Evidence MBE

Question 1

Preliminary Hearings

Answer 1

Conducted outside the presence of the jury in three circumstances:

1) when the issue is the admissibility of a confession in crim trial;

2) when the D in a crim case is a W and makes that req; and

3) when the interests of justice otherwise req (unfair prejudice to a P)

Preliminary Qs concerning admissibility of evidence are determined by the ct–both sides are permitted to present evidence/argument about the admissibility of the evidence, and the hearing should be conducted outside the presence of jury.

During trial–A P may still intro other evidence that is relevant to the weight and credibility of evidence admitted (e.g. a confession).

Question 2

Challenge to Evidence Ruling–Challenging on Appeal

Answer 2

Evidentiary ruling can be reversed on appeal only if:

1) a sub right of a P has been affected (i.e. not a harmless error); and

2) the judge was notified of the mistake at trial and given a chance to correct it

Notify ct by:

–objection (to evidence being admitted and arg it should have been excluded) or
–offer of proof (for evidence that was not admitted and arg it should have been admitted)

Question 3

Plain Error Rule

Answer 3

Error that was obvious on its face; app ct will sometimes reverse the case to prevent a miscarriage of justice, even if no objection or offer of proof made at trial.

Question 4

Rule 105–Limited Admissibility

Answer 4

Evidence may be admissible for one purpose, but not for another purpose–upon req of objecting P the ct will give the jury a limiting instruction.

Question 5

Rule 106–Rule of Completeness

Answer 5

If a P introduces part of a written statement, the opp P may introduce other portions of that statement that are nec to put the admitted portion into perspective (even if they might otherwise be inadmissible).

Question 6

Judicial Notice

Answer 6

The ct’s acceptance of a fact as true w/o req formal proof–not subj to reasonable dispute so ct instructs jury to accept that fact as proven.

Civil case–ct instructs jury it MUST accept the fact as proven.

Crim case–ct instructs jury it MAY (but need not) accept the fact as proven.

A ct may take judicial notice of a fact regardless of whether a P req it or not.

Question 7

Leading Qs

Answer 7

Suggests the answer w/in the Q–gen not permitted on DIRECT examination.

Exceptions:

1) to elicit prelim background info not in dispute;
2) W has trouble communicating due to age/infirmity; or
3) when you call a hostile W or adverse P

Question 8

Refreshing a W’s Present Recollection

Answer 8

W has trouble remembering then allowed to help W remember by showing them a doc (or something else)–typically a person’s notes–and W looks at notes, remembers, and proceeds to testify from present memory.

–Doc does NOT become evidence and W does NOT read from it.
–if W uses doc to refresh memory before testifying–the ct MAY allow opp P to examine doc if justice reqs.
–If W uses doc to refresh memory while testifying–the ct MUST allow opp P to examine doc.

Question 9

Cross-Examination

Answer 9

Cts limit the scope of cross-examination to the subj of direct examination; allowed to use leading Qs.

Improper Qs–compound Qs; facts not in evidence; argumentative Qs; Qs calling for inapprop conclusions; repetitive Qs

Question 10

Exclusion of Ws

Answer 10

Ws must be excluded from courtroom upon req of either P to prevent the W from hearing the testimony of others.

Some Ws may NOT be excluded–e.g. W who is essential to presentation of case; a crime victim who is permitted by st law to remain in courtroom; or a P in the case.

Question 11

Burdens and Presumptions

Answer 11

Burden of production–a P must product enough evidence to get the issue to the jury; this is a rebuttable presumption that shifts the burden on a particular issue (but not the burden of persuasion).
–e.g. issue of whether someone received a letter; if you can show that you correctly mailed the letter, there is a presumption the recipient received the letter–shifts burden of production to other side to prove they did not receive it; if counterproof introduced then presumption eliminated and there is suff evidence for jury to decide issue.

Burden of persuasion–a P must convince the jury to decide case in its favor.

Destruction of evidence–if a P destroys evidence there is a presumption that it would have been adverse to that P.

