MBE _ Evidence

Question 1

Can a hearsay declarant’s credibility be impeached using the same methods of impeaching witnesses?

Answer 1

A hearsay declarant’s credibility may be attacked* using any method allowed to impeach a testifying witness. A declarant’s inconsistent statement may be used for impeachment regardless of whether (1) it was made before or after the hearsay statement or (2) the declarant had an opportunity to explain or deny the inconsistency.

However, the inconsistent statement may not be used as substantive evidence (i.e., for its truth) unless it is also excepted or excluded from the hearsay rule.

*Once attacked, evidence supporting the declarant’s credibility may then be admitted.

Question 2

What is the standard for determining the admissibility of a felony conviction?

Answer 2

Felony convictions no more than 10 years old:
A conviction for a felony not involving dishonesty that is not more than 10 years old is admissible against a criminal defendant-witness if the conviction’s probative value outweighs its prejudicial effect.

Felony convictions more than 10 years old:
A court may admit a conviction that is more than 10 years old only if its probative value substantially outweighs its prejudicial effect. This is true regardless of (1) whether the conviction is for a felony or crime of dishonesty or (2) the type of witness the proponent seeks to impeach.

Court discretion to exclude convctions (not involving dishonesty)
A court has discretion to exclude a conviction for a felony not involving dishonesty if (1) its probative value is substantially outweighed by its prejudicial effect and (2) the witness is not a criminal defendant.

Note: The burden to determine the admissibility of the defendant’s conviction is on the prosecution (not D)

Question 3

Authentication of oral statements

Answer 3

Oral statements can be authenticated by having the speaker’s voice identified by any person who (1) has heard the speaker’s voice firsthand or through a device at any time and (2) can connect the speaker’s voice to the oral statement at issue.

Under FRE 901, evidence must be authenticated before it can be admitted. Oral statements must be authenticated as to the identity of the speaker when that identity is important—e.g., when the statement is being used to connect a particular person to a crime.

Question 4

Authentication of handwriting

Answer 4

Handwriting can be authenticated by (1) allowing an expert witness or the trier of fact to compare the authenticated and disputed handwriting or (2) allowing a lay witness with personal knowledge of the authentic handwriting (acquired outside of the current litigation) to give opinion testimony on the disputed handwriting.

Question 5

Reply Letter Doctrine (Authenticating Documents)

Answer 5

A document can be authenticated by establishing that it qualifies as a reply letter. To do so, the proponent must show that (1) the document was written in response to an earlier communication and (2) the contents make it unlikely that it was written by someone other than the recipient of the earlier communication.

Question 6

What are some examples of self-authenticating documents?

Answer 6

• Public documents with official’s signature & authorized by official or seal
• Certified copies of public records & records of regularly conducted activities
• Newspapers, periodicals & official publications
• Documents with trade inscription
• Acknowledged documents
• Commercial papers, including signature & related documents

Self-authenticating documents are admissible without extrinsic evidence of authenticity. But a document is not self-authenticating merely because it bears a signature

Question 7

Regarding interrogatory answers that incorporate a document, are the contents of the document excluded as hearsay?

Answer 7

Answers to interrogatories are nonhearsay party admissions. And when such an answer incorporates a document, the contents of the document are considered adopted by the answering party and are nonhearsay if offered against that party.

Question 8

What is the rule for adopting statements by silence?

Answer 8

Statements adopted by an opposing party are excluded from the rule against hearsay if they are offered against that party. Adoption by silence occurs when (1) the silent party understood and had the opportunity to deny the statement and (2) a reasonable person would have done so under similar circumstances if it was untrue.