EVIDENCE

Question 1

HEARSAY

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.

Answer 1

• D: 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.”
• I: State why it is important to determine if a statement is hearsay. Hearsay is not admissible unless it comes within an exception.
• A: Analyze exceptions and exclusions
  
  1. EXCITED UTTERSNCE
  2. PRESENT SENSE IMPRESSION
  3. STATEMENT FOR PURPOSE OF MEDICAL TREATMENT OR DIAGNOSIS
  4. BUSINESS RECORDS
  5. RECOLLECTION RECORDED
  6. THEN-EXISTING STATE OF MIND EXCEPTION
  7. PRIOR STATEMENT OF IDENTIFICATION HEARSAY EXCLUSION
  8. STATEMENT AGAINST INTEREST
  9. PUBLIC RECORDS

Question 2

EXCITED UTTERANCE

Answer 2

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.”

Question 3

PRESENT SENSE IMPRESSION

Answer 3

A present sense impression is “a statement describing or explaining an event or condition made while or immediately after the declarant perceived it.”

Question 4

STATEMENTS FOR PURPOSE OF MEDICAL TREATMENT OR DIAGNOSIS

Answer 4

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.

Question 5

BUSINESS RECORDS

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

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 (however, the proponent may not offer it as an exhibit).

Question 7

THEN-EXISTING STATE OF MIND EXCEPTION

Answer 7

The 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 witness’s prior identification is not considered 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 tendancy to expose the declarant to civil or criminal liability. The declarant must be unavailable.

Question 11

PUBLIC RECORDS

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 & 403-BALANCING TEST

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

Answer 12

• Relevancy: 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.
• Admissibility: 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 13

LAY WITNESS V. EXPERT WITNESS

Answer 13

General rule: 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).

Question 14

IMPEACHMENT & WAYS TO IMPEACH

impeachment is tested frequently—be aware of the seven ways to impeach!

Answer 14

General rule: any party may impeach a witness (even the party that called the witness).
1. PRIOR INCONSISTENT STATEMENTS
2. BIAS AND INTERESTS
3. CONVICTION OF. CRIME
4. PRIOR BAD ACTS
5. REPUTATION OR OPINION OF UNTRUTHFULNESS
6. SENSORY DEFICIENCIES
7. CONTRADICTION

Question 15

PRIOR INCONSISTENT STATEMENTS

Answer 15

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.

Question 16

BIAS AND INTEREST

Answer 16

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

Question 17

CONVICTION OF A CRIME AS EVIDENCE

Answer 17

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).

Question 18

BAD ACTS

Answer 18

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).

Question 19

REPUTATION OR OPINION FOR UNTRUTHFULNESS

Answer 19

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

Question 20

SENSORY DEFICIANCIES

Answer 20

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

Question 21

CONTRADICTION

Answer 21

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 22

CHARACTER EVIDENCE

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.

Answer 22

• General rule: character evidence is inadmissible to prove that someone acted in accordance with his character at the time the event occurred.
• Civil cases: 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.
• Criminal cases: 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.

Question 23

6TH AMENDMENT CONFRONTATION CLAUSE

Answer 23

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.

Question 24

IF EVIDENCE IS RELEVANT, IT CAN STILL BE EXCLUDED DUE TO A PRIVILEGE OR FOR POLICY REASONS

Answer 24

• Privileges: 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.
• Offer to settle: an offer to settle is not admissible to prove the validity of a disputed claim.
• Offer to pay medical expenses: an offer to pay medical expenses is not admissible to prove liability or
  the existence of an injury.
• Subsequent remedial measure: 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.
• Insurance: the existence of an insurance policy is not admissible to prove liability, but may be used to prove agency, ownership or control, or impeachment.