Kaplan MBE Evidence Flashcards
1
Q
What is the difference between substantive use and limited use of evidence?
A
Substantive use is admissible for any purpose by the trier of fact. Limited use is admissible for a restricted purpose, such as impeachment.
Impeachment refers to challenging the credibility of a witness.
2
Q
Who is the proponent in the context of evidence?
A
The party sponsoring the evidence.
The opponent is the party challenging the evidence.
3
Q
What does admissibility refer to in legal terms?
A
Admissibility is a question of law for the judge.
Weight refers to how much the trier of fact chooses to believe the evidence.
4
Q
What is direct evidence?
A
Direct evidence requires no inference.
Example: A witness testifying they saw the defendant commit the act.
5
Q
What is circumstantial evidence?
A
Circumstantial evidence requires an inference.
Example: Footprints indicating someone delivered a newspaper.
6
Q
What constitutes real evidence?
A
Real evidence includes tangible items like a murder weapon or a written contract.
It is physical evidence presented in court.
7
Q
What is demonstrative evidence?
A
Demonstrative evidence is prepared to assist the jury in understanding the case.
Examples include PowerPoint presentations and models.
8
Q
What does Rule 103 pertain to?
A
Rule 103 pertains to objections regarding the admission or exclusion of evidence.
A party must timely object and state specific grounds for the objection.
9
Q
What is a proffer or offer of proof?
A
A statement to inform the court of the substance of excluded evidence.
This can be made orally or in writing.
10
Q
What is the harmless error doctrine?
A
An error is harmless if it does not affect substantial rights or the verdict.
Example: Excluding an alibi witness if it does not prejudice the defendant.
11
Q
What does the plain error doctrine refer to?
A
Plain error refers to a highly prejudicial error affecting substantial rights.
It can lead to reversal even if no objection was raised.
12
Q
What is the ‘Relevant, But …’ Rule under Rule 104?
A
Evidence may be relevant but inadmissible due to hearsay, privilege, or constitutional violations.
The court must decide on these preliminary questions before admitting evidence.
13
Q
What is conditional admissibility in Rule 104(b)?
A
Evidence may be admitted conditionally based on the existence of a preliminary fact.
Example: An expert’s testimony is allowed if preliminary facts are established later.
14
Q
What is the purpose of Rule 105 regarding limited admissibility?
A
The court can admit evidence for a specific purpose and restrict its use against other parties.
A limiting jury instruction is required upon request.
15
Q
What is the rule of completeness under Rule 106?
A
If part of a statement is introduced, the opposing party may require related parts to be introduced.
This avoids misleading the jury.
16
Q
What is judicial notice?
A
Judicial notice is when a court accepts certain facts as true without requiring formal proof.
It applies to adjudicative facts that help determine case outcomes.
17
Q
What types of facts can be judicially noticed?
A
- Facts commonly known in the territory
- Easily verifiable facts
Example: Historical records or well-known geographical facts.
18
Q
What is the burden of production?
A
The obligation to produce evidence in a case.
In civil cases, it rests with the plaintiff; in criminal cases, with the prosecution.
19
Q
What are the three different burdens of persuasion?
A
- Preponderance of the evidence
- Clear and convincing evidence
- Beyond a reasonable doubt
Each has different standards of proof required.
20
Q
What is a presumption in civil cases?
A
A conclusion drawn from established facts that may shortcut evidence requirements.
Presumptions can help simplify the evidence needed to prove a case.
21
Q
What is a presumption in legal terms?
A
A conclusion made as to the existence or nonexistence of a fact that may be drawn from other evidence that is admitted and proven to be true
Presumptions function as an evidence shortcut.
22
Q
What is the difference between legal and factual presumptions?
A
Legal presumption: Conclusions based on law (e.g., presumption of innocence). Factual presumption: Conclusions based on facts (e.g., absentia for 7 years = absent person is dead)
Legal presumptions apply to legal standards, while factual presumptions arise from established facts.
23
Q
What is a rebuttable presumption?
A
A presumption that can be rebutted or disproved with other evidence
Most presumptions are rebuttable.
24
Q
What is an irrebuttable presumption?
A
A presumption that cannot be rebutted or disproved with other evidence
Irrebuttable presumptions are not permitted in criminal cases.
