Evidence

Question 1

Hearsay: general rule statement

Answer 1

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Hearsay is not admissible unless it is exempted from the hearsay rule or falls under an exception.

A hearsay statement may be an oral or written assertion and can be nonverbal conduct intended as an assertion.

Question 2

Excited Utterance

Answer 2

Excited utterances are a hearsay exception. An excited utterance is a statement relating to a startling event or condition, made while the declarant was under the stress or excitement that it caused.

Question 3

Present Sense Impression

Answer 3

Present sense impressions are exceptions to the hearsay rule. A present sense impression is a statement describing or explaining an event or condition made while or immediately after the declarant perceived it.

Question 4

Statement for purpose of medical treatment or diagnosis

Answer 4

A statement made for purposes of medical treatment or diagnosis falls under a hearsay exception. These statements must be made for and reasonably pertinent to medical diagnosis or treatment and describe medical history, past or present symptoms or sensations, their inception, or their general cause. These statements need not be made to medical personnel to qualify.

Question 5

Business records

Answer 5

Business records constitute an exception to the hearsay rule. A record of acts, events, conditions, opinions, or diagnoses is admissible if it is made at or near the time of the event recorded by a person with knowledge of the event. Further, the making of the record must occur in the course of a regularly conducted business activity, and it must be the regular practice of the business to make such a record.

Question 6

Recollection recorded

Answer 6

A record that is on a matter that the witness once knew about, but now cannot recall enough to testify full and accurately, which was made while the matter was fresh in the witness’s memory, may be read into evidence. The proponent may not offer it as an exhibit.

Question 7

Then-existing state of mind

Answer 7

A statement that shows a declarant’s then-existing mental, emotional, or physical condition, including motive, intent, or plan, is not hearsay and can be introduced to prove conformity with that state of mind.

Question 8

Opposing party’s statement

Answer 8

A statement made by an opposing party offered against that party is exempted from the hearsay rule.

Question 9

Statement against interest

Answer 9

When a declarant is unavailable, the declarant’s statement against interest can be admitted under an exception for hearsay. A statement against interest includes a statement that a reasonable person in the declarant’s position would have made only if the person believed it to be true, because, when made, it had a tendency to expose the declarant to civil or criminal liability.

Question 10

Public records

Answer 10

Public records may be admitted in some circumstances but not matters observed by law enforcement personnel when proffered by the prosecutor against the defendant in a criminal case.

Question 11

Relevance: general rule statement

Answer 11

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. Irrelevant evidence is inadmissible.

All relevant evidence is admissible unless a statute or rule says otherwise, or the probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Question 12

Personal knowledge requirement (lay v. expert)

Answer 12

A lay witness must have personal knowledge of the matter she testifies about. Her opinion must be rationally related based on her perception, helpful, and 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 or through some other means.

Question 13

Impeachment: general rule statement

Answer 13

Any party may impeach a witness; even a party that called that witness. Generally, extrinsic evidence is not admissible to show specific instances of witness’s conduct relating to truthfulness. However, on cross-examination, a witness can be asked about specific instances of conduct to attack or support the witness’s credibility.

Note: 7 ways to impeach
prior inconsistent statements
bias and interest
conviction of a crime
bad acts
reputation or opinion for untruthfulness
sensory deficiencies 
contradiction

Question 14

Impeach via prior inconsistent statements

Answer 14

A witness’s prior statement that is inconsistent with the witness’s current testimony is admissible to impeach the witness, as long as the inconsistency involves an issue relevant to the facts of the case.

A witness’s testimony as to lack of memory can be considered an inconsistency for which a prior inconsistent statement may be introduced.

Extrinsic evidence of the prior statement can be admissible for purposes of impeachment only if the witness is given an opportunity to explain or deny the statement and the opposing party is given the opportunity to examine the witness about it.

Question 15

Impeach via criminal fraud/dishonesty

Answer 15

Any witness can be impeached by evidence that they have been convicted of a crime that involved dishonesty or false statement, regardless of the punishment imposed or the prejudicial effect of the evidence. A crime involves dishonesty or false statement if establishing the elements of the crime requires proof or admission of an act of dishonesty or false statement.

Question 16

Impeach via opinion/reputation testimony

Answer 16

A witness’s credibility can be attacked by opinion or reputation testimony from another witness. Evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.

Question 17

Impeach via bias/interest

Answer 17

A witness may be impeached by evidence that the witness is biased and may not be testifying truthfully. Extrinsic evidence to prove bias is admissible.

Question 18

Impeach via sensory competence

Answer 18

Extrinsic evidence is admissible to show that the witness is physically or mentally impaired and is therefore not a credible witness.

Question 19

Impeachment of hearsay declarant

Answer 19

If a hearsay statement is admitted into evidence, the declarant who made the original statement can be impeached as if the declarant was a testifying witness.

Question 20

Rehabilitation of a witness

Answer 20

If a witness is impeached, the witness may be rehabilitated by the introduction of rebuttal evidence, including (i) an explanation or clarification during redirect examination; (ii) reputation or opinion evidence about the witness’s character for truthfulness; or (iii) a prior consistent statement.

Question 21

Impeach via criminal conviction not involving dishonesty/false statