Evidence MBE

Question 1

Applicability of FRE–FRE do not apply to:

Answer 1

1. The court’s determination of a preliminary question of fact governing admissibility;
2. Grand jury proceedings; and
3. Criminal proceedings for: issuance of a search or arrest warrant or a criminal summons; preliminary examination in a criminal case; extradition or rendition; consideration of bail or other release; sentencing; and granting or revoking probation or supervised release.

Question 2

Role of Judge and Jury

Answer 2

• Judge—decides preliminary questions of the admissibility of evidence
• Jury—determines the weight and credibility of the evidence

Question 3

Challenge to evidence ruling

Answer 3

• The ruling must affect a substantial right of a party and the party must notify the judge of the error through an:
  o Objection, if the evidence is admitted
  o Offer of proof, if the evidence is excluded
• Need not renew a challenge after a definitive ruling on admissibility has been made
• Plain error (i.e., an error that is obvious to a reviewing court)—if it affects a substantial right, then it is grounds for reversal (even without a challenge)
• Limited Admissibility—evidence may be admissible for one purpose but not for another; the court must restrict the evidence to its proper scope and instruct the jury accordingly
• Completeness rule—for partial introduction of evidence, an adverse party may compel introduction of an omitted portion to help explain the admitted evidence

Question 4

Judicial Notice

Answer 4

The court’s acceptance of a fact as true without requiring formal proof

• Adjudicative facts (facts of the case at hand typically decided by jury)—subject to judicial notice if the fact is not subject to reasonable dispute because:
  o Generally known within the community, or
  o Can be accurately and readily determined from reliable sources
• Instructing the jury
  o Civil case—the jury must be instructed to accept the noticed fact as conclusive
  o Criminal case—the jury must be instructed that it may or may not accept any judicially noticed fact as conclusive

Question 5

Trial Process

Answer 5

the judiciary has control over the order of witnesses/presentation of the case to effectively determine truth and avoid wasted time or witness harassment; may also question or call a witness

Question 6

Examinatino of Witnesses

Answer 6

Scope of cross-examination is generally limited to the subject matter of direct examination and witness credibility; redirect and recross may be permitted, the scope is within the court’s discretion

Question 7

Motions to Strike

Answer 7

if a witness’s answer makes testimony improper, move to strike; only the examining counsel may move to strike an unresponsive answer

Question 8

Leading questions

Answer 8

suggest the answer w/in the question

o Direct—not permitted unless: a hostile witness, needed to develop the witness’s testimony, or the witness struggles with communication

o Cross-examination—generally, no restrictions on using leading questions

Question 9

Compound Questions

Answer 9

requires answers to multiple questions

Question 10

Assumes facts not in evidence

Answer 10

assumes as true certain facts that have not been established yet

Question 11

Argumentative

Answer 11

intended to present an argument, rather than elicit a factual response

Question 12

Calls for conclusion/opinion

Answer 12

requires the witness to draw a conclusion or state an opinion that he is not qualified to make

Question 13

Repetitive

Answer 13

already asked and answered

Question 14

Lack of foundation

Answer 14

failure to establish necessary predicate, such as authentication of tangible evidence

Question 15

Exclusion of witnesses

Answer 15

the court must exclude witnesses from the courtroom so that they do not hear the testimony of other witnesses, except for:

• Natural person parties to the case,
• Individual designated as a representative of non-natural person parties,
• Persons essential to a party’s presentation of the case, and
• Persons whose presence is permitted by statute (i.e., victim).

Question 16

Burden of Proof

Answer 16

• Production—must produce legally sufficient evidence for each element of a claim such that a reasonable trier of fact could infer the alleged fact has been proven (prima facie case)
• Persuasion o Civil—preponderance of the evidence (or clear and convincing for certain cases) o Criminal—beyond a reasonable doubt

Question 17

Presumptions

Answer 17

• Rebuttable—shifts the burden of production (not persuasion) to the opposing party
• Conclusive—cannot be challenged by contrary evidence
• Destruction of evidence—generally raises a rebuttable presumption that the evidence would be unfavorable to the destroying party if the other party establishes (i) destruction was intentional, (ii) evidence is relevant, and (iii) alleged victim acted with due diligence as to the destroyed evidence

