EVIDENCE Flashcards
How are statements demonstrating knowledge of a fact or condition classified, and how can they be used in court?
They are classified as non-hearsay and may be used as impeachment evidence if they constitute a prior inconsistent statement.
What are the requirements for a dying declaration?
- The declarant is unavailable as a witness.
- The declarant believes death is imminent.
- The statement pertains to the cause or circumstances of their perceived impending death.
When is evidence of other crimes admissible under the Federal Rules of Evidence?
Under Rule 404, evidence of other crimes is admissible to show:
Motive
Intent
Mistake
Identity; or
Common scheme or plan
But not to show the defendant is more likely to have committed the crime in question (i.e. propensity).
What is the definition of hearsay under FRE 801?
Hearsay is a statement made outside of court that is presented in court to prove the truth of the matter asserted
What is FRE 804(b)(3)
For situations where someone said something that hurts them, and they probably wouldn’t have said it unless it was true.
- The person who made the statement isn’t available to testify;
- The statement goes against their own interest (like admitting guilt, liability, or losing money); and
- In criminal cases, there’s extra proof that the statement is trustworthy.
What is required for demonstrative evidence to be used as a visual aid in court?
A foundation must be laid that the evidence (e.g., maps, charts, models) accurately represents what is intended.
When is a police report admissible as evidence, and what limitations apply?
A police report is admissible as a public record but cannot include conclusions about the defendant’s guilt.
Factual observations, like the defendant not having a license at arrest, are admissible.
What is required to authenticate tangible evidence under Federal Rule of Evidence 901?
Authentication entails showing that the evidence represents what it purports to represent, such as:
- Proving a photograph accurately depicts a scene.
- A letter may be authenticated by testimony from someone who recognizes the sender’s handwriting.
Who can authenticate a photograph under FRE 901(b)?
Someone familiar with the scene depicted in the photograph, even if they did not take the photo, can testify to its accuracy.
How should hearsay issues be analyzed?
Determine if the statement constitutes nonhearsay; if not, look for an applicable hearsay exception.
When are statements by a defendant’s agents or employees inadmissible hearsay statements of the opposing party?
Statements made by agents or employees are admissible as non-hearsay if the employee is no longer employed (e.g., fired), the statements are inadmissible hearsay unless another exception applies.
Timing is critical because statements made after employment end are less reliable and may reflect bias or grudges.
📌 When is a prior consistent statement admissible under Federal Rule of Evidence 801(d)(1)(B)?
✅ Admissibility Criteria:
The declarant testifies at trial and is subject to cross-examination.
The prior consistent statement is offered to rebut a charge of recent fabrication, improper influence or motive, or to rebut a charge of identification.
✅ Key Points:
Unlike prior inconsistent statements, the prior consistent statement does not need to be made under oath.
The statement may be used as substantive evidence if the conditions are met.
✅ Why Inadmissible in This Case:
The defendant is testifying during his case-in-chief, but the prosecution has not yet introduced impeaching evidence.
The prior consistent statement is not being offered to rebut a charge of recent fabrication or improper motive.
As such, it is inadmissible hearsay.
📌 Why is the girlfriend’s statement in her diary considered hearsay, and why does it not qualify under any exceptions?
✅ Hearsay Definition:
A statement made outside of the trial, offered to prove the truth of the matter asserted, is considered hearsay.
✅ In This Case:
The prosecution is offering the girlfriend’s statement in her diary to prove that the defendant threatened to kill her.
This is hearsay because the statement is being used to prove the truth of what the girlfriend said.
✅ No Hearsay Exceptions Apply:
No hearsay exceptions apply here, so the statement is inadmissible.
📌 Should the court sustain the defense’s objection to testimony about the defendant’s reputation for veracity, and why or why not?
✅ Court Should Not Sustain the Objection:
The fact that the defendant testified at trial makes her truthfulness an issue in the case.
Because the defendant’s veracity is relevant to the charge of perjury, the reputation for truthfulness becomes admissible.
✅ Why the Testimony Is Admissible:
The prosecution can introduce evidence about the defendant’s reputation for veracity because the defendant’s testimony has placed her truthfulness in question.
Is the roommate’s testimony about the answering machine message admissible?
No, unless it is established that the tape was accidentally destroyed or inadvertently lost. Under FRE 1002 (Best Evidence Rule), to prove the contents of a recording, the original recording is required. However, under FRE 1004, other evidence of its contents is admissible if the original is unavailable due to loss, destruction, or other specified exceptions. Since the prosecution attempted to introduce the evidence through the roommate without the original recording, this violates FRE 1002, unless an exception under FRE 1004 applies.
