Key Points Flashcards
Hearsay
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
Hearsay is not admissible unless it comes within an __________
exception
Exceptions to hearsay when unavailable declarant: I Don’t Have The Witness
I: statement against interest
D: dying declaration
H: history, personal or family
T: former testimony
W: wrongfully caused unavailability
Unavailable Witness: PRISM
P: privilege
R: refuse to testify
I: incapacity
S: beyond subpoena power
M: lack of memory
Excited utterance
statement relating to a startling event or condition made while the declarant was under the stress or excitement that it caused
Present sense impression
a statement describing or explaining an event or condition made while or immediately after the declarant perceived
Statement for purpose of medical treatment or diagnosis
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
Business records
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
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
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
a witness’s prior identification is not considered hearsay
Opposing party’s statement
a statement made by an opposing party offered against that party
Public records
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
Relevancy
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
Admissibility (403-balancing test)
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
Lay witnesses must have _____ ______ to testify. Her opinion must be…
personal knowledge; rationally based on her perception, helpful
An expert witness does not need _____ _____ to testify but can instead testify based on
personal knowledge; facts he has been made aware of at trial or through some other means
Any party may _______ a witness
impeach
7 ways to impeach a witness
- prior inconsistent statements
- bias
- prior conviction
- prior bad acts
- reputation for untruthfulness
- sensory deficiencies
- contradiction
Prior inconsistent statements
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
For a prior conviction to be admitted against a D, the
probative value must outweigh prejudicial effect
Extrinsic evidence of prior _____ _____ not permissible
bad acts
A statement is not testimonial if the primary purpose of the statement is to address an
ongoing emergency
The admission of the statement will violate the D’s right to confrontation if
the statement is testimonial, the declarant is unavailable, and D fit not have the opportunity to cross the declarant
Name 4 privileges
attorney client, physician patient, therapist patient, spousal
Subsequent remedial measures not admissible to prove negligence or liability, but may be used for…
impeachment, to prove ownership, control, or feasibility of precautionary measures if disputed
The existence of an insurance policy is not admissible to prove liability, but maybe used to prove
agency, ownership or control, or impeachment
Equitable conversion
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
To be valid, a deed must
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
Delivery of a deed
intent to pass title presently
Quitclaim deed
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
Warranty deed (PRESENT) (FEW)
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
Merger
On the closing date, the K for sale merges into the deed, so at that point the buyer can only sue on the deed
Breach of implied warranty of fitness and habitability
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
