MEE - Evidence Flashcards
*What is hearsay?
Generally hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Hearsay is not admissible unless it falls within an exception to the hearsay rule. A statement for purposes of the hearsay rule is a person’s (1) oral or written assertion, or (2) nonverbal conduct intended as an assertion.
Hearsay within hearsay is an out-of-court statement that incorporates other hearsay, and is admissible only if both the outer hearsay statement and the inner hearsay statement fall within the exception to the hearsay rule.
A question by a witness is not hearsay because it is not an assertion.
*What are exceptions to the rule against hearsay?
(A) A hospital record is admissible under the business records exception to the hearsay rule if was: (1) made in the regular course of the business, (2) the regular practice of the business to make the record, (3) made at or near the time of the event, (4) made by a person whose duty it was to make the record and who had personal knowledge of the event, and (5) authenticated.
(B) A statement that describes a person’s medical history, past or present symptoms, or their cause is admissible as an exception to the hearsay rule if it was made for, and was reasonably pertinent to, medical diagnosis or treatment.
(C) A statement that is inadmissible hearsay to prove the truth of the statement may nevertheless less be admitted to show (1) the statement’s effect on the listener or reader, (2) show speaker’s knowledge, (3) Statements of legal significance, (4) to show state of mind (D before running into traffic stated he was going to prove he was invincible)
(D) Statement of then-existing state of mind: Offered to show a declarant’s intent at the time the statement was made or as circumstantial inference that declarant’s intent was likely carried out.
(E) Statement of then-existing condition: Usually offered to establish some physical condition, symptom, or sensation that declarant experienced at the time of the statement.
(F) A present sense impression is a statement describing or explaining an event or condition made while the declarant is perceiving it or immediately thereafter. (declarant availability irrelevant)
(An excited utterance is a statement relating to a startling event, made while under the stress of the excitement caused by the startling event. (declarant availability irrelevant)
*How may a witness’ credibility be attacked through impeachment? (Non-Hearsay Exemptions)
A witness’s credibility may be attacked by any party, including the party calling them.
(A) Prior Inconsistent Statement: For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of her present testimony.
-Under the FRE, an inconsistent statement may be proved by either examination of the witness or by extrinsic evidence. To prove a prior inconsistent statement by extrinsic evidence, the witness generally must be given an opportunity at some point to explain or deny the allegedly inconsistent statement (even after the statement is introduced), and the statement must be relevant to some issue in the case.
(B) Prior Testimony: Where a prior inconsistent statement was made under penalty of perjury at a prior trial, hearing, or other proceeding, or in a deposition, it is admissible non-hearsay.
(C) Prior statement of identification after perception: A declarant’s prior statement identifying a person as someone the declarant perceived earlier (including photo identification) is not hearsay if the declarant testifies at trial and is subject to cross-examination.
*Are opinions by lay witnesses admissible?
Opinions by lay witness are generally inadmissible. However, an exception is made if the opinion is: (1) rationally based on the perception of the witness; (2) helpful to clear understanding of the testimony or to the determination of a fact in issue; and (3) not based on scientific, technical, or other specialized knowledge.
Thus a lay witness can testify as to the speed of a moving object, even by testifying that it was going “fast” or “very fast”
*May character evidence be introduced in a civil case?
Evidence of a person’s character is generally inadmissible to prove that they acted in conformity with that character on a given occasion.
Exceptions: Character evidence may be admissible where (1) Character is at issue (character is an essential element of a claim or defense) - Can be proved through opinion, reputation or specific incidences of conduct, (2) Prior acts of sexual assault or child molestation
*May habit evidence be admissible?
A person’s habit may be relevant and admissible to show that the person acted in conformity with the habit on a given occasion.
-Conduct must be highly specific and frequently repeated.
*Is evidence of a witness’s faulty memory admissible?
Evidence is relevant if it has any tendency to make the existence of any fact that is consequence to the determination of the action more or less probable than it would be without the evidence. Evidence of memory loss is relevant because it casts doubt on the witness’s credibility. This type of evidence may be offered on cross-exam or by use of extrinsic evidence.
*What is relevant evidence and when may relevant evidence be excluded?
Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of an action more or less probable than it would be without the evidence.
Relevant evidence can be excluded by a judge if its probative value is significant’y outweighed by its danger to unfair prejudice, confusion of the issues, waste of time, or misleading the jury.
-Evidence of repairs or other precautionary measures made following an injury is inadmissible to prove negligence.
-Evidence of offers to pay for medical expenses are inadmissible.
-In civil cases: Compromises, settlement offers, and related statements. (Such statements made after a party files a lawsuit may ordinarily be admissible as opposing party statements, but public policy precludes) (Statements made before a party files a lawsuit are admissible as opposing party statements as long as no claim (not lawsuit) of right to remedial action has been communicated by injured party)
-In criminal cases: pleas, offers to plea, and related statements.
-Evidence of Liability insurance is inadmissible.
*When may witness be impeached by specific incidences of conduct?
A witness can be impeached on cross-examination by a specific instance of misconduct that is probative of truthfulness. Not to prove the matter asserted.
Prior acts may which are non-character use are admissible to prove:
(1) Motive
(2) Intent
(3) Mistake
(4) Identity
(5) Common Plan or Scheme
*May a witness be impeached by extrinsic evidence of a specific incident of bad conduct?
A witness may not be impeached by extrinsic evidence of bad acts.
*May a document that is used to refresh a witness’s recollection be offered into evidence?
*When a witness has used a writing to refresh his collection on the stand, the adverse party can introduce that writing into evidence after observation.
However, a recorded recollection of a record/document that W once had knowledge of and accurately reflects W’s knowledge may be read into evidence. Used when W’s current memory is insufficient to testify as to the record’s contents.
*May evidence of past sexual behavior be offered against a victim?
In any criminal or civil case, evidence offered to prove the sexual disposition of an alleged victim is generally inadmissible. In civil cases, evidence of a victim’s past sexual behavior is admissible if it is otherwise admissible under the FRE and it is probative value substantially outweighs the danger of harm to the victim and of of unfair prejudice to any party.
*What is the confrontation clause?
An otherwise admissible out-of-court statement offered against a D in a criminal case may be excluded under the confrontation clause. A statement is excluded when: (1) the declarant is currently unavailable (unless unavailable due to D’s misdeed), (2) D had no prior opportunity to cross-examine the declarant about the statement at the time it was made, and (3) The statement is testimonial in nature.
A testimonial statement includes: (1) Prior statements made during court proceedings, (2) Statements made during police investigation. (business records are not testimonial) (Statements made to police during an ongoing emergency are non-testimonial and may be admitted)
When the primary purpose of an interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial.
