MBE Evidence Flashcards
INTRODUCTION OF EVIDENCE >
Preliminary Hearings
(Motions in Limine)
Preliminary Hearings
- PRELIMINARY questions related to whether evidence is Admissible is a question of LAW for the Judge to decide including whether there is a privilege or whether witnesses are qualified.
- Sometimes preliminary questions of law hinge on Factual questions (e.g., dying declaration – did victim actually believe he was dying?) For preliminary FACTUAL decisions, the court is not bound by the FRE (e.g., hearsay rules)
1) Preliminary Questions of Admissibility—eg, whether a witness is qualified to testify, privilege exists, etc. (Questions of Law)
- Standard: Party offering evidence must prove by the PREPONDERANCE OF THE EVIDENCE
2) Relevance Conditioned upon the Existence of a Preliminary FACT—eg, whether declarant was an agent of the defendant for non hearsay admission purposes;
- Standard: the court need only find that there is sufficient evidence to support (but not necessarily establish) the existence of that preliminary fact.
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Common preliminary questions of fact
(Type of Evidence – Preliminary questions of fact on admissibility)
- Expert testimony – Expert’s qualifications
- Lay witness testimony – Competency
- Physical evidence – Chain of custody, Legality of search/seizure
- Existence of privilege – Foundational facts for application of privilege
- Out-of-court statement – Foundational facts for hearsay exclusion or exception
- Criminal defendant’s confession – Miranda rights given, Voluntariness of confession
Hearing on these matters conducted OUTSIDE the presence of the jury if:
- (1) the matter involves the admissibility of a CONFESSION,
- (2) a defendant in a CRIMINAL case is a witness and so requests, or
- (3) justice so requires—e.g., when the disputed evidence would PREJUDICE a party if heard by the jury
INTRODUCTION OF EVIDENCE >
Challenging Evidence Ruling
Challenging Evidentiary Ruling on Appeal — Evidentiary ruling can be reversed on appeal only if:
- 1) A substantial right of a party has been affected (i.e., not harmless error); and
- 2) The judge was notified of the mistake at trial and given a chance to correct it (or plain error)
Notifying court to Preserve for Appeal
- Objection — If the court has admitted evidence that should have been excluded, must object and explain why the evidence should have been excluded
- Offer of Proof — If the court refuses to admit evidence that should have been admitted, must make an offer of proof on the record explaining to the court what the evidence would have been and why it should have been admitted
Plain Error Rule – error that was obvious on its face
- Under plain, error review, an appeal will be heard if the appellate shows that an obvious error affected a SUBSTANTIAL RIGHT, and the fairness of judicial proceedings even if no objection or offer of proof was made at trial
INTRODUCTION OF EVIDENCE >
Purposes of Evidence
Limited Admissibility (Rule 105)
- Evidence may be admissible for one purpose, but not for another purpose.
Limiting Instruction
- Upon request of the objecting party, the court will give the jury a limiting instruction (i.e., the evidence can only be used for one purpose, but not another illegitimate purpose)
Rule of Completeness (Rule 106)
- If a party introduces part of a written or recorded statement, the opposing party may, IN FAIRNESS, immediately introduce other portions of that statement that are necessary to put the admitted portion into perspective (even if they might otherwise be inadmissable) if not doing so would be misleading or unfair.
- Can be introduced immediately; no need to wait for the party’s turn to present its case
- Consequently, if fairness does not require the immediate introduction of the prior letter, the defendant will have to wait until the defendant can present evidence in order to introduce this letter.
INTRODUCTION OF EVIDENCE >
Judicial Notice
Judicial Notice – Court may take judicial notice—on its own initiative or upon a party’s request—of any adjudicative fact that is NOT SUBJECT TO REASONABLE DISPUTE because it:
- is generally known within the territorial jurisdiction of the trial court or
- can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
Rule: Once Court takes Judicial notice of a fact
- CIVIL Case – Jury is instructed it MUST accept as conclusive that fact.
- CRIMINAL case – Jury is instructed it MAY accept as conclusive that fact.
PRESENTATION OF EVIDENCE >
General
Trial Process
- Plaintiff (civil) or Prosecution (criminal) presents its case
- Defendant will present its case
Order of presentation of evidence and witnesses is within the court’s discretion to control
- Court may call and question witnesses.
- All parties can cross-examine those witnesses.
- Every party should have an opportunity to object outside the hearing of the jury.
