Evidence Flashcards
1
Q
What is the role of the judge in evidence issues?
A
- Decides the admissibility of evidence as a question of law, usually in in limine or preliminary hearings
- Not bound by the FRE for preliminary factual determinations that speak to admissibility of evidence
2
Q
What is the role of the judge for witnesses?
A
Discretion to control the order of presentation of evidence and witness
May call and question its own witness
* All parties may cross-examine
* Every party has an opportunity to object outside the presence of the jury
3
Q
What is the role of the jury in evidence issues?
A
- Decide questions of fact
- Decide the weight and credibility of evidence
4
Q
When are preliminary hearings conducted outside the presence of the jury?
A
Generally conducted outside the presence of the jury
Must conducted outside the presence of the jury when:
* Issue is the admissibility of a confession in a criminal trial,
* Criminal defendant requests to act as a witness, or
* Interests of justice require it, i.e. would result unfair prejudice to a party
5
Q
May evidence admission be limited?
A
- Evidence may be admissible for one purpose, but not another
- If opposing party objects, court will give the jury a limiting instruction explaining what the evidence can be used for
6
Q
What is the rule of completeness?
A
- If a party introduces a written statement, opposing party may introduce other parts of the statement to contextualize, even if the portions are otherwise inadmissible
- May present immediately, no need to wait for opposing party to present its case
7
Q
What is the doctrine of judicial notice?
A
If a fact is not subject to reasonable dispute, court will instruct the jury to accept the fact as proven
8
Q
What are facts not subject to reasonable dispute?
A
- Facts generally known within the territorial jurisdiction of the court
- Facts derived from accurately and readily sources who accuracy cannot be questioned
- Examples: whether a city is north of another city, whether July 15, 2021 was a Tuesday
9
Q
What will a court instruct a jury about facts not subject to reasonable dispute in civil and criminal trials?
A
- Civil case: must accept the fact as proven
- Criminal case: may, but need not, accept the fact as proven
10
Q
What is the burden of proof in civil and criminal cases?
A
- Party (plaintiff/prosecutor) has a burden of production (produce enough evidence to get the issue to the jury) and burden of persuasion (convince the jury to decide in its favor)
- Criminal cases: beyond a reasonable doubt; civil cases: by a preponderance of the evidence
11
Q
How does a rebuttable presumption work?
A
- Shifts the burden of production, but not presumption
- If opposing party presents counterproof, the presumption in eliminated and the jury decides the issue
12
Q
What happens if there is destruction of evidence?
A
Presumption that the evidence was adverse to the destroying party
13
Q
What is an irrebutable/conclusive presumption?
A
Rule of law creates presumption which cannot be rebutted
14
Q
What is the difference between direct and circumstantial evidence?
A
- Direct evidence: equivalent to what it is offered to prove, e.g. eyewitness testimony
- Circumstantial evidence: evidence from which a fact can be inferred
15
Q
When may an appellate court reverse a case for an erroneous evidentiary ruling?
A
- Substantial right of the party was affected, i.e. not a harmless error, and
- Judge was notified and given a chance to correct it at trial
16
Q
What must a party do to preserve the right to appeal when the judge admits evidence that should have been excluded?
A
Must object
17
Q
What must a party do to preserve the right to appeal when the judge excludes evidence that should have been admitted?
A
- Must make an offer of proof on the record
- Explains to the judge what the evidence is and why it should have been admitted
- Not necessary if substance and logic is straightforward and clear
18
Q
What are the types of improper questions?
A
- Leading questions
- Compound questions
- Facts not in evidence
- argumentative questions
- Questions calling for inappropriate conclusions
- Repetitive questions
19
Q
What are leading questions?
A
Suggest the answer within the question, e.g. “isn’t it true…?”
Permitted on cross-examination
Not generally permitted on direct examination, unless:
* Elicit preliminary, undisputed background information,
* Witness has trouble communicating due to age or infirmity, or
* Call a hostile witness or adverse party
20
Q
What are compound questions and facts not in evidence?
A
Compound questions
* Questions that requires several answers
* Example: “isn’t it true you did X, Y, and Z?”