25
What is the 'bursting bubble' theory of presumptions?
Once the opponent presents sufficient evidence that the presumed fact is not true, the presumption disappears
## Footnote
The FRE does NOT follow the bursting bubble theory.
26
Define relevant evidence according to Rule 401.
Evidence tending to make the existence of any fact of consequence to the action more or less probable than it would be without the evidence
## Footnote
This is often called 'logical relevance.'
27
What does Rule 403 state about the exclusion of relevant evidence?
Relevant evidence may be excluded if its probative value is substantially outweighed by several considerations, including unfair prejudice and confusion of the issues
## Footnote
The 403 balancing test favors admissibility.
28
What are the two forms of impeachment character evidence?
1. Impeachment by Reputation and Opinion for Untruthfulness 2. Impeachment by Prior Bad Acts
## Footnote
Both forms are used to assess a witness's credibility.
29
What is the general rule regarding conformity character evidence?
Character evidence is NOT admissible to show conduct in conformity therewith
## Footnote
This is outlined in Rule 404(a)(1).
30
What is the mnemonic for the three forms of character evidence?
R.O.SA.: R = Reputation, O = Opinion, SA = Specific Acts
## Footnote
These forms are used to prove character in court.
31
What are the exceptions to the general rule regarding conformity character evidence?
1. Good Criminals Go First 2. Criminals Attack Victims 3. Peaceful Dead Guys 4. The Promiscuous 5. The Predator
## Footnote
These exceptions apply under specific circumstances in criminal and civil cases.
32
What is the general rule for admissibility of character evidence when character is at issue?
All three forms/methods of proving character (R.O.SA.) are permitted
## Footnote
This applies when character is an essential element of a cause of action.
33
What is the purpose of character evidence offered for impeachment?
To show that a witness is or is not worthy of belief
## Footnote
This form of evidence is meant to challenge a witness's credibility.
34
What must a character witness have to testify about another's character?
Sufficient familiarity with the person or community
## Footnote
This is essential for the credibility of the character evidence.
35
What are the limitations on using prior bad acts to impeach a witness?
The bad acts must be probative of truthfulness and cannot be too remote in time
## Footnote
Questions must be asked in good faith and only factual inquiries are allowed.
36
What is the admissibility of specific acts when offered as character evidence?
Limited admissibility depending on purpose
## Footnote
Specific acts can be admissible for impeachment or when character is at issue.
37
What is the purpose of a limiting instruction to the jury regarding character witness testimony?
To not use the testimony substantively against the defendant, but only to assess the character witness's credibility.
38
Can the prosecution offer specific acts to rebut a defendant's character evidence?
No, the prosecution can only offer reputation or opinion evidence.
39
What happens if the defendant opens the door with substantive character witnesses?
The prosecution may rebut with evidence of the defendant's bad character.
40
In the context of self-defense, what type of evidence may a defendant offer regarding the victim?
Evidence of the victim's pertinent character, commonly the victim's violent character.
41
What is the permissible method for offering evidence of a victim's character in self-defense cases?
Reputation or opinion only, not specific acts.
42
What can the prosecution do on cross-examination of a character witness?
Test the character witness’s familiarity and credibility using specific acts.
43
What is the rule regarding evidence of a victim's peacefulness in homicide cases?
The prosecutor may offer evidence of the victim's peacefulness to rebut claims of the victim being the initial aggressor.
44
What is the Rape Shield Law (Rule 412) designed to do?
Exclude evidence of a victim's past sexual behavior or predisposition in sexual offense cases.
45
What are the exceptions to the Rape Shield Law in criminal cases?
* Past sexual acts with the defendant showing consent
* Source of semen, injury, or other physical evidence
* Evidence that is constitutionally required
46
What must a party do before offering evidence of a victim's sexual history in a criminal case?
File a motion describing the evidence and its purpose at least 14 days before trial.
47
What is the primary purpose of Rules 413-415 regarding sexual predator cases?
Allow specific acts by the defendant to be admissible in sexual assault or child molestation cases.
48
What is the Other Crimes Evidence Rule (FRE 404(b))?
Evidence of other crimes, wrongs, or acts is inadmissible as circumstantial evidence to show conforming conduct.
49
What is the MIMIC+ Rule?
Evidence of other crimes, wrongs, or acts may be admissible when offered to prove specific non-propensity purposes.
50
What does the acronym MIMIC stand for?
* Motive
* Intent
* Absence of Mistake
* Identity
* Common Scheme or Plan
51
What is the significance of Rule 406 regarding habit and routine practice?
Evidence of habit or routine practice is relevant to prove conduct in conformity with that habit or practice.
52
What is the rule regarding Subsequent Remedial Measures (Rule 407)?
Evidence of subsequent remedial measures is inadmissible to prove negligence or culpable conduct.
53
What is the Compromise Rule (Rule 408)?
Evidence of offers to settle a civil claim and statements made in connection are inadmissible to prove liability.
54
What is the distinction between Rule 408 and Rule 409 regarding medical expenses?
Rule 409 allows admissions of fact made in connection with offers to pay medical bills, unlike Rule 408.
55
What does Rule 410 state about plea discussions?
Plea discussions and statements made during plea negotiations are inadmissible if the plea is not accepted or withdrawn.
56
What are the exceptions to the inadmissibility of liability insurance evidence (Rule 411)?
Evidence may be admitted to prove agency, ownership or control, or bias/prejudice of a witness.
57
What are the four recognized privileges in federal courts?
* Attorney-client
* Psychotherapist-patient
* Clergy-penitent
* Spousal testimony and communication
58
Who holds the attorney-client privilege?
The client.
59
What types of communications are protected under attorney-client privilege?
Confidential communications made for the purpose of seeking legal advice or services.
60
What happens to attorney-client privilege after the client's death?
The privilege survives and may be asserted by an executor or attorney.
61
What is the effect of unknown eavesdroppers on attorney-client privilege?
Unknown eavesdroppers do not destroy the privilege.
62
What is the impact of known or anticipated eavesdroppers on attorney-client privilege?
They destroy the privilege.
63
What is the attorney-client privilege?
A legal privilege that protects communications between a client and their attorney from being disclosed in court.
## Footnote
The privilege encourages clients to speak freely with their attorneys.
64
What types of eavesdroppers destroy the attorney-client privilege?
Known or anticipated eavesdroppers.
## Footnote
Unknown eavesdroppers do not affect the privilege.
65
Which entities are considered clients under the attorney-client privilege?
Public officers, corporations, or associations seeking professional legal services.
## Footnote
This includes individuals consulting with the possibility of obtaining legal services.
66
Who can be considered a lawyer for the purpose of the attorney-client privilege?
Any person authorized or reasonably believed by the client to be authorized to practice law.
## Footnote
This can include disbarred attorneys or non-lawyers.
67
What is the work product doctrine?
A discovery rule that protects materials prepared by an attorney in anticipation of litigation.
## Footnote
It allows attorneys to refuse to provide certain documents during discovery.
68
What are the exceptions to the attorney-client privilege?
* Future crime or fraud
* Suits between attorney and client
* Joint client exception
## Footnote
Communications in these situations may not be protected.
69
What constitutes a waiver of attorney-client privilege?
Failure to assert a privilege in a timely manner, often leading to a partial waiver.
## Footnote
A total waiver occurs only if the waiver was intentional and concerns the same subject matter.
70
What is the spousal communications privilege?
A privilege that protects confidential communications between spouses made during marriage.
## Footnote
It applies in both civil and criminal cases.
71
What is the difference between spousal communications privilege and spousal immunity privilege?
Spousal communications privilege protects confidential communications, while spousal immunity privilege protects spouses from testifying against each other.
## Footnote
The latter applies even to observations and impressions.
72
What is the psychotherapist-patient privilege?
A privilege that protects confidential communications between a psychotherapist and a patient seeking diagnosis or treatment for mental health issues.
## Footnote
It extends to licensed mental health professionals.
73
What are the exceptions to the doctor-patient privilege?
* Statements regarding commitment proceedings
* Court-ordered examinations
* When the medical condition is part of the claim
* Future crime or fraud
## Footnote
These exceptions allow for disclosure of otherwise privileged information.
74
What is the Fifth Amendment privilege against self-incrimination?
A constitutional privilege that protects individuals from being compelled to testify against themselves in a criminal case.
## Footnote
It only applies to testimonial evidence.
75
What is transactional immunity?
A broad type of immunity preventing prosecution for offenses related to a statement made by the witness.
## Footnote
It bars the assertion of the Fifth Amendment privilege.
76
What are the methods of impeachment of a witness?
* Interest, motive, or bias
* Incapacity to observe, recall, or relate
* Prior inconsistent statements
* Character evidence for truthfulness
* Prior convictions
* Contradictions
## Footnote
These methods challenge the credibility of the witness.
77
What is the general rule of competency for witnesses?
Every person is competent to be a witness, barring specific disqualifications.
## Footnote
Dead Man’s Statutes are abolished under the Federal Rules of Evidence.
78
What is the significance of the 'Dead Man's Statutes'?
These statutes disqualify a survivor from testifying about transactions involving a decedent.
## Footnote
There is no federal Dead Man's Statute.
79
What is the presiding judge's competency as a witness?
The presiding judge may NOT testify as a witness at the trial.
## Footnote
A party need not object to preserve this issue.
80
What is the rule regarding juror testimony?
A juror may NOT testify as a witness before the jury of which they are a member.
## Footnote
Exceptions exist for extraneous prejudicial information or improper conduct.
81
What methods can be used for rehabilitation of a witness?
* Explain or deny
* Prior consistent statement
* Character evidence for truthfulness
## Footnote
Rehabilitation occurs after a witness has been impeached.
82
What is impeachment by collateral matter?
Impeachment that solely affects the credibility of a witness without relevance to the case.
## Footnote
Extrinsic evidence is typically not admissible when impeaching on collateral matters.
83
What type of evidence is admissible to impeach a witness?
Extrinsic evidence
## Footnote
Examples include personal relationships, fee arrangements, and prior convictions.
84
What is the purpose of introducing Valentine's Day cards written by a witness?
To show the relationship between the witness and the parties involved
## Footnote
This can help establish bias or motive.
85
What two forms of impeachment by character evidence for truthfulness are recognized under Rule 608?
* Rule 608(a): Impeachment by Reputation and Opinion for Untruthfulness
* Rule 608(b): Impeachment by Prior Bad Acts
86
What is the 10-Year Rule related to prior convictions under Rule 609?
A prior conviction can be used for impeachment only if it occurred within 10 years of the testimony
## Footnote
Certain exceptions apply, such as felony convictions.
87
What types of crimes can be used for impeachment?
* Perjury
* Forgery
* Fraud
* Filing a false statement
* Theft involving a lie
## Footnote
Crimes like shoplifting or DUI are not considered dishonesty crimes.
88
What must be shown for extrinsic evidence of a prior inconsistent statement (PINS) to be admissible?
* The witness must be given a chance to explain or deny the PINS
* The adverse party must have an opportunity to examine the witness about the PINS
* Justice may require it
89
True or False: Evidence of a witness's religious beliefs is admissible to impeach credibility.
False
## Footnote
Religious beliefs cannot be used for impeachment under Rule 610.
90
What is the general rule regarding leading questions during direct examination?
Leading questions are generally NOT allowed
## Footnote
Exceptions include hostile witnesses and preliminary background information.
91
What can be used to refresh a witness's memory during direct examination?
* Any writing
* Photograph
* Further questioning
* Other forms of evidence
92
Under what conditions can underlying data that is otherwise inadmissible be revealed according to Rule 703?
The proponent must show that the probative value substantially outweighs its prejudicial effect.
93
What is the significance of the Frye test in expert testimony?
It requires general acceptance of the test in the relevant scientific community
## Footnote
The Frye test is the minority rule.
94
What are the four requirements an expert's opinion must meet according to Rule 702?
* Proper Subject Matter
* Proper Person (Qualified)
* Proper Opinion (Basis of the opinion)
* Proper Testimony (Offered in proper form)
95
What types of opinions are impermissible for expert witnesses to state?
* Legal conclusions
* Opinions on the mental state of a defendant in a criminal case
96
What is the court's role regarding expert witnesses according to Rule 706?
The court may appoint expert witnesses and they must advise parties of their findings
## Footnote
Appointed experts can be deposed and cross-examined.
97
What is the 'Reasonable Reliance Rule' in expert testimony?
Out-of-court facts must be of the type reasonably relied upon by other experts in the particular field.
98
Fill in the blank: A witness can always be impeached with evidence that ________ the witness’s testimony.
