Evidence 2 Robbins

Question 1

Definition of hearsay

Answer 1

Hearsay is an out of court statement offered to prove the truth of the matter asserted.

Question 2

What is considered a ‘statement’ for hearsay?

Answer 2

Verbal statements, acts, written statements, adoptive assertions

Question 3

When an out of court statement is offered to prove the declarant’s state of mind…

Answer 3

If offered to prove mental state, then it is not hearsay. Ex. outside statement about an affair to prove declarant had motive/anger/etc.

Question 4

If a statement if offered to show the declarant’s belief of a fact (ex. the phone answered to take bets) then it is…

Answer 4

An implied assertion. Implied assertions are not hearsay.

Question 5

If a fact has otherwise been proven, what is an OOC statement to prove one had knowledge of the fact?

Answer 5

An OOC statement to prove knowledge of an otherwise proven fact is not hearsay.

Question 6

When is a declarant witness OOC inconsistent statement not hearsay?

Answer 6

When a declarant witness inconsistent statement was given under oath, the OOC inconsistent statement is not hearsay.

Question 7

When is a declarant witness OOC consistent statement not hearsay?

Answer 7

When given to rebut allegation of fabrication or improper motive, if the statement was made before the motive existed.
It is also admissible as non-hearsay if offered to rehabilitate an attacked witness.

Question 8

What is required for any declarant witness OOC statement to be admissible?

Answer 8

The declarant witness must testify under oath and be subject to adverse questioning.

Question 9

When are OOC statements of identification admissible?

Answer 9

A declarant witness prior OOC statement about identification that was perceived prior is admissible as non-hearsay. Also must be subject to cross.

Question 10

What is considered a statement by opposing party?

Answer 10

A statement made by the opposing party, his representative, agent or employee in the scope of the relationship, or a co-conspirator during and in the furtherance of the conspiracy.

Question 11

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Answer 11

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Question 12

What is an adopted admission?

Answer 12

When a party opponent has heard and understood a statement, and acted to adopt it without emotional or physical inhibition.

Question 13

When someone makes a statement simultaneously after an event…

Answer 13

Present Sense Impression

Question 14

When someone makes a statement while under the stress or excitement of an event…

Answer 14

Excited utterance.
It must be a sufficiently startling event. The more significant the event, the longer afterwards a statement can be an excited utterance. A person’s appearance, behavior, or condition can show a state of excitement.

Question 15

What is the Hillman doctrine?

Answer 15

When a person makes an OOC statement about an intent to do a future act, it can be admissible to show the person did the future act. This is a Then Existing State of Mind.
The statement must be about present feelings or future intent, not of memory or belief.

Question 16

A statement about a emotional, sensory, or physical condition (such as current pain) is a _______ exception.

Answer 16

Then existing state of mind

Question 17

What qualifies as a statement for medical diagnosis or treatment?

Answer 17

Statements made to a medical professional that are reasonably pertinent to treatment or diagnosis and would be reasonably relied upon by a medical professional.

Question 18

When a witness once had knowledge of a matter but can not recall for testimony….

Answer 18

A recorded recollection may be admissible. The record would have to been adopted when fresh in ind and accurately reflect knowledge at the time recorded.

Question 19

When may a past recorded recollection be admitted into evidence?

Answer 19

When a recorded recollection is offered by the adverse (non-introducing) party, it may be admitted into evidence. Otherwise the record may only be read into evidence.

Question 20

What qualifies as a Business Record?

Answer 20

A record made, in the ordinary course of business and not in anticipation of litigation, by one with knowledge thereof and a part of the organization, at or near the time of the event. A custodian or qualified witness must show the foundation for the record.

Question 21

When a business record is absent, it may show…

Answer 21

That an event did not occur or exist if the record would normally be kept and the opponent does not show a lack of trustworthiness.
Absence of a business record must have the same foundation as a business record admission.

Question 22

When are public records admissible?

Answer 22

Public records are admissible if the record shows the activities of that office or a matter the office has a legal duty to report. Law enforcement reports are excluded for criminal cases.

Question 23

What other records may be admissible under a hearsay exception?

Answer 23

Religious records of family or personal history;
Ceremonial certificates;
Family records (bibles, jewelry inscriptions);
Documents effecting property interest;
Ancient documents (authenticated and pre-1998);
Commercial publications;
Learned treatises (if established as reliable authority)

Question 24

What makes a declarant ‘unavailable’?

Answer 24

A declarant may be considered unavailable if:
A privileged is invoked;
They refuse to testify;
Testifies to no memory;
Death or illness prevents testimony;
Absent and unable to reasonably locate.

Question 25

When is former testimony admissible?

Answer 25

When the declarant is unavailable and the statements were given at a trial, hearing, or lawful deposition and the adverse party had an opportunity to cross.
In a civil trial, the declarant can be a predecessor in interest.
The delcarant must be unavailable.

Question 26

What is a Dying Declaration?

Answer 26

A dying declaration is an admissible hearsay statement made when:
The declarant believed death was imminent and was made about the cause or circumstance of the believed death.
The delcarant must be unavailable.

Question 27

When is a dying declaration not admissible?

Answer 27

A dying declaration is not admissible in a criminal case unless it is a prosecution for homicide.