In a contract action, the plaintiff’s witness was shown a copy of an order form to refresh his memory. The defendant’s attorney now seeks to have the copy admitted into evidence. Is the document admissible?
Yes, to let the jury compare the contents of the document and the witness’s testimony.
A document used by a witness to refresh recollection before testifying must be admitted into evidence if the opposing attorney wants the jury to see it. This allows the jury to evaluate whether the witness is simply repeating the contents of the document or testifying from memory. It helps the jury assess the credibility of the witness and decide how much weight to give the testimony.
Did the trial judge err in admitting the recreated hit list found at the mafia member’s house?
Yes, the trial judge erred in admitting the recreated hit list. The best evidence rule requires the original document to be provided when the contents of a writing are at issue. In this case, the hit list’s authenticity was in question, and the recreated list, being a copy, does not satisfy the best evidence rule. The original hit list should have been produced, or the circumstances should have justified its absence, which was not the case here. Therefore, the recreated list should not have been admitted.
Does the government’s law prohibiting animal slaughter outside licensed facilities violate the First Amendment rights of a religious organization?
No, the law does not violate the First Amendment rights of the religious organization. While the First Amendment protects the free exercise of religion, the government can regulate conduct if the regulation is neutral and generally applicable. Here, the government is regulating animal slaughter to protect public health from a dangerous disease, which is a compelling government interest. The law is not specifically targeting the religious practices of the organization but is instead focused on public safety, making it constitutional.
Is the evidence regarding the victim’s reputation and specific instances of belligerence admissible in the defendant’s murder trial?
Yes, the evidence is admissible, because it is relevant to the defendant’s state of mind and supports his self-defense claim. Although Federal Rule of Evidence 404 generally prohibits character evidence to prove that a person acted in conformance with their character on a particular occasion, evidence of the victim’s reputation for violence is permissible in a self-defense case. This evidence is pertinent to understanding the defendant’s state of mind and the reasonableness of his belief that he needed to defend himself.
Assuming the realtor was convicted of fraudulent business practices, will the objection be sustained if the conviction is used to impeach the realtor’s credibility?
No, the objection will not be sustained. Under the Federal Rules of Evidence, a conviction for a crime involving dishonesty, such as fraud, can be used to impeach a witness’s credibility. Fraudulent business practices involve dishonesty because they rely on false statements or omissions, so a conviction for such practices qualifies as a crime of dishonesty and can be used to show the realtor’s propensity to lie.
Did the gym member’s lawyer act improperly by not disclosing the best friend’s information?
Yes, because the lawyer knew that the gym member’s best friend had relevant information. Under discovery rules, all parties must disclose the name, address, and telephone number of individuals likely to have discoverable information within two weeks of the initial discovery conference. Since the best friend witnessed the entire accident, their information was required to be disclosed, making the lawyer’s failure to do so improper.
Is it proper for the fired associate to present her casefile as evidence in this manner?
Yes, because it is an entry that is absent from her records. Under the business records exception to the hearsay rule, evidence may be used to prove the non-existence of a matter if records were regularly made and preserved. If a document or entry is missing from such records, it can indicate that an event did not occur, unless there is a reason to doubt the trustworthiness of the records. Here, since the associate consistently maintained her records, the absence of a date or signature by the defense attorney can be used as evidence that no discovery request was made.
Under Federal Rule of Evidence 701, can a lay witness testify about a person’s state of consciousness?
Yes, a lay witness can testify about a person’s state of consciousness as a lay opinion regarding a physical state. Under Federal Rule of Evidence 701, a lay witness may provide an opinion if it is based on their rational perception and helps clarify their testimony. Non-expert opinions can include observations of physical states such as intoxication, injury, or consciousness. Therefore, the woman’s testimony that the driver was not conscious when admitted to the hospital is admissible.
Under Federal Rule of Evidence 804, when is a statement concerning family relationships admissible despite being hearsay?
Under Federal Rule of Evidence 804, a hearsay exception applies to statements about the declarant’s own relationship by blood or similar facts of personal or family history. Additionally, statements about another person’s family relationship are admissible if the declarant was related by blood and is unavailable. In this case, Nick’s grandmother is unavailable, so her statement that Nick was related to John by blood is admissible despite being hearsay.