[contradicts]
99
What happens if a witness admits making a prior inconsistent statement (PINS)?
Extrinsic evidence of the PINS may be excluded
## Footnote
There’s no need for extrinsic evidence if the witness admits it.
100
What is hearsay?
Hearsay is (1) a statement, (2) by a human declarant, (3) other than one made while testifying at trial, (4) offered to prove the truth of the matter asserted.
101
When is hearsay generally inadmissible?
Hearsay is generally inadmissible when offered for its truth because the opponent has no opportunity to cross-examine the declarant.
102
What is the basic rule regarding hearsay evidence?
Evidence offered in hearsay form is NOT admissible unless it falls within an exception; the hearsay rule is a rule of exclusion.
103
What constitutes substantive evidence in the context of hearsay?
If evidence is admissible as a hearsay exemption or exception, it is not excluded by the hearsay rule and may be admissible as substantive evidence.
104
What are non-hearsay statements?
Out-of-court statements which are non-hearsay are not excluded by the hearsay rule and may be admitted as substantive evidence or for a limited purpose.
105
What is the mnemonic for non-hearsay types?
C.E.L.V.I.S.
106
What does 'C' in the mnemonic C.E.L.V.I.S. stand for?
Statement of Capacity to see, hear, speak, etc.
107
What does 'E' in the mnemonic C.E.L.V.I.S. stand for?
Effect on the Listener.
108
What does 'L' in the mnemonic C.E.L.V.I.S. stand for?
Legally operative facts (LOF), a.k.a. facts of independent legal significance.
109
What does 'V' in the mnemonic C.E.L.V.I.S. stand for?
Verbal Acts.
110
What does 'I' in the mnemonic C.E.L.V.I.S. stand for?
Impeachment.
111
What does 'S' in the mnemonic C.E.L.V.I.S. stand for?
State of Mind - Circumstantially.
112
What are hearsay exemptions?
Out-of-court statements offered for their truth that are deemed not hearsay and are admitted as substantive evidence.
113
What are the five types of statements by a party opponent?
* Statement by a named party
* Adoptive admission
* Authorized admission
* Employee admission
* Co-conspirator’s admission
114
What is required for a statement by a named party to be admissible?
Made by a named party, relevant, and offered against the declarant-party by an opponent.
115
What is an adoptive admission?
A statement adopted by a party through words, conduct, or silence.
116
What is an authorized admission?
A statement made by a party's agent or representative.
117
What is required for an employee admission to be admissible?
The statement must be made during the employment relationship and concern a matter within the scope of employment.
118
What are the requirements for a co-conspirator’s statement to be admissible?
* Made by a member of the conspiracy
* In furtherance of the conspiracy
* During the existence of the conspiracy
119
What are the three types of prior witness statements exempt from hearsay?
* Prior inconsistent statements made under oath
* Prior consistent statements offered to rebut an allegation of recent fabrication
* Statements of prior identification
120
What is a prior inconsistent statement (PINS)?
A statement made under oath in a court-type proceeding that is inconsistent with the witness's current testimony.
121
What is a prior consistent statement (PCS)?
A statement used to rehabilitate a witness after being impeached.
122
What is a statement of prior identification (PID)?
An out-of-court statement of identification made after perceiving the identified person.
123
What are the two reasons exceptions to hearsay exist?
* Reliability
* Necessity
124
What is a present sense impression?
A statement made by the declarant describing an event while or immediately after perceiving it.
125
What is an excited utterance?
A statement relating to a startling event made while the declarant was under the stress of excitement caused by the event.
126
What is the purpose of statements for medical diagnosis or treatment?
To describe medical history or symptoms for the purpose of diagnosis or treatment.
127
What is the requirement for the admissibility of past recollection recorded?
The witness must have documented something within their personal knowledge while the matter was fresh.
128
What is the purpose of statements made out of court in legal proceedings?
To obtain a diagnosis
## Footnote
These statements allow a party to introduce their own out-of-court statement.
129
What is the caveat regarding statements admitting or assessing fault?
They are NOT included
## Footnote
If in writing, such as a hospital report, these words would be redacted.
130
What does FRE 803(5) refer to?
Past Recollection Recorded
## Footnote
It allows admissibility of documents signed by a witness with diminished memory if made while the matter was fresh.