Facts not in evidence
* Questions that assume facts not in evidence
21
Q
What are argumentative questions, questions calling for inappropriate conclusions and repetitive questions?
A
Argumentative questions
* Questions intended to harass the witness
* Example: “what the heck makes you think you can get away with that?”
Questions calling for inappropriate conclusions
* Questions asking for answers the witness is not qualified to make
* Example: “how did your brother feel when he received your letter?”
Repetitive questions
* Questions which have already been asked and answered
* May continue asking a question if the witness did not actually answer it
22
Q
What is the scope of cross-examination?
A
Subject of direct examination unless court allows broader inquiry
23
Q
What is present recollection refreshed?
A
- Attorney may help a witness struggling to remember by showing them something, e.g. witness’s notes
- Anything can be used to refresh memory, even if otherwise inadmissible, e.g. song, document, witness’s notes, etc.
24
Q
What is the process when a document is used to refresh present recollection?
A
- Witness looks at notes, puts notes aside, and testifies from present memory
- Document does not become evidence
- Opposing party is permitted to see the document and show it to the jury
25
What is past recollection recorded?
Arises when a witness cannot remember after refreshing their memory
Witness may read notes into testimony
Requirements:
1. Witness cannot remember
2. Record was made when fresh in their memory
3. Record accurately reflects their memory
26
When must a witness be excluded from the courtroom?
If the other party requests it to prevent the witness from hearing other testimony
Exceptions:
1. Witness is essential to presentation of case
2. Person permitted by state law to remain in courtroom, e.g. victim
3. Witness is a party in the case
27
What is the rule of competency for witnesses?
* Competent witness: person with person knowledge about the matter and willing to make an oath to tell the truth
* Dead Man’s statute: some states limit the ability of witnesses to testify about transactions with dead people
* If a federal court uses state law to decide a civil case, it will defer to the state’s competency rules
28
Are children considered competent witnesses?
* States may have particular requirements, e.g. minimum age
* FRE allows children to testify when the child has personal knowledge, is mature enough to understand the obligation to tell the truth and is willing to do so
29
May a judge testify?
Not in trials over which they sit?
30
May a juror testify?
Not in a trial in which they sit
31
When may a juror testify as a witness in an inquiry into the validity of a verdict or indictment?
1. Extraneous, prejudicial information improperly brought to the jury’s attention, e.g. presented with inadmissible evidence
2. Outside influence that improperly bore on a juror, e.g. juror was threatened or bribed
3. Clerical error was made in entering the verdict on the verdict form
4. Juror made a clear statement that he relied on racial stereotypes in convicting a defendant
32
When may a juror not testify as a witness in an inquiry into the validity of a verdict or indictment?
Not for statements regarding:
1. Statements made during deliberations
2. Incidents that occurred during deliberations
3. Effect of anything on the juror’s mind
33
How may a party impeach a witness?
Dishonest
Biased
* Witness has a reason to lie or shade facts
* Examples: relationship with a party, paid to testify, agreed to testify for a reduced sentence, interest in outcome of case
Lacks sensory competence
* Witness is mistaken and did not hear or see things as well as they think
34
How is impeachment done through prior inconsistent statements?
* May be done with any kind of statement
* May prove an inconsistent statement by extrinsic evidence so long as the witness is given the opportunity to explain or deny
35
Is character evidence admissible to show propensity?
Evidence which is offered to show that on a particular occasion the purpose acted in accordance with their character is inadmissible
36
Is character evidence admissible to show that a witness is dishonest?
* Yes, but may only introduce this evidence through a witness offering reputation or opinion testimony
* May question a witness on cross-examination about specific acts of dishonesty if the act is probative of untruthfulness and there is a good faith basis for asking the question, must take witness’s answer and cannot inquire further
37
When are prior criminal convictions admissible to show propensity?
