Evidence - Impeachment & Hearsay

Question 1

Impeachment General Rule

Answer 1

General rule: any party may impeach a witness (even the party that called the witness)

Question 2

Seven Ways to Impeach a Witness

Answer 2

1. Prior Inconsistent Statements
2. Bias and Interest / Extrinsic Evidence
3. Conviction of a crime
4. Specific Instances of Conduct
5. Reputation or Opinion for Untruthfulness
6. Sensory deficiencies
7. Contradiction

1-4 Facts Specific to Case
5-7 General Bad Character for Untruthfulness

Question 3

Prior Inconsistent Statements

Answer 3

Prior inconsistent statements may be used for (1) impeachment AND (2) substantive evidence, if it falls into a hearsay exception or exclusion (made under oath at prior proceeding).

The witness must be given the opportunity to explain or deny the statement IF extrinsic evidence is used, UNLESS
(1) the witness is opposing party,
(2) not in court, OR
(3) if the interests of justice so require.

Prior inconsistent statements made under oath at a prior trial or proceeding, or in a deposition, are considered nonhearsay under the Federal Rules as long as the declarant is now testifying and subject to cross-examination

Question 4

Reasons for Bias

Answer 4

• Family member
• Friend
• Enemy
• Paid by a Party
• Granted Immunity

Question 5

Impeachment & Rehabilitation

Bias & Interest

Answer 5

• If a witness has reason to be biased, then that can be used to suggest the witness has motive to lie.
• The witness must be confronted with the alleged bias while she is on the stand
• Extrinsic evidence may be used only after the witness is first asked about the bias and only if the witness denies the facts that suggest the bias.

Question 6

Impeachment & Rehabilitation

Conviction of a Crime of Dishonesty

Answer 6

GENERAL RULE

Convictions of any crime (felonies or misdemeanors) where the prosecutors is required to prove an act of dishonesty or false statement are **automatically admissible **(subject to the 10-year rule).

• Any crime
• Dishonesty or false statement
• Automatically admissible

INCLUDES
Income Tax Fraud
Embezzlement
Perjury

EXCLUDES
Shoplifting
Robbery
Possession of Marijuana

For felony conviction - admissible IF it meets a balancing test.

Witness is Defendant in Criminal Case
- Probative Value > Prejudicial Effect to D

Witness is NOT Defendant
- Probative Value < Danger of Unfair Prejudice

10-Year Rule for Conviction of a Crime
* If more than 10 years have passed
* Since the witness’ conviction or release from confinement for it, whichever is later,
* Evidence of the conviction is generally not admissible

(There is an EXCEPTION if the proponent can show its probative value substantially outweighs its prejudicial effect, and gives reasonable written notice of its intent to use it so that the party has a fair opportunity to contest its use).

Question 7

Impeachment & Rehabilitation

Specific Instances of Conduct

“Bad Acts” Probative of Truthfulness

Answer 7

On cross-examination, a party may inquire into specific acts of misconduct if they are probative of the character for truthfulness or untruthfulness.

• The specific act must relate to truthfulness.
• Extrinstic evidence is not admissible.

ADMISSIBLE Q:
“Isn’t it true that you cheated on your math test last week?”

If Witness says NO: CANNOT enter math test into evidence

Question 8

Impeachment & Rehabilitation

Reputation or Opinion of Untruthfulness

Answer 8

A party may call its own character witness to testify that the witness in question has a bad reputation for truthfulness or if, in the characater witness’ opinion, the witness in question does not have a truthful character.

Question 9

Impeachment & Rehabilitation

Sensory Deficiencies

Answer 9

Anything that concerns the witness’ perception or memory can be used to suggest the witness is mistaken

EXAMPLE
Witness is deaf
Witness is blind
Witness has bad memory

Question 10

Impeachment and Rehabilitation

Contradiction

Answer 10

A witness may be impeached during cross-examination if she contradicted herself by making a mistake or lying about anythign she said during direct examination.

Question 11

Hearsay Definition

Answer 11

• Out of court
• Statement
• Offered to prove
• The truth of the matter asserted

EXAMPLE
Car accident @ 4:30pm; Passenger says “the light was green” and dies.