131
What must be attempted before using Past Recollection Recorded?
FRE 612 must have been attempted and failed
## Footnote
The witness must lack current memory of the event.
132
What rights does the opponent have regarding Past Recollection Recorded?
* Inspect the writing
* Cross-examine with it
* Show it to the jury for comparison
* Introduce relevant portions into evidence
133
What is the Records of Regularly Conducted Activity exception?
FRE 803(6)
## Footnote
It pertains to business records made contemporaneously by a knowledgeable person.
134
What are the requirements for the Records of Regularly Conducted Activity to be admissible?
* Memorandum, record, or report
* Business-related acts or events
* Made at or near the time of the event
* By a person with knowledge
* Kept in the course of a regularly conducted business activity
* Regular practice to make such records
135
What is the caveat related to Records of Regularly Conducted Activity?
Records may not be made solely in anticipation of litigation
## Footnote
They must serve a business purpose.
136
What does FRE 803(7) address?
Absence of Entry in a Business Record
## Footnote
It allows evidence that something is not included in business records.
137
What is required to prove the non-occurrence of an event under FRE 803(7)?
Witness must testify to familiarity with records and diligent search
## Footnote
No record of the event must be found.
138
What is the Public Records and Reports exception under FRE 803(8)?
Records or statements of a public office admissible if they set out a matter personally observed
## Footnote
The person must be under a legal duty to investigate and report.
139
What is the caveat for law enforcement reports under FRE 803(8)?
NOT admissible in a criminal case against the accused
## Footnote
This raises Confrontation Clause issues.
140
What are Records of Vital Statistics under FRE 803(9)?
Records or data compilations of births, deaths, or marriages
## Footnote
Must be made to a public office pursuant to law.
141
What does FRE 803(10) address?
Absence of Entry in a Public Record
## Footnote
Similar to FRE 803(7), but pertains to public records.
142
What types of records are included in FRE 803(11-13)?
* Records of religious organizations
* Family history records (e.g., births, deaths)
* Genealogy charts
* Inscriptions on family artifacts
143
What do FRE 803(14-15) cover?
Records or statements in documents affecting property interests
## Footnote
Includes deeds and mortgages.
144
What is the significance of FRE 803(16)?
Statements in Ancient Documents
## Footnote
Admissible if in existence prior to January 1, 1998.
145
What types of compilations are covered under FRE 803(17)?
Market reports and commercial publications
## Footnote
Examples include telephone directories and credit reports.
146
What is the Learned Treatises exception under FRE 803(18)?
Statements in authoritative treatises, textbooks, journals
## Footnote
Can be used to contradict an expert witness.
147
What are the three reputation exceptions under FRE 803(19-21)?
* Reputation concerning personal and family history
* Reputation concerning boundaries and general history
* Reputation concerning character
148
What does FRE 803(22) allow?
Final judgments of previous convictions for felonies
## Footnote
Admissible to prove an essential element of the action.
149
What does FRE 803(23) pertain to?
Judgments involving personal, family, or general history
## Footnote
Can be used to prove matters essential to the judgment.
150
What does Rule 804 address?
Hearsay Exceptions: Declarant Unavailable
## Footnote
It includes exceptions that apply only if the declarant is unavailable.
151
What mnemonic can help remember the criteria for unavailability?
PRISM
## Footnote
Stands for Privilege, Refusal, Incapacity, Subpoena, Memory.
152
What is the significance of Former Testimony under FRE 804(b)(1)?
Testimony of an unavailable declarant made under oath
## Footnote
Must involve the same or related subject matter.
153
What is the Dying Declaration exception under FRE 804(b)(2)?
Statement made while believing death is imminent
## Footnote
Must relate to the cause or circumstances of impending death.
154
What constitutes a Statement Against Interest under FRE 804(b)(3)?
A statement of an unavailable witness against their pecuniary, proprietary, or penal interest
## Footnote
Must be corroborated if offered to exculpate the defendant.
155
What does the Statement of Personal or Family History exception entail?
Declarant’s relationship by blood, adoption, or marriage
## Footnote
Admissible under the pedigree hearsay exception.
156
What is the Forfeiture by Wrongdoing exception under FRE 804(b)(6)?