* Witness: admissible unless the risk of prejudice substantially outweighs the probative value
* Criminal defendant: admissible unless the risk of prejudice outweighs the probative value
May introduce criminal convictions for:
* Crimes involving dishonesty or false statements, e.g. perjury, fraud, embezzlement
* Felonies (punishable by death or more than a year in prison)
If more than 10 years since the conviction or release from confinement (whichever is later), evidence only admissible if the probative value, supported by specific facts, substantially outweighs its prejudicial effect and the proponent gives the adverse party reasonable notice
Conviction may not be used if the witness was pardoned or received certificate of rehabilitation
38
What are exceptions to the rule about character evidence and propensity in civil cases?
* May be used to show character if character is an actual issue in the case, e.g. whether a parent is violent in a custody case, carelessness in negligent entrustment case
* Plaintiff in child molestation or sexual assault case may introduce evidence of the defendant’s prior acts of that sort
39
What are exceptions to the rule about character evidence and propensity in criminal cases?
* Defendant may offer evidence of their own pertinent trait; prosecution may then use character evidence to rebut that pertinent trait
* Defendant may offer evidence of the victim’s pertinent trait; prosecution may then use character evidence to rebut the same trait in the victim or defendant
40
What are the rules if a defendant offers evidence of their own pertinent trait?
Defendant can only rely on reputation or opinion evidence, not specific acts
Prosecution may question the defendant’s character witnesses about specific past acts on cross-examination
* If prosecution cannot prove the incident, must accept the witness’s answer
* Example: “Did you know about this incident?” “No, I don’t know.” Prosecution cannot introduce evidence about the incident
41
May the prosecution initiate the use of character evidence to show propensity?
No
42
When may a defendant's past crimes or bad acts be introduced?
For a purpose other than propensity, including:
1. Motive
2. Intent
3. Absence of mistake
4. Modus operandi
5. Common plan or scheme
6. Identity
43
What is habit evidence?
* Person’s particular routine reaction to a specific set of circumstances
* Something routine, regular, or automatic
* May be a habit of an individual or organization
* Admissible to show propensity
44
How can a witness be rehabilitated?
* Let the witness explain and clarify
* If a witness is accused of changing their story as the result of an improper motive, may present a consistent statement made before the alleged motive arose
* Introduce character evidence bolstering the witness’s character for honesty
45
What are the rules for lay witnesses?
Generally testimony must concern facts, not opinions
Lay witness opinions are admissible regarding appearance and impressions, e.g. appearance, intoxication, speed, etc., so long as:
* Based on witness’s perception
* Helpful
* Not based on scientific, technical, or specialized knowledge
46
May an expert witness offer opinions and conclusions?
Yes, so long as:
* Subject matter is scientific, technical, or otherwise specialized, and
* Will help trier of fact understand evidence or determine a factual issue
47
What is the *Daubert* test?
Expert testimony is admissible if the expert:
1. Is qualified by knowledge, skill, experience, training, or education,
2. Bases testimony on sufficient facts or data,
3. Bases testimony on reliable principles and methods, and
4. Applies principles and methods reliably to the facts of the case
48
What may an expert witness base their opinions on?
May base opinion on personal observations, evidence presented at trial, or information reasonably relied on by experts in that field
May rely on otherwise inadmissible facts
* These facts are not admissible unless the probative value to evaluate expert’s testimony substantially outweighs any prejudice
49
May an expert witness express an opinion on the ultimate issue of a case?
Yes
50
What do courts not allow expert witnesses to testify about?
* Whether a criminal defendant had the requisite mental state
* Courts generally reject expert testimony about witness credibility
51
May the court appoint an expert witness?
Yes, so long as:
* Must inform each parties what the witness found
* Parties can depose or cross-examine the expert
52
What is relevant evidence?
* Relevant evidence makes the fact at issue more likely than it would be without the evidence
* Must be both material (related to an issue in the case) and probative (have a tendency to prove or disprove a fact)
53
When is relevant evidence admissible?
* All evidence must be relevant: if evidence is irrelevant, it is inadmissible
* All relevant evidence is admissible unless excluded by a specific rule
* Court may exclude relevant evidence, even if there is no specific rule excluding it, if its risks substantially outweigh its probative value
54
What is conditional relevance?
* Evidence which is in and of itself not relevant without the existence of another fact
* Example: letter is only relevant evidence to show notice if it was received
* Court will admit this evidence and let the jury describe the predicate fact later
55
What is authentication?
