MEE Essentials: Evidence

Question 1

Hearsay rule statement

Answer 1

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted

Question 2

Hearsay admissibility rule

Answer 2

Hearsay is NOT admissible unless it comes within an exception

Question 3

Excited utterance rule statement

Answer 3

An excited utterance is a statement relating to a starting event or condition made while declarant was under the stress or excitement that it caused

Question 4

Present sense impression

Answer 4

A present sense impression is a statement describing or explaining an event made during or immediately after perceiving it

Question 5

Statement for medical treatment or diagnosis

Answer 5

Must be made for and reasonably pertinent to medical diagnosis or treatment, describing medical history, past or present symptoms, and their inception

Question 6

Business records exception

Answer 6

A record of acts/events/conditions/opinions/diagnoses is admissible if made AT OR NEAR TIME of event by person WITH KNOWLEDGE of event. Must be made during ORDINARY COURSE OF REGULAR BUSINESS + regular PRACTICE for biz to make such a record

Question 7

Recollection recorded

Answer 7

A record that is on a matter that the witness ONCE knew about but CANNOT RECALL now, which was made while evidence was FRESH IN WITNESS’S MEMORY may be read into evidence

BUT, proponent cannot offer as exhibit–only opposing counsel

Question 8

Then-existing state of mind exception

Answer 8

Can be used to show declarant’s mental, emotional, or physical condition (incl. motive/intent/plan)

Question 9

Prior statement of identification hearsay exclusion

Answer 9

A witness’s prior identification is NOT considered hearsay SO LONG AS person

1) currently testifying + can be crossed AND
2) witness IDd PRIOR to TRIAL

Question 10

Opposing party hearsay exclusion

Answer 10

Statement made by opposing party offered against that party is not hearsay

Question 11

Statement against interest + when may it be introduced

Answer 11

Statement made by REASONABLE person in declarant’s position would NOT make statement unless they BELIEVE it to be true because it exposes declarant to CIVIL or CRIMINAL liability

ONLY! When declarant is UNAVAILABLE

Question 12

Public records exception

Answer 12

May be admitted in some circumstances, but NOT matters observed by LAW ENFORCEMENT when offered by PROSECUTOR in CRIMINAL case

Question 13

Relevance rule statement

Answer 13

Evidence is relevant if it is likely to make a fact more or less probable than it would be without the evidence, and the fact is OF CONSEQUENCE in determining action

Question 14

Admissibility 403 rule statement

Answer 14

Relevant evidence is admissible unless a statute or rule says otherwise, OR the PROBATIVE VALUE is substantially outweighed by RISK of UNFAIR prejudice, confusion, misleading, delay, inefficiency, or needlessly cumulative evidence

Question 15

Witness requirement

Answer 15

A witness must have KNOWLEDGE of the MATTER she testifies about

Question 16

Lay witness requirement

Answer 16

Lay witness must have PERSONAL KNOWLEDGE based on her perception + helpful + not based on scientific/technical knowledge

Question 17

Expert witness requirements

Answer 17

An expert witness does NOT need personal knowledge but can testify on FACTS that he is aware of through TRIAL or OTHER MEANS

Question 18

Can a party who called witness impeach witness?

Answer 18

YES

Question 19

Prior inconsistent statement

Answer 19

Can be used to IMPEACH + as substantive evidence IF hearsay exclusion/exception

Witness must be given opp to EXPLAIN OR DENY if EXTRINSIC evidence used unless 1) opposing party 2) not in court or 3) justice requires

Question 20

Bias and interest

Answer 20

Can ONLY be introduced while witness on STAND + if bias asked about FIRST

Question 21

Conviction of crime as impeachment

Answer 21

Whether it can be used depends on NAD

NATURE of crime (felony/misdo of honesty AUTOMATICALLY admissible; ANY FELONY admissible IF passes reverse 403)

Amount of time (if more years since conviction/release passed, generally NOT admissible

Defendant v. nondefendant (For D, less likely to be admitted bc standard = PV MUST OUTWEIGH PE)

Question 22

Bad act impeachment

Answer 22

Questioning about acts probative of truthfulness is permitted, but extrinsic evidence NOT permitted

e.g. if asking about lying on job app, CANNOT introduce job app

Question 23

Reputation or opinion for untruthfulness specific acts

Answer 23

Witness CANNOT testify to specific acts

Here, extrinsic evidence IS permitted

Question 24

Sensory deficiency

Answer 24

Whether witness can observe/remember/relate accurately

Extrinsic evidence IS permitted

Question 25

Contradiction

Answer 25

If witness made mistake or lied during direct, she may be contradicted in cross

Extrinsic evidence admissible IF she does not admit mistake

Question 26

Character general rule

Answer 26

Character evidence may not be admitted to show that a defendant has a propensity to commit an act

Question 27

Character in civil cases

Answer 27

Only admissible if ESSENTIAL ELEMENT of case (negligent entrustment, hiring, defamation, child custody)

Reputation/opinion/specific acts ALL admissible

Question 28

Character in criminal cases: what may prosecutor do

Answer 28

Generally, character is inadmissible in PROSECUTOR’S CASE IN CHIEF to prove D acted in conformity with character.

Question 29

Character in criminal cases: what may defense do

Answer 29

Defense may introduce RELEVANT TRAIT through REPUTATION OR OPINION (no specific acts)

THEN prosecutor may use reputation or opinion to rebut OR specific acts ONLY on cross of non-D witness

Question 30

Confrontation Clause ruule statement

Answer 30

If a statement is TESTIMONIAL and declarant is UNAVAILABLE + D did not have OPPORTUNITY TO CROSS declarant, statement is not admissible bc it violates D’s right to CONFRONTATION

Question 31

When is/is not statement testimonial?

Answer 31

To help ascertain past criminal activity, NOT 911 call or ongoing emergency

Question 32

Privilege

Answer 32

ACP/spousal/physician-patient/psychotherapist patient can prevent otherwise admissible evidence from being admitted

Question 33

Physician-patient priviliege: where is it recognized?

Answer 33

SOME JDX

Question 34

psychiatrist-patient priviliege: where is it recognized?

Answer 34

FEDERALLY

Question 35

Offer to settle: can it be admitted

Answer 35

NO, NOT to prove validity of disputed claim, but can be raised to show RESPONSIBILITY by offering party (esp when offer made PRIOR to litigation)

Question 36

Offer to pay medical expenses: can it be admitted

Answer 36

NO, NOT to prove liability or existence of injury

Question 37

Subsequent remedial measures

Answer 37

NOT admissible to prove negligence/liability, but CAN be used for impeacment/ownership/control/feasibility

Question 38

Insurance

Answer 38

Existence of insurance policy NOT admissible to prove liability, may be used to prove agency/ownership/impeachment

Question 39

Next sentence after hearsay definition?

Answer 39

DEMONSTRATE that piece of evidence IS being used for truth of matter asserted to show that exception is needed