Evidence Flashcards
The issue is whether the woman may assert an affirmative defense.
Even if the prosecution proves the elements of battery, a defendant can establish that they were justified in committing the battery if they were acting in self-defense. The defendant must prove they reasonably believed they were in danger of severe bodily harm or death and that they responded with only as much force as was required to repel the attack.
The issue is whether the eyewitness’s testimony is admissible. [eyewitness wanted to testify that friend said to D that they were going to send anyone who messed with them to the hospital and that D responded by nodding affirmatively and giving a thumbs-up]
As a rule, only relevant evidence is admissible. Relevant evidence is that which tends to make a material fact more or less probable.
[D alleges self-defense, so D’s agreement with friend suggests D’s use of force was not justified b/c she already planned to engage in some type of violence/friend’s statement and woman’s response are both relevant to a material fact at issue (i.e., whether use of force was justified)
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Hearsay is inadmissible unless it falls within an exception or an exclusion to the hearsay rule. A statement may include nonverbal conduct intended as an assertion, such as nodding yes.
[nodding/thumbs-up are statements]
However, a statement made by a party to the current litigation is not hearsay if offered by an opposing party.
[nodding/thumbs-up not hearsay]
Alternatively, a statement of present intent, motive, or plan can be admissible as a hearsay exception to prove conduct in conformity with that state of mind.
[D agreed with friend’s statement about present intent to commit violence against anyone who annoyed them, D’s agreement admissible to show she acted in conformity with that intent
Friend’s statement is also admissible b/c not being offered to prove truth of matter asserted, instead, offered to provide context for the woman’s response, so not hearsay]
The issue is whether the testimony regarding seeing the woman previously is improper character evidence.
In a criminal case, the prosecution is not permitted to introduce evidence of a defendant’s bad character to prove that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question. However, if the defendant makes their character an issue in the case by offering evidence of their good character or the victim’s bad character, the defendant opens the door to allow the prosecution to rebut that evidence.
The issue is whether the eyewitness’s prior conviction is a proper topic and method for impeachment.
Any witness may be impeached by evidence that they have been convicted of a crime that involved dishonesty or false statement, regardless of the punishment imposed or the prejudicial effect of the evidence. However, conviction for a crime not involving fraud or dishonesty is admissible to impeach only if the crime is punishable by death or imprisonment for more than one year. A crime involves dishonesty or false statement if establishing the elements of the crime requires proof of admission of an act of dishonesty or false statement.
Here, the woman’s conviction was punishable by up to six months in jail and therefore is only admissible if it involved a crime of dishonesty or false statement. In most jurisdictions, shoplifting is not a crime of dishonesty because it does not require proof of an act of dishonesty or false statement. Therefore, here, where there is no evidence that the woman’s specific conviction involved dishonesty, the cross-examination should not be allowed.
The issue is whether the hospital record itself and Victor’s statement within the hospital record each must fall within a hearsay exception.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is inadmissible unless it falls within an exception. Hearsay within hearsay (double hearsay) is admissible as long as each level of hearsay falls within a hearsay exception.
The issue is whether a hearsay exception applies to the hospital record.
A record or other writing of any act or event made in the course of regularly conducted business is admissible under the business-records exception to the hearsay rule. To be admitted, the custodian of the record or other qualified witness must establish that the record was made (1) at or near the time of the event, (2) by a person with knowledge of the event and under a duty to report it, and (3) as part of a regular practice of making the kind of entry in question during the regular course of business.
The issue is whether Victor’s statement within the hospital record is admissible.
A statement that is made for the purpose of describing medical history or past or present symptoms, pain, or other sensation is admissible if it is made to a physician or other medical personnel for the purpose of medical diagnosis or treatment. A statement of the cause or source of the condition is admissible if it is reasonably pertinent to diagnosis or treatment.
The issue is whether a spouse may assert the confidential marital communications privilege to avoid testifying with respect to communications with a deceased spouse.