PRESENTATION OF EVIDENCE >
MODE OF PRESENTATION
Form of Questions – Leading Questions
- Generally, leading questions are NOT permitted on DIRECT examination
Exceptions
- To elicit preliminary background information not in dispute;
- The witness has trouble communicating due to age or infirmity; or
- When you call a hostile witness or adverse party
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Refreshing a Witness’s Recollection
Present recollection REFRESHED– A witness’s memory can be refreshed by allowing the witness to review any item before or while testifying. Any item may be used to refresh a witness’s memory when (1) the witness once had personal knowledge of a matter but is now unable to recall it and (2) the item will help the witness recall that matter.
- The witness looks at the notes, remembers, and then puts the notes aside, and proceeds to testify from present memory. The witness DOES NOT read from it
- The Proponent CANNOT introduce document into evidence
- the ADVERSE PARTY CAN inspect it, cross examine the witness about it (impeach) AND introduce it into evidence,
Past Recollection RECORDED – Arises when the witness still cannot remember after trying to refresh their memory. Permits the witness to read the notes into evidence under a hearsay exception. Requires that
- the witness cannot remember,
- the record was made when it was fresh in their memory, and
- the record accurately reflects their memory
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Cross-examination
- Courts limit the scope of cross-examination to the scope of direct examination.
- Courts are permitted to allow broader inquiry.
- Allowed to use leading questions on cross.
Redirect
- limited to significant new matters raised on Cross (court may broaden scope)
Re-Cross
- Limited to significant new matters raised on redirect (court may broaden scope)
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Other Improper Questions
- Compound questions - A question that asks for several answers
- Facts not in evidence - A question that assume facts not in evidence
- Argumentative questions - Not really a question; just intended to bother or harass the witness
- Questions calling for inappropriate conclusions - Call for a conclusion that the witness is not qualified to make
- Repetitive questions - Have already been “asked and answered”
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Exclusion of Witnesses — A court MUST exclude a witness from the courtroom upon a party’s request—or may do so on the court’s own initiative—UNLESS the witness is
- (1) a party or its designated representative
- (2) a person whose presence is essential to the case, (e.g., exert witness)
- (3) a person authorized by statute to be present (e.g., victim)
PRESENTATION OF EVIDENCE >
BURDENS AND PRESUMPTIONS
BURDEN OF PROOF (2 elements; usually go hand in hand)
Burden of PRODUCTION
- A party must produce enough evidence to get the issue to the jury.
Burden of PERSUASION
- A party must convince the jury to decide the case in its favor.
Standard of proof
- Civil – Preponderance of the evidence
- Criminal – Beyond a reasonable doubt
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PRESUMPTIONS
Rebuttable presumption
- Shifts the burden of production on a particular issue, but not the burden of persuasion
- Useful for things that are difficult to prove directly
- Example: The issue of whether someone received a letter. If you can show that you correctly mailed the letter, there is a presumption that the recipient received the letter. This shifts the burden of production to the other side to prove that they did not receive it.
- If counterproof is produced, the presumption is eliminated (the bubble bursts) and there is sufficient evidence for the jury to decide the issue.
Destruction of Evidence
- If a party destroys evidence, there is a presumption that it would have been adverse to that party
Conclusive (or irrebuttable) presumption
- Rules of law that happen to use the language of presumption
Diversity cases
- In a federal diversity action, the federal court generally applies the Federal Rules to determine the resolution of evidentiary issues. However, when STATE substantive law is determinative of the existence of claim or defense under the Erie doctrine, then STATE law, rather than the Federal Rules, also governs the effect of a presumption related to the claim or defense.
RELEVANCE
Relevant = Admissable - Generally, Evidence must be RELEVANT.
- Evidence is relevant if it has any tendency to make a material fact more or less probable than it would be without the evidence, and it is admissible unless excluded by a specific rule or law. (material + probative)
2 types of relevance:
- (i) substantive
- (ii) impeachment/credibility
Relevance Conditioned on Fact (FRE 104(b))
- When the relevance of evidence depends on whether a fact exists, proof must be introduced to allow the court to determine whether the jury could reasonably find the conditional fact by a preponderance of the evidence.
- The court may admit the proposed evidence on the condition that such proof be introduced later.
Evidence showing a defendants consciousness of guilt
- is relevant because it makes the material fact of the defendants guilt more probable.
- e.g.; while on bail, with travel restricted to home state, defendant purchased an airplane ticket to another country by using an alias.
