Evidence rule statements Flashcards
Hearsay definition
Hearsay is an out of court statement that is offered to prove the truth of the matter asserted.
Admissibility of hearsay
Hearsay evidence is generally inadmissible unless it falls within a hearsay exception or exclusion
Present sense impression
A present sense impression is an out of court statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it. Present sense impressions are exceptions to the hearsay rule and admissible regardless of the declarant’s availability to testify
Excited utterance
An excited utterance is a statement made about a shocking or startling event made while the declarant is under the stress of excitement that it caused. An excited utterance is an exception to the hearsay rule and admissible regardless of the declarant’s ability to testify
Testimonial statements
A statement that is made for the primary purpose of ascertaining past criminal conduct is testimonial
Non testimonial statements
A statement made primarily to enable police to render aid to meet an ongoing emergency is not testimonial.
Confrontation clause and hearsay
For an out of court statement to be admissible against a criminal defendant, the 6th Amendment confrontation clause requires that the declarant be unavailable and the defendant had a prior opportunity to cross examine the declarant
How to determine whether a statement is testimonial
To determine whether a statement is testimonial requires an objective analysis of the circumstances regardless of the subjective purpose of the participants
Voice identification
A voice may be identified by any person who has heard the voice at any time (including one made familiar solely for the purposes of litigation). It makes no difference whether the voice was heard firsthand or through medical or electronic transmission or recording
Prior out of court identifications
A prior out of court identification of a person after perceiving that person is not hearsay and may be admissible as substantive evidence by the testimony of the declarant witness. Even if the witness has no memory of the prior identification, it is still admissible because the witness is subject to cross examination about the prior identification
Character evidence by prosecution at criminal trial
for propensity purposes
In a criminal trial, the prosecution is not permitted to introduce evidence of a defendant’s bad character to prove that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question
Past acts introduced for nonpropensity purposes
Evidence of a defendant’s crimes or other wrongful acts are admissible for nonpropensity purposes such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, lack of mistake, or lack of accident
Admissible evidence
Evidence must be relevant to be admissible, and all reelvant evidence is admissible unless excluded by a specific rule, law, or constitutional provision.
Relevant evidence
Evidence is relevant if 1. it has any tendency to make a fact more or less probable and 2. the fact is of consequence in determining the action
The kinds of statements that can be hearsay
A hearsay statement may be an oral or written assertion and can be nonverbal conduct intended as an assertion
Record exception to hearsay
biz records, not recorded recollection
A record of an event or condition is not excluded as hearsay if
1. the record was kept in the regularly conducted activity of a business
2. the making of the record was a regular practice of that activity; and
3. the record was made at or near the time by someone with knowledge
does not apply to police notes in criminal trials!!!
Statements not offered to prove the truth of the matter asserted
A statement offered to prove something other than the truth of the matter asserted is not hearsay. For example, a statement offered to show the effect on the person who heard it or to show the person’s state of mind is not hearsay
Statement of a party opponent
An out of court statement made by a party to the current litigation is not hearsay if it is offered by an opposing party
Statement of present intent
with regard to hearsay
A statement of present intent, motive, or plan can be admissible as a hearsay exception to prove conduct in conformity with that state of mind
Character evidence in criminal cases
offered by the prosecution first
In a criminal case, the proseuction is not permitted to introduce evidence of a defendant’s bad character to prove that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question.
Defendant opening the door
If the defendant make their character an issue in the case by offering evidence of their good character or the victim’s bad character, the defendant opens the door to allow the prosecution to rebut that evidence
impeaching witness with past conviction
dishonest crimes
Any witness can be impeached by evidence that they have been convicted of a crime that involved dishonesty or false statement, regardless of the punishment imposed or the prejudicial effect of the evidence
Impeachment with prior conviction (misdemeanor not involving dishonesty)
Conviction for a crime not involving fraud or dishonesty is admissible to impeach only if the crime is punishable by death or imprisonment for more than one year.
When does a crime involve dishonesty or false statements?
