying declaration exception is ONLY available in homicide AND civil cases.

A statement is admissible if:
The declarant is unavailable;
The declarant believed that her death was imminent when she made the statement (i.e., declarant does NOT have to actually die); AND
The statement pertains to the cause or circumstances of her death.

Question 62

Hearsay Exceptions — Declarant Unavailability is Required

When is a statement against interest admissible?

<1%

Answer 62

A statement is admissible if:

The declarant is unavailable;

The statement is against the declarant’s self-interest (I.e., The statement exposes the declarant to civil or criminal liability or potential economic loss); AND

A reasonable person would NOT have made the statement unless he believed it to be true.

Question 63

Hearsay Exceptions — Declarant Unavailability is Required

What is a forfeiture by wrongoing?

Does the “wrongdoing” need to be criminal in nature?

<1%

Answer 63

A party forfeits her hearsay objection if the party intentionally or wrongfully makes the declarant unavailable to testify as proven by a preponderance of the evidence (i.e., statements that would normally be inadmissible hearsay can be introduced against the wrongdoer through forfeiture by wrongdoing).

The act that makes the witness unavailable need NOT be criminal to qualify as forfeiture by wrongdoing (e.g., sending someone away on vacation to a foreign country).

Question 64

Hearsay Exceptions – Declarant Availability is Immaterial

What is the** present sense impression** exception to hearsay rule?

12.5%

Answer 64

A present sense impression is admissible as a valid exception to the hearsay rule. A present sense impression is a statement made by the declarant in which she describes an event as it takes place or immediately thereafter.

Question 65

Hearsay Exceptions – Declarant Availability is Immaterial

What is the excited utterance exception to hearsay rule?

12.5%

Answer 65

An excited utterance is admissible as a valid exception to the hearsay rule. An excited utterance is a statement that concerns a startling event, made by the declarant when the declarant is still under stress from the startling event.

Question 67

Hearsay Exceptions – Declarant Availability is Immaterial

What is the recorded recollection exception to hearsay rule?

4.2%

Answer 67

Recorded Recollection (aka past recollection recorded) involves a writing made or adopted by the witness that accurately reflects their personal knowledge (opposing counsel may allow the writing to be admitted into evidence).

Tip: it will be quite rare on the MBE for a document to fall within the exception for past recollection recorded. The exception imposes so many requirements, and it would take so much language in the fact pattern to specify that all requirements have been met, that the examiners are much more likely to use PRR as a wrong choice than as the right one.

Question 68

Hearsay Exceptions – Declarant Availability is Immaterial

When may the record of a recorded recollection be read into evidence?

4.2%

Answer 68

The record may be read into evidence if the witness cannot recall events or information provided that:
The record is about a matter the witness once had personal knowledge of;
The record was made or adopted by the witness when the matter was fresh in
the witness’s mind.
The record accurately reflects the witness’s personal knowledge; AND
The witness can no longer recall the events or information well enough to testify, even after reviewing the writing while on the stand.

Under recorded recollection, the record may be read into evidence; however ONLY opposing counsel can decide to enter it as an exhibit.

Tip: it will be quite rare on the MBE for a document to fall within the exception for past recollection recorded. The exception imposes so many requirements, and it would take so much language in the fact pattern to specify that all requirements have been met, that the examiners are much more likely to use PRR as a wrong choice than as the right one.

Question 69

Hearsay Exceptions – Declarant Availability is Immaterial

What is the state of mind exception to hearsay rule?

Does this include a statement regarding memory, a past belief, or a past state of mind?

4.2%

Answer 69

A statement of the declarant’s then-existing state of mind (e.g., motive, intent, or plan) OR emotional, sensory, or physical condition (e.g., mental feeling, pain, or bodily health) is admissible to prove the declarant’s state of mind or the declarant’s conduct.

