Evidence MEE Flashcards
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.
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.
Excited utterance:
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
Present sense impression
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
Statement for purpose of medical treatment or diagnosis:
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
Business records:
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
Recollection recorded:
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
Then-existing state of mind exception:
if a statement shows a declarant’s mental, emotional, or physical condition (including motive, intent, or plan) it is not hearsay.
Prior statement of identification hearsay exclusion:
a witness’s prior identification is not considered hearsay.
Not hearsay
Opposing party’s statement: general rule
a statement made by an opposing party offered against that party is not hearsay
Statement against interest:
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
Public Records
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
Relevancy of Evidence
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.
Rule 403 balancing test for admissibility of evidence
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.
T or F Lay witnesses must have personal knowledge to testify. Expert witnesses need not.
True
General rule: A witness must have knowledge of the matter she testifies about.
what are requirements for a lay witness?
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.
Witness requirements Expert witness
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
General rule: any party may impeach a witness (even the party that called the witness) What are the seven ways to impeach a witness
Prior inconsistent statements Bias and Interest Conviction of a crime Bad acts Reputation or opinion for untruthfulness Sensory deficiencies Contradiction
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
unless the witness is the opposing party, not in court, or if the interests of justice so require.
Impeachment For prior inconsistent statements, the witness must be given the opportunity to explain or deny the statement if extrinsic evidence is used unless:
unless the witness is the opposing party, not in court, or if the interests of justice so require.
Impeachment Bias and Interest what is required to introduce the evidence? Must the witness be confronted on the stand? may extrinsic evidence be used?
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.
Impeachment Conviction of a crime: Whether the conviction can be used depends on (mnemonic=NAD):
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).
Impeachment Bad acts: what type of questioning about acts is permitted?
Is extrinsic evidence permitted for non-criminal evidence?
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).
Impeachment Reputation or opinion for untruthfulness:
The witness cannot testify to specific facts. (Extrinsic evidence is permitted because the witness is extrinsic evidence.)
What is Impeachment using Sensory deficiencies
A witness be impeached if they have sensory deficiencies. Sensory evidence is the ability to observe, remember, or relate accurately. Extrinsic evidence is permitted.