Statement offered to prove:
* passenger in car: Admissible, not hearsay
* passenger alive at 4:30pm: Admissible, not hearsay
* the light was green, HEARSAY

EXAMPLE
A: What caused the injury?
B points to indicate spill
Pointing constitutes a statement

Question 12

Statements that are Nothearsay and Not Used to Prove the Truth of the Matter

Answer 12

• Verbal act: Legally operative words (i.e. I agree to your offer)
• Effect on person who heard or read statement - “state of mind”
• Circumstantial evidence of speaker’s state of mind (i.e. I feel sad; I’m going on a trip)

Question 13

Verbal Act: Legally Operative Words

Answer 13

If the proponent is offering the statement to prove an element of a claim and not for its truth, the statement is not hearsay

Examples of legally operative words:
* Defamation
* Perjury
* Bribery

Question 14

Effect on Person Who Heard or Read Statement - “State of Mind”

Answer 14

• A person heard or read a statement
• As a result, they had notice of a fact, or motive, or intent.
• The statement is not being offered to prove that it is true, but only to prove the person’s statement of mind
  (i.e. their notice of a fact, motive, intent)

EXAMPLE - Effect on Listener

Mechanic: Your brakes are faulty
Driver: Not today, I need to go.
P sues Driver after accident
Mechanic (listener) can offer Driver’s statement to prove notice.

EXAMPLE - Circumstantial Evidence

“Zorg the almighty told me to kill”
May be offered to prove evidence of mental disorder.

Question 15

Prior Statements of a Trial Witness

Three Kinds

Answer 15

1. Witness’ prior statement of IDENTIFICATION OF A PERSON
2. Witness’ prior INCONSISTENT statement
3. Witness’ prior CONSISTENT statement

Question 16

Witness’ Prior Inconsistent Statement

Answer 16

• The statement is made under oath at a formal trial, hearing, or deposition.
• It is inconsistent with the statement at trial.
• The declarant is testifying at a trial or hearing and is subject to cross-examination concerning the statement.

Question 17

Witness’ Prior Consistent Statement

Answer 17

• The statement is consistent with testimony at trial
  AND
• Is used to rebut charge of recent fabrication of improper motive/influence

Question 18

Statement Made by
Opponent Party

Answer 18

• Anything an opposing party states can be offered against that party.

A statement made by an opposing party offered against them (“party admission”) is NOT hearsay.

Question 19

Adoptive Admissions

Answer 19

A party remains silent under circumstances in which a reasonable person would protest if the statement were false.

The proponent must show that the person:
* heard and understood the statement,
* was physically and mentally capable of responding, AND
* a reasonable person would have denied the statement.

Question 20

Agent or Employee Statement

Answer 20

Agent or Employee Statement is admissible IF:
1. They are made by the agent/employee
2. They are offered against the principal/employer
3. They are made during the existence of the agency/employment relationship, AND
4. The statement concerns a matter within the scope of the agency or employment.

Question 21

Statement by Co-Conspirator

Answer 21

Admissible if made during the course of and in furtherance of the conspiracy. Prosecutors must prove the existence of a conspiracy with independent proof that a conspiracy exists with something other than the statement.

Question 22

Unavailable Declarant

A declarant is unavailable IF the declarant…

Answer 22

A declarant is unavailable if the declarant (SAILS)
* States claim for privilege
* Absent from jurisdiction
* Ill or Dead
* Lacks Memory
* Stubbornly Refuses to Testify

Question 23

Forfeiture by Wrongdoing

Answer 23

A party “forfeits” both the hearsay objection and Sixth Amendment objection IF:
* The declarant is unavailable AND
* The court finds by a preponderance of the evidence that the party’s conduct was specifically designed to prevent the witness from testifying

Question 24

Former Testimony

Answer 24

1. The declarant is unavailable
2. The declarant had given testimony at a former proceeding or deposition, AND
3. The statement is admissible against a party or someone in privity who, on a prior occassion, had the opportunity and motive to develop the testimony of the witness

Question 25

Statement Against Interest

Answer 25

1. The declarant is **unavailable** 2. The statement is **against** the declarant's pecuniary, proprietary or penal interest, 3. It was **against the declarant's interest, when made**, and 4. The declarant **knew it was against his interest** when the statement was made. * Declarant must have personal knowlege of facts * Declarant need not be a party

Question 26

Dying Declaration

Answer 26

1. The declarant is **unavailable** 2. The statement is used in a **homicide or civil case** 3. The statement is made while the **declarant believed death was impending**, AND 4. The statement concerns the **cause or circumstances of death**

Question 27

Statement of Personal or Family History

Answer 27

A statement is admissible if it is: (1) A statement about the defendant's * Own birth * Adoption * Legitimacy * Ancestry * Marriage * Divorce (2) A statement about another person concerning any of these facts, as well as death, if the declarant was **related to the person by blood**, adoption, or marriage or was so **intimately associated** with the person's family that the declarant's information is likely to be accurate. EXAMPLE: "My (deceased) friend told me that HIS BROTHER was MARRIED in 2010." - admissible b/c concerns marrige of blood relative. here, friend **unavailable**.

