Evidence MEE

Question 1

Key principle #1: if there is a hearsay question (which is by far the most highly tested topic in Evidence essay questions), remember to use the DIA approach in your answer to get the most points.

Answer 1

D: Define hearsay. Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
• I: State why it is important to determine if a statement is hearsay. Hearsay is not admissible unless it comes within an exception.
• A: Analyze exceptions.

Question 2

Excited utterance:

Answer 2

an excited utterance is a “statement relating to a startling event or condition made while the declarant was under the stress or excitement that it caused.”
EXCEPTION to hearsay

Question 3

Present sense impression

Answer 3

a present sense impression is “a statement describing or explaining an event or condition made while or immediately after the declarant perceived it.”

Exception to hearsay

Question 4

Statement for purpose of medical treatment or diagnosis:

Answer 4

these statements must be made for and reasonably pertinent to medical diagnosis or treatment and describe medical history, past or present symptoms or sensations, their inception, or their general cause.
exception to hearsay

Question 5

Business records:

Answer 5

A record of “acts, events, conditions, opinions, or diagnoses” is admissible if it is made “at or near the time” of the event recorded by a “person with knowledge” of the event. Further, the making of the record must occur in the course of a regularly conducted business activity, and it must be the regular practice of the business to make such a record.

Exception to hearsay

Question 6

Recollection recorded:

Answer 6

a record that is on a matter that the witness once knew about, but now cannot recall well enough to testify fully and accurately, which was made while the matter was fresh in the witness’s memory, may be read into evidence (however, the proponent may not offer it as an exhibit

Question 7

Then-existing state of mind exception:

Answer 7

if a statement shows a declarant’s mental, emotional, or physical condition (including motive, intent, or plan) it is not hearsay.

Question 8

Prior statement of identification hearsay exclusion:

Answer 8

a witness’s prior identification is not considered hearsay.

Not hearsay

Question 9

Opposing party’s statement: general rule

Answer 9

a statement made by an opposing party offered against that party is not hearsay

Question 10

Statement against interest:

Answer 10

A statement that a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it had a tendency to expose the declarant to civil or criminal liability. The declarant must be unavailable.

Exception to hearsay

Question 11

Public Records

Answer 11

Public records may be admitted in some circumstances but not matters observed by law enforcement personnel when proffered by the prosecutor against the defendant in a criminal case.

Exception to hearsay

Question 12

Relevancy of Evidence

Answer 12

Relevancy: evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.

Question 13

Rule 403 balancing test for admissibility of evidence

Answer 13

Admissibility: all relevant evidence is admissible unless a statute or rule says otherwise, or the probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Question 14

T or F Lay witnesses must have personal knowledge to testify. Expert witnesses need not.

Answer 14

True

Question 15

General rule: A witness must have knowledge of the matter she testifies about.

what are requirements for a lay witness?

Answer 15

A lay witness must have personal knowledge. Her opinion must be rationally based on her perception; helpful; and not based on scientific, technical, or specialized knowledge.

Question 16

Witness requirements Expert witness

Answer 16

An expert witness does not need personal knowledge but can instead testify based on facts he has been made aware of at trial or through some other means (e.g.,
facts not on the record if other experts would rely on them

Question 17

General rule: any party may impeach a witness (even the party that called the witness) What are the seven ways to impeach a witness

Answer 17

Prior inconsistent statements
Bias and Interest
Conviction of a crime 
Bad acts 
Reputation or opinion for untruthfulness 
Sensory deficiencies 
Contradiction

Question 18

Impeachment Prior inconsistent statements: Can be used to impeach a witness and can also be used as substantive evidence as well if they fall within a hearsay exception or exclusion.
The witness must be given the opportunity to explain or deny the statement if extrinsic evidence is used UNLESS

Answer 18

unless the witness is the opposing party, not in court, or if the interests of justice so require.

Question 19

Impeachment For prior inconsistent statements, the witness must be given the opportunity to explain or deny the statement if extrinsic evidence is used unless:

Answer 19

unless the witness is the opposing party, not in court, or if the interests of justice so require.

Question 20

Impeachment Bias and Interest what is required to introduce the evidence? Must the witness be confronted on the stand? may extrinsic evidence be used?

Answer 20

Bias and interest: The witness must be confronted on the stand. Extrinsic evidence can only be used if the witness is asked about the bias first.

Question 21

Impeachment Conviction of a crime: Whether the conviction can be used depends on (mnemonic=NAD):

Answer 21

NATURE of the CRIME (felonies or misdemeanors of dishonesty are automatically admissible; any felony is admissible if it passes a balancing test),

AMOUNT of TIME that has passed (if more than 10 years after conviction or release has passed, whichever is later, it is generally not admissible), and (only in criminal cases)

whether the witness is a DEFENDANT it’s less likely to be admitted if the witness is a defendant because the probative value must outweigh its prejudicial effect).

Question 22

Impeachment Bad acts: what type of questioning about acts is permitted?

Is extrinsic evidence permitted for non-criminal evidence?

Answer 22

Questioning about bad acts that are probative of truthfulness or untruthfulness (e.g., filing a false tax return) is permitted to impeach a witness

Extrinsic evidence is not permitted.