Question 18

General Considerations for Relevance

Answer 18

1. Generally, all relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision; evidence is relevant if probative and material
   * Probative—the evidence has a tendency to make a fact more or less probable than it would be without the evidence
   * Material—the evidence is of consequence in determining the action
2. Direct and circumstantial evidence
   * Direct—identical to the factual proposition it is offered to prove
   * Circumstantial—indirect proof of a factual proposition through inference from collateral facts
3. Exclusion of relevant evidence (Rule 403 exclusion)—if the probative value is substantially outweighed by the danger of unfair prejudice (confusing issues, misleading jury, undue delay, wasting time, needless presentation of cumulative evidence)
4. Relevance dependent on existence of fact—proof must be sufficient to support finding that the fact does exist; may be admitted on condition that proof is later introduced
5. Curative admission of irrelevant evidence—admitted when necessary to rebut previously admitted inadmissible evidence to remove unfair prejudice

Question 19

Character Evidence

Answer 19

Generalized information about a person’s behavior–typically inadmissible

Question 20

Character evidence in civil case

Answer 20

• Inadmissible to prove a person acted in accordance with that character (or trait) on a particular occasion
• Admissible when character is an essential element of a claim or defense, instead of a means of proving a person’s conduct (usually defamation, negligent hiring or negligent entrustment, and child custody)

Question 21

Character Evidence in criminal cases

Answer 21

• D’s character
  o By prosecution—not permitted to introduce evidence of D’s bad character to prove D has a propensity to commit crimes and so is likely to have committed the crime in question
  o By defense—D is permitted to introduce evidence of good character as being inconsistent with type of crime charged, but must be pertinent to crime charged, and must be reputation/opinion testimony
  o D “opens the door”—once D offers evidence of his good character (or victim’s bad character), prosecution can rebut D’s claims by attacking D’s character
• Victim’s character
  o By defense—D may introduce reputation/opinion evidence of victim’s character when relevant to the defense asserted (evidence of victim’s sexual conduct very limited)
  o By prosecution—prosecution can offer rebuttal evidence of victim’s good character when D has introduced evidence of victim’s bad character (and trait for peacefulness in homicide case to rebut evidence homicide victim was first aggressor)

Question 22

Methods of proving character

Answer 22

when character evidence is admissible, it may be proven by testimony about a person’s reputation or by witness opinion

Question 23

Impeachment

Answer 23

character evidence of witness’s untruthfulness is admissible/relevant to impeach a witness

Question 24

Bad acts

Answer 24

not admissible to show D’s criminal propensity to prove he committed the crime in question

1. MIMIC evidence (Motive, Intent, absence of Mistake, Identity or Common plan)
   * Admissible
   * Subject to admissibility restrictions, may be introduced for any other purpose except to prove D committed the charged crime because D had propensity to commit crimes
   * When criminal D requests, prosecution must provide reasonable notice of (i) the general nature of MIMIC evidence the prosecution intends to offer at trial, and (ii) the non-propensity purpose for which it will be offered; must give notice in writing before trial unless the court excuses lack of pretrial notice for good cause
2. Specific acts as character evidence
   * Civil—when character evidence is an essential element of claim/defense, can be proven by specific acts or opinion/reputation testimony
   * Criminal—specific acts are not admissible to show D’s criminal propensity; when character is essential element of a crime or defense, relevant specific acts may be introduced
   * Cross-examination—a character witness can be asked about relevant specific acts committed by the person about whom the witness is testifying

Question 25

Habit Evidence

Answer 25

1. Definition—a person’s particular routine (i.e., semi-automatic) reaction to a specific set of circumstances
2. Evidence of person’s habit (or organization’s routine) is admissible to prove the person acted in accordance with the habit on a particular occasion
3. May be admitted without corroboration and without an eyewitness

