MEE One Sheets Flashcards
Key principle #1:
if there is a hearsay question (which is by far the most highly tested topic in Evidence essay questions), remember to use the DIA approach in your answer to get the most points.
D: Define hearsay.
Hearsay is “a statement, other than one made by the declarant while testifying at the trial/hearing, offered in evidence to prove the truth of the matter asserted.”
I: State why it is important to determine if a statement is hearsay.
Hearsay is not admissible unless it
comes within an exception.
A: Analyze exceptions. Some of the commonly tested hearsay exceptions and exclusions are as follows:
(1) Excited utterance: an excited utterance is a “statement relating to a startling event/condition made while declarant was under the stress/ excitement that it caused.”
(2) Present sense impression: a present sense impression is “a statement describing/explaining an event/condition made while/immediately after the declarant perceived it.”
(3) Statement for purpose of medical treatment/ diagnosis: these statements must be made for & reasonably pertinent to medical diagnosis/treatment & describe medical history, past/present symptoms/ sensations, their inception, or their general cause.
(4) Business records: A record of “acts, events, conditions, opinions, or diagnoses” is admissible if it is made “at or near the time” of event recorded by a “person w/ knowledge” of event. Further, the making of record must occur in the regular course of business, & it must be regular practice of business to make such a record.
(5) Recollection recorded: a record that is on a matter the witness once knew about, but now cannot recall well enough to testify fully & accurately, which was made while matter was fresh in witness’s memory, may be read into evidence (however, proponent may not offer it as an exhibit)
(6) Then-existing state of mind exception: if a statement shows a declarant’s mental, emotional, or physical condition (including motive, intent, or plan) it is not hearsay.
(7) Prior statement of identification hearsay exclusion: a witness’s prior ID is not considered hearsay.
(8) Opposing party’s statement: a statement made by an opposing party offered against that party is not hearsay.
(9) Statement against interest: A statement that a reasonable person in declarant’s position would have made only if person believed it to be true b/c, when made, it had a tendancy to expose the declarant to civil/criminal liability. Declarant must be unavailable.
(10) Public records may be admitted in some circumstances but not matters observed by law
enforcement personnel when proffered by the prosecutor against D in a criminal case.
Key principle #2:
be able to define relevancy and the 403-balancing test.
Relevancy:
- Relevancy: evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.
Admissibility:
- all relevant evidence is admissible unless a statute/ rule says otherwise, or probative value is substantially outweighed by a danger of one/more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence
Key principle #3:
Lay witnesses must have personal knowledge to testify. Expert witnesses need not.
General rule:
- A witness must have knowledge of the matter she testifies about.
- A lay witness must have personal knowledge. Her opinion must be rationally based on her perception; helpful; & not based on scientific, technical, or specialized knowledge.
- An expert witness does not need personal knowledge but can instead testify based on facts he has been made aware of at trial/ through some other means (e.g., facts not on the record if other experts would rely on them).
Key principle #4:
impeachment is tested frequently—be aware of the seven ways to impeach!
General rule: any party may impeach a witness (even the party that called the witness).: seven ways to impeach a witness:
(1) Prior inconsistent statements: These can be used as substantive evidence as well if they fall under a hearsay exception/exclusion. The witness must be given the opportunity to explain/deny the statement if extrinsic evidence is used, unless witness is opposing party, not in court, or if the interests of justice so require.
(2) Bias & interest: Witness must be confronted on the stand. Extrinsic evidence can only be used if the witness is asked about the bias first.
(3) Conviction of a crime: Whether the conviction can be used depends on (mnemonic=NAD): nature of the crime (felonies/misdemeanors of dishonesty are automatically admissible; any felony is admissible if it passes a balancing test), the amount of time that has passed (if > 10 years after conviction/release has passed, whichever is later, it is generally not admissible), & (only in criminal cases) whether the witness is a D (it’s less likely to be admitted if witness is a D b/c the probative value must outweigh its prejudicial effect).
(4) Bad acts: Questioning about acts that are probative of truthfulness/untruthfulness (e.g., filing a false tax return) is permitted. Extrinsic evidence is not permitted. Note that on both exams when this was tested, the question was whether a party could admit extrinsic evidence that the witness lied on a job application/resume (and the answer is that extrinsic evidence would not be permitted).
(5) Reputation/opinion for untruthfulness: The witness cannot testify to specific facts. (Extrinsic evidence is permitted because the witness is extrinsic evidence.)
(6) Sensory deficiencies: This is the ability to observe, remember, or relate accurately. Extrinsic evidence is permitted.
(7) Contradiction: If the witness made a mistake in her testimony/lied during direct examination, she may be contradicted. Extrinsic evidence can be used if she doesn’t admit her mistake
Key principle #5:
Generally, character evidence is not admissible to prove conformity. It is rarely admissible in civil cases (it must be an “essential element”) & is only admissible in criminal cases when D opens the door.
General rule:
- Character evidence is inadmissible to prove that someone acted in accordance with his character at the time the event occurred.
(1) Civil cases: Character evidence is only permitted when character is an essential element of the case. - Character is an essential element in cases involving negligent entrustment or hiring, defamation, or child
custody. Reputation, opinion, & specific acts can be used to prove character.
(2) Criminal cases: Generally, character evidence is inadmissible in the prosecutor’s case-in-chief to prove
that D acted in conformity w/ his own character. - However, D in a criminal case may introduce evidence of a pertinent (relevant) character trait to prove that he acted in conformity w/ his character at the time in question. He can do this by reputation/ opinion. Then, prosecutor may rebut by using reputation, opinion, or cross-examining D’s witness by asking about specific acts.
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Key principle #6:
Sixth Amendment Confrontation Clause
