Evidence

Question 1

Approach to hearsay questions:

Answer 1

Define hearsay: an out-of-court statement offered in evidence to prove the truth of the matter asserted.

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

Analyze exceptions.

Question 2

Excited utterance hearsay exception:

Answer 2

Statement relating to a startling event or condition made while the declarant was under the stress or excitement that it caused

Question 3

Present sense impression hearsay exception

Answer 3

A statement describing or explaining an event or condition made while or immediately after the declarant perceived it.

Question 4

Statement for purpose of medical treatment or diagnosis—hearsay exception

Answer 4

Must be made for and reasonably pertinent to medical diagnosis or treatment and describe medical history, past or present symptoms/sensations, their inception, or their general cause.

Question 5

Business records hearsay exception

Answer 5

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.

Question 6

Recollection recorded hearsay exception

Answer 6

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 (proponent may not offer it as an exhibit).

Question 7

Then-existing state of mind hearsay exception

Answer 7

Statement shows a declarant’s mental, emotional, or physical condition (including motive, intent, or plan)

Question 8

Prior statement of identification hearsay exclusion

Answer 8

A witness’s prior identification is not considered hearsay

Question 9

Opposing party’s statement—hearsay exclusion

Answer 9

A statement made by an opposing party and offered against them is not hearsay

Question 10

Statement against interest

Answer 10

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 tendency to expose the declarant to civil or criminal liability. Declarant must be unavailable.

Question 11

Public records hearsay exception

Answer 11

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.

Question 12

Relevancy

Answer 12

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.

Question 13

Admissibility

Answer 13

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 14

Generally, a lay witness must have ___ of the matter she testifies about.

Answer 14

Personal knowledge. Her opinion must be rationally based on her perception, helpful, and not based on scientific, technical, or specialized knowledge.

Question 15

An expert witness does not need ___ but…

Answer 15

Personal knowledge; 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).

Question 16

General rule for impeachment

Answer 16

Any party may impeach a witness (Even the party that called the witness).

Question 17

Seven ways to impeach a witness:

Answer 17

Prior inconsistent statement
Bias/interest
Conviction of a crime
Bad acts
Reputation or opinion for untruthful ness
Sensory deficiencies
Contradiction

Question 18

Prior inconsistent statements

Answer 18

These can be used as substantive evidence if they fall within a hearsay exception/exclusion.

The witness must be given the opportunity to explain/deny the statement if extrinsic evidence is used, unless the witness is the opposing party, not available, or if the interests of justice so require

Question 19

Bias/interest

Answer 19

Witness must be confronted on the stand.

Extrinsic evidence can only be used if the witness is asked about the bias first.

Question 20

Conviction of a crime.

Answer 20

Whether the conviction can be used depends on: 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, whichever later, generally not admissible) and (only in criminal cases), whether the witness is a defendant (less likely to be admitted if witness is a defendant—probative value must outweigh prejudicial effect).

Question 21

Bad acts

Answer 21

Questioning about acts that are probative of truthfulness or untruthful ness is permitted.

Extrinsic evidence not permitted.

Question 22

Reputation or opinion for untruthfulness

Answer 22

Witness cannot testify to specific facts.

Question 23

Sensory deficiencies

Answer 23

Ability to observe, remember, or relate accurately. Extrinsic evidence is permitted.

Question 24

Contradiction

Answer 24

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

Question 25

Generally, character evidence is not admissible to prove ___.

Answer 25

Conformity.

Question 26

Character evidence is admissible in civil cases if:

Answer 26

Character is directly at issue—negligent entrustment/hiring; defamation; child custody.

Reputation, opinion, and specific acts can be used.

Question 27

Character evidence in criminal cases:

Answer 27

Generally inadmissible in the prosecutor’s case-in-chief to prove that the defendant acted in conformity with his own character.

The defendant in a criminal case may introduce evidence of a pertinent 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 prosecution may rebut by using reputation, opinion, or cross-examining the defendant’s witness by asking about specific acts.

Question 28

Sixth Amendment Confrontation Clause

Answer 28

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.

A statement is not “testimonial” if the primary purpose of the statement is to address an ongoing emergency.

Question 29

Rule for opinions by lay witnesses and exception

Answer 29

Opinions by lay witnesses are generally inadmissible.

Opinion testimony by lay witnesses is admissible when (1) it is rationally based on the perception of the witness; (2) it is helpful to a clear understanding of her testimony/to the determination of a fact in issue; and (3) it is not based on scientific, technical, or other specialized knowledge.

The judge will determine whether it is admissible under the exception.