Question 28

What is a Statement Against Interest?

Answer 28

A statement made contrary to the declarant’s proprietary or pecuniary interest, OR
that tends to subject the declarant to civil or criminal liability, OR
would invalidate a lawful claim against another.
The delcarant must be unavailable.

Question 29

What types of interest might a declarant be speaking against?

Answer 29

Financial, Property right, a claim or defense, or civil or criminal liability.

Question 30

If a criminal defendant speaks against his criminal interest, what else must be shown to be admissible under Statement Against Interest exception?

Answer 30

There must be corroborating circumstances to indicate trustworthiness.

Question 31

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Answer 31

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Question 32

What causes a forfeiture of right in hearsay?

Answer 32

A forfeiture of right occurs when the party against whom the statement is offered caused the unavailability of the declarant. This is a complete hearsay waiver.

Question 33

What is required under the Residual Exception to hearsay?

Answer 33

To apply the residual exception, the court must find:
Trustworthiness,
Notice to other party,
Necessity,
Materiality,
The purpose of rules and justice will be served.

Question 34

What is the Confrontation Clause?

Answer 34

The 6th Amendment provides the right to be “confronted with the witnesses against him” in a criminal case.

Question 35

What is the Crawford standard?

Answer 35

The Crawford standard sets when evidence violates the Confrontation Clause. If a statement comes from an unavailable witness and is testimonial in nature, the Confrontation Clause bars introduction.

Question 36

What is a ‘testimonial’ statement?

Answer 36

Testimonial statements are statements that lead the declarant to reasonably believe the statement made would be available for use at a later trial.

Question 37

How does a court decide if statements are testimonial for purposes of Confrontation/Crawford?

Answer 37

The Primary Purpose test establishes if statements are testimonial. A statement made to establish or prove facts potentially relevant to later prosecution is testimonial.

Question 38

What is a non-testimonial statement?

Answer 38

A non-testimonial statement is one made with the primary purpose to enable the police to meet an ongoing emergency. This is generally describing ongoing events and not past events.

Question 39

How are OOC statements by unavailable declarants evaluated?

Answer 39

First the OOC statement must meet an 804 hearsay exception. If the statement falls within an 804 exception, evaluate if the statement is testimonial for Confrontation purposes.

Question 40

When is an OOC testimonial statement not violative of the Confrontation Clause?

Answer 40

If the defendant had a prior opportunity to cross exam the declarant, the confrontation clause does not bar the admission of the statement. (Ex. deposition, previous testimony, etc.)

Question 41

How is the right of confrontation effected by an 804(b)(6) forfeiture of right?

Answer 41

Causing the unavailability of a declarant forfeits both the right to hearsay objects and the right to confrontation.

Question 42

When a witness testifies to DNA data, is confrontation violated?

Answer 42

An expert may rely on raw data even if that raw data was developed by others, but can not act as a surrogate for that information. The comparison and/or compilation of the evidence presented must come from the testifying witness.

Question 43

What is the purpose of Authentication

Answer 43

Authentication serves to show the witness has knowledge sufficient to support the object is what it is claimed to be.

Question 44

What is the result if the chain of custody is interrupted?

Answer 44

An interrupted chain of custody of an evidentiary item does not necessarily negate authenticity, rather the jury may consider if it discredits the weight of the evidence.

Question 45

What is the primary way to authenticate an object?

Answer 45

When the witness has personal knowledge that the item is a Fair and Accurate Representation of what is portrays.

Question 46

What is required for a lay witness to testify to handwriting?

Answer 46

A lay witness must have been familiar with the handwriting of a person prior to litigation in order to testify that the handwriting is in fact that person’s.

Question 47

What is required for an expert to testify to handwriting?

Answer 47

An expert may make a comparison of handwriting when the sample is authenticated.

Question 48

When can a witness give testimony about someone’s voice?

Answer 48

When the witness has heard the voice at any time.

Question 49

How can a telephone conversation be authenticated?

Answer 49

When a call was made to a particular person and that person answered the phone, or when made to a particular business and was reasonably related to business reasonably transacted over the phone.

Question 50

How are public records authenticated?

Answer 50

Public record may be authenticated when they were filed or recorded in a public office or from an office where records of the kind are normally kept.

Question 51

What are the 3 steps to authenticate ancient documents?

Answer 51

Ancient documents must be:
In a condition that creates no suspicion, AND
Found in a place where it would be expected, AND
At least 20 years old.

Question 52

What is the effect of describing a process or system and showing that it produces accurate results?

Answer 52

This can authenticate items from that same system.

Question 53

When introducing photographs, what must the witness establish?

Answer 53

The witness must have had knowledge of the items photographed and the picture is a fair and accurate representation of what it is said to be.

Question 54

How is video authenticated?

Answer 54

To admit video evidence, one must show that the video process is reliable and working properly and testify if he reviewed the video and if it had been altered.

Question 55

What is demonstrative evidence?

Answer 55

Demonstrative evidence is a “mere visual aid” of no probative value, intended to help the jury understand testimony.

Question 56

What are self-authenticating documents?

Answer 56

Some documents do not require extrinsic evidence to authenticate by their nature. These are often public documents or publications that are signed and or sealed or certified.