Evidence

Question 1

Hearsay

Answer 1

Hearsay is an out of court statement offered to prove the truth of the matter in that statement. Hearsay is inadmissible unless an exception applies.

Question 2

Present Sense Impression

Answer 2

A present sense impression is a statement describing or explaining an event or condition made while or immediately after perceiving it.

Question 3

Excited Utterance

Answer 3

An excited utterance is a statement relating to a startling event made while the declarant is under the stress of excitement of the event

Question 4

Medical Diagnosis and Treatment

Answer 4

Statements made for the purposes of medical diagnosis or treatment are made and pertaining to medical diagnosis or treatment

Question 5

Confrontation Clause

Answer 5

Under the sixth amendment confrontation clause, an accused has the right to be confronted with the witnesses against him

A hearsay statement that falls within an exception will not be admitted if 1) the statement being offered against the accused is testimonial; 2) the witness is unavailable to testify at trial; and 3) the accused has had no opportunity to cross-examine the witness about the statement.

A statement is testimonial when the purpose of the interrogation is to establish past events potentially relevant to a later criminal prosecution

A statement that is not testimonial when the primary purpose of the interrogation is to enable the police to assist in an ongoing emergency.

Question 6

Hearsay within Hearsay

Answer 6

Were there is hearsay within hearsay (an out of court statement that contains another hearsay), it is inadmissible unless both layers contain an applicable exception.

Question 7

Business Records Exception

Answer 7

The business records exception is a statement made in the regular course of business and it is in the regular course of business to make such a recording, and it was made by someone having present knowledge and under the duty to make such a record.

Question 8

Hospital records

Answer 8

hospital records may be considered business records

Question 9

Marital Privilege

Answer 9

the marital privilege provides that both spouses hold the privilege not to testify as to confidential communications made between spouses when those communications occur during the marriage.

the privilege protects communications during marriage even if the marriage no longer exists and even if one of the parties to the marriage is dead.

Some courts however have taken a minority position that only the communicating spouse can assert the privilege

Even where privilege is protected, when one spouse revealed a portion of the communications to a third person, then confidentiality no longer existed, and the marital communication privilege would not apply.

Question 10

Attacking or Supporting Credibility of Evidence

Answer 10

Once a hearsay statement is admitted into evidence, the hearsay declarant’s credibility may be attacked just as though the hearsay declarant were a witness at trial.

Question 11

Inconsistent Statement to Impeach

Answer 11

Any inconsistent statement made by the hearsay declarant may be admitted to impeach the declarant’s credibility.

Question 12

Statements of Prior Identification

Answer 12

Certain out of court statements by a person who testifies at trial and is then subject to cross-examination about the statements are not hearsay. This includes prior statements of identification made after hearing a person’s voice

Question 13

Lay Witness Voice Identification

Answer 13

Lay witness voice identification based on prior familiarity is admissible unless tainted by suggestive police questioning.

Question 14

Character Evidence

Answer 14

evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with that character or trait.

However this evidence may be admissible for another non-propensity purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identify, absence of mistake, or lack of accident.

Question 15

Impeachment Prior Conviction

Answer 15

A witness can be impeached with a prior conviction of a felony or any crime involving dishonesty.

Where the conviction does not involve dishonesty, the court has discretion to exclude the evidence if its probative value substantially outweighs the prejudicial effect.

A conviction is too remote if it has been more than 10 years from the date of the conviction or release from confinement, whichever is later.

Question 16

Impeachment Prior Bad Act

Answer 16

a witness may be impeached by evidence of a prior bad act involving dishonesty or false statement during cross-examination.

Extrinsic evidence of a prior bad act is inadmissible.

Question 17

Inconsistent Statement - Extrinsic evidence

Answer 17

An inconsistent statement may be proved by examination of the witness or through the introduction of extrinsic evidence. The witness should be given the opportunity to explain or deny all or part of the inconsistent statement.

Question 18

Prior Inconsistent Statement - nonhearsay

Answer 18

A prior inconsistent statement is admissible as non hearsay if the statement was made by the declarant under penalty of perjury or perjury of a prior proceeding.

Question 19

Character Evidence - Criminal defendant

Answer 19

A criminal defendant is permitted to offer evidence of a relevant character train to prove his innocence

Character may only be proved through testimony of the defendant’s reputation for the trait in the community or through a witness’ personal opinion.

Question 20

Relevance

Answer 20

Evidence is relevant if it tends to make a facto more or less probable than it would be without the evidence.

All relevant evidence is admissible unless it is inadmissible pursuant to some other rule or exception.

Question 21

Subsequent Remedial Measures

Answer 21

Public policy encourages people take steps in furtherance of safety. this means that when measure are taken that would have made an earlier injury or harm less likely to occur, evidence of subsequent remedial measures is not admissible to prove negligence.

Subsequent remedial measures may be admissible to prove ownership, however.

Question 22

Settlement Offers

Answer 22

Evidence of settlement offers, or statements made during settlement negotiations to resolve a disputed claim are barred from admission

This is because public policy favors compromise and the settlement of disputes.

The exclusion of settlement offers requires an actual disputed claim. A lawsuit may not be filed, but the dispute must be evident.

Question 23

Offers to pay medical expenses

Answer 23

Evidence offering to pay medical expenses resulting from an injury is inadmissible to prove liability for the injury. Public policy welcomes an offer to assist an injured person, so admitting such evidence would potentially dissuade this humane instinct.

Unlike settlements that require a disputed claim, offers to pay medical expenses does not require that the statement be made in response to a disputed claim

Question 24

Rape Shield

Answer 24

The rape shield rule bars the admission of evidence in any civil or criminal proceeding alleging sexual misconduct that is offered to prove that the victim engaged in other sexual behavior.

In civil cases, otherwise inadmissible evidence will be admitted if its probative value substantially outweighs the danger to any victim.

Question 25

determining admissibility of evidence

Answer 25

in determining the admissibility of evidence, it is important to consider the purpose for which the evidence is being admitted.

Effect on the listener: A statement can be offered for non-hearsay purpose such as showing the effect on the listener.

Question 26

non-verbal assertion

Answer 26

a non-verbal assertion can be a statement for purposes of hearsay

Question 27

Lay Witness Opinion

Answer 27

Law witness opinions are admissible if the opinion is rationally based on the perception of the witness, if it helps determine a fact in issue, and if its not based on any scientific, technical or other specialized knowledge.

Question 28

Expert Opinions

Answer 28

Exper opinions are admissible if the expert’s scientific, technical or specialized knowledge will help the trier of fact understand the evidence or determine a fact in issue, the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the expert has reliabily applied the principles and methods to the facts of the case.

Question 29

Physician - Patient Privilege

Answer 29

patient communications or disclosures made for the purpose of medical diagnosis or treatment are privileged.

Where the patient relies on a physical condition as an element of his claim or defenese, the physician -patient privilege is waiver.

Question 30

Party Opponent Statement

Answer 30

An out of court statement by an opposing party is not considered hearsay.

Question 31

Habit evidence

Answer 31

when relevant, habit evidence is admissible to prove that a person acted in conformity with that habit.

A habit is a person’s routine response or reaction to a specific set of circumstances.

Question 32

Lay Witness

Answer 32

A lay witness testimony is admissible if it is 1) rationally based on the witness’ perception of events; 2) helps determine an issue of fact; and 3) is not based on any scientific, technical or specialized knowledge.

Question 33

Habit

Answer 33

A habit is a person’s routine response or reaction to a specific set of circumstances.

Question 34

Non-hearsay purpose

Answer 34

A statement can be offered for a non-hearsay purpose such as effect on the listener.