Party seeking to admit must show evidence that shows that the thing is what the party claims it is
56
How may real evidence be authenticated?
1. Personal knowledge: testimony of a witnesses that recognizes and identifies the item
2. Distinctive features or markings
3. Chain of *custody accounting for whereabouts in an unbroken chain
57
How may documentary evidence be authenticated generally?
Stipulation of the parties
Eyewitness testimony with distinctive features
58
How may handwritten documents be authenticated?
1. Introduce known sample for the jury to compare
2. Expert testifies comparing the document to a known sample
3. Lay witness with personal knowledge of the handwriting from before litigation
59
What are self-authenticating documents?
1. Public documents with government seal
2. Certified copies of public records
3. Official publications by public authority
4. Trade inscriptions
5. Notarized documents
6. Commercial paper
60
How are ancient documents authenticated?
Courts infer a document is authenticated if it:
1. Is at least twenty years old
2. In a condition unlikely to create suspicion, and
3. Was found in a place where such documents would be if they were authentic
61
What is the reply doctrine?
Courts infer a communication is authenticated if A sends a communication to B and A receives a return communication from B which references the initial communication
62
How are oral statements authenticated?
Voice identification may be authenticated by any person who has heard the voice at any time
63
How are telephone calls authenticated?
Caller witness testifies:
1. Recognized the speaker’s voice,
2. Speaker knew facts only a particular person would know,
3. Caller dialed the number he believed to be the speaker’s and the speaker identified himself when he answered the phone, or
4. Caller dialed a business and spoke with a person who answered questions about business regularly conducted over the phone
64
What is the best evidence rule?
When a writing, photograph, or recording is offered to prove its contents, the original is required and preferred over a copy or testimony unless the original is unavailable and the unavailability is not due to bad faith
65
When does the best evidence rule apply?
Only applies when contents of the document are at issue:
“At issue” when document:
1. Used as proof of an event
2. Has actual legal effect, e.g. contract or will
3. Witness testifies based on facts only learned from the document as opposed to personal knowledge, e.g. x-ray
66
Under the best evidence rule, are duplicates admissible?
Presumptively admissible, unless:
* Genuine question about the authenticity of the original, or
* Fairness requires the original be produced
67
What are exceptions to the best evidence rule?
1. Unavailability
2. Public records
3. Voluminous writings
4. Admission by a party
68
What is the unavailability exception to the best evidence rule?
1. All originals have been lost or destroyed without any bad faith from the proponent and after a diligent search,
2. Originals cannot be obtained by any available judicial process,
3. Original is in the possession of the opponent who had notice it would be at issue, or
4. Writing is not closely related to a controlling issue at the discretion of the court
69
What is the public records exception to the best evidence rule?
May used certified copy
70
What is the voluminous writings exception to the best evidence rule?
May present summary of lengthy documents so long as other party is able to inspect the original or duplicates
71
What is the admission by a party exception to the best evidence rule?
Testimony (in court or deposition) or written statement of the party against whom the evidence is used
72
What is the parol evidence rule?
Extrinsic evidence of prior or contemporaneous agreements cannot be used to contradict, modify or supplement an integrated, written contract
73
When is extrinsic evidence admissible under the parol evidence rule?
1. Add to terms
2. Clarify an ambiguity
3. Prove a custom of trade or course of dealing
4. Show fraud, duress, mistake, or illegal purpose
5. Show whether consideration has been paid
74
Are there privileges in the FRE?
* No, federal courts instructed to defer to common law
* If federal court with diversity jurisdiction is deciding state issue, apply state law
75
What is the attorney-client privilege?
Prevents a court from compelling the client or attorney to reveal a confidential communication made between them for the purposes of securing legal advice
76
How does confidentiality work with attorney-client privilege?
Must have made reasonable efforts to keep communication confidential
Presence of third parties destroys confidentiality unless:
* Third parties were necessary to the communication, e.g. translator, agent
* Third party was an unknown eavesdropper
77
Are facts discussed or documents handed over covered by attorney-client privilege?
