EVIDENCE LAW Flashcards
Logical Relevance
EI LR IT2MMFOC <> PTIWBWE
Rule Statement:
Evidence is logically relevant if it has any tendency to make a material fact of consequence more or less probable than it would be without the evidence.
Any Tendency:
The evidence need not conclusively prove the fact, but it must have some tendency to support or undermine it.
Material Fact of Consequence:
The fact must be significant to the outcome of the case.
More or Less Probable:
The evidence must affect the likelihood of the fact in question.
Common Tricks on the Exam:
Misunderstanding Relevance:
Questions might suggest evidence is irrelevant without considering its tendency to affect a material fact. Ensure any tendency is considered.
Materiality:
Fact patterns may overlook whether the fact is material. Confirm the fact’s significance to the case outcome.
Probative Value:
Scenarios might ignore how the evidence makes a fact more or less probable. Verify the evidence’s impact on the likelihood of the fact.
Hearsay Exceptions: Present Sense Impression
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Rule Statement:
A statement describing an event or condition made while the declarant perceived it or immediately after is admissible.
Event or Condition:
The statement must describe or explain an event or condition.
Declarant Perceived It:
The declarant must have made the statement while perceiving the event or condition.
Immediately After:
The statement is admissible if it was made immediately after the declarant perceived the event or condition.
Common Tricks on the Exam:
Timing of the Statement:
Questions might ignore the requirement for the statement to be made while perceiving the event or immediately after. Ensure the timing is correct.
Nature of the Statement:
Fact patterns may overlook that the statement must describe an event or condition. Confirm the statement’s content is appropriate.
Declarant’s Perception:
Scenarios might imply the declarant did not actually perceive the event or condition. Verify that the declarant directly perceived what is described.
Hearsay
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Rule Statement:
Hearsay is an out of court statement offered for the truth of the matter asserted. Hearsay is inadmissible unless an exception applies.
Out of Court Statement Offered for the Truth of the Matter Asserted:
A statement made outside of the current court proceeding that is presented to prove the truth of what it asserts.
Inadmissible Unless an Exception Applies:
Such statements are generally not allowed as evidence unless they fall under a recognized exception.
Common Tricks on the Exam:
Misidentifying Hearsay:
Questions might incorrectly identify statements as hearsay. Ensure the statement is offered for its truth and made out of court.
Overlooking Exceptions:
Fact patterns may ignore exceptions that permit hearsay. Verify if any exceptions apply.
Confusing Purpose:
Scenarios might confuse the purpose of the statement, suggesting it’s not hearsay. Confirm if the statement is indeed offered for its truth.
Hearsay Exceptions: Excited Utterance
A statement relating to a startling event or condition is admissible when made while the declarant is still under the stress or excitement caused by the event or condition.
Startling Event or Condition:
The statement must relate to an event or condition that is startling or shocking.
Still Under:
The declarant must still be under the influence of the event or condition when making the statement.
Stress or Excitement:
The statement must be made while the declarant is experiencing stress or excitement from the event or condition.
Event or Condition:
The stress or excitement must be caused by the specific event or condition being described.
Common Tricks on the Exam:
Timing of the Statement:
Questions might ignore the requirement that the declarant must still be under the stress or excitement of the event. Ensure the timing is correct.
Nature of the Statement:
Fact patterns may overlook that the statement must relate to the startling event or condition. Confirm the statement’s content is appropriate.
Declarant’s Condition:
Scenarios might imply the declarant was no longer under stress or excitement. Verify that the declarant was still influenced by the event or condition.
Hearsay Exceptions: State of Mind
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Rule Statement:
A statement of the declarant’s then existing physical condition, state of mind, emotion, or sensation is admissible.
Declarant’s Then Existing:
The statement must pertain to the declarant’s condition at the time the statement was made.
Physical Condition:
Statements about the declarant’s physical condition (e.g., pain, health status).
State of Mind:
Statements about the declarant’s mental condition (e.g., intent, plan, motive).
Emotion:
Statements about the declarant’s feelings (e.g., fear, anger, joy).
Sensation:
Statements about the declarant’s sensory experiences (e.g., feeling cold, hot, etc.).
Common Tricks on the Exam:
Current vs. Past Condition:
Questions might ignore that the statement must describe the declarant’s condition at the time it was made, not a past condition.
Nature of the Statement:
Fact patterns may overlook that the statement must describe a physical condition, state of mind, emotion, or sensation. Confirm the statement’s content is appropriate.
Declarant’s Identity:
Scenarios might misinterpret the declarant’s statement about someone else’s condition. Verify the statement pertains to the declarant’s own condition.