Statement against a party who engaged in wrongdoing to procure unavailability
## Footnote
Admissible despite hearsay rule.
157
What is the Confrontation Clause concerning testimonial hearsay?
Testimonial hearsay statements are inadmissible unless the defendant had an opportunity to cross-examine the declarant
## Footnote
Applies when the declarant is unavailable.
158
What are examples of testimonial hearsay?
* Statements made to police
* Court testimony
* Affidavits
* Depositions
159
What are examples of non-testimonial hearsay?
* Business records
* Co-conspirator’s statements
160
What exceptions allow testimonial hearsay to be admitted despite unavailability?
* Dying declarations
* Child witness via closed circuit
* Ongoing emergency statements
161
What is required for chemical analysis reports to be admissible?
Jurisdiction must have a 'notice and demand' statute
## Footnote
This allows the defendant to demand the chemist's presence.
162
What happens if hearsay is deemed testimonial and no exception applies?
The statement must be offered in non-hearsay form
## Footnote
The declarant must testify and be subject to cross-examination.
163
What is Rule 805 concerning hearsay?
Hearsay within hearsay (multiple hearsay)
## Footnote
Addresses situations where a statement contains another hearsay statement.
164
What is the effect of forfeiture by wrongdoing on a declarant's unavailability?
It allows for the declarant to be considered unavailable with the intent to prevent testimony.
165
What must happen if hearsay is testimonial and no exception applies?
The statement must be offered in non-hearsay form with the declarant testifying and subject to cross-examination.
166
What is required for hearsay within hearsay (Rule 805) to be admissible?
Both the primary statement and the included statement must have a separate basis for admissibility.
167
What happens if the underlying hearsay cannot be redacted?
The entire statement is inadmissible.
168
How is impeachment and rehabilitation of a hearsay declarant accomplished?
In the same manner as a declarant on the stand.
169
What is the residual hearsay exception (Rule 807)?
A statement not covered by any hearsay exception may be admissible if it is more probative and trustworthy.
170
What must a party do before offering evidence under the residual hearsay exception?
Give notice to the opposing party.
171
What is the first step in analyzing hearsay issues?
Isolate the statement and look for assertion-related words.
172
What does Rule 901 require for authentication or identification?
Evidence sufficient to support a finding that the matter is what its proponent claims it to be.
173
What is considered 'sufficient evidence' for authentication?
Evidence that a reasonable person could find 'genuine' by a preponderance of the evidence.
174
What are the two general methods of authentication?
* Extrinsic methods
* Intrinsic methods
175
What is required for extrinsic authentication?
A sponsoring witness is required.
176
What does circumstantial evidence in authentication often involve?
Chain of custody.
177
What is the ancient documents rule?
An old document, at least 20 years old, found in a place suggesting authenticity.
178
What are the special rules for handwriting authentication?
* By a layperson with familiarity
* By an expert with known writing samples
* By comparison by the trier of fact
179
What is required for voice authentication?
An opinion from someone who has heard the speaker at any time.
180
What types of documents are considered self-authenticating (Rule 902)?
* Certified documents
* Official publications
* Newspapers and periodicals
* Trade inscriptions
* Acknowledged documents
* Commercial paper
181
What is the Best Evidence Rule (Rule 1002)?
To prove the content of a writing, the original is required unless otherwise provided.
182
What does the Best Evidence Rule apply to?
* Legally operative documents
* Document-dependent testimony
183
What are the exceptions to the Best Evidence Rule?
* Collateral
* Lost
* Opponent
* Testimony or admission by opponent
* Subpoena
184
How can the contents of an official record be proved?
By copy certified as correct or by witness testimony upon comparison with the original.
185
What is the purpose of summaries (Rule 1006)?
To present contents of voluminous writings that cannot conveniently be examined in court.
186
What mnemonic helps analyze writings for admissibility?
OPRAH.
187
What does the 'O' in OPRAH stand for?
Original writing rule = Best Evidence Rule.
188
What does the 'P' in OPRAH stand for?
Privilege – is the document privileged?
189
What does the 'R' in OPRAH stand for?
Relevancy – Rules 401-403.
190
What does the 'A' in OPRAH stand for?
Authentication – is the writing genuine?
191
What does the 'H' in OPRAH stand for?
Hearsay – do any hearsay problems exist?