No
78
Who holds the attorney-client privilege?
Client only, so only the client can waive or claim the privilege
79
When is attorney-client privilege waived?
1. Failure to assert privilege in timely manner
2. Voluntary disclosure
3. Express waiver
4. Attorney failed to take precautions
80
What are exceptions to the attorney-client privilege?
* Client seeks to use attorney’s services to engage in or assist a future crime or fraud
* Communication is relevant to a legal dispute between attorney and client
81
What is the work-product doctrine?
Material prepared by a lawyer for litigation or in anticipation of litigation is immune from discovery and compelled disclosure unless the opposing party shows:
* Substantial need for the material, and
* Unable to obtain without undue hardship
Lawyer’s mental impressions and opinions are always immune regardless of opposing party’s need unless immunity has been waived
82
What is the physician-patient privilege?
Covers statements made by a patient to a doctor for the purpose of obtaining medical treatment
Not recognized under federal law; recognized by many states
Exceptions:
* Communication made for an illegal purpose
* Dispute arises between doctor and patient
* Patient waives privilege
83
What is the psychotherapist-patient privilege?
Covers confidential communications between a psychiatrist, psychologist, or social worker for purpose of treatment
Recognized under federal law and in most jurisdictions
Exceptions:
* Communication was the result of a court-ordered exam
* Communication taken as part of a commitment proceeding
84
How does the Fifth Amendment protect witnesses?
Witness may not be compelled to testify as a witness against himself in a criminal case
* Applies to people, not corporations
* Applies to current statements, not prior statements
* Does not apply to blood samples, voice samples, breathalyzers, etc.
85
What is the spousal communications privilege?
* Spouses are protected from testifying to confidential, intentional communications between spouses which occurred during the course of a valid marriage
* Both spouses hold the privilege, so both spouses must waive for the witness-spouse to testify
* Applies even after the marriage ends
* Applies to criminal and civil cases
86
What is spousal immunity?
* Spouse is protected from testifying against the other spouse in a criminal case if they are in a valid marriage at the time of testimony
* Covers everything: observations, non-confidential communications, and matters occurring before the marriage
* Witness spouse holds the privilege, so one spouse can unilaterally waive the privilege and testify against the other spouse
* Does not apply if the spouses divorce or if a spouse dies
* Applies to criminal cases only
87
What are exceptions to both spousal privileges?
* One spouse sues the other
* One spouse is charged with a crime against the other spouse or their children
88
What is the liability insurance exception?
* Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or wrongfully
* May be admitted for other purposes, including agency, ownership, control, or witness bias or prejudice
89
What is the subsequent remedial measures exception?
Evidence of changes made after an injury is not admissible to prove negligent, culpable conduct, defective product or design, or inadequate warning
May be admitted for other purposes, such as impeachment, and disputes concerning ownership, control, or feasibility
90
What is the settlement offers and negotiations exception?
* Settlement offer is not admissible to prove the validity or value of a disputed claim
* May be admissible if offered to show a witness’s bias or prejudice, negating a contention of undue delay, or to show obstruction of justice in criminal proceedings
* Cannot be used as a prior inconsistent statement to impeach
91
What is the medical expenses exception?
* Evidence of offers made to pay medical expenses resulting from an injury is not admissible to prove liability
* Statements or conduct accompanying the offer may be admissible
92
What is the plea negotiations exception?
* Plea negotiations not admissible in civil or criminal cases
* Includes withdrawn guilty pleas, nolo contendere pleas, offers to plead guilty, statements made while negotiating a plea
93
Is evidence about a victim in a sexual misconduct case admissible?
Evidence that the victim engaged in other sexual acts and evidence of the victim’s sexual predisposition is generally inadmissible in sexual misconduct cases
94
What are the exceptions to the sexual misconduct victim rule in criminal cases?
* Specific instances of the victim’s sexual behavior to prove defendant was the source of injury or physical evidence
* Specific instances of the victim’s sexual behavior with the defendant to show consent
* Exclusion would violate defendant’s constitutional rights
95
What are the exceptions to the sexual misconduct victim rule in civil cases?
