Evidence

Question 1

Business Records Exception

Answer 1

Question 2

Present Sense Impression

Answer 2

A present sense impression is an out-of-court statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it. A present sense impression is an exception to the hearsay rule and admissible regardless of the declarant’s availability to testify.

Question 3

Excited Utterance

Answer 3

An excited utterance is a statement made about a shocking or startling event made while the declarant is under the stress of excitement that it caused. An excited utterance is an exception to the hearsay rule and admissible regardless of the declarant’s availability to testify.

Question 4

Relevance

Answer 4

As a rule, evidence must be relevant to be admissible, and all relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision. Evidence is relevant if: (i) it has any tendency to make a fact more or less probable, and (ii) the fact is of consequence in determining the action.

Question 5

Recorded Recollection

Answer 5

The recorded recollection hearsay exception allows a witness to read a record into evidence when (i) the record was on a matter the witness once knew about, (ii) the record was made when the matter was fresh in the witness’s memory, (iii) the record accurately reflects the witness’s knowledge at that time, and (iv) the witness cannot recall the event well enough to testify to fully and accurately, even after consulting the record on the stand.

Question 6

Prior Inconsistent Statement

Answer 6

Under the Federal Rules of Evidence (FRE), a litigant is generally allowed to impeach a witness’s credibility by introducing a prior inconsistent statement, as long as the inconsistency involves an issue relevant to the facts of the case. A witness’s testimony as to lack of memory can be considered an inconsistency for which a prior inconsistent statement may be introduced.

Extrinsic evidence of the prior inconsistent statement used to impeach a witness’s credibility may be admitted only if the witness is given an opportunity to explain or deny the statement and the opposing party is given the opportunity to examine the witness about it. However, this opportunity is not mandated if justice so requires (e.g., if the statement is discovered after a witness becomes unavailable).

Question 7

Prior Identification

Answer 7

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. A hearsay statement may be an oral or written assertion and can be nonverbal conduct intended as an assertion. Hearsay evidence is generally inadmissible unless it falls within an exception or exclusion, or is deemed “non-hearsay.” Under the FRE, a previous out-of-court identification of a person after perceiving that person is deemed non-hearsay if the witness is testifying at the current trial and is subject to cross-examination.

Question 8

Confrontation Clause

Answer 8

Under the Sixth Amendment Confrontation Clause, a criminal defendant has the right to confront any witnesses against him. An out-of-court testimonial statement is not admissible against a criminal defendant when the declarant is unavailable to testify unless the defendant had a prior opportunity to cross-examine the declarant. However, a statement that is not testimonial does not violate the Confrontation Clause. In determining whether a statement is testimonial, an objective analysis of the circumstances is key, and courts look to the primary purpose of the statement. Statements made under circumstances that would cause an objective witness to reasonably conclude that the statement would be available for use at a later trial (e.g., statements made during a custodial examination to an investigator, or in an affidavit) are testimonial. A statement made to police with the primary purpose of enabling police to help meet an ongoing emergency (e.g., during a 911 call) is not testimonial.