Exclusion of Relevant Evidence
Exclusion of Relevant Evidence (FRE 403) – Under Federal Rule of Evidence (FRE) 403, relevant evidence can be excluded if certain risks substantially outweigh its probative value.
- Risks: PREJUDICE, CONFUSION, OR WASTE OF TIME
- (must have low probative value and high risk to be substantially outweighed)
- Limiting Instruction – If 403 does not prevent evidence from coming in, can ask court for limiting instrucitons (rule 105) to the jury to use it for a particular use only.
Character Evidence
Prohibited Uses
- The defendant’s character is inadmissible to prove PROPENSITY (Too prejudicial)
- Prohibited inference—(Character > Action)
Permissible Uses – (i) Criminal Cases when introduced by the Defendant (can only be proved through REPUTATION or OPINION testimony ONLY; opens the door for rebuttal); OR (ii) Introducing evidence for some purpose other than propensity; when character is at issue.
- Impeach – “the witness is a liar”
- Civil Cases – if character trait is “at issue” in the case –admissible to prove an essential element of the case (i.e., for a non-propensity purpose). Only civil cases: defamation, child custody, negligent entrustment, misrepresentation
- Civil Cases – involving child molestation or sexual assault, plaintiff may introduce evidence of Defendant’s prior acts of that sort. (propensity argument)
- Criminal Cases – Defendant Opens the Door – Defendant “opens the door” with opinion or reputation evidence of their own good character. Prosecution can rebut by inquiring to defendants prior bad acts.
- Criminal Cases – MIMIC – specific acts to show a MIMIC exception (not an exception to the character rule, because not used for propensity, used for a MIMIC purpose)
- Victim’s Character – In Homicide or assault cases (violent cases) when the defendant is arguing that the victim was violent (to argue self-defense). Opens the door for the Prosecution to rebut with reputation/opinion testimony that victim is not violent AND can introduce evidence that Defendant has the same trait that they accused victim of having (violent)
- HABIT EVIDENCE – a person’s habit may be relevant and admissible to show that the person acted in conformity with that habit on a given occasion. Look for regular, instinctive, habitual conduct (E.g., evidence that a person habitually goes down a particular stairwell two steps at a time could be admissible as circumstantial evidence that she did so at the time in question) Evidence of an organization’s routine practice is admissible to prove that the organization acted in accordance with that habit or practice on a particular occasion.
Character Evidence
Character Evidence (FRE 404) – Evidence of bad things DEFENDANT did in the PAST.
Rule: Generally, character evidence is NOT adminssable – (too prejudicial)
UNLESS:
CIVIL CASES – ONLY when character of Defendant is in issue - Specific acts OR Opinion/Reputation
- Defamation (slander, libel)
- Child Custody
- Negligent Entrustment
- Negligent hiring
CRIMINAL CASES – 2 scenarios
1) If Defendant “OPENS THE DOOR WITH EVIDENCE OF GOOD CHARACTER” (Reputation or Opinion ONLY)
- A criminal defendant may introduce evidence that his character is inconsistent with the crime charged, but only through REPUTATION or OPINION testimony—NOT specific instances of conduct.
- Character trait – TRUTHFULLNESS (fraud) or PEACEFULLNESS (murder/battery)
- Prosecution can REBUT defendant’s character witness with an INQUIRY about Defendant’s PRIOR BAD ACTS.
- Inquiry must be based on knowledge of acts + good faith based on knowledge of defendant’s past acts. If witness denies, prosecutor must accept the witness’s answer, cannot prove with extrinsic evidnence.
- Prosecution can alternatively call another witness to provide reputation or opinion testimony on the defendant’s corresponding bad-character trait.
Victim’s Bad Character to establish defense – Only in Homicide or assault cases (violent cases) when the defendant is arguing that the victim was violent to argue self-defense. Defendant in a sexual assault case may NOT introduce evidence of the alleged victim’s promiscuity. (Rape shield)
- Opens the door for the Prosecution to rebut with reputation/opinion testimony that victim is not violent AND can introduce evidence that Defendant has the same trait that they accused victim of having (violent)
2) MIMIC = To show Motive, Intent, Mistake, ID, Common Plan/Scheme
- RULE: Prosecution may bring in specific acts to show one of the MIMIC exceptions. The exceptions do not argue propensity and therefore are admissible.