Hearsay Exceptions: Statement Against Interest
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Rule Statement:
The statement of a now unavailable witness which is against his penal, pecuniary, or proprietary interest when made is admissible.
Unavailable Witness:
The person who made the statement must be unavailable to testify at the trial.
Against Interest:
The statement must be contrary to the declarant’s own interest.
Penal Interest:
Statements that would subject the declarant to criminal liability.
Pecuniary Interest:
Statements that would have financial consequences for the declarant.
Proprietary Interest:
Statements that would affect the declarant’s property rights.
When Made:
The statement must have been against the declarant’s interest at the time it was made.
Common Tricks on the Exam:
Witness Availability:
Questions might overlook the requirement that the declarant must be unavailable. Ensure the witness cannot testify.
Against Interest:
Fact patterns may ignore whether the statement was actually against the declarant’s interest. Confirm the adverse nature of the statement.
Timing of the Statement:
Scenarios might misinterpret the timing, suggesting the statement must be currently against interest. Verify the statement was against interest when made.
Non-Hearsay: Admission of a Party Opponent
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Rule Statement:
Admission of a Party Opponent:
A statement made, or an act that admits to prior acknowledgement, by a party opponent of one of the relevant facts which is now being used against him is admissible non-hearsay.
Statement Made or Act:
The admission can be a verbal statement or a physical act.
Admits to Prior Acknowledgement:
The statement or act acknowledges a fact relevant to the case.
Party Opponent:
The statement is made by the opposing party in the case.
Relevant Facts:
The admission pertains to facts that are significant to the issues in the case.
Used Against Him:
The admission is being used as evidence against the party who made the statement or act.
Statement Offered for Another Purpose:
Statements offered for a purpose other than showing the truth of the matter asserted are admissible non-hearsay.
Purpose Other Than Showing the Truth:
Statements that are used to show something other than the truth of their content, such as to show the declarant’s state of mind, effect on the listener, or as verbal acts, are admissible.
Common Tricks on the Exam:
Purpose of the Statement:
Questions might suggest that statements are always hearsay. Verify if the statement is offered for a non-hearsay purpose.
Party Opponent Admissions:
Fact patterns may overlook that admissions by a party opponent are non-hearsay. Confirm the statement or act is by the opposing party and is relevant.
Effect on the Listener:
Scenarios might ignore statements offered to show their effect on the listener. Ensure such statements are recognized as non-hearsay.
Authentication
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Rule Statement:
To be admissible, all writings must be authenticated. Foundation must be laid to show that the writing is what it purports to be.
Writings:
Documents or recorded information that are offered as evidence.
Authenticated:
The process of proving that a writing is genuine and what it claims to be.
Writing is What it Purports to Be:
The evidence must be shown to be authentic and trustworthy, accurately representing its claimed origin or authorship.
Common Tricks on the Exam:
Foundation Requirement:
Questions might overlook the need for laying a proper foundation. Ensure there is adequate evidence to support authentication.
Assumption of Authenticity:
Fact patterns may suggest that writings are automatically admissible. Confirm that authentication has been established.
Authentication Methods:
Scenarios might ignore various methods of authentication, such as witness testimony, expert comparison, or distinctive characteristics. Verify appropriate methods are used.
Lay Witness
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Rule Statement:
Lay opinions are admissible if (1) rationally based on perception, (2) helpful to the trier of fact, and (3) not based on scientific, technical, or other specialized knowledge.
Rationally Based on Perception:
The opinion must be grounded in the witness’s own perceptions and observations.
Helpful to the Trier of Fact:
The opinion must assist the judge or jury in understanding the evidence or determining a fact in issue.
Not Based on Scientific, Technical, or Other Specialized Knowledge:
The opinion must not require expertise beyond that of an average person; it should not rely on specialized knowledge.
Common Tricks on the Exam:
Perception Basis:
Questions might suggest opinions are admissible without being based on the witness’s perception. Ensure the opinion is grounded in direct observation.
Helpfulness to Trier of Fact:
Fact patterns may overlook whether the opinion aids the trier of fact. Confirm that the opinion is useful in understanding evidence or determining facts.
Specialized Knowledge:
Scenarios might ignore the prohibition against lay opinions based on specialized knowledge. Verify that the opinion does not require scientific, technical, or other expert knowledge.
Best Evidence Rule
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Rule Statement:
The party seeking to prove the contents of a writing must either produce the original or account for its absence.
Contents:
The specific information contained in a document or writing.
Writing:
Any recorded information, including documents, recordings, or photographs.