Question 26

Witness Competence

Answer 26

1. Generally—a person with personal knowledge who gives an oath/affirmation to testify truthfully is competent; a witness’s mental abilities affect credibility rather than competence; there is no minimum age for competency
2. Personal knowledge—a nonexpert witness must have personal knowledge of a matter in order to testify about the matter
3. Oath—witness must give an oath or affirmation to testify truthfully
4. Judge—cannot testify at trial
5. Juror—can testify at trial in limited circumstances, but generally may only testify after trial about (i) extraneous prejudicial information brought to jury’s attention (ii) improper outside influence, or (iii) mistakes on verdict form
6. Dead Man’s Statutes—protects decedent’s estate from parties with financial interest in the estate; predecessors in interest or those directly affected financially may be disqualified * Waiver—an interested person or protected party can waive the protection by failing to object to a disqualified witnesAs or introducing protected evidence * Not applicable in criminal cases

Question 27

Impeachment

Answer 27

a challenge to a witness’s testimony can be based on character for untruthfulness, bias, ability to perceive or testify accurately, contradictory prior statement, or another witness

Question 28

Witness’s character for truthfulness

Answer 28

• Cannot bolster witness credibility—evidence of truthful character only admissible after witness’s truthful character directly attacked
• Opinion/reputation testimony—admissible to attack witness’s character for untruthfulness
• Specific instances of conduct—generally not admissible as indication of character for truthfulness
  o On cross-examination, OK if probative of witness’s truthfulness or truthfulness of another witness about whose character the witness has testified
  o When witness denies specific act, extrinsic evidence not admissible to prove specific act (exception exists for criminal convictions)

Question 29

Criminal conviction (but not arrest)

Answer 29

can be used to impeach witness’s character for truthfulness

• Crimes involving dishonesty/false statement can be used to impeach any witness for any conviction
• Conviction NOT involving dishonesty/false statement—admissible to impeach witness only if crime is punishable by death or imprisonment > 1 year o If witness is criminal D—admissible only if its probative value outweighs the prejudicial effect to that D (stricter than usual balancing test) o Other witnesses—generally admissible; discretion to exclude if probative value is substantially outweighed by its prejudicial effect
• Conviction or release > 10 years ago—admissible if probative value substantially outweighs prejudicial effect and reasonable written notice of intent to use evidence
• Pardon—conviction not admissible if subject of a pardon, annulment, or other action based on a finding of innocence; pending appeal does not prevent impeachment
• Juvenile adjudication—not admissible to impeach D; may impeach other witness’s character for truthfulness in criminal case if an adult conviction for that offense would be admissible and admitting it is necessary to determine guilt or innocence

Question 30

Prior inconsistent statements

Answer 30

can be used to impeach if inconsistent with the witness’s testimony

• Extrinsic evidence of prior inconsistent statement admissible only if witness has chance to explain/deny statement and opposing party can examine witness about it (this opportunity not required for hearsay declarants or opposing party statements)

Question 31

Bias or interest

Answer 31

can be used to impeach witness because relevant to credibility

Question 32

Sensory competence

Answer 32

—can be impeached for deficiency in capacities to perceive, recall, or relate information

Question 33

Impeachment of a hearsay declarant

Answer 33

credibility of declarant can be attacked by any evidence admissible if declarant had testified as witness; if declarant called as a witness, he can be examined as if under cross-examination

Question 34

Rehabilitation of a witness

Answer 34

• Explain/clarify on redirect examination
• Offer opinion/reputation evidence of witness’s character for truthfulness (only if character was attacked on that ground)
• Offer prior consistent statement to rebut express/implied charge that witness lied due to improper motive/influence

Question 35

Religious opinions and beliefs

Answer 35

cannot be used to impeach credibility, but admissible to show bias/interest

Question 36

Contradictory evidence

Answer 36

can be used to impeach if it contradicts witness’s testimony, including contradictory material extrinsic evidence

Question 37

Collateral Issues

Answer 37

—generally, cannot impeach credibility of witness by introducing extrinsic evidence of a collateral matter

Question 38

Pressent Recollection Refreshed

Answer 38

witness may examine any item to refresh witness’s present recollection; testimony must be based on refreshed recollection, not item

• Adverse party may inspect item and enter relevant portions as evidence
• Item may be redacted by court, and admissible for substantive purposes only if satisfies other restrictions on admissibility

