Evidence Flashcards
Hearsay
Hearsay is an out of court statement offered for the truth of the matter asserted. Hearsay is inadmissible unless an exception applies.
Excited Utterance
An excited utterance is admissible hearsay if made at the time of a startling event while the declarant is still under the stress or excitement from the event.
Present Sense Impression
A present sense impression is admissible hearsay if statement is made while declarant is describing or explaining something as it takes place or immediately after.
Then-Existing
State of Mind
A statement of declarant’s then-existing state of mind is admissible hearsay if it shows the declarant’s state of mind (motive, intent, plan) or emotional, sensory, or physical condition.
Business Record
A business record is admissible hearsay if the record is kept in the course of regularly conducted business, made at or near the time of the event, and recorded by a person with knowledge of the event at the time or near the time the event occurred.
Statement for Medical
Diagnosis or Treatment
A statement of a person’s past or present condition is admissible if made for purposes of medical diagnosis or treatment.
Recorded Recollection
A past recorded recollection is admissible hearsay if the record is on a matter that witness once had personal knowledge of but now cannot recall well enough to testify fully and accurately. The record must have been made while the matter was fresh in the witness’s mind and accurately reflect the witness’s personal knowledge. The record can be read into evidence but adverse party can have it admitted.
Statements Against Interest
A statement against interest is admissible hearsay is declarant is unavailable, the statement is made against the declarant’s interest, and a reasonable person would not have made the statement unless they believed it to be true.
Prior Statements of Identification
Prior statements of identification are admissible non-hearsay if declarant is testifying at trial and subject to cross-examination.
Relevance
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.
Rule 403 Test
Relevant evidence may be excluded if its probative value is substantially outweighed by undue prejudice, undue delay, confusing the issues, misleading the jury, wasting time, or needlessly presenting cumulative evidence.
Lay Witness
A lay witness must have personal knowledge of the matter being testified about. A lay witness’s opinion must be rationally based on perception, helpful to the jury, and not based on scientific, technical, or specialized knowledge.
Expert Witness
An expert does not need personal knowledge but can instead testify based on facts they are made aware of at the trial or by other means.
Impeachment
Impeachment refers to discrediting a witness by proving the witness has a character for untruthfulness. This can only be done through reputation or opinion testimony.
Prior Inconsistent Statements
A witness’s credibility may be attacked by introducing the witness’s prior inconsistent statements. Extrinsic evidence on a relevant matter may be introduced if witness is given the opportunity to explain or deny.
Bias
A witness can be confronted by bias on the stand for impeachment purposes. Extrinsic evidence only allowed if questioned about bias first.
Prior Convictions Involving Dishonesty
A witness may be impeached by any crime, felony or misdemeanor, requiring an act of dishonesty or false statement. The court has no discretion.
Prior Convictions Not Involving Dishonesty
A witness may be impeached by a felony not involving dishonesty or false statement subject to the court’s discretion. If the witness is a criminal defendant, the probative value must outweigh the prejudicial effect.
Remote Convictions
A prior conviction is inadmissible if more than 10-years have elapsed since the date of the conviction or the date of release from confinement.
Prior Bad Acts Involving Truthfulness
A witness may be interrogated on cross-examination for prior bad acts if the act is probative of truthfulness. Extrinsic evidence not permitted.
Character Evidence
Character evidence is inadmissible to prove conformity with a particular character trait.
Habit Evidence
Evidence of a person’s habit or routine may be admitted to prove that on a particular occasion the person acted in accordance with that habit or routine.
Confrontation Clause
The Confrontation Clause guarantees a person accused of a crime the right to confront all witnesses against them in a criminal action. If a statement is testimonial, declarant is unavailable, and defendant did not have the opportunity to cross-examine the declarant, then admission will violate the Confrontation Clause.
Attorney-Client Privilege
Communications between an attorney and a client are privileged if made to facilitate legal services and intended to be confidential.
Spousal Immunity
A witness in a valid marriage may not be compelled to testify against their spouse in any criminal proceeding. This privilege is held by testifying spouse.
Confidential Marital Communications
Communications between spouses are privileged if made during the course of the marriage and intended to be confidential. This privilege is held by both spouses, extends beyond the marriage, and applies to civil and criminal cases.
Subsequent Remedial Measures
Subsequent remedial measures are actions taken after an injury or harm that make future injury less likely. A subsequent remedial measure is inadmissible to prove negligence, defective product or design, or culpable conduct.
Settlement Offers
Evidence of a settlement or an offer to compromise a civil action is not admissible to prove or disprove the validity or amount of a disputed claim or to impeach a witness. This protection extends to accompanying statements.
Offers to Pay Medical Expenses
Offers to pay medical expenses are not admissible to prove liability for the plaintiff’s injuries. Any conduct or statements accompanying the offer are admissible.
Liability Insurance
Evidence that a person was or was not insured is inadmissible to prove whether the person acted negligently or wrongfully.