Question 12

FRE 401/402–Relevance

*Evaluate logical AND legal relevance for every direct-exam/cross-exam Qs on essay–EMPHASIZE

Answer 12

Evidence must be relevant, otherwise inadmissible.

Logically Relevant–makes the fact in issue more likely than it would be w/o evidence (e.g. evidence that D was in a particular city on a given weekend is not suff to convict but could be relevant to issue of whether D committed crime).

Evidence is relevant if both: 1) material (related to some issue in case); and 2) probative (having a tendency to prove/disprove some fact).

Question 13

FRE 403–Exclusion of Relevant Evidence–EMPHASIZE

Answer 13

Legal relevance–Even if evidence is logically relevant and no rule excluding it, the ct has discretion to exclude if certain risks (i.e. confusion of the issues/unfair prejudice/misleading jury) substantially outweigh probative value.

Question 14

FRE 104(b)–Relevance Conditioned on Fact

Answer 14

Sometimes the relevance of evidence hinges on some fact that is best for jury (e.g. relevant letter offered into evidence but Q as to whether P received letter).

Cts will simply admit the evidence on the condition that the jury will decide that prelim fact later.

Question 15

Character Evidence–Prohibited Uses

EMPHASIZE

Answer 15

Cannot be used to prove propensity–i.e. that a P acted in conformity w/ a particular character trait

Question 16

Character Evidence–Permitted Uses

EMPHASIZE

Answer 16

When character is at issue in the case–e.g. child custody case when Q is whether a parent is violent; or Q of carelessness in a neg entrustment case–gen only at issue in civil cases; in these cases D can intro evidence of specific instances of pertinent character trait.

Propensity arg can be made to impeach–i.e. showing W is a liar

Civil cases around child molestation/sexual assault–P can intro evidence of D’s prior acts of that sort.

Crim cases–D can intro PERTINENT trait of character (e.g. “I am peaceful” in assault case); but then D “opens the door” and prosc free to rebut D’s claim by attacking D’s character.

Question 17

FRE 405: Opening the Door–crim D’s character

Answer 17

Opening the door–Crim D limited to Ws who will testify about opinion/reputation (NOT specific acts); then prosc can:

1) cross-examine character W about specific acts from D’s past; prosc must accept W’s answer and cannot prove the answer (i.e. cannot admit evidence of earlier acts); or

2) call its own character W to testify about D’s bad reputation or their opinion of D’s character for the trait involved.

Question 18

Opening the Door–Victim’s character

Answer 18

Crim D may intro opinion/reputation evidence about V’s character–but then prosc can
1) intro evidence that V is not violent using reputation/opinion, but not specific acts; and
2) intro reputation/opinion evidence of D having this trait–e.g. that D is violent.

Prosc can then intro reputation/opinion evidence that D has same trait that he/she accused V of having.

Question 19

Prior Acts Admissible as “MIMIC” Evidence for Non-Propensity Purposes

Answer 19

Motive; Intent; Absence of Mistake; Identity or “modus operandi” (i.e. look for facts where prosc asking D about past convictions for crimes where D employed the same specific method to commit the crime as he allegedly did here–goes to identity); Common plan or scheme

If concerned that it doesn’t fall into one of these categories and being used for propensity–ct weighs probative value vs risk; can raise 105/limiting instruction.

Question 20

Habit Evidence

Answer 20

Allowed to prove action in conformity w/ habit–i.e. something that is routine, regular, or automatic; can also be the habit of an org.

Question 21

W Competence

Answer 21

Anyone who has personal knowledge of the matter about which they are going to testify and willing to make an oath to tell the truth is competent to testify.

Some sts may have particular competency reqs–FRE only cares about whether someone has 1) personal knowledge and 2) is mature enough to understand ob to tell the truth.

Question 22

FRE 606(b)–Juror as W

Answer 22

A juror cannot testify as a W in an inquiry into the validity of a verdict or indictment as to 1) any statement made during deliberations; 2) any incident that occurred during deliberations; or 3) the effect of anything upon juror’s mind.