- Reasonable Notice – Prosecution must provide reasonable notice of nature of the evidence they intend to use at trial, and must articulate the non-propensity purpose for which the evidence is being offered.
Motive – If the prosecution wants to argue that the motive for a murder was to cover up a prior embezzlement scheme
Intent – The defendant is caught in possession of drugs, and there is a question as to whether the defendant had intent to sell those drugs. The prosecution can introduce prior convictions of selling drugs.
(absence of) Mistake – A young man marries a wealthy older woman who drowns in the bathtub. It happens with three different women. The prosecution may introduce the prior deaths to prove absence of mistake.
Identity – showing that the prior crimes or bad acts were committed in a manner that is similar in nature, location, and/or time to the charged crime. (defendant’s modus operandi, “M.O”)
Common Plan/Scheme: The prosecution may introduce the prior bad acts if understanding a series of crimes is the only way to provide context to the crime at issue.
When in doubt, always over pick the rule, not the exception
* Stick to the default rule, inadmmissable….Wait for them to make it 1000% clear it fits the exception and then pounce on it. BUT MAKE THEM TELL YOU.
Always start with general rule, MAKE THEM tell you facts that make it fall under the exception. dont infer, dont argue.
buzzwords: character, prejudicial, FRE 403 language i.e., “benefits outweigh prejudicial effect”
Witnesses >
Competence
Jurors as Witnesses
Witnesses must be Competent – Anyone who has personal knoweldge of the matter about which they are going to testify and is willing to make an oath to tell the truth is COMPETENT to testify
- FRE— (for children) whether the child has personal knowledge and is mature enough to understand the obligation to tell the truth and is willing to promise to do so
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Jurors as Witnesses - Jurors may not testify as a witness in a trial in front of the jury in which he sits. After the verdict or an indictment (grand jury), the parties might be tempted to ask the jurors to testify about what happened in the jury room in the context of a motion for a new trial or on appeal. With such an inquiry into the validity of a verdict or indictment…
A juror may NOT testify as to:
- Any statement made during deliberations;
- Any incident that occurred during deliberations; or
- The effect of anything upon any juror’s mind
A juror may testify after trial as to:
- Extraneous, prejudicial information that was improperly brought to the jury’s attention (e.g., inadmissable evidence)
- An outside influence that was improperly brought to bear on a juror; (bribes or threats)
- A clerical or technical error was made in entering the verdict onto the verdict form; or
- A juror made a clear statement that he relied on racial stereotypes or animus in convicting a defendant
Witnesses > Impeachment
Impeachment – Attacking the WITNESS credibility; if you see hypo about cross examining the witness to attack the credibility about what they said or testified using contradicting or incosistent evidence > impeachment
- Can Impeach a Hearsay Declarant in the same manner as a testifying witness when statment comes in
- If the Defendant takes the stand (idiot), they become a WITNESS, and thus–IMPEACHMENT (bad prior act) rules apply!
- You can also impeach your OWN witness…
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Extrinsic Evidence GENERALLY OK EXCEPT FOR PRIOR BAD ACTS
- some need to give opportunity to explain first)
1) Witness’s PRIOR INCONSISTENT STATEMENT
- A witness may be impeached by evidence that directly contradicts the witness’s testimony on a material issue. Can always use intrinsic evidence (testimony)
- Can be proved by EXTRINSINC EVIDENCE ONLY IF the witness is given the OPPORTUNITY TO EXPLAIN OR DENY the evidence.
- Cannot prove collateral matter with extrinsic evidence, Instead, the party must accept the witness’s testimony.
2) BIAS – Showing that the witness has some reason to lie or shade the facts; e.g.:
- relationship with a party,
- the witness is being paid to testify,
- the witness has agreed to testify in return for a reduced sentence,
- the witness has an interest in the outcome of the case, etc.
3) SENSORY COMPETENCE
- Evidence showing witness’s senses were impaired by physical / mental condition or environmental factors
- (How far away were you? How much did you have to drink? How dark was it that night? Were you wearing your glasses?)
4) WITNESS CHARACTER FOR UNTRUTHFULNESS
A) REPUTATION / OPINION TESTIMONY
- Introduce character witnesses who will testify that the target witness is dishonest.
- OPINION and REPUTATION ONLY. no specific acts.
B) Witness’s PRIOR ACTS – (INTRINSIC evidence ONLY) !!!!