Tip: may be seen on MBE as, “a statment of then-existing physical condition” Note this only applies to the declarant’s statements. So if doctor writes down diagnosis, this would not be covered by this exception (but may come in as a statement reasonably pertinent to medical diagnosis/treatment that describes medical history, sempytons, inception or general cause).

A statement regarding memory, a past belief, or a past state of mind to prove the fact remembered or believed is NOT admissible unless it relates to the validity or terms of the declarant’s will.

Question 70

Hearsay Exceptions – Declarant Availability is Immaterial

What is the medical diagnosis/treatment exception to hearsay rule?

12.5%

Answer 70

A statement of a person’s past or present condition is admissible so long as it is made for the purpose of medical diagnosis or treatment. The statement is admissible even if it is made:
To nurses, family members, or any other non-medical individuals; OR
To enable a physician to testify at trial (as long as the statement is made for medical diagnosis or treatment, it is admissible).

Question 71

Hearsay Exceptions – Declarant Availability is Immaterial

What is the recorded recollection exception to hearsay rule?

When may the record be read into evidence?

4.2%

Answer 71

Recorded Recollection (aka past recollection recorded) involves a writing made or adopted by the witness that accurately reflects their personal knowledge (opposing counsel may allow the writing to be admitted into evidence).

The record may be read into evidence if the witness cannot recall events or information provided that:
The record is about a matter the witness once had personal knowledge of;
The record was made or adopted by the witness when the matter was fresh in
the witness’s mind.
The record accurately reflects the witness’s personal knowledge; AND
The witness can no longer recall the events or information well enough to testify, even after reviewing the writing while on the stand.

Under recorded recollection, the record may be read into evidence; however ONLY opposing counsel can decide to enter it as an exhibit.

Tip: it will be quite rare on the MBE for a document to fall within the exception for past recollection recorded. The exception imposes so many requirements, and it would take so much language in the fact pattern to specify that all requirements have been met, that the examiners are much more likely to use PRR as a wrong choice than as the right one.

Question 72

Hearsay Exceptions – Declarant Availability is Immaterial

What is the difference between present recollection refreshed and recorded recollection?

4.2%

Answer 72

Present Recollection Refreshed is an evidentiary rule that allows a witness to glance at almost any item (usually a writing) to refresh her memory while on the stand (the item is taken away while the witness is testifying and it is NOT admitted into evidence).
If used while W on stand, opposing party has right to examine the item.
If, on the other hand, the witness merely consulted the writing before taking the stand, 612(a) says that the rights of inspection, cross- examination, etc. quoted above from 612(b), apply only “if the court decides that justice requires the party to have those options.”

Recorded Recollection involves a writing made or adopted by the witness that accurately reflects their personal knowledge (opposing counsel may allow the writing to be admitted into evidence).

Question 73

Hearsay Exceptions – Declarant Availability is Immaterial

What is the business records exception to hearsay rule?

When is a business record NOT admissible?

Answer 73

A business record is admissible as a valid exception to the hearsay rule if the record is:

Kept in the course of regularly conducted business; AND
Made by a person with knowledge of the matter at or near the time of the matter’s occurrence (e.g., a secretary who logs calls as they come in).

A business record is NOT admissible if the opponent can show that the source or preparation of the record lacks trustworthiness.

Question 74

Constitutional Limitations

What is the Confrontation Clause?

6th Amendment Confrontation Clause 8.3%

Answer 74

The Confrontation Clause guarantees a person accused of a crime the right to confront witnesses against him in a criminal action (i.e., the right to be present at trial and the right to cross-examine the prosecution’s witnesses).

Question 75

Constitutional Limitations

When does the use of an out-of-court statement (even if it falls under a valid hearsay exception or) testimonial privilege) violates the defendant’s constitutional rights under the Confrontation Clause?

