MEE Essentials: Evidence Flashcards
Hearsay rule statement
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted
Hearsay admissibility rule
Hearsay is NOT admissible unless it comes within an exception
Excited utterance rule statement
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
Present sense impression
A present sense impression is a statement describing or explaining an event made during or immediately after perceiving it
Statement for medical treatment or diagnosis
Must be made for and reasonably pertinent to medical diagnosis or treatment, describing medical history, past or present symptoms, and their inception
Business records exception
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
Recollection recorded
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
Then-existing state of mind exception
Can be used to show declarant’s mental, emotional, or physical condition (incl. motive/intent/plan)
Prior statement of identification hearsay exclusion
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
Opposing party hearsay exclusion
Statement made by opposing party offered against that party is not hearsay
Statement against interest + when may it be introduced
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
Public records exception
May be admitted in some circumstances, but NOT matters observed by LAW ENFORCEMENT when offered by PROSECUTOR in CRIMINAL case
Relevance rule statement
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
Admissibility 403 rule statement
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
Witness requirement
A witness must have KNOWLEDGE of the MATTER she testifies about
Lay witness requirement
Lay witness must have PERSONAL KNOWLEDGE based on her perception + helpful + not based on scientific/technical knowledge
Expert witness requirements
An expert witness does NOT need personal knowledge but can testify on FACTS that he is aware of through TRIAL or OTHER MEANS
Can a party who called witness impeach witness?
YES
Prior inconsistent statement
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
Bias and interest
Can ONLY be introduced while witness on STAND + if bias asked about FIRST
Conviction of crime as impeachment
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)
Bad act impeachment
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
Reputation or opinion for untruthfulness specific acts
Witness CANNOT testify to specific acts
Here, extrinsic evidence IS permitted
Sensory deficiency
Whether witness can observe/remember/relate accurately
Extrinsic evidence IS permitted
Contradiction
If witness made mistake or lied during direct, she may be contradicted in cross
Extrinsic evidence admissible IF she does not admit mistake
Character general rule
Character evidence may not be admitted to show that a defendant has a propensity to commit an act
Character in civil cases
Only admissible if ESSENTIAL ELEMENT of case (negligent entrustment, hiring, defamation, child custody)
Reputation/opinion/specific acts ALL admissible
Character in criminal cases: what may prosecutor do
Generally, character is inadmissible in PROSECUTOR’S CASE IN CHIEF to prove D acted in conformity with character.
Character in criminal cases: what may defense do
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
Confrontation Clause ruule statement
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
When is/is not statement testimonial?
To help ascertain past criminal activity, NOT 911 call or ongoing emergency
Privilege
ACP/spousal/physician-patient/psychotherapist patient can prevent otherwise admissible evidence from being admitted
Physician-patient priviliege: where is it recognized?
SOME JDX
psychiatrist-patient priviliege: where is it recognized?
FEDERALLY
Offer to settle: can it be admitted
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)
Offer to pay medical expenses: can it be admitted
NO, NOT to prove liability or existence of injury
Subsequent remedial measures
NOT admissible to prove negligence/liability, but CAN be used for impeacment/ownership/control/feasibility
Insurance
Existence of insurance policy NOT admissible to prove liability, may be used to prove agency/ownership/impeachment
Next sentence after hearsay definition?
DEMONSTRATE that piece of evidence IS being used for truth of matter asserted to show that exception is needed