Evidence

Question 1

What is hearsay?

Answer 1

• an out-of-court statement,
• other than one made by the declarant while testifying at the current trial/hearing,
• offered to prove the truth of the matter asserted.

Question 2

What are the most common objections?

Answer 2

Think OPRAH.

• Original writing rule (best evidence rule)
• Privilege
• Relevancy
• Authentication
• Hearsay

Question 3

What is a “statement?”

Answer 3

(1) oral or written assertion OR
(2) conduct intended as an assertion

• a statement has to be a human statement (not by animal or machines… duh?)

Question 4

What is the difference between assertive & nonassertive conduct?

Answer 4

Assertive conduct is conduct intended as a substitute for words. When it is offered for its truth, such a statement can be hearsay.

Nonassertive conduct isn’t hearsay. It’s conduct not intended as a statement or assertion.

Question 5

What is an adoptive admission by silence?

Answer 5

One where (1) a party hears & understands an accusation against him, (2) the party is capable of denying it, & (3) a reasonable person would’ve denied it if it was untrue.

Question 6

What are the FRE 803 Hearsay Exceptions?

Answer 6

1. Present sense impression
2. Excited utterance
3. present mental, emotional, or physical state
4. statement for medical diagnosis or treatment
5. past recollection recorded
6. business records
7. absence of a business record
8. public records
9. vital statistics
10. absence of a public record

Question 7

What is a present sense impression?

Answer 7

A statement that describes or explains an event or condition, made while the declarant is perceiving the event or condition or immediately thereafter. It needs to be really close in time to the event.

Question 8

What is the general rule for character evidence in a civil case?

Answer 8

It is generally INADMISSIBLE to prove that the person acted in conformity with the trait.
EXCEPTION: where character is an essential element of cause of action/claim/defense, ADMISSIBLE