- MUST be probative of truthfulness (lying, cheating)
- ONLY Permitted to ASK; must accept the witness’s answer, CANNOT PROVE via EXTRINSIC EVIDENCE!
- Must have a reasonable, good faith basis for asking the question
- ARRESTS themselves cannot be used to attack a witness’s character for truthfulness. That is because an arrest for misconduct is not itself misconduct. Underlying conduct to the arrest can be used.
C) CRIMINAL CONVICTIONS
- ANY CRIME of TRUTHFULNESS misdemeanor or felony
- FELONY – (regular 403)– Admissible UNLESS PE substantially outweighs PV
- FELONY Criminal Defendant-Witness – (REVERSE 403) – Admissible ONLY IF PV outweighs PE
- Old Convictions >10 yrs from later of release or conviction – (REVERSE 403 + notice) Admissible ONLY IF PV substantially outweighs PE (and) proponent gives adverse party reasonable advanced notice
Pardons – conviction CANNOT be used IF:
- based on a finding of innocence or
- the witness has not been convicted of another felony.
Juvenile Convictions – ONLY against NON-DEFENDANT WITNESS ONLY.
- Must be admissible under the adult conviction standards. (truthfulness or felony)
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REHABILITATION OF A WITNESS
Rehabilitation may be accomplished in one of three ways:
- 1) Give the witness a chance to EXPLAIN;
- 2) Prior CONSISTENT statement—if the witness has been accused of changing his or her story, or being bribed or pressured or having an improper motive, can be rehabilitated with a consistent statement that the witness made BEFORE the alleged motive arose; or
- 3) If the witness has been ACCUSED as having a bad character for truthfulness, then evidence can be introduced bolstering the witness’s character for truthfulness (reputation or opinion evidence of character for truthfulness)
- buzzwords: Impeach, attack CREDIBILITY
Witnesses > Testimony
1) Lay Witnesses - Opinions from lay witnesses are admissible with respect to common sense impressions, such as appearance, intoxication, speed, etc.
To be admissible, a lay witness’s opinion must be:
- Based on the perception of the witness; and
- Helpful to a clear understanding of the witness’s testimony or the determination of a fact in the case.
No expert testimony—cannot be based on any scientific, technical, or specialized knowledge
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2) Expert Witnesses – Who can be an Expert Witness? Judge has to admit expert witnesses to court, how?
Expert testimony is admissible if
- Relevant – the subject matter of the testimony is specialized knowledge that will help the trier of fact understand the evidence or determine a fact in issue; AND
- Reliable – is based on sufficient facts/data, and the product of reliable principles/methods, reliably applied by the expert
Basis of Expert Opinions – An expert may base his or her opinion on:
1) Personal observation;
2) Evidence presented at trial; or
3) Information reasonably relied upon by experts in that particular field.
- May base opinion on inadmissable facts or data (e.g., hearsay) and if they do so, then that information may be disclosed to the jury ONLY IF the court determines that its probative value in helping the jury evaluate the expert’s opinion substantially outweighs its prejudicial effect.
Daubert Test – Courts require that the expert:
- 1) Be qualified by knowledge, skill, experience, training, or education;
- 2) Base his testimony on sufficient facts or data;
- 3) Base his testimony on reliable principles and methods; and
- 4) Apply the principles and methods reliably to the facts of the case.
Ultimate Issue
- Experts MAY express an opinion on the ultimate issue in most types of cases. (negligence)
- Expert MAY NOT testify in a CRIMINAL TRIAL about whether Defendant possessed the requisite MENTAL STATE for a charged crime or asserted defense (self defense - feared for life)
Court-Appointed Expert
- The court may appoint an expert witness
- Must let each party know what the witness found
- Each party can depose the expert and call or cross-examine the expert.
TANGIBLE EVIDENCE > AUTHENTICATION
If a party seeks to admit Evidence, then the item must satisfy all evidentiary rules—e.g., relevance, authentication, hearsay.
First step—must be AUTHENTICATED
- To authenticate an item, the proponent must show evidence sufficient to support a finding that the thing is what the party claims it is
- The jury will decide this fact question
Real Evidence—Ways to Authenticate
- personal knowledge—testimony of a witness that recognizes and identifies the item
- Distinctive features or markings
- Chain of custody—technique accounting for the whereabouts of an item along an unbroken chain
Physical Representations of something that could not otherwise be seen—e.g., an electrocardiogram or x-ray image—Authentication requires proof that:
- the process for creating the evidence was accurate
- the machine that produced the evidence was working properly and
- the operator of the machine was qualified to operate it.
