Last Minute Memorize! Flashcards
What are the hearsay exceptions that require the declarant to be unavailable?
- Former Testimony
- Dying Declarations
- Statement Against Interest
- Statement Offered Against Person
When Rule 403 Discretion Applies (Unfair Prejudice)
Court’s decision to exclude relevant evidence if its probative value is substantially outweighed by a danger of:
- unfair prejudice
- Confusion
- Misleading the jury
- Waste of time
- Needless presentation of cumulative evidence
Methods of proving character
- reputation testimony
- opinion testimony
- specific acts
Purposes for offering character evidence
- conformity/propensity
- impeachment
- other (proving a statement made was true/proving an element of a negligent hiring claim)
Character of Criminal Defendant–pertinent trait
Criminal defendant may introduce evidence of his own good character trait to show that he would not commit the crime
and even then can only introduce reputation or opinion testimony only, no specific facts
Character of Criminal Defendant–Open the Door
Once defendant “opens the door” prosecution can rebut by
- calling its own character witnesses to provide reputation or opinion testimony about defendant’s bad character
- cross-examine defendant’s character witness, may inquire about defendant’s bad acts relevant to the trait
Character of Victim in Criminal Case Exception
- criminal defendant may introduce evidence of victim’s bad character for a pertinent trait to show that he is innocent
- prosecution can rebut evidence of victim’s good character for the trait and evidence of defendant’s bad character for the trait
**usually applies in case where defendant is charged with a violent crime and is claiming self-defense. Under that case, the victim’s character for violence is relevant to defendant’s innocence
Character Evidence for Impeachment Purposes
Evidence of witness’s untruthful character may be introduced to attack the witness’s credibility
MIMIC
Court will allow evidence of specific acts of misconduct or prior crimes not to show criminal disposition but to show some other relevant purpose such as: Motive Intent Mistake Identity Common Scheme or plan
Common Impeachment Methods
- Prior Inconsistent Statements
- Bias
- Prior Criminal Convictions
- Prior Bad Acts
- Character for Untruthfulness
- Inability to Perceive/Lack of Knowledge
- Contradiction
Common Impeachment Issues
- Is extrinsic evidence admissible?
2. If extrinsic evidence admissible, must a foundation be laid first before admitting it into evidence?
Prior Inconsistent Statements
Witnesses may be impeached with previous statements that are inconsistent with her current testimony
To introduce extrinsic evidence, counsel must give witness an opportunity to explain or deny the prior statement at some point (before or after extrinsic evidence is introduced). This requirement does not apply to statements by an opposing party
Bias
Witness may be impeached with evidence showing any reason why witness might favor the side she testified for. Extrinsic evidence is allowed, but a proper foundation must be laid first on cross-examination.
Prior Criminal Convictions
Any crimes involving dishonesty or false statement (Rule 403 CAN NEVER APPLY. ) OR any other felony may be used to impeach.
General 10-year time limit on using convictions to impeach is measured from DATE of CONVICTION or RELEASE from confinement, whichever is the LATER date.
Prior Criminal Convictions
Any crimes involving dishonesty or false statement (Rule 403 CAN NEVER APPLY. ) OR any other felony may be used to impeach.
General 10-year time limit on using convictions to impeach is measured from DATE of CONVICTION or RELEASE from confinement, whichever is the LATER date.
***extrinsic evidence proof of prior conviction will usually come in the form of a certified copy of certificate of conviction
Prior Bad Acts
Witness may be impeached on cross-examination with her specific acts of misconduct involving untruthfulness. No extrinsic evidence is allowed to prove a prior bad act. Counsel MUST accept witness’s answer on cross (No “you’re lying, here’s the proof!”)
Reputation or Opinion Evidence of Untruthfulness
Character witness may testify about impeached witness’s bad character for truthfulness in either manner:
Impeached witness has a bad reputation in their community for truthfulness (reputation testimony)
Character witness is personally familiar with impeached witness’s bad character for truthfulness (opinion testimony)
Inability to Perceive or Lack of Knowledge
Showing that witness was unable to perceive the things he testified about, or that he lacks knowledge of the facts in issue
Contradictory Facts
Evidence of facts that contradict witness’s testimony on one point, to cast doubt on witness’s testimony as a whole
if it concerns a major point, extrinsic evidence generally allowed
if it concerns a minor point, extrinsic evidence generally NOT allowed
Definition of Hearsay
A statement, other than one made by the declarant at the current trial or hearing, offered in evidence to prove the truth of the matter asserted.
“Statement” can be a person’s oral or written assertion, or nonverbal conduct intended as an assertion. Does not apply to animal or machine hearsay.
Definition of Admissible Evidence
All relevant evidence is admissible unless some specific rule of exclusion like hearsay, privileges, or policy.
Evidence that has any tendency to make a fact of consequence to the determination of the action more likely or less likely to be true
Nonhearsay (Exclusions)
- Statements by Opposing Party
- Testifying Witness’s Prior Inconsistent Statement Made Under Oath
- Testifying Witness’s Prior Consistent Statement that Rehabilitates the Witness
- Testifying Witness’s Prior Statement of Identification
Hearsay approach
- Does statement fall under definition of hearsay (out of court statement offered for its truth)?
- Is the statement one of the designated nonhearsay items?
- Does a hearsay exception apply?
Common Nonhearsay Purposes
If evidence not offered for its truth, the statement is not hearsay and may be admitted for the purposes:
- to impeach
- to prove the statement’s effect on the listener
- to prove the declarant’s state of mind (ex. sanity)
Statements by Opposing Party (Admissions)
Statement by or attributable to a party, now being offered against that party
Adoptive admission by silence = party “adopts” accusation against her by remaining silent when a reasonable person would deny it
Vicarious admission = statement made by some other person, but attributable to the party because of the relationship between them (like employee-employer relationship)
Approach to Admissions
- Was the statement made by a party? Or by someone else, but attributable to the party because of the relationship between them?
- If so, is the statement now being offered against the party?
Correct Answer in admission question usually looks like:
“Admissible as an admission by a party”
“admissible as a statement by a party-opponent”
“admissible nonhearsay”
Prior Inconsistent Statement
Testifying witness’s prior inconsistent statement is not hearsay if it was made under penalty of perjury (under oath) at a trial, deposition, or other proceeding.
***can ALWAYS be used to impeach a witness. BUT if offered “for its truth” it creates a hearsay problem
Prior Inconsistent Statement used as Substantive Evidence
- A statement given under oath at a legal proceeding
2. A statement that falls within another exclusion (e.g. admission) or within one of the hearsay exceptions
Prior Consistent Statement
Testifying witness is accused of lying on the stand because of some recent bias or motive.
***Commonly tested where Witness’s prior consistent statement is NOT hearsay if it was made BEFORE the bias or motive arose.
Prior Statement of Identification
Refers to when a testifying witness previously identified a person and is testifying about that pervious identification
Statements where Declarant MUST be a testifying witness
- Prior Inconsistent Statements
- Prior Consistent Statements
- Prior Statements of Identification
The hearsay exclusion for statements by an opposing party does not have this requirement.
Hearsay Exceptions
- Present Sense Impressions
- Excited Utterances
- Present State of Mind/Physical Condition
- Statements for Purposes of Medical Diagnosis or Treatment
- Business Records
- Former Testimony
- Statements Against Interest
- Dying Declarations
Present Sense Impressions
Statement describing or explaining an event or condition made while declarant was perceiving the event or condition immediately thereafter.
Excited Utterances
Statement relating to a startling event or condition made while declarant was still under the stress of the event or condition (more flexible timing requirement than present sense impressions)
***How to spot excited utterance:
verbs of excitement (jumped, squealed, yelled)
phrases indicating excitement (“she shouted”)
exclamation points (!!!)
Present State of Mind or Physical Condition
Person’s statement of her then-existing mental or physical condition includes an out-of-court statement of intent to engage in future behavior to prove that the declarant actually engaged in the behavior
Statements Made for Medical Diagnosis or Treatment
Persons statement made for purpose of obtaining medical diagnosis or treatment
Includes statements of past or present symptoms/physical condition and the cause or source of the condition
Must be pertinent to diagnosis or treatment–e.g. identity of other driver in accident or statements assigning fault generally not pertinent
Business Records
Records kept in the organization’s regular course of business
almost anything counts as a “business” for purposes of this exception
records must be kept as a matter of regular practice (in the ordinary course of business)
Source of Business record Information
Any person in the organization (from new employee to executive) with FIRSTHAND knowledge of the facts can be the source of the information in the record.
Beware of statement within the record from 3rd parties who do not work for the organization–such statements may still fall within an independent hearsay exception
Former Testimony
Unavailable declarant’s prior testimony from a trial, deposition, or other proceeding
Party against whom the testimony is now being offered (or predecessor in interest in civil cases) must have been a party in the previous action, with an opportunity and similar motive to cross-examine the declarant
***Be careful! If fact pattern meets all the requirements of former testimony exception EXCEPT for the unavailability requirement!!! Must be unavailable to apply this exception.
***If declarant testifies differently in second trial, former testimony may come in as a prior inconsistent statement
Statement Against Interest
Against Interest = against financial or ownership interest, or tending to expose declarant to criminal or civil liability
***commonly tested where statement against penal interest
Statement Against Interest Definition
Against interest= against financial or ownership interest, or tending to expose declarant to criminal or civil liability
If statement against penal interest is offered in a criminal case:
must be corroborated by other evidence
must not violate defendant’s right of confrontation
Dying Declaration
- Statement made by a unavailable declarant
- offered in a civil case or homicide prosecution
- that concerns the cause of circumstances
- of what the declarant believed to be his impeding death
* **declarant’s actual death not required, belief of impending death is required
* **if a statement doesn’t qualify as a dying declaration, then don’t forget to consider it as an excited utterance exception.
Authentication of Real Proof and Documents
Applies where evidence offered is an item other than the testimony of a witness, consider whether there is an authentication problem.
General Standard for Authentication of Real Proof and Documents
Evidence sufficient to support a finding that the item is what the proponent claims it is.
In order to meet the authentication requirement, you need only enough to allow the jury to legitimately conclude that the item is what it is claimed to be