Exceptions–juror can testify post-trial about: 1) prejudicial info improperly brought to jury’s attention (e.g. inadmissible evidence); 2) outside influence (e.g. juror bribed); 3) clerical/technical error made in entering verdict; or 4) juror made a clear statement that he relied on racial stereotypes in convicting D.

Question 23

Impeaching W’s Credibility

Answer 23

Can impeach W by showing:

1) Bad character for truthfulness;
2) Bias–e.g. W being paid to testify or special rel w/ a P (favorable or hostile) leading to motive to lie; or
3) Sensory Competence–i.e. mistaken in some way and did not see/hear things as well as she thinks.

Question 24

FRE 608(a)–Character W Testimony

Answer 24

Can intro character Ws who will testify that the target W is dishonest–may be attacked through opinion/reputation, NOT prior specific incidents.

608(a) allows character evidence as to truthfulness “after the W’s character for truthfulness has been attacked.”

Question 25

FRE 608(b)–W Specific Acts

Answer 25

May cross the W about specific acts of dishonesty; must be probative of untruthfulness; only permitted to ask–must take W’s answer (MAY NOT be proven by extrinsic evidence); and must have reasonable basis for asking Q.

Question 26

FRE 609–W Crim Convictions for Impeachment Purposes

Answer 26

–All crimes (i.e. misdemeanor and felony) involving dishonesty or false statements are admissible–e.g. perjury/fraud.

–Felony convictions admissible; cts allow UNLESS risk of prejudice sub outweighs probative value
*Crim D (reverse 403)–evidence of prior felony conviction admissible only if probative value outweighs prejudicial effect.

–Old Convictions–if more than 10 yrs have elapsed since conviction then evidence admissible only if probative value sub outweighs prejudicial effect, and proponent gives adverse P reasonable advanced notice.

Pardon–a conviction may not be used for impeachment if W has been pardoned if the action was based on a finding of innocence or W has not been convicted of another felony.

Question 27

Prior Inconsistent Statements for Impeachment Purposes

Answer 27

Can be done w/ any kind of statement–i.e. can impeach W w/ statements not under oath.

Can be proved by extrinsic evidence (vs intrinsic via W’s own testimony)– but only if W given opp to explain/deny evidence either on cross or re-direct.

Question 28

Impeachment of Hearsay Declarant

Answer 28

When an out-of-ct statement comes in under a hearsay exception, the declarant is acting like a W can thus can be impeached–impeachment may be made by any evidence that would be admissible if the declarant had testified as a W.

Question 29

Rehabilitation of W

Answer 29

Can be accomplished in three ways:

1) Give W a chance to clarify/explain;
2) Prior consistent statement; or
3) If W has been attacked as having bad character for truthfulness, then reputation/opinion evidence can be intro’d bolstering W’s character.

But rebuttal evidence must adhere to general admissibility rules–i.e. prior consistent statement only admissible to rebut the express / implied charge from opposing P such as bias.

Question 30

Lay Ws

Answer 30

Old Rule–Lay Ws prohibited from offering opinions/conclusions; permitted to testify as to facts only.
New Rule–opinions from lay Ws admissible w/ respect to common-sense impressions (e.g. appearance/intoxication/speed).

To be admissible lay W’s opinion must be:

1) based on W’s perception; and
2) helpful to a clear understanding of W’s testimony or determination of a fact in the case.

Lay W’s testimony cannot be based on any purported, technical or specialized knowledge.

*Handwriting–Lay W who has personal knowledge of the handwriting may state opinion as to whether the doc is in that person’s handwriting, thus authenticating it; but a lay W CANNOT become familiar w/ the handwriting merely for purpose of testifying; once authenticated allows for expert W OR trier of fact (i.e. jury) to compare the authenticated specimen w/ another sample and determine the genuineness of the latter.