* Plaintiff or defendant can offer evidence if its probative value substantially outweighs the danger of harm to the victim
* Reputation evidence is only admissible if the victim brings it up
96
When is evidence that the defendnat committed another sexual assault admissible in a sexual misconduct case?
Always admissible in civil and criminal cases, even if the defendant was found not guilty of the assault
97
Define:
1. Hearsay
2. Statement
3. "Truth of the matter asserted"
1. Out-of-court statement offered to prove the truth of the matter asserted
2. Oral or written assertion, or nonverbal conduct intended to be an assertion
3. Statement offered to prove the facts asserted in the statement is hearsay, but is not hearsay if offered to convince the jury of something else
98
What are non-hearsay uses?
1. Verbal or legally operative facts
2. Effect on the listener
3. State of mind
99
What are legally operative facts?
* Written or spoken words that have independent legal consequences
* Usually applies to contract, donation, conspiracy, threat, defamation, bribes
* Examples: “I’ll do something for $10,” “you better do what I say or I’ll hurt you”
100
What is effect on the listener?
* Statements offered to show their effect on the defendant and their subsequent actions
* Usually includes showing notice or motive
* Example: letter sent to insurance company stating that a ship sank is hearsay as proof that the ship sank, but not hearsay to show the insurance company was on notice
101
What is state of mind?
Statements offered as circumstantial evidence of the declarant’s mental state or knowledge
102
What is multiple hearsay?
* If there are multiple levels of hearsay, must be an exception for both for the statement to be admissible
* Example: Witness reads their brother’s letter. The letter states that the brother’s mother told him that the car was speeding. Both the letter and the brother’s statement are hearsay, and each would require an exception.
103
When are prior inconsistent statements not hearsay?
Not hearsay if:
1. Declarant testifies and is cross-examinable
2. Prior statement is inconsistent with the declarant’s present testimony, and
3. Prior statement was made under oath at a trial, hearing, or deposition
*May be used to impeach and to prove the truth of the matter asserted*
104
What are prior consistent statements not hearsay?
Not hearsay if:
1. Declarant testifies and is cross-examinable,
2. Prior statement is consistent with the declarant’s present testimony,
3. Offered to rebut an accusation of fabrication or improper motive
4. Prior statement was made before the alleged motive or influence arose
105
When are prior statements of identification not hearsay?
Not hearsay if:
1. Declarant testifies and is cross-examinable
2. Identification was made after perceiving the person
Does not need to be visual identification or have been made during a formal proceeding
Does not apply if the witness is unavailable at trial
106
What is admission of a party opponent?
Opposing party’s own statement is admissible if offered by the other party, through express admission, adoptive admission, or vicarious admission
107
What is express admission?
Statement is directly made by the opposing party itself
108
What is adoptive admission?
* Express adoption: opposing party agrees with a statement, e.g. “X is a bad person”... “I agree”
* Implied adoption: party admitted something given the context, e.g. “You drive a blue car, don’t you?”... “No, a red car”
109
When is silence adoption?
1. Opposing party heard and understood the statement,
2. Opposing party had ability to respond, and
3. Reasonable person would have denied
110
What is vicarious admission?
* Statement made by opposing party’s agent or employee acting within the scope of their employment
* Statement made by a co-conspirator during and in furtherance of the conspiracy if used against other co-conspirators
*Note: authorization, relationship or conspiracy must be established through independent evidence*
111
What are the hearsay exceptions which require unavailability?
For these hearsay statements to be admissible, proponent must show that the declarant is unavailable and statement falls under an exception:
1. Former testimony
2. Dying declarations
3. Statements against interest
4. Statements of personal or family history
112
What are the requirements for former testimony?
1. Unavailable declarant gave testimony under oath at a prior trial, hearing or deposition,
2. Made against the same or similar party, and
3. Opposing party had an opportunity to develop the testimony with a similar or greater motive
113
What are the requirements for dying declarations?
*May only be introduced in homicide or civil cases
Declarant does not actually have to die*
1. Unavailable declarant believed their death was imminent,
2. Made from personal knowledge, and
3. About causes or circumstances of their death
114
What are the requirements for statements against interest?