A patron sued a company for injuries suffered when she was driving a go-cart at their go-cart track. The complaint alleged that
while she was driving around the track a piece of metal came off one of the other go-carts, flipped up, and struck her in the eye. It also
alleged that because of the lack of a protective shield on the helmets issued by the go-cart company and the failure of the company to
keep the track clear of debris, the patron has suffered permanent damage to her eye. The company admits that the metal part that
injured the patron came from their go-cart, but denies that they were negligent.
After the complaint was served, the go-cart company’s president offered to give the patron a free lifetime admission to the track in
exchange for her dropping the suit.
If the patron is called to testify about the conversation with the president, will the president’s statement be admissible?
The correct answer is:No, because admitting the testimony is against public policy.
Discussion of correct answer:Evidence of an offer to compromise or settle a disputed claim is not admissible to prove liability for the
claim, because as a matter of public policy litigants should be encouraged to attempt settlements.
A child was severely injured when he attempted to ride on the back of a delivery truck that was delivering packages in his
neighborhood. The child’s parents, on behalf of the child, sued the driver and the delivery company for negligence and vicarious
liability, respectively. Because the child’s damages were extensive and would require multiple days of expert testimony, the defendants
filed a motion to bifurcate the trial. The court granted the motion. Pursuant to the court’s order, at the first trial, the parties agreed to
stipulate that the child suffered damages, and the jury would be asked to determine whether the driver was negligent. If the jury
determined that the driver was negligent, then a second trial would be held to determine the amount of damages. The defendants filed
a motion in limine to exclude from the first trial evidence of the child’s injuries.
How should the court rule on the motion in limine?m
Grant the motion, because evidence of the child’s injuries is not relevant.
Discussion of correct answer:Irrelevant evidence is not admissible. Evidence is relevant if it has a tendency to make some fact at
issue more or less likely; this is known as logical relevancy. Under the court’s order to bifurcate the trial, damages are not an issue in the first trial; the jury in the first trial is only determining whether the driver was negligent, and it will be presumed that the child
suffered damages of some amount. Therefore, the child’s injuries are not relevant to any matter of consequence in the first trial.
The motion in limine to exclude evidence of the child’s injuries should be granted because the evidence is not logically relevant.
Police responded to a call when a man posing as a security guard was reported to have handcuffed an elderly woman to a
department store door and run off. When the police arrived, the man was found, arrested and taken to the police station to be
questioned about some recent robberies in which a similar tactic was used. During his interrogation, the man stated that the prior
offenses were all committed by his girlfriend and that she had talked him into trying it. In the girlfriend’s trial for robbery and assault,
the man is called as a witness for the State and is asked to repeat the statement he made during interrogation. He testifies that he told
the police his cousin was the real perpetrator and that his cousin has fled the country.
If the defendant objects on the grounds that the statement is inadmissible hearsay, will the judge sustain the objection?
The correct answer is: Yes, because the statements were made at the police station.
Discussion of correct answer: Hearsay is any out of court statement being offered in court to prove the truth of the matter asserted.
In addition to the many exceptions to the hearsay rule, FRE 801 specifically defines two types of statements that are not hearsay to
begin with–i.e., no exception is needed because those types of statements are categorically outside the definition of hearsay. One
of those types of statements is prior inconsistent statements. The prior inconsistent statement rule is that a statement is not
hearsay if it is a prior statement made under penalty of perjury (e.g. at trial) or made during a deposition and is inconsistent with a
statement being given during his in-court testimony. In order to qualify under this non-hearsay rule, it is important to consider where
the prior statement was made. Here, the call of the question is whether the judge will sustain the hearsay objection. The statement
meets all of the tests for hearsay and does not fit into either an exception or one of the non-hearsay categories. The police station
is not a place where a statement is made under penalty of perjury and it is not a deposition. Since the statement is therefore
inadmissible hearsay, the objection will be sustained.
Test tip: In an Evidence question, whenever an out of court statement is trying
to be offered into evidence, you should do a hearsay analysis. A hearsay exception will only save the statement if you can think of a reason that the person saying it almost definitely believed that the statement was true. That is a high standard, and no hearsay
exception appears to apply to these facts because the witness could have been lying to the police when he gave his statement.
A federal jury in a civil trial was composed of eleven jurors. During the jury deliberation, they held a vote during which nine jurors
voted in favor of liability. Two jurors voted in favor of not finding the defendant liable.
May the jurors return a verdict of liability?
The correct answer is:No, because two jurors believe the defendant is not liable.
Discussion of correct answer:Under Fed. R. Civ. P. 48(b), unless the parties stipulate otherwise, a jury verdict must be unanimous.
Here, the jurors are not in agreement as to whether the defendant is liable. Therefore, they may not return a verdict at this stage
