evidence approach Flashcards
most heavily tested topics
hearsay (1/3)
Impeachment and issues related to witnesses and presentation of evidence (1/3)
relevance, policy exclusions, character evidence, expert testimony and privileges (1/3)
how many evidence q
27
approach
(1) ID the subject of the question by reading the call of the question
(2) answer question in your head
(3) pick the right answer
three step approach for reading the question
(1) determine type of case
– civil or criminal
(2) situate the proceeding
— direct? cross? redirect?
(3) make preliminary determination about purpose for which evidence is being offered
— substantive?
– impeachment?
– propensity?
how to determine purpose for which evidence is being offered?
cross — is testimony there to impeach or prove propensity?
place yourself in the shoes of counsel
does evidence prove case or is it used to make W look bad/unreliable?
when is substantive evidence ok?
bases excluding otherwise relevant evidence
(1) probative value substantially outweighed by unfair press
(2) liability
(3) settlement offers
(4) withdrawn guilty pleas
(5) offers to pay medical bills
hearsay triggers
– evidence offered substantively
— out of court statement offered to prove truth of the matter asserted
why is hearsay inadmissible
– lack of ability to cross examine the declarant
– memory faulty, don’t trust the hearsay witness
hearsay approach
(1) isolate statement
(2) determine who declarant is (is it a party? witness?)
(3) determine whether the evidence is being offered for its truth (impeachment, sanity, etc.)
(4) determine if you can get the statement in under an exclusion or exception
hearsay exclusions
Declarant must testify and be subject to X-E:
Opposing party statements
prior statement by a witness
— prior inconsistent statement if it was given under oath at prior proceeding
— prior consistent statement if offered to rebut charge of lying/bad motive or offered to rehabilitate after impeached on other ground
— statement of identification
major hearsay exceptions for unavailability
(1) former testimony [taken under oath, against same D, party against whom testimony is offered must have had opportunity and similar motive to develop testimony on cross, direct, etc.)
(2) Statement against interest
(statement must be against 3Ps: penal, proprietary, pecuniary interest)
(3) Dying declarations
(declarant statement must concern the cause or circumstances of death, declarant must believe death is imminent, only in civil cases and criminal homicide cases)
hearsay exceptions for when availability does not matter
(1) present sense impression (personal knowledge required) (hard to fabricate) (excitement not required, but contemporaneous statement or immediately after is necessary)
(2) excited utterance (personal knowledge req) (made while declarant is stressed, which precludes fabrication) – look for exclamations
(3) statements of then-existing physical, emotional, or mental condition [present tense verbs]
(4) medical exception [made for purpose of medical diagnosis or treatment] [not statements that admit fault] [can be present or past statements]
(5) past recollection recorded (attempt to refresh present recollection must have been attempted and failed) (writing must have been made by W when event was fresh in her memory) (W can read into evidence but not offer the writing unless offered by opponent)
(6) business record [person with knowledge, regular course of business etc.]
(7) public record exception [activities of public agency, matters observed pursuant to duty imposed by law, factual findings of official investigation, but NOT including police report in criminal case offered against D]
unavailability grounds
PRISM
Privilege
Refusal to testify
Incapacity (mental/physical)
Subpoena (failure to comply)
Memory (lack of)
methods of impeachment
(1) prior inconsistent statement
(2) prior conviction of crime involving dishonesty or false statement or a felony conviction if passes balancing test, generally no old convictions,
(3) bad acts
no arrests [does not bear on truthfulness]