Produce:
To present the original document in court as evidence.
Original:
The actual document or writing itself, or an exact duplicate.
Account for its Absence:
Provide a valid reason for why the original cannot be produced and show that a reliable alternative is being used.
Common Tricks on the Exam:
Original Requirement:
Questions might overlook the need to produce the original document. Ensure the original is presented or its absence is properly accounted for.
Absence Justification:
Fact patterns may ignore the necessity to explain the absence of the original. Confirm there is a valid reason for not producing the original.
Exact Duplicate:
Scenarios might misinterpret acceptable substitutes for the original. Verify that any duplicate or secondary evidence is reliable and admissible.
Admissibility of Statements Against Penal Interest
Admissibility of Statements Against Penal Interest
Rule Statement:
Under the Federal Rules of Evidence, a statement against penal interest is admissible if the declarant is unavailable, the statement is against the declarant’s penal interest, and a reasonable person in the declarant’s position would not have made the statement unless they believed it to be true. Additionally, under the Confrontation Clause, non-testimonial statements that bear adequate indicia of reliability or fall within a firmly rooted hearsay exception are admissible.
Acrostic and Mnemonic
Acrostic Sentence:
Unavailable Penal Truth Non-testimonial.
Unavailable (declarant)
Penal interest (statement)
Truth (statement must be made with the belief it is true)
Non-testimonial (under Confrontation Clause)
Mnemonic Visualization:
Visualize a Witness Stand:
Imagine a witness stand where the witness is an empty chair (Unavailable). Above the chair, there is a flashing sign saying “Against Penal Interest” (Penal Interest). The witness’s statement is engraved on a truth scale, showing that they believed it to be true (Truth). There is also a shield protecting the stand labeled “Non-Testimonial” (Non-Testimonial).
Detailed Breakdown
Unavailable (Declarant):
Definition: The declarant must be unavailable to testify in court.
Example: A witness who has left the country and cannot be found.
Penal Interest (Statement):
Definition: The statement must be against the declarant’s penal interest, meaning it subjects them to criminal liability.
Example: A person admitting to involvement in a robbery.
Truth (Belief in Truth):
Definition: A reasonable person in the declarant’s position would not have made the statement unless they believed it to be true.
Example: Admitting to a crime because they believe they are speaking the truth to a trusted person.
Non-Testimonial (Under Confrontation Clause):
Definition: The statement is non-testimonial if it is not made with the primary purpose of creating evidence for prosecution.
Example: A spontaneous admission to a family member.
Question and Analysis
Question:
A defendant is on trial for robbing a particular bank with his best friend. The friend has left the country and cannot be found. The prosecutor has called the friend’s mother to testify to a conversation she had with her son the day before he left the country.
She implored him not to go, but he said, “Mom, I have to go. I was involved in a robbery at [the bank], and I don’t want them to catch me.” The prosecutor has other evidence indicating that the defendant and the friend were together on the morning of the robbery.
Is the statement by the friend to his mother admissible?
No, because inculpatory statements against penal interest do not satisfy the confrontation clause.
No, because the friend’s statement to his mother was not corroborated.
Yes, as a statement against penal interest that is not testimonial under the confrontation clause.
Yes, as a statement of the friend’s state of mind that is not testimonial under the confrontation clause.
Correct Answer:
Yes, as a statement against penal interest that is not testimonial under the confrontation clause.
Explanation:
The friend’s statement to his mother qualifies as a statement against penal interest because it admits to involvement in a robbery, subjecting him to criminal liability. The friend is unavailable to testify because he has left the country. The statement is non-testimonial because it was made spontaneously to a family member, not with the primary purpose of creating evidence for prosecution. Under the Confrontation Clause, non-testimonial statements that bear adequate indicia of reliability or fall within a firmly rooted hearsay exception (such as statements against penal interest) are admissible.
Common Ways Tested
Unavailable Declarant: Questions often test whether the declarant is truly unavailable.
Against Penal Interest: Scenarios may involve statements that either clearly or ambiguously subject the declarant to criminal liability.
Belief in Truth: Fact patterns might test whether a reasonable person in the declarant’s position would believe the statement to be true.
Non-Testimonial: Questions often involve determining whether a statement is testimonial or non-testimonial under the Confrontation Clause.
Common Tricks
Unavailable Declarant: Scenarios might present declarants who are difficult to locate but not necessarily unavailable by legal standards.
Against Penal Interest: Fact patterns may test whether the statement is genuinely against penal interest or merely self-serving.
Belief in Truth: Questions might present statements made under duress or coercion to test if they were made with a belief in their truth.