Question 31

Expert Ws–EMPHASIZE

Answer 31

Expert W may offer opinions/conclusions if:

1) the subj matter is scientific, technical or other specialized info; and
2) it will help the trier of fact understand the evidence or determine a fact in issue.

Cts reject expert testimony about W credibility

Daubert Test–expert must be:
1 ) qualified by knowledge/skill/experience/training/or education;
2) base testimony on suff facts/data;
3) base testimony on reliable principles/methods; and 4) apply the principles and methods reliably to the facts of the case.

Experts MAY express an opinion on ultimate issue in most cases–but NOT the requisite mental state of a crim D as to an element of the crime.

Expert can base opinion on–personal observation, evidence presented at trial, or info reasonably relied upon by experts in that field (but that info not nec admissible unless PV of info sub outweighs prejudice).

Expert does NOT need to disclose basis of opinion on direct.

Question 32

Authenticating Physical Evidence–EMPHASIZE

Answer 32

–Must be authenticated–i.e. merely show evidence suff to support finding that the thing is what P claims it to be.

Physical Evidence (e.g. video recording) authenticated by:
1) Personal knowledge testimony of W;
2) Comparison–of object or writing against authenticated specimen by expert OR trier of fact.
3) Distinctive markings–i.e. testimony on object’s appearance;
4) Chain of custody –unbroken account showing whereabouts of item (e.g. bag of heroin)–but if readily identifiable (e.g. police initials/serial numbers) then offering P need not establish chain of custody; or
5) X-ray images–evidence showing accurate process was used; machine worked properly.

Question 33

Authenticating Documentary/Oral Evidence–EMPHASIZE

Answer 33

Documentary Evidence (e.g. K/letter) authenticated by–stipulation of the Ps; eyewitness testimony; ancient docs at least 20 yrs old and in condition unlikely to create suspicion; handwriting verification where expert W or jury compares to known sample or lay W w/ personal knowledge; self-authenticating docs (e.g. gov docs w/ a seal).

Oral Statements authenticated by–voice identification; phone conversations where caller recognizes speaker’s voice.

Question 34

Best Evidence Rule–EMPHASIZE

Answer 34

No describing the docs–i.e. writings, recordings, and photographs–instead of showing them (or a reliable duplicate)–unless you really need to–when the contents of the docs are at issue.

“At issue” if:
(1) the doc is used as proof of an event (e.g. W testifies she saw picture of D robbing bank, BER reqs that the picture be produced); or
(2) the doc has actual legal effect–i.e. K or will; or
(3) W testifying based on facts only learned from doc (e.g. W did not see robbery–if so then can testify as to personal knowledge; but saw video of it–video should be produced under BER)

E.g. K not at issue when case is about verbal misrep–not contents of K–and K only intro’d to lay foundation.

BER ONLY applies when a W testifies about the content of a writing or recording–if W testifying about personal knowledge then BER does not apply.

COLLATERAL ISSUES–an original or reliable duplicate is not required, and other evidence of content (e.g., testimony) is admissible, when the contents go toward a collateral issue—i.e., an unimportant or undisputed issue or fact.

Exceptions to BER–doc unavailable; public records can use a certified copy; voluminous writings can be presented in chart/summary; admission by a P

Question 35

Privileges

Answer 35

Physician-Patient: Statements made by patient to a doc for purpose of obtaining medical treatment; exceptions to privilege–info for reasons other than treatment; comm made for some illegal purpose; dispute b/t doc and patient; or patient waived.

Psychotherapist-Patient Privilege–does not apply if the comm was 1) the result of a ct-ordered examination or 2) taken as part of a commitment proceeding.

5A Protection against Self-incrimination: Applies to ppl NOT corps; applies only to current statements NOT prior statements; also no privilege if no risk of crim trouble–e.g. immunity; crim D–cannot draw adverse inference from invocation of privilege; BUT in civil cases–can draw adverse inference from invocation of privilege.