Question 39

Past Recollection Recorded

Answer 39

memo/record about matter witness once had knowledge of but now has insufficient recollection of to testify about may be admissible under recorded recollection hearsay exception; may be read into evidence, but received as an exhibit only if offered by an adverse party

Question 40

Opinion Testimony - Subject Matter of Testimony: Lay Witness

Answer 40

admissible if (i) rationally based on the witness’s perception, (ii) helpful to clear understanding of witness’s testimony or determination of a fact in issue, and (iii) not based on scientific, technical, or specialized knowledge

Question 41

Opinion Testimony - Subject Matter of Testimony: Expert Witness

Answer 41

o Subject matter must be scientific, technical, or some other specialized knowledge (testimony is reliable) that helps trier of fact understand the evidence or determine a fact at issue (testimony is relevant)

o Some courts hold that expert testimony that goes to the credibility of a witness improperly invades the province of the jury to determine whether the witness is telling the truth

Question 42

Qualified Expert Requirements

Answer 42

o Qualified as an expert by knowledge, skill, experience, training, or education
o Testimony based on sufficient facts/data
o Testimony product of reliable principles and methods
o Testimony reflects reliable application of principles/methods to facts of case, and
o Reasonable degree of certainty (i.e., “probably”)

• Ultimate issue—expert may not state an opinion about whether criminal D had the requisite mental state
• Basis of opinion—opinion based on inadmissible facts admissible if experts in the particular field would reasonably rely on those kinds of facts and data in forming an opinion on the subject; may disclose underlying facts to the jury if probative value substantially outweighs prejudicial effect; need not ask in form of hypothetical; can challenge the adequacy of the expert’s knowledge on cross

Question 43

Payment of Witnesses

Answer 43

1. When prohibited—a lawyer may not offer to pay a witness any consideration:
   * In excess of the reasonable expenses of the witness incurred and the reasonable value of the witness’s time spent in providing evidence, except that an expert witness may be offered and paid a noncontingent fee;
   * Contingent on the content of the witness’s testimony or the outcome of the litigation; or
   * Otherwise prohibited by law.
2. When permitted—a witness in attendance in federal court or a deposition pursuant to a federal rule or court order is entitled to:
   * An appearance fee; and
   * A travel allowance.

Question 44

Authentication

Answer 44

all tangible evidence must be authenticated with sufficient evidence to support a finding that the thing is what its proponent claims it is

Question 45

Physical Objects

Answer 45

—generally authenticated through personal knowledge, distinctive characteristics, or chain of custody (when applicable)

• Reproductions (photos, diagrams, maps)—authenticated by testimony of witness with personal knowledge that object accurately depicts what its proponent claims it does
• X-rays, EKGs—process used was accurate, machine works, and operator qualified

Question 46

Documentary Evidence

Answer 46

usually authenticated by stipulation, eyewitness testimony, or handwriting verification

• Ancient documents—at least 20 years old, in condition unlikely to create suspicion, and found in a likely place if it were authentic
• Public records—recorded/filed in public office
• Reply letter—written in response to communication
• Handwriting verification—comparison or nonexpert with personal knowledge
• Self-authenticating—doesn’t require extrinsic evidence (e.g., gov’t authorized documents, certified public records, or newspapers)

Question 47

Oral Statements

Answer 47

• Voice ID—can be identified by any person who has heard voice at any time
• Telephone—party to telephone conversation may authenticate statements made during that conversation if caller recognized the speaker’s voice; speaker knew facts that only a particular person would know; caller dialed number believed to be speaker’s, and speaker identified himself upon answering; or caller dialed a business and spoke about business regularly conducted over the phone

Question 48

Best Evidence Rule

Answer 48

Original document (or reliable duplicate)—must be produced to prove contents of writing when contents are at issue or witness is relying on contents when testifying

• Duplicate reliable unless there is a genuine question as to the authenticity of the original; or the circumstances make it unfair to admit the duplicate
  o Handwritten copies of original are not duplicates
• Original not required when originals are lost or destroyed in good faith, party against whom original would be offered failed to produce it, or document not closely related to controlling issue
• Contents of a public record are generally proved by a certified copy
• Voluminous documents—contents of voluminous documents may be presented as summary if such contents cannot be conveniently examined in court; proponent must make originals or duplicates available for examination and copying by other parties at a reasonable time and place; court may order proponent to produce the originals or duplicates in court
• May prove contents of original by admission by party against whom it is offered without accounting for original