Documentary Evidence—Ways to Authenticate
- By stipulation of the parties
- Eyewitness testimony combined with distinctive features
- handwriting verification.
Ancient Documents – An “ancient document” or data compilation can also be authenticated by showing that it:
- is at least 20 years old at the time it is offered
- is in a condition that creates no suspicion about its authenticity and
- was found in a place where it would likely be if it were authentic.
Reply letter doctrine
- Document written in response to communication and
- contents make it unlikely response was written by someone other than recipient of first communication
Handwriting verification
- Expert or jury comparing it to a known sample; or
- Lay witness with personal knowledge of the handwriting (not acquired for litigation) gives opinion on disputed handwriting
Self-authenticating documents (FRE 902)—include:
- 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
- Trade inscriptions
- Notarized documents
- Commercial paper, including signature & related documents
Oral Statements
A telephone call can be authenticated by having a party to the conversation testify that
- (1) the party recognized the speaker’s voice,
- (2) the speaker knew facts only certain persons would know,
- (3) the party dialed a number believed to be the speaker’s and the speaker confirmed that identify upon answering, or
- (4) the party dialed a business and they spoke about business regularly conducted over the phone.
Best Evidence Rule
BEST EVIDENCE RULE – The best evidence rule generally requires that an ORIGINAL or RELIABLE DUPLICATE of a recording, writing, or photograph (collectively referred to as “document”) be produced to prove its contents. Real or physical evidence (e.g., a three-dimensional model) is not subject to the best evidence rule.
This rule applies when a document’s contents are AT ISSUE—i.e., when:
- (i) the document is used to prove the happening of an event
- (ii) the document has a legal effect (e.g., contract) or
- (iii) The witness is testifying based on facts ONLY learned from the document, no personal knowledge
Collateral Issues not at issue
- an original or reliable duplicate is not required, and other evidence of content is admissible, when the contents go toward a collateral issue.
Exceptions to the Best Evidence Rule
Duplicates are admissible, unless:
- There is a genuine question about the authenticity of the ORIGINAL (tampering); or
- In fairness, the original should be required.
Original Unavailable – May introduce other evidence of the contents if:
- originals lost or destroyed (not by proponent’s bad faith)
- originals not attainable by judicial process
- opponent had original, knew it was required & failed to produce or
- content not closely related to controlling issue
Public records
- Can use a certified copy instead of the original (e.g. deed)
Summaries / Charts for Voluminous writings
- Proponent must show that
- (1) the voluminous content cannot be conveniently examined in court,
- (2) the originals would be admissible,
- (3) the content was made available to adverse parties for examination or copying, and
- (4) the summary is fair and accurate.
Party-Opponent’s Testimony, Deposition, or Written statement
- Contents can be proven by opposing party’s testimony, deposition, or written statement
- oral statement (or nonverbal conduct) that was made outside the context of testimony or deposition does not fall within this exception
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Role of Judge and Jury – The court determines whether a party has fulfilled the factual conditions to admit other evidence to prove the content of a document. The jury may determines any issue of whether
- (1) an asserted document ever existed,
- (2) another document is the original, or
- (3) other evidence of content accurately reflects the content.
Exam Tip: The Best Evidence Rule applies in narrow situations, which is what makes it an attractive and usually incorrect distractor. Before selecting the Best Evidence Rule as the correct answer, confirm that either the contents of the document are at issue or a witness is relying on the contents of the document when testifying.
When does it apply? 2 hypo’s they will ask
- Trying to prove contents of the document itself (what’s inside)
- No other way to verify/back up testimony of a witness but for the document
NON-HEARSAY
Nonhearsay statements are ADMISSIBLE as SUBSTANTIVE evidence if the statements are relevant.
CERTAIN Prior Statements of TESTIFYING Witnesses
- The declarant MUST TESTIFY as a witness and be subject to cross-examination for these exclusions to apply to their earlier statements.
1) PRIOR INCONSISTENT Statement MADE UNDER OATH at a trial, hearing, or deposition
- if under oath, admissible for BOTH impeachment AND substantive
- if NOT under oath, can still use to impeach (not to prove TOMA)
2) Prior CONSISTENT STATEMENT
- Admissible to rehabilitate a witness AND as substantive evidence
- to rebut a charge that declarant acted from a recent improper influence or motive in testifying, prior consistent statement must have been made before the declarant had reason to fabricate or the improper influence or motive arose
3) Prior STATEMENTS of IDENTIFICATION – A previous out-of-court identification of a person (after perceiving that person) is admissible non-hearsay. Classic example: lineup at a police station
- may be admissible as substantive evidence.