Non-Testimonial: Scenarios might blur the lines between statements made for legal proceedings and those made spontaneously.
Relevance
TPM
Relevance
Rule Statement: Evidence is relevant if it has any tendency to make a fact of consequence more or less probable than it would be without the evidence.
Elements:
Tendency to make a fact more or less probable
The fact is of consequence in determining the action
Mnemonic: TPM (Tendency, Probable, Material)
Exclusions Under Rule 403
Exclusions Under Rule 403
Rule Statement: Relevant evidence may be excluded if its probative value is substantially outweighed by the risk of one or more of the following:
Unfair prejudice
Confusing the issues
Misleading the jury
Undue delay
Wasting time
Needlessly presenting cumulative evidence
Mnemonic: PCLDWC (Prejudice, Confusion, Misleading, Delay, Wasting time, Cumulative)
Policy Exclusions
SRCSPO
Policy Exclusions
Subsequent Remedial Measures: Evidence of repairs or other remedial measures taken after an injury is not admissible to prove negligence, culpable conduct, a defect in a product, or a need for a warning or instruction.
Compromise/Settlement Offers and Negotiations: Evidence of compromises or offers to settle a claim is not admissible to prove the validity or amount of a disputed claim.
Pleas and Plea Negotiations: Statements made during plea negotiations are generally inadmissible in later proceedings.
Offers to Pay Medical Expenses: Offers to pay medical or similar expenses resulting from an injury are not admissible to prove liability.
Liability Insurance: Evidence that a person was or was not insured against liability is not admissible to prove negligence or other wrongdoing.
Mnemonic: SRCSPO (Subsequent, Remedial, Compromise, Settlement, Pleas, Offers)
Competence/Personal Knowledge
LEFRJ
Competence/Personal Knowledge
Lay Opinion: A lay witness can give opinion testimony if it is rationally based on their perception, helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge.
Expert Opinion: An expert can give opinion testimony if the witness is qualified as an expert, the testimony is based on sufficient facts or data, the testimony is the product of reliable principles and methods, and the expert has reliably applied the principles and methods to the facts of the case.
Refreshing Recollection: A witness may use any item to refresh their memory, but they must testify from their refreshed memory and not directly from the item used.
Leading Questions: Leading questions are allowed on cross-examination and may be used on direct examination to develop the witness’s testimony or when a witness is hostile, an adverse party, or identified with an adverse party.
Judicial Notice: The court may take judicial notice of facts that are not subject to reasonable dispute because they are generally known within the trial court’s jurisdiction or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
Mnemonic: LEFRJ (Lay, Expert, Refresh, Leading, Judicial)
Lay Opinion
Lay Opinion: A lay witness can give opinion testimony if it is rationally based on their perception, helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge.
Expert Opinion
Expert Opinion: An expert can give opinion testimony if the witness is qualified as an expert, the testimony is based on sufficient facts or data, the testimony is the product of reliable principles and methods, and the expert has reliably applied the principles and methods to the facts of the case.
Refreshing Recollection
Refreshing Recollection: A witness may use any item to refresh their memory, but they must testify from their refreshed memory and not directly from the item used.
Leading Questions
Leading Questions: Leading questions are allowed on cross-examination and may be used on direct examination to develop the witness’s testimony or when a witness is hostile, an adverse party, or identified with an adverse party.
Judicial Notice
Judicial Notice: The court may take judicial notice of facts that are not subject to reasonable dispute because they are generally known within the trial court’s jurisdiction or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
Authentication
Authentication
Rule Statement: Evidence must be authenticated by showing it is what the proponent claims it is.
Methods:
Witness Testimony: A witness with knowledge testifies that the item is what it is claimed to be.
Chain of Custody: Establishing a chain of custody for items like drugs or other evidence that could be easily altered.
Best Evidence: The original writing, recording, or photograph is required to prove its content unless exceptions apply.
Self-Authentication: Certain documents, such as certified copies of public records, newspapers, and acknowledged documents, are self-authenticating.
Mnemonic: WCBS (Witness, Chain, Best, Self-authentication)
Witness Testimony
Witness Testimony: A witness with knowledge testifies that the item is what it is claimed to be.
Chain of Custody
Chain of Custody: Establishing a chain of custody for items like drugs or other evidence that could be easily altered.
Best Evidence
Best Evidence: The original writing, recording, or photograph is required to prove its content unless exceptions apply.
Self-Authentication
Self-Authentication: Certain documents, such as certified copies of public records, newspapers, and acknowledged documents, are self-authenticating.
Hearsay
Hearsay
Step One: Is the Evidence Hearsay?
Rule Statement: Hearsay is an out-of-court statement offered to prove the truth of the matter asserted (TOMA).
Elements:
Out-of-court statement
Offered for the truth of the matter asserted
Mnemonic: OOT (Out-of-court, Offered, Truth)
Tested: Often
Step Two: Does a Hearsay Exclusion Apply?
Statement by a Party-Opponent: Any statement made by a party and offered against that party.
Prior Statement by a Witness: Includes prior inconsistent statements, prior consistent statements, and prior statements of identification.
Mnemonic: SP (Statement, Prior)
Tested: Often
Step Three: Does a Hearsay Exception Apply?
For Any Declarant (Availability Immaterial):
Present Sense Impression: Statement describing or explaining an event or condition made while or immediately after the declarant perceived it.
Excited Utterance: Statement relating to a startling event or condition made while the declarant was under the stress of excitement that it caused.
Business Records: Records of a regularly conducted activity made at or near the time by someone with knowledge, if kept in the course of regularly conducted activity.
Statements Made for Medical Diagnosis/Treatment: Statements made for purposes of medical diagnosis or treatment describing medical history, past or present symptoms, or the inception or general cause of the symptoms.
Then-Existing Mental, Emotional, or Physical Condition: Statements of the declarant’s then-existing state of mind, emotion, sensation, or physical condition.
Public Records: Records of a public office or agency setting forth the activities of the office or agency or matters observed pursuant to duty imposed by law.
Recorded Recollection: A record that is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately.
Residual Exception: A statement not covered by any specific hearsay exception but having equivalent circumstantial guarantees of trustworthiness.
Mnemonic: PEBMSPRR (Present, Excited, Business, Medical, State, Public, Recorded, Residual)
For Unavailable Declarants:
Dying Declaration: Statement made under the belief of impending death concerning the cause or circumstances of what the declarant believed to be their impending death.
Statement Against Interest: A statement so contrary to the declarant’s interest that a reasonable person would only make it if they believed it to be true.
Former Testimony: Testimony given as a witness at another hearing or in a deposition, if the party against whom the testimony is offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
Statement of Personal or Family History: Statements concerning the declarant’s own birth, adoption, marriage, divorce, or other similar facts of personal or family history.
Mnemonic: DSFS (Dying, Statement, Former, Family)
Tested: Often
Step Four: Criminal Cases Only - Confrontation Clause (Sixth Amendment)
Rule Statement: In criminal cases, the Sixth Amendment provides the defendant the right to confront witnesses who testify against them.
Elements:
Testimonial statement
Declarant unavailable
No prior opportunity for cross-examination
Mnemonic: TUN (Testimonial, Unavailable, No cross)
Step One: Is the Evidence Hearsay?
Step One: Is the Evidence Hearsay?
Rule Statement: Hearsay is an out-of-court statement offered to prove the truth of the matter asserted (TOMA).
Elements:
Out-of-court statement
Offered for the truth of the matter asserted
Mnemonic: OOT (Out-of-court, Offered, Truth)
Step Two: Does a Hearsay Exclusion Apply?
Step Two: Does a Hearsay Exclusion Apply?
Statement by a Party-Opponent: Any statement made by a party and offered against that party.
Prior Statement by a Witness: Includes prior inconsistent statements, prior consistent statements, and prior statements of identification.
Mnemonic: SP (Statement, Prior)
Step Three: Does a Hearsay Exception Apply?
Step Three: Does a Hearsay Exception Apply?
For Any Declarant (Availability Immaterial):
Present Sense Impression: Statement describing or explaining an event or condition made while or immediately after the declarant perceived it.
Excited Utterance: Statement relating to a startling event or condition made while the declarant was under the stress of excitement that it caused.
Business Records: Records of a regularly conducted activity made at or near the time by someone with knowledge, if kept in the course of regularly conducted activity.
Statements Made for Medical Diagnosis/Treatment: Statements made for purposes of medical diagnosis or treatment describing medical history, past or present symptoms, or the inception or general cause of the symptoms.
Then-Existing Mental, Emotional, or Physical Condition: Statements of the declarant’s then-existing state of mind, emotion, sensation, or physical condition.
Public Records: Records of a public office or agency setting forth the activities of the office or agency or matters observed pursuant to duty imposed by law.
Recorded Recollection: A record that is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately.
Residual Exception: A statement not covered by any specific hearsay exception but having equivalent circumstantial guarantees of trustworthiness.
Mnemonic: PEBMSPRR (Present, Excited, Business, Medical, State, Public, Recorded, Residual)