Statements that subject the declarant to criminal liability must have additional corroboration
1. Unavailable declarant,
2. Statement contrary to defendant’s proprietary, pecuniary, civil, or penal interest
3. Reasonable person would know the statement was against their interest
115
What are the requirements for personal or family history?
Statements concerning unavailable declarant’s birth, adoption, marriage, familial relationship, etc.
116
What is forefeiture by misconduct?
If declarant made unavailable by a party’s wrongdoing, party cannot claim defendant is unavailable and anything said by the declarant against the party is admissible
117
What does it mean for a declarant to be unavailable?
1. Exempted by privilege
2. Refuses to testify
3. Lacks memory
4. Dead or too ill
5. Absent and cannot be subpoenaed or made available
*Declarant is not unavailable if the proponent did something to prevent the declarant from testifying*
118
What are the hearsay exceptions which do not require unavailability?
1. Present sense impression
2. Excited utterance
3. State of mind
4. Medical diagnosis or treatment
5. Past recollection recorded
6. Business records
7. Public records
8. Learned treatises
9. Judgment of previous conviction
10. Reputation or character
119
What are the requirements for present sense impression?
1. Statement describes the event perceived,
2. Declarant personally perceived the event, and
3. Statement made at same time or immediately after the event
120
What are the requirements for excited utterance?
1. Event was startling,
2. Declarant personally observed the event, and
3. Statement made while the declarant was still under the stress of the excitement caused by the event
*Statement need only relate to (rather than specifically describe) the event*
121
What are requirements for the state of mind exception?
1. Statement of declarant’s state of mind or intended future conduct, and
2. Declarant experiencing state when they made the statement
122
What are the requirements for the medical diagnosis or treatment exception?
1. Declarant is the patient or an intermediary,
2. Statement is made for, or reasonably pertinent to, diagnosis or treatment, and
3. Statement describes medical history, past or present symptoms, or general cause
*Blame-casting statements are generally inadmissible under this exception unless necessary for medical treatment, particularly in cases of child abuse*
123
What are the requirements for past recollection recorded?
If witness cannot remember the record, they may read the record to the jury if:
1. Record, e.g. writing, video, photo,
2. Witness made or adopted when it was fresh in their mind (not within a reasonable time),
3. Accurately reflects the witness’s knowledge,
4. On a matter about which the witness had prior personal knowledge, and
5. Witness can no longer recall
*Record is not introduced into evidence*
124
What are the requirements for the business record exception?
1. Record of an event, condition, opinion, etc.,
2. Made at or near the time
3. By a party with firsthand knowledge
4. Made and retained in the regular course of business, and
5. Opposing party does not show the record is untrustworthy
Note:
* Records prepared in anticipation of litigation do not fall under this
* Court has discretion to exclude if believe record is untrustworthy
125
What are the requirements for the public records exception?
* Records of public agencies and administrators
* Activities done, observations made, and factual findings and conclusions are admissible
* Only the defendant, not the prosecution, can offer police reports in criminal cases
* Court has discretion to exclude if believe record is untrustworthy
126
What are the requirements for learned treatises?
May be scientific, historical, or medical
1. Reliable authority,
2. Expert relied on it, or
3. Used to cross-examine expert
127
What is the judgment of previous conviction exception?
Evidence that a person was convicted of a crime is admissible as evidence that they did the crime
128
What is the reputation or character exception?
Statements made about a person’s reputation or character are not hearsay and are admissible so long as not excluded by rules concerning the admissibility of reputation and character evidence
129
Confrontation Clause: face-to-face confrontation
* Criminal defendants have the right to be confronted with the witnesses against him
* Witnesses must testify in front of the criminal defendant
* Strong preference for face-to-face confrontation, but accommodations may be made to protect a vulnerable witness
130
Confrontation clause: out-of-court statements
Testimonial statements of witnesses not present at trial are only admissible if:
* Declarant is unavailable, and
* Defendant had prior opportunity to cross-examine the declarant
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What does it mean for a statement to be testimonial?
* Formal statement intended to prove something
* Reasonable person would believe their statement would be available for use at a later trial