6th Amendment Confrontation Clause 8.3%

Answer 75

The use of an out-of-court statement (even if it falls under a valid hearsay exception or) testimonial privilege) violates the defendant’s constitutional rights under the Confrontation Clause if:

The proceeding is a criminal action (not civil);
The statement is testimonial;
A statement is testimonial if the declarant would reasonably expect
that the statement would be used for prosecution purposes.
The declarant is unavailable to be cross-examined at trial; AND
The defendant did NOT have an opportunity to cross-examine the declarant at a proceeding prior to trial.

Question 76

Constitutional Limitations

When are statements made to police considerered testimonal?

6th Amendment Confrontation Clause 8.3%

Answer 76

A common issue is whether statements made to police are testimonial. A statement made to police whose primary purpose is to collect evidence to be used in a future criminal prosecution is testimonial. A statement made to police whose primary purpose is to provide assistance in an ongoing emergency is NOT testimonial.

Question 78

Judicial Notice of Fact

What is judicial notice?

What is the effect of judicial notice on civil juries?
Criminal?

Answer 78

Judicial notice allows a court to accept indisputable facts as true without requiring formal proof, if the facts are:
Commonly known in the community (e.g., the sky is blue); OR
Readily capable of verification (e.g., the capital of Colombia is Bogotá).

Civil juries MUST accept judicial notice of a fact as true.
Criminal juries may or may not accept judicial notice of a fact as true.

Question 79

Tips

How do you analyze a “hearsay within hearsay” question?

Answer 79

Anytime the evidence in question consists of an out-of-court statement by A repeating another out-of-court statement by B, you have to analyze both A’s statement and B’s statement — if either statement is hearsay not falling within any exception, the combined statement cannot come in.

Question 80

Do hearsay rule apply during grand jury?
Do privileges apply during grand jury proceedings?

Answer 80

No, hearsay rules do not apply to exclude evidence during grand jury.
Yes, privileges very much do apply during grand jury proceedings.

Question 81

What’s an example of the absence of mistake (under MIMIC) exception to when character evidence would otherwise be inadmissible?

Answer 81

A defendant is on trial for the murder of his father. The defendant’s defense is that he shot his father accidentally. The prosecutor calls a police officer as a witness to testify that on two occasions in the year prior to this incident, he had been called to the defendant’s home because of complaints of loud arguments between the defendant and his father, and had found it necessary to stop the defendant from beating his father.
The evidence is

(A) inadmissible, because it is improper character evidence.
778
(B) inadmissible, because the officer lacks firsthand knowledge of who started the quarrels.
**(C) admissible to show that the defendant killed his father intentionally.
**(D) admissible to show that the defendant is a violent person.

Explanation: The defendant has claimed that the shooting was accidental, and the prosecution is offering the prior beatings to show “absence of mistake or lack of accident.” So the evidence is admissible.

Question 82

Exclusion of W’s

Shall the court exclude witnesses at the request of a party?

Answer 82

Yes, the court shall exclude witnesses at the request of a party.

FRE 615 says that “At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony.”

The purpose of the sequestration rule is to prevent the witness from tailoring his testimony to that of other witnesses.

If an witness has already testified and is expected to be recalled for further cross-examination means that he’s still to be treated as a witness who has not yet testified.

Question 83

Hearsay Exceptions

What is the learned treatise hearsay exception?
Can it be read into evidence? admitted as exhibit?f

Learned Treatise exception less than 1%

Answer 83

A statement in a learned treatise can be “read into evidence” (but cannot be admitted as an exhibit) if (1) an expert witness relies on it on direct examination or it’s called to his attention on cross-examination; and (2) the publication is established as reliable authority by the present witness’s testimony or admission by another expert’s testimony or by judicial notice.

Question 84

What is an example of a W’s prior statement being non-hersay (and thus adsmissible) if it “identifies a person as someone the declarant perceived earlier”?

Answer 84

W ID’s D when being interrogated by cops, then called as W by D and says it was not D who committed crime…prosecution can ask about the prior ID statement and will not be considered hearsay.

Question 85

Can the court consider hearsay when deciding admissibility of evidence?

Answer 85

Yes, FRE 104(a) says that “[t]he court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.”