Question 49

Parol Evidence Rule

Answer 49

operates to exclude evidence that, if introduced, would change the terms of a written agreement

1. Complete integration—contains all terms to which the parties agreed; PER in effect and no extrinsic evidence is admissible 2

. Partial integration—contains some but not all agreed-upon terms
* Extrinsic evidence that adds to writing admissible
* Evidence that contradicts not admissible

3. Exceptions—Extrinsic evidence always admissible to clarify ambiguity, prove course of dealings, show fraud/duress/mistake, or show presence/absence of consideration
4. Only evidence of prior or contemporaneous negotiations is subject to the rule; negotiations after contract executed not prohibited by the rule

Question 50

Confidential Communications

Answer 50

necessary for a privilege to apply

• If overheard, privilege destroyed unless (i) no knowledge of third party’s presence; or (ii) third party is necessary to assist in communication (e.g., a translator)
• Privilege waived if privilege holder (i) fails to timely assert it, (ii) voluntarily discloses communication, or (iii) contractually waives it in advance

Question 51

Spousal Immunity

Answer 51

o Married person cannot be compelled to testify against his spouse in any criminal proceeding regardless of who D is

o Witness-spouse holds privilege in federal court and majority of states; party spouse holds privilege in minority of states

o Applies to testimony about events before/during marriage; privilege expires upon divorce or annulment

Neither spousal privilege applies when one spouse sues another or spouse is charged with a crime against the other or the children of either

Question 52

Confidential Marital Communications

Answer 52

o Spousal communication during marriage is privileged

o Majority view (and most federal courts)—both spouses hold the privilege in civil and criminal cases; either spouse may assert the privilege and refuse to testify about the communication or prevent the other spouse from testifying

o Privilege begins with marriage and continues indefinitely

Neither spousal privilege applies when one spouse sues another or spouse is charged with a crime against the other or the children of either

Question 53

Attorney-Client Privilege

Answer 53

• Confidential communication between client (who holds privilege) and attorney for the purpose of obtaining or providing legal advice or representation (attorney doesn’t need to give advice or agree to representation)
  o Privilege exists until waived by the client (or the client’s guardian or successor in interest)—can survive termination of the attorney-client relationship and even the client’s death
  o Federal law extends privilege to communications by a non-control-group employee (i) about matters within the employee’s corporate duties (ii) made for the purpose of securing legal advice for corporation client
• Exceptions for communications:
  o Made to enable or aid commission of what client knew or should have known was crime/fraud
  o Relevant to dispute between attorney and client or former client
  o Relevant to dispute between parties who claim through the same deceased client
  o Between former co-clients who are now adverse to each other

Question 54

Work Product

Answer 54

documents prepared or compiled in anticipation of litigation protected unless party seeking disclosure (i) demonstrates substantial need, and (ii) cannot obtain the information by any other means without undue hardship

o Subject to the crime-fraud exception

Question 55

Physician-Patient Privilege

Answer 55

• Statement privileged so long as made for the purpose of obtaining medical treatment
• Patient holds privilege
• Privilege does not exist if:
  o Info acquired for reasons other than treatment
  o Patient’s physical condition is at issue
  o Statement is part of crime
  o Dispute exists between patient and physician
  o Patient contractually waives privilege
  o Federal question case

Question 56

Psychotherapist-patient privilege

Answer 56

patient holds privilege, but doesn’t exist if patient’s mental condition is at issue, statement was result of state ordered exam or case is commitment proceeding against patient

Question 57

Self-incrimination privilege

Answer 57

—Fifth Amendment protection allowing witness to refuse to give testimony that may tend to incriminate him

• Covers only current statements
• Does not apply to physical characteristics or mannerisms
• Does not apply to corporations or other organizations

Question 58

Other Privileges

Answer 58

• Clergy-penitent
• Accountant-client
• Professional journalist—no federal privilege regarding source
• Government privilege—government privileged against disclosing informant’s identity in a criminal case and communication of official information by or to public officials