- Remember: declarant MUST TESTIFY as a witness
- Does NOT apply if the witness is unavailable at trial
- A statement that merely describes, but does not identify, a person does NOT qualify as nonhearsay and is inadmissible.
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4) Admissions of a PARTY OPPONENT
- A PARTY makes a statement against their own interest that tends to make them look liable or guilty. This is the DEFAULT answer choice UNLESS they explicitly TELL YOU that the party is LEGALLY UNAVAILABLE, then it becomes a statement against interest hearsay exception.
- 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.
Adoptive admissions
- A statement made by someone else, which is then expressly or impliedly adopted.
- Silence, when a reasonable person would object to the accusation, is an admission. Reasonable (make them tell you, serious surrounding facts, accusations)
Vicarious Admissions
- Statements made by agents or employees if made within the scope of employment are admissible against the principal.
- Statements must be made during the agency/employment relationship. No vicarious liability after termination of relationship
- Admission by employee making employer vicariously liable. Bus driver saying, “Yeah I drink a couple brews before my trips, these kids are too annoying”
Co-conspirators
- Statements made by co-conspirators during and IN FURTHERANCE of a conspiracy are admissible against other co-conspirators.
Preliminary Questions
- In deciding whether there was a conspiracy or an agency relationship, the court CANNOT base its finding solely on the contents of the statement itself.
Hearsay Exceptions
(UNAVAILABLE Declarant)
Hearsay cannot be used as substantive evidence but can be used to IMPEACH
- Non-Hearsay + Hearsay Exceptions CAN be admitted as SUBSTANTIVE evidence
UNAVAILABLE DECLARANT – Being unavailable as a declarant essentially broadens the possible hearsay exceptions that could apply to their out of court assertion. A Declarant is Legally “Unavailable” if the declarant:
- Is exempted from testifying on grounds of PRIVILEGE;
- Refuses to testify;
- Lacks memory of the subject matter;
- Is dead or too ill; or
- Is absent and cannot be subpoenaed or otherwise made available
Declarant Unavailable Due to Party’s Wrongdoing
- If a party wrongfully renders the declarant unavailable for the purpose of preventing testimony, the party cannot claim the declarant is unavailable.
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1) Former Testimony – Declarant MUST be UNAVAILABLE!
- Testimony given by an unavailable witness under oath at a prior tial, hearing or deposition
- Admissible only if the party against whom the testimony is being offered had an OPPORTUNITY and SIMILAR MOTIVE to cross-examine the former testimony
2) Dying Declaration – HOMICIDE + CIVIL cases ONLY!!! AND Declarant MUST be LEGALLY UNAVAILABLE! (don’t need to actually die)
- declarant believes they are dying,
- declarant believes death is imminent
- declarant makes statement about WHY they think they are dying
3) Statement against Interest - Declarant MUST be UNAVAILABLE!
- At the time it was made, the statement was against the declarant’s pecuniary, proprietary, civil, or penal interest, such that a reasonable person would not have made the statement unless it were true
- Criminal - Exonerating statements – If it would subject the unavailable declarant to CRIMINAL liability, there must be corroborating evidence clearly indicating the trustworthiness of the statement.
- if declarant is a PARTY, they MUST EXPLICITLY TELL YOU that the party is LEGALLY UNAVAILABLE for it to become a statement against interest hearsay exception. (rather than an admission by party opponent)
4) Statements of Personal or Family History - Declarant MUST be UNAVAILABLE!
- Statements concerning the unavailable declarant’s own birth, adoption, marriage, familial relationship, etc. are admissible under this exception.
5) Forfeiture by Misconduct (Declarant Unavailable Due to Party’s Wrongdoing)
- If a party engages in wrongdoing for the purpose of making the declarant unavailable to testify, and renders the declarant unavailable, then:
- The door is open to use ANYTHING the declarant said against the party.
presumption is that everything a witness says about one statement made in the past is hearsay, i.e., dont get into “truth of the matter asserted” stuff and what they are trying to prove.
know the full definition of exceptions, know all the elements. may make it look like dying declaration but missing 1 element.
