Key Points

Question 1

Hearsay

Answer 1

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

Question 2

Hearsay is not admissible unless it comes within an __________

Answer 2

exception

Question 3

Exceptions to hearsay when unavailable declarant: I Don’t Have The Witness

Answer 3

I: statement against interest
D: dying declaration
H: history, personal or family
T: former testimony
W: wrongfully caused unavailability

Question 4

Unavailable Witness: PRISM

Answer 4

P: privilege
R: refuse to testify
I: incapacity
S: beyond subpoena power
M: lack of memory

Question 5

Excited utterance

Answer 5

statement relating to a startling event or condition made while the declarant was under the stress or excitement that it caused

Question 6

Present sense impression

Answer 6

a statement describing or explaining an event or condition made while or immediately after the declarant perceived

Question 7

Statement for purpose of medical treatment or diagnosis

Answer 7

statements 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

Question 7

Business records

Answer 7

a record of acts, events, conditions, opinion, 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 in the regular practice of the business to make such a record

Question 8

Recollection recorded

Answer 8

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 9

Then-existing state of mind

Answer 9

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

Question 10

Prior statement of identification

Answer 10

a witness’s prior identification is not considered hearsay

Question 11

Opposing party’s statement

Answer 11

a statement made by an opposing party offered against that party

Question 12

Public records

Answer 12

May be admitted in some circumstances but not matters observed by law enforcement personnel when proffered by the prosecutor against the D in a criminal case

Question 13

Relevancy

Answer 13

Evidence is relevant if it has a 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 14

Admissibility (403-balancing test)

Answer 14

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

Question 15

Lay witnesses must have _____ ______ to testify. Her opinion must be…

Answer 15

personal knowledge; rationally based on her perception, helpful

Question 16

An expert witness does not need _____ _____ to testify but can instead testify based on

Answer 16

personal knowledge; facts he has been made aware of at trial or through some other means

Question 17

Any party may _______ a witness

Answer 17

impeach

Question 18

7 ways to impeach a witness

Answer 18

1. prior inconsistent statements
2. bias
3. prior conviction
4. prior bad acts
5. reputation for untruthfulness
6. sensory deficiencies
7. contradiction

Question 19

Prior inconsistent statements

Answer 19

Can be used as substantive evidence as well. Witness must be given the opportunity to explain or deny the statement if extrinsic evidence is used, unless the witness is the opposing party, not in court, or if the interests of justice so require

Question 20

For a prior conviction to be admitted against a D, the

Answer 20

probative value must outweigh prejudicial effect

Question 21

Extrinsic evidence of prior _____ _____ not permissible

Answer 21

bad acts

Question 22

A statement is not testimonial if the primary purpose of the statement is to address an

Answer 22

ongoing emergency

Question 23

The admission of the statement will violate the D’s right to confrontation if

Answer 23

the statement is testimonial, the declarant is unavailable, and D fit not have the opportunity to cross the declarant

Question 24

Name 4 privileges

Answer 24

attorney client, physician patient, therapist patient, spousal

Question 25

Subsequent remedial measures not admissible to prove negligence or liability, but may be used for…

Answer 25

impeachment, to prove ownership, control, or feasibility of precautionary measures if disputed

Question 26

The existence of an insurance policy is not admissible to prove liability, but maybe used to prove

Answer 26

agency, ownership or control, or impeachment

Question 27

Equitable conversion

Answer 27

As soon as K is signed, but before closing, the buyer’s interest is real property (the land he contracted to buy) and the seller’s interest is personal property (money he will get from the sale). Thus, risk of loss remains on the buyer under equitable conversion

Question 28

To be valid, a deed must

Answer 28

identify the buyer and seller, describe the land, contain words denoting a present intent to convey, and be signed by the grantor, and must be delivered

Question 29

Delivery of a deed

Answer 29

intent to pass title presently

Question 30

Quitclaim deed

Answer 30

Grantor gives no covenants (promises nothing) and the grantee gets whatever the grantor has. The grantee takes the land subject to a defect in the title, an undisclosed easement, or other problem and has no recourse

Question 31

Warranty deed (PRESENT) (FEW)

Answer 31

the grantor gives 6 covenants.
R = right to convey
S = season (seller owns land he is selling)
No encumbrances = no existing easements, liens, or encumbrances that are not stated in deed
F = further assurances
E = quiet enjoyment
W = warranty

Question 32

Merger

Answer 32

On the closing date, the K for sale merges into the deed, so at that point the buyer can only sue on the deed

Question 33

Breach of implied warranty of fitness and habitability

Answer 33

A builder of new homes impliedly warrants to the buyer that the home is habitable and fir for its intended purposes. This warranty applies to defects that are discovered within a reasonable time and are due to the builder’s negligence or failure to do work in a workmanlike manner