A crime involves dishonesty or false statement if establishing the elements of the crime requires proof or admission of an act of dishonesty or false statement
Impeachment by bias
Because a witness may be influenced by their relatioship to a party, their interest in testifying, or their interest in the otucome of the case, a witness’s bias or interest is always relevant to the credibility of his testimony
Recorded recollection
The recorded recollection hearsay exception allows a witness to read a record into evidence when (i) the record was on a matter the witness once knew about, (ii) the record was made when the matter was fresh in the witness’s memory, (iii) the record accurately reflects the witness’s knowledge at the time, and (iv) the witness cannot recall the event well enough to testify fully anc accurately, even after consulting the record on the stand
admitting recorded recollection as an exhibit
A written document admitted as a recorded recollection may be read to the jury, but may not be received as an exhibit unless it is offered as such by the adverse party
impeachment by prior inconsistent statement
A litigant is generally allowed to impeach a witness’s credibility by introducing a prior inconsistent statement, as long as the inconsistency involves an issue relevant to the facts of the case
Memory and impeachment by prior inconsistent statement
A witness’s testimony as to lack of memory can be considered an inconsistency for which a prior inconsistent statement may be introduced
Extrinsic evidence of a prior inconsistent statement
Extrinsic evidence of a prior inconsistent statement used to impeach a witness’s credibility may be admitted only if the witness is given the opportunity to explain or deny the statement and the opposing party is given the opportunity to examine the witness about it
This opportunity is not mandated if justice so requires (e.g., the statement is discovered after witness becomes unavailable)
Prior out of court identifications
A previous out of court identification of a person after perceiving them is deemed non hearsay if the witness is testifying at the current trial and is subject to cross examination
D introducing evidence of good character in criminal case
In a criminal case, the defendant is permitted to introduce evidence of his good character as being inconsistent with the type of crime charged, as long as it’s in the form of reputation in the community or opinion testimony.
Who is the community for purposes of reputation evidence
The community includes people the defendant interacts with on a regular basis
Statements made for medical diagnosis or treatment
A statement describing past or present symptoms is not hearsay if it is made for medical diagnosis or treatment. A statement of the cause or source of the condition is admissible if it is reasonably pertinent to diagnosis or treatment. The statement need not be made to a physician nor be made by a patient
Statements made to help police meet an ongoing emergency
A statement made to police with the primary purpose of enabling police to help meet an ongoing emergency (e.g., during a 911 call) is not testimonial
excited utterance
Under the excited utterance exception, a statement about a startling event or condition while the declarant is under the stress of excitement that it cause is excepted from hearsay. The event must shock or excite the declarant, and the statement must relate to the event
Admissibility of relevant evidence
All relevant evidence is admissible unless excluded by a specific rule, law or constitutional provision
When is evidence relevant
Evidence is relevant if it tends to make a fact more or less probable than it would be without the evidence (probative) and the fact is of consequence in determining the action (material)
Admissibility of subsequent remedial measures, in general
When a party takes subsequent measures that would have made the other party’s earlier injury or harm less likely to have occurred, evidence of these subsequent measures is not admissible to prove negligence
When may subsequent remedial measures be admitted
Evidence of subsequent remedial measures may be admissible for another purpose e.g., impeachment, ownership, or control of the cause of harm, or the feasibility of precautionary measures.
Admissibility of compromise offers
Compromise offers made by any party are not admissibile to prove the validity of a disputed claim, nor are they admissible for impeachment by prior inconsistent statement or contradiction
Evidence of offers to pay medical expenses
Evidence of the payment, offer to pay, or promise to pay medical expenses resulting from an injury is not admissible to prove liability
Rape shield rules
Pursuant to the rape shield rule, evidence offered to prove the sexual behavior or predisposition of an alleged victim of sexual assault is generally inadmissible at both civil and criminal proceedings.
When may evidence be offered to prove an alleged victim’s sexual behavior
Evidence offered to prove an alleged victim’s sexual behavior or predisposition is admissible if its probative value substantially outweighs the danger of harm to any victim and of undair prejudice to any party
Relevancy
Evidence must be relevant to be admissible
When is evidence relevant
Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence (i.e., probative) and is of consequence in determining the action (i.e., material)
Statements of a party opponent
Relevant out of court statements made by a party to the litigation at hand are excluded from the definition of hearsay when offered for their truth by an opposing party
Present sense impresions
The hearsay exception for present sense impressions includes a statement that describes an event while or immediately after the declarant perceived it
Excited utterance
The excited utterance exception covers statements relating to a startling event while the declarant is still under the stress of the event