Stick to the default rule, inadmissible….ONLY Pick the exception when you are 1000% sure that is what they are talking about. MAKE THEM TELL YOU.
Hearsay Exceptions
(cont’d)
These exceptions do NOT require that the declarant be unavailable.
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1) Present Sense Impression
- Statement made while the declarant was perceiving the event or immediately thereafter
- Describes or explains the event
- If observations relayed after the fact, it is no longer present sense impression.
2) Excited Utterances
- Statement made while excited !
- Exclamation points ! show excited utterances !
- Statement made while the declarant is still under the stress of excitement caused by the event or condition
3) Then Existing State of Mind
- One hearsay exception is for statements of a declarant’s then-existing state of mind (eg, motive, intent, plan), which can be admitted as substantive proof that the declarant later acted in accordance with that state of mind.
- analogous to an inward looking PRESENT sense impression (present state of mind)
- Intent state of mind - Anything about future plans, activity - I was planning on going to be in New York. I was going to spend the next week living there.
- Emotional or physical condition – Fear, love, pain, bodily health
4) Statements Made for Purposes of Medical Diagnosis or Treatment
- Describe a declarant’s medical history or past or present symptoms, or even the cause of an injury, if pertinent to treatment or diagnosis
- The statement need not necessarily be made by the patient.
- Need not be made directly to the doctor
5) Past Recollection Recorded – contents of a record/document Witness previously made or adopted is read into evidence. The witness may read the record into evidence for the jury if W’s memory is insufficient to testify as to the record’s contents (i.e., present recollection refreshed was ineffective) and:
- W once had personal knowledge of the record’s subject matter;
- Record was made or adopted by W when the matter was fresh in W’s memory; and
- Record accurately reflects W’s knowledge
Proponent CANNOT introduce the record into evidence as an exhibit
- However, the ADVERSE PARTY CAN introduce it into evidence, inspect it, cross examine the witness about it (impeach)
- (they feel like witness was innacurate, etc.)
Hearsay Exceptions
(cont’d)
6) Business Record – Record kept in “regular/ordinary course of business” = ALL the TIME…not for a certain projects/clients, or once in a while, must be done all the time!! (Medical records count)
- Document itself is admissible (business records) vs. Entries in the document NOT admissible (statements - hearsay)
- Records prepared in anticipation of litigation are NOT admissible
- May be excluded if the circumstances indicate a lack of trustworhtiness.
ADMISSIBLE IF – the record is:
- made at or near the time of the recorded event
- made by or based on information from someone with personal knowledge of the event and
- made and kept as a regular practice in the course of regularly conducted business activities
7) Public Records – Records or statements of public office/agency admissible if they set forth:
- Activities
- Observations
- Factual FIndings (Conclusions)
Absence of a record
- testimony by a public official that a diligent search failed to disclose a public record is admissible to prove that the record does not exist—if the public office regularly kept records for a matter of that kind.
Evidence Excluded if
- Circumstances indicate a lack of trustworhtiness.
Law enforcement—police reports being used against criminal defendants
- Can only introduce the activities; NOT what was observed or concluded
- Rationale—the officer should actually TESTIFY and be subject to cross-examination (if officer cannot remember, police report may still come in under the recorded recollection exception)
8) Learned Treatises (scientific, historical, or medical)
- May be used to IMPEACH expert witnesses AND as SUBSTANTIVE evidence
- Statements from treatise, periodical, or pamphlet can be READ INTO evience ONLY
- the treatise itself CANNOT be received as an exhibit.
Substantively admissible if the publication is established as a RELIABLE AUTHORITY by a party’s expert or judicial notice AND
- (1) the statements are called to the expert’s attention on cross-examination OR
- (2) relied on by an expert witness during direct examination;
9) Judgment of Previous Conviction (no exception for judgments of acquittal because they do not establish innocence—they merely establish that the prosecution failed to meet its burden of proof)
Evidence of a final judgment of conviction HEARSAY EXCEPTION if:
- judgment entered after trial or guilty plea (but not a plea of nolo contendere)
- crime punishable by death or imprisonment of more than one year, and
- Being used to prove any fact that was essential to the judgment
10) Other Exceptions
- Records of vital statistics
- Records of religious organizations
- Marriage and baptismal certificates, and other family records
- Statements in ancient documents
- Market reports and commercial publications
11) Reputation
- There is a hearsay exception for the reputation or character of a person.
- Available in the narrow circumstances when reputation/character evidence is admissible