Spousal Privileges:
1) Confidential marital comms–comm made b/t spouses, on reliance of intimacy of marital rel and while married, is privileged; held by BOTH spouses–i.e. either S may assert the privilege and prevent the other S from testifying– and survives after marriage; even if hearsay exception applies if the marital comm was made in confidence then inadmissible.
2) Spousal immunity–gen rule that the S of a crim D may not be called as a W by the prosc w/o express consent of S having the privilege; also gives 1 S right to refuse to testify against other S in any crim proceeding regardless of who is the D; only applies if S currently married to other S, and only witness S holds privilege so D cannot prevent S from waiving.
Exceptions: neither privileges apply when 1) 1 S suing another S; or 2) when 1 S is charged w/ a crime against other S.

*Even if 1 S is willing to testify against crim D S–waiving spousal immunity–the crim D S can invoke marital comms privilege to prevent the S from testifying about intimate comms b/t them.

Question 36

Public Policy Exclusions

Answer 36

1) Liability insurance–evidence that a P was/was not insured against liability NOT admissible to prove neg/wrongdoing EXCEPT if shown for some other purpose–e.g. control over asset; motive

2) Subsequent remedial measures–evidence of repairs/changes made after an accident NOT admissible to prove neg, culpable conduct, defective product/design or inadequate warning EXCEPT if shown for some other relevant purpose–e.g. ownership/control.

3) Settlement offers/neg–settlement offer made by any P NOT admissible to prove validity/amt of a disputed claim nor to impeach; also applies also to conduct/statements made during settlement neg; MAY be admissible for some other purpose–e.g. proving bias; cannot be unilaterally waived by either P.

4) Offers to pay medical expenses–NOT admissible to prove liability for injuries; although statements made/conduct accompanying the offer may be admissible.

5.) Plea Negotiations–guilty/withdrawn pleas NOT admissible in civil/crim case to prove liability nor are statements made during plea neg admissible to impeach; but guilty pleas admissible for other purposes (e.g. to show bias).

6) Past Sexual Conduct–V’s past sexual behavior/sexual predisposition NOT admissible in crim proceeding involving sexual misconduct;
–EXCEPTION crim case–admissible to show 1) D was not source of physical evidence (e.g. semen) or 2) V’s past sexual conduct w/ that D shows consent;
–EXCEPTION civil case–admissible ONLY if PV sub outweighs danger of harm to V; evidence of reputation admissible ONLY if V brings it up.

7) Past Sexual Misconduct–D accused of committing an act of sexual assault/child molestation then evidence that D committed any other sexual assault/child molestation admissible to prove any relevant matter–including propensity arg contrary to gen character evidence rules.

Question 37

Hearsay–EMPHASIZE

Answer 37

Out-of-ct statement offered to prove the truth of the matter asserted.

A statement is a person’s oral or written assertion, or it may be nonverbal conduct intended as an assertion.

Question 38

Non-hearsay uses–verbal acts or legally operative facts

EMPHASIZE

Answer 38

Statement offered to prove that the statement was made

E.g. D on trial for extortion. Evidence that D over the phone said “you better do what I say or I’m going to hurt you”–this statement is conduct.

Question 39

Non-hearsay uses–effect on the listener

EMPHASIZE

Answer 39

Statement offered to show the effect on the person who heard it.

E.g. Q about whether an insurance company received notice that a ship sank. Evidence of letter sent to insurance company that stated the ship sank would be nonhearsay–not being offered to prove ship sank; rather being offered to prove company had notice.

E.g. The friend’s statement is exempted as non-hearsay b/c it is being offered to show that D believed or had knowledge that the friend rightfully owned the TV, which is relevant to whether D knowingly has poss of a stolen TV.

Question 40

Non-hearsay uses–state of mind

Answer 40

Statement offered as circumstantial evidence of declarant’s mental state.

E.g. A person says, “I am King Henry the VIII.” The statement may be introduced to show the person is not of sound mind.