The confidential marital communications privilege provides that communications made between spouses while they were married are privileged if the communication was made in reliance on the sanctity of marriage. The privilege protects communications made during the marriage, even if the marriage no longer exists or if one of the parties to the marriage is dead. Under the majority view, both spouses hold the privilege for all communications between them. When one spouse has revealed the contents of those communications to a third party, then confidentiality no longer exists and the privilege should not apply. In a minority of jurisdictions, only the communicating spouse can assert the privilege.
The issue is whether an inconsistent hearsay statement is admissible to impeach a hearsay declarant.
Once a hearsay statement is admitted into evidence, the hearsay declarant’s credibility may be attacked by any evidence that would be admissible if the declarant had testified as a witness. Any inconsistent statement, even a hearsay statement, made by the declarant may be admitted to impeach the declarant’s credibility.
The issue is whether a witness’s description of a robber provided just minutes after viewing the robbery is inadmissible hearsay.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Hearsay evidence is generally inadmissible unless it falls within a hearsay exception or exclusion.
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.
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.
The issue is whether it violates the 6th Amendment to admit a nontestifying witness’s out-of-court statement that was made to police during questioning within minutes of viewing the crime.
A statement that is made for the primary purpose of ascertaining past criminal conduct is testimonial. By contrast, a statement made primarily to enable police to render aid to meet an ongoing emergency is not testimonial. For an out-of-court testimonial statement (i.e., hearsay) to be admissible against a criminal defendant, the 6A Confrontation Clause requires that the declarant must be unavailable and the defendant must have had a prior opportunity to cross-examine the declarant. To determine whether a statement is testimonial requires an objective analysis of the circumstances regardless of the subjective purpose of the participants.
The issue is whether the victim’s out-of-court vocal identification of the defendant is inadmissible hearsay.
A voice can be identified by any person who has heard the voice at any time (including one made familiar solely for the purposes of litigation). It makes no difference whether the voice was heard firsthand or through mechanical or electronic transmission or recording.
[Victim could ID voice but hearsay]
A previous out-of-court identification of a person after perceiving that person is not hearsay and may be admissible as substantive evidence by the testimony of the declarant-witness. Even if the witness has no memory of the prior identification, it will be admissible because the witness is subject to cross-examination about the prior identification.
The issue is whether the “known drug dealer” testimony was improper character evidence.
In a criminal case, the prosecution is not permitted to introduce evidence of a defendant’s bad character to prove the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question.
However, evidence of a defendant’s crimes or other wrongful acts are admissible for a non-propensity purpose such as proving motive, oppportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
The issue is whether the mechanic’s opinion testimony about the brake inspection is relevant and admissible under the FRE.
All relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision. Evidence is relevant if (1) it has any tendency to make a fact more or less probable than it would be without the evidence (i.e., probative), and (2) the fact is of consequence in determining the action (i.e., material).
[mechanic testimony relevant b/c more probably W’s brakes bad]
However, a lay witness (non-expert) is generally not permitted to testify as to his opinion, except with respect to the lay witness’s common-sense impressions. To be admissible, a lay witness’s opinion must be (1) rationally based on the witness’s perception, and (2) helpful to a clear understanding of the witness’s testimony or a fact in issue.
[mechanic’s test. based on personal perception of truck, test. that he believed brakes worn would help jury determine whether woman caused accident, thus admissible as a lay opinion]
By contrast, a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion if the proponent demonstrates to the court that it is more likely than not that (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
[if mechanic met expert elements, test. based on sufficient facts b/c inspected himself; if inspection product of reliable principles, mechanic’s test. could be admitted as an expert opinion]
The issue is whether the invoice is admissible under the business records exception to hearsay.
Even relevant evidence may be excluded by the rule against hearsay. Hearsay is an out-of-court statement that is being offered to prove the truth of the matter asserted.
[invoice relevant b/c tends to make more probable accident caused by W; but invoice is mechanic’s written OOC statement offered to prove W’s brakes were faulty = hearsay]
Hearsay evidence is generally inadmissible unless it falls within an exception or exclusion. A business record is excepted from the hearsay rule if the record was (1) kept in the course of a regularly conducted activity, (2) made as a regular practice for that activity, and (3) made at or near the time of the act or event by someone with knowledge.
[Analysis. “If these facts are established when the mechanic is examined in court, then the invoice will be admissible under the business records hearsay exception.”]