Question 59

Public Policy Exclusions

Answer 59

Subsequent Remedial Measures

Compromise offers and negotiations

Evidence of payment, offers, or promise to pay medical expenses

Plea negotiations

Liability insurance

Sexual conduct

Question 60

Subsequent remedial measures

Answer 60

• Not admissible to prove negligence, culpable conduct, defective product/design, or need for warning/instruction
• Admissible for other purposes such as impeachment, ownership/control, or feasibility of precautionary measures

Question 61

Compromise offers and negotiations

Answer 61

• Not admissible by either party to prove/disprove validity or amount of disputed claim, or for impeachment by prior inconsistent statement or contradiction
• Admissible to prove bias or prejudice of witness, negate claim of undue delay, or prove obstruction of criminal investigation/prosecution
• Admissible in a subsequent criminal case if made during compromise negotiations w/ governmental agency during its regulatory, investigative, or enforcement authority
• Settlement agreements not admissible in suit on the original claim to prove validity of claim, or by third parties to prove/disprove validity or amount of a disputed claim that the third person has asserted against the party involved

Question 62

Evidence of payment, offers, or promise to pay medical expenses

Answer 62

not admissible to prove liability for the injury, but statements that accompany the payment, offer, or promise to pay are admissible

Question 63

Plea negotiation

Answer 63

—withdrawn guilty pleas, pleas of no contest, and statements made while negotiating plea bargain or during plea proceeding are not admissible

• Exceptions—another statement made during the same plea or negotiation has already been admitted and fairness requires that the statement in question also be admitted; also admissible in subsequent perjury prosecution if they were false statements made under oath, on the record, and with counsel present; Themis question said D could agree to waive confidentiality of plea negotiations

Question 64

Liability insurance

Answer 64

• Not admissible to prove whether person acted negligently or wrongfully
• Admissible to prove agency, ownership/control, or witness’s bias/prejudice

Question 65

Sexual Conduct

Answer 65

• Victim’s conduct
  o Rape shield—evidence of sexual behavior/predisposition generally not admissible in any proceeding involving sexual misconduct
  o Specific acts admissible to prove D not source of physical evidence in criminal case
  o Sexual behavior / predisposition of victim admissible in civil case if probative value substantially outweighs unfair prejudice
  o Reputation admissible only if placed in controversy by victim
• Defendant’s conduct—evidence of sexual assault in criminal/civil case admissible to prove any relevant matter (not limited to convictions)

Question 66

Hearsay

Answer 66

out-of-court statement offered to prove the truth of matter asserted

1. Declarant—must be a person
2. Statement—oral, written, or assertive nonverbal conduct
3. Offered to prove the truth of the matter asserted—if offered to prove something other than the truth of the matter asserted (legally operative facts, effect on recipient, state of mind, identification, and impeachment and rehabilitation), not hearsay
4. Multiple hearsay—hearsay within hearsay may be admissible if each part of combined statement conforms to hearsay exception

Question 67

Non-Hearsay: Prior Statements

Answer 67

—declarant must testify at present trial to be admissible; cannot apply if witness is dead or otherwise unavailable to testify

• Prior inconsistent statements made under penalty of perjury admissible to impeach declarant’s credibility and as substantive evidence
• Prior consistent statements admissible to rebut express/implied charge that declarant recently fabricated it or acted with improper motive, but must be made before declarant had reason to fabricate
• Prior statement of identification of a person after perceiving that person is admissible as non-hearsay substantive evidence even if witness has no memory of identification

Question 68

Non-Hearsay: Opposing Party’s Statement

Answer 68

made by party to current litigation; admissible without personal knowledge and can be in form of an opinion; need not have been against the party’s interest when it was made, but must be relevant

• Judicial admission—an admission made during pleading, discovery process or proceeding is conclusive evidence
  o Withdrawn guilty plea generally not admissible in subsequent proceedings
• Adoptive admission—statement of another person that party expressly/impliedly adopts as his own
  o Silence in response to a statement is considered an adoptive admission if:  The person understood the statement;  The person had the ability and opportunity to deny the statement; and  A reasonable person similarly situated would have denied the statement.
• Vicarious statements—statement made by one person imputed to another based upon relationship between them (employee/agent, authorized speaker, coconspirators)