Note that on both exams when this was tested, the question was whether a party could admit extrinsic evidence that the witness lied on a job application or resume (and the answer is that extrinsic evidence would not be permitted).

Question 23

Impeachment Reputation or opinion for untruthfulness:

Answer 23

The witness cannot testify to specific facts. (Extrinsic evidence is permitted because the witness is extrinsic evidence.)

Question 24

What is Impeachment using Sensory deficiencies

Answer 24

A witness be impeached if they have sensory deficiencies. Sensory evidence is the ability to observe, remember, or relate accurately. Extrinsic evidence is permitted.

Question 25

Impeachment Contradiction:

Answer 25

If the witness made a mistake in her testimony or lied during direct examination, she may be contradicted. Extrinsic evidence can be used if she doesn’t admit her mistake.

Question 26

Character evidence description

Answer 26

Generally, character evidence is not admissible to prove conformity. It is rarely admissible in civil cases (it must be an “essential element”) and is only admissible in criminal cases when the defendant opens the door.

Question 27

General rule: character evidence

Answer 27

General rule: character evidence is inadmissible to prove that someone acted in accordance with his character at the time the event occurred

Question 28

Civil Cases: character evidence

Answer 28

Character evidence is only permitted when character is an essential element of the case. Character is an essential element in cases involving negligent entrustment or hiring, defamation, or child custody. Reputation, opinion, and specific acts can be used to prove character.

Question 29

criminal cases: character evidence

Answer 29

Criminal cases: Generally, character evidence is inadmissible in the prosecutor’s case-in-chief to prove that the defendant acted in conformity with his own character.

However, the defendant in a criminal case may introduce evidence of a pertinent (relevant) character trait to prove that he acted in conformity with his character at the time in question. He can do this by reputation or opinion. Then, the prosecutor may rebut by using reputation, opinion, or cross-examining the defendant’s witness by asking about specific acts.

Question 30

6th Amendment confrontation clause: general rule

Answer 30

If a statement is testimonial, the declarant is unavailable, and the defendant did not have the
opportunity to cross-examine the declarant, then admission of the statement will violate the defendant’s right to confrontation.

Note: a statement is not “testimonial” if the primary purpose of the statement is to address an ongoing emergency.

Question 31

T or F even if evidence is relevant, it can still be excluded due to a privilege or for policy reasons.

Answer 31

True

Question 32

Privileges:

Answer 32

privileges such as the attorney-client privilege, the spousal privileges, the physician-patient privilege (recognized in some jurisdictions), or the psychotherapist-patient privilege (recognized federally)
can keep otherwise admissible evidence from being admitted.

Question 33

Offer to settle:

Answer 33

an offer to settle is not admissible to prove the validity of a disputed claim.

Question 34

Offer to pay medical expenses

Answer 34

: an offer to pay medical expenses is not admissible to prove liability or
the existence of an injury

Question 35

Subsequent remedial measure:

Answer 35

this is not admissible to prove negligence or liability, but may be used for
impeachment, or to prove ownership, control, or feasibility of precautionary measures if disputed

Question 36

existence of an insurance policy what cant it be used for? what can it be used for?

Answer 36

the existence of an insurance policy is not admissible to prove liability, but may be used to prove agency, ownership or control, or impeachment.

Question 37

Business records hearsay exception requirements

Answer 37

a record of acts or opinions made

• at or near the time of the recorded event by a person with knowledge of the event, and
• the recording took place in the course of regularly conducted business activity pursuant to a regular practice of the business to make such a record.

The record taking process must be verified by one with knowledge of the record keeping.

Then, the testimony at trial by the person with knowledge of the information is not needed.

Question 38

statements made for the purpose of medical diagnosis or treatment exception to hearsay

Answer 38

There is also a hearsay exception for statements made for the purpose of obtaining medical diagnosis or treatment when the statements describe the cause of the symptoms and are reasonably pertinent to the patient’s diagnosis and treatment. Statements that identify someone who caused the injury are not admissible.

Question 39

Marital communications privilege

Answer 39

The marital communications privilege protects confidential communications that occur between spouses during marriage. The privilege belongs to both spouses, so either one can revoke it. A communication is considered confidential when it is made privately by one spouse to the other and is not intended for disclosure to a third party. The minority view is that the privilege only applies to the spouse who makes the communication.

Question 40

T or F Once a hearsay statement is admitted into evidence, the declarant’s inconsistent statements that would otherwise be inadmissible as hearsay may impeach the credibility of the declarant.

Answer 40

True

Question 41

Rule: Recollection recorded:

Answer 41

a record that is on a matter that the witness once knew about,
and now cannot recall well enough to testify fully and accurately,
was made while the matter was fresh in the witness’s memory,
may be read into evidence (however, the proponent may not offer it as an exhibit).

Question 42

Civil cases: Character evidence is only permitted when character is an essential element of the case. Character is an essential element in cases involving

Answer 42

negligent entrustment or hiring, defamation, or child custody. Reputation, opinion, and specific acts can be used to prove character.

Question 43

Offer to settle: an offer to settle is not admissible to prove the

Answer 43

validity of a disputed claim.