Question 28

Testimonial Statements

Answer 28

* A statement is testimonial if the primary purpose of the questioning is to establish or prove past events potentially relevant to criminal prosecution * A statement is non-testimonial if the primary purpose of the questioning is to enable police assistance to meet an ongoing emergency.

Question 29

Hearsay & SIXTH AMENDMENT Confrontation Clause

Answer 29

The Sixth Amendment Confrontation Clause provides the right of the defendant to contront witnesses who testify against him - in CRIMINAL cases. A statement is generally not admissible because it poses a confrontation problem under the Sixth Amendment IF (TUN): 1. The statement is **testimonial** 2. The declarant is **unavailable** 3. The defendant had **no opportunity for cross-examination**. Even if the statement falls within a hearsay exception, it will NOT be admitted into evidence.

Question 30

Present Sense Impression

Answer 30

1. Declarant describes or explains an event 2. While the event is occurring or immediately thereafter *A present sense impression is a statement describing or explaining an event or condition made while or immediately after the delcarant perceived it.*

Question 31

Excited Utterance

Answer 31

1. There is **sufficienctly startling event** 2. The statement is made while the declarant is **under the stress** of excitement AND 3. The statement **relates** to the startling event *An excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress or excitement that it caused.*

Question 32

Then-Existing Mental, Emotional, or Physical Condition

Answer 32

A **contemporaneous** statement concerning 1. A present state of mind, feelings, or emotions 2. A current physical condition; or 3. An intent to do something in the future

Question 33

Statement Made for Medical Diagnosis or Treatment

Answer 33

1. Statement can be made to **anyone** (usually medical personnel, but not necessarily) 2. Statement concerns **past or present symptoms or the cause of condition**; AND 3. Statement is made for the **purpose** of diagnosis or treatment *These statements must be made for and reasonably pertinent to medical diagnosis or treatment and describe medical history, past or presen symptoms or sensations, their inception, or their general cause.*

Question 34

Past Recollection Recorded

Answer 34

1. The witness has an insufficient recollection 2. The witness had personal knowledge at a former time 3. The writing was either made by the witness or adopted by the witness 4. The making or adoption occurred while the event was fresh in the witness' memory; and 5. The witness can vouch for accuracy of writing when made or adopted *A record that is on a matter that the witness once know about but now cannot recall well enough to testify fully and accurately and was made while the matter was fresh in the witness' memory. **The witness can read the record; it should not be offered as an exhibit**.*

Question 35

Business Records

Answer 35

1. Records of a business of any **type** (even churches, hospitals, schools) 2. Made in the **regular course of business** 3. Made at or about the time of event recorded ("**fresh**") 4. Which contains contents that consist of information observed by employees of the business ("business duty rule") or the statement falls within an independent hearsay exception ("hearsay within hearsay") *A record of acts, events, conditions, opinions, or diagnoses is admissible if it is made "at or near the time" of the event recorded by a "person with knowledge" of the event. Further, the making of the record must occur in the course of a regularly conducted business activity, and it must be the regular practice of the busienss to make the record.*

Question 36

Public Records

Answer 36

Records of a public office or agency setting forth: * The activities of the **office or agency** * Matters observed pursuant to a **duty imposed by law** (excluding matters observed by **police officers** and other law enforcement personnel in **criminal cases**); or * In civil cases or when offered against the government in criminal cases, **factual findings** resulting from an **investigation authorized by law** are allowed in unless sources or circumstances indicate they are untrusworthy

Question 37

Learned Treatises

Answer 37

* If reliable, a learned treatise may be **read in** as **substantive evidence** if the expert is on the stand (and to impeach if used on cross-examination) * Note: it may **not** be introduced as an **exhibit**

Question 38

Hearsay on an Essay Exam (DIA)

Answer 38

Define Hearsay *Hearsay is an out of court statement offered to prove the truth of the matter asserted.* State why it is Important *Hearsay is not admissible unless it comes within an exception.* Analyze exceptions or exclusions.