Question 69

Unavailability

Answer 69

Unavailable declarant unless unavailable due to procurement/wrongdoing of proponent in order to prevent the declarant from testifying at or attending the trial

Question 70

Unavailable: Former Testimony

Answer 70

Former testimony given as witness is not hearsay if party against whom testimony is offered had an opportunity and similar motive to develop testimony

Question 71

Unavailable: Dying Declaration

Answer 71

• Declarant believes her death is imminent and statement pertains to cause/circumstances of her death (need not actually die)
• Applies only in homicide prosecutions and civil cases

Question 72

Unavailable: Statement against Interest

Answer 72

was against declarant’s proprietary/pecuniary interest at time made and reasonable person would not have made statement unless it was true

Question 73

Unavailable: Statement of Personal/Family History

Answer 73

birth, adoption, marriage, divorce, or other similar fact of personal or family history

Question 74

Unavailable: Statement against Party that Caused Declarant’s Unavailability

Answer 74

statement offered against party that wrongfully caused declarant’s unavailability is not excluded

Question 75

Availability as a witness immaterial

Answer 75

present sense impression

excited utterance

statement of mental, emotional, or physical condition

statement made for medical diagnosis/treatment

recorded recollection

business records

public records

learned treatises

judgment of previous conviction

Question 76

Present Sense Impression

Answer 76

—statement explaining or describing event/condition made while or immediately after declarant perceived it

Question 77

Excited Utterance

Answer 77

statement about startling event/condition while declarant is under stress of excitement that it caused

Question 78

Statement of mental, emotion, or physical condition

Answer 78

statement of then-existing state of mind (present intent, motive or plan) or emotional, sensory or physical condition

Question 79

Statement made for medical diagnosis/treatment

Answer 79

describing medical history or past/present symptoms is not excluded as hearsay if it is made for purpose of medical diagnosis or treatment; can be made to physicians, other medical personnel or even family members; need not necessarily be made by the patient

Question 80

Recorded recollection (witness no longer able to testify)

Answer 80

record not excluded if on a matter that witness once knew, made when matter was fresh in witness’s memory, accurately reflects witness’s knowledge, and witness states that he cannot recall even after consulting record on the stand

Question 81

Business records

Answer 81

(extends to any organization, including nonprofit)

—record must be kept in course of regularly conducted business activity, making of record was regular practice, and record was made at or near the time by someone with knowledge

Question 82

Public Records

Answer 82

statement of public office/agency that sets out activities of office, observation of person under duty to report (but not police in a criminal case), or factual findings of a legal investigation

Question 83

Learned Treatises

Answer 83

—statement in treatise, periodical or pamphlet not excluded if expert witness relied on statement during direct/cross, and publication is reliable authority

Question 84

Judgment of Previous Conviction

Answer 84

• Final judgment must be entered after trial or guilty plea
• Conviction was for crime punishable by death or imprisonment for > 1 year
• Evidence offered to prove any fact essential to sustain judgment

Question 85

Residual Exception

Answer 85

catchall exception for statement not otherwise covered by the FRE; statement must be (i) supported by sufficient guarantees of trustworthiness, and (ii) more probative than any other evidence that the proponent can obtain through reasonable efforts

Question 86

Hearsay evidence restrictions–two grounds

Answer 86

1. Sixth Amendment—Confrontation Clause and hearsay evidence
   * Requires declarant to be unavailable and D had prior opportunity to cross-examine declarant
   * Testimonial statements—objective analysis—if primary purpose is emergency assistance, not testimonial
   * Unavailability of the declarant—D must have purpose of making declarant unavailable, and fact that D made declarant unavailable does not mean he had purpose if he is on trial for the act that made witness unavailable
2. Fourteenth Amendment—Due Process Clause—may prevent application of hearsay rule when rule unduly restricts D’s ability to mount defense

Question 87

Face-to-Face Confrontation

Answer 87

Confrontation Clause prefers face-to-face confrontation, but can be denied if important public interest at stake