Question 41

Exclusions from hearsay (meet def of hearsay but excluded from rule)–Certain Prior Statements of Testifying Ws

EMPHASIZE

Answer 41

In all three cases, Ws who made the statement (declarant W) must testify at the present trial and be subj to cross-exam concerning the statement in order for it to be admissible:

1) Prior inconsistent statements–only prior inconsistent statements made under oath count–can be used to impeach W credibility AND as actual proof of truth of matter asserted (i.e. used for substantive purposes).

2) Prior consistent statements–can be used to rehabilitate W AND also used as proof of truth of matter asserted.

3) Prior statements of identification–e.g. line-up at police station and W identifies D; W may testify to prior identification even if does not remember making it.

Question 42

Exclusions from hearsay (meet def of hearsay but excluded from rule)–Admissions of a Party Opponent

EMPHASIZE

Answer 42

Must be offered by the OPPOSING P–a P cannot introduce its own hearsay statements using this exclusion. Also includes:

1) Adoptive admissions–statement made by someone else that P expressly or impliedly adopts; can sometimes adopt a statement by silence if P heard the statement and understood it; P had ability to respond; and reasonable P would have denied statement.

2) Vicarious admissions–statements made by ppl auth to speak on P’s behalf or statements by agents/employees w/in scope of employment (MUST be current employees when they made the statement).

3) Co-conspirators–statements made by co-Cs during and in furtherance of a conspiracy are admissible against other co-Cs; must be some other evidence to support finding of conspiracy, not just statement itself.

Question 43

Hearsay Exceptions–Declarant Unavailable

EMPHASIZE

Answer 43

Unavailable if declarant:
1) is exempted from testifying on grounds of privilege;
2) refuses to testify;
3) lacks memory of subj matter;
4) is dead or too ill; or
5) is absent and cannot be subpoenaed or otherwise made available.

Not “unavailable” if a P wrongfully renders declarant unavailable for purpose of preventing testimony; also not unavailable if declarant would merely be a hostile W.

Question 44

Hearsay Exceptions–Declarant Unavailable

Former Testimony

EMPHASIZE

Answer 44

–Declarant is unavailable (i.e. physically unavailable or asserts privilege)
–Prior statement was given at a trial, hearing, or deposition (hard to meet—GJs do not count)
–Opponent [predecessor] had opportunity to develop testimony
–Opponent had similar motive to cross-examine

Question 45

Hearsay Exceptions–Declarant Unavailable

Dying Declarations

EMPHASIZE

Answer 45

–Declarant is unavailable. Usually dead, but not req.
–Applies ONLY to homicide prosecutions and civil proceedings
* NOT to most crim prosecutions
–Declarant subjectively believed death was imminent. Soon and inevitable.
–Statement concerns cause or circumstances of death
* NOT other matters.

Question 46

Hearsay Exceptions–Declarant Unavailable

Statements Against Interest

EMPHASIZE

Answer 46

–Declarant unavailable
–Statement that was against interest—3 types
* Pecuniary or proprietary interest
* Civil or crim liability
* Render invalid a claim
*Also NO reasonable person would have made the statement unless it was true.
–At the time made
–Corroboration for statements against penal interest offered in crim cases to exculpate D.

Question 47

Hearsay Exceptions–Declarant Unavailable

Statements of Personal/Family History

Answer 47

Statements concerning the unavailable declarant’s own birth, adoption, marriage, familial relationship, etc. are admissible under this exception.

Question 48

Hearsay Exceptions–Declarant Unavailable

Forfeiture by Misconduct

Answer 48

If a party engages in wrongdoing for the purpose of making the declarant unavailable to testify, and renders the declarant unavailable, then:

–The party cannot claim the declarant is unavailable; and

–The door is open to use anything the declarant said against the party.

Question 49

Hearsay Exceptions–Declarant Unavailability Immaterial

Present Sense Impression

EMPHASIZE

Answer 49

–Statement describing or explaining an event or condition–made while or immediately after the declarant perceived it.

–Limited to description of something as it is happening; no analysis

Question 50

Hearsay Exceptions–Declarant Unavailability Immaterial

Excited Utterance

EMPHASIZE

Answer 50

–Statement occurs while declarant is excited by event
–Must relate to event; MAY include analysis
* Unlike Present Sense Impression, does not depend on specified time duration.

Question 51

Hearsay Exceptions–Declarant Unavailability Immaterial

State of Mind (mental/emotional/or physical condition)

EMPHASIZE

Answer 51

Then-existing mental, emotional, or physical condition–A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but NOT including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

Question 52

Hearsay Exceptions–Declarant Unavailability Immaterial

Statement Made for Medical Diagnosis

EMPHASIZE

Answer 52

A statement that:
–(A) is made for—and is reasonably pertinent to—medical diagnosis or treatment; and
–(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

Question 53

Hearsay Exceptions–Declarant Unavailability Immaterial

Recorded Recollection

EMPHASIZE

Answer 53

*Use this to admit record into evidence if present memory not refreshed.

A record that:
*(A) is on a matter the W once knew about but now cannot recall well enough to testify fully and accurately;
*(B) was made or adopted by the W (key diff b/t this and 612-Refreshing memory) when the matter was fresh in the W’s memory; and
*(C) accurately reflects the W’s knowledge.
—If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse P.

Question 54

Hearsay Exceptions–Declarant Unavailability Immaterial

Business Records

EMPHASIZE

Answer 54

4 steps:
1) Need a “business” and some records
2) Need a qualified W or certification to lay foundation
3) Lay the foundation
–Made by a person w/ knowledge or from info transmitted by a person w/ knowledge
–At or near the time
–In the course of a regularly conducted business activity
–It was the business’s regular practice to make record—i.e. not in anticipation of litigation
4) Rebut any showing that circumstances lack of trustworthiness

*Evidence generated by a machine is NOT hearsay–i.e. if business record printout generated by computer then business record exception does not even apply b/c not hearsay.

Question 55

Hearsay Exceptions–Declarant Unavailability Immaterial

Public Records

EMPHASIZE

Answer 55

A record or statement of public office if:

(A) it sets out:
–(i) the office’s activities
–(ii) a matter observed while under a legal duty to report–but not including in a crim case a matter observed by law-enforcement personnel–or
–(iii) in a civil case or against the gov in a crim case, factual findings from a legally authorized investigation; and

(B) the opponent does not show that the source of info or other circumstances indicate a lack of trustworthiness.

*Although a police investigation report itself may be admissible as a public record, an eye-W statement w/in it is hearsay and NOT admissible unless exception applies.

Question 56

Other 803 (Declarant Unavailability Immaterial) Exceptions

Answer 56

803(7) Absence of Records
803(10) Absence of Public Record
–E.g. home buyer sues broker for fraud; broker testifies he is licensed; rebuttal testimony from employee of St Board of Realtors—no record of license. Admissible?
–Yes—absence of public record being; being offered to prove that the record does not exist, if a public office regularly kept a record for a matter of that kind.

Ancient documents
Market reports and similar commercial publications
Learned treatises
—May come from any field
—Offer substantive evidence
–As long as accepted as reliable authority
–Two peculiarities:
—Must accompany expert W
—Read excerpts into record–NOT permit entire treatise to be entered as an exhibit.

Question 57

Hearsay and 6A–EMPHASIZE

Answer 57

Two Steps
1. Make sure the evidence is admissible under the FRE
2. Make sure there are no 6th Amendment violations
—i.e. in all crim prosecutions, the accused shall enjoy the right to cross-examine people who make testimonial statements against him.
–If a statement is non-testimonial, it satisfies the 6th Amendment
–If a statement is testimonial, the accused must have a chance to cross-examine the declarant.

Testimonial–i.e. made under circumstances which would lead a reasonable person to believe the statement would be used at a later trial.

Testimonial statements inadmissible if: 1) declarant is unavailable AND 2) D had NO prior opp to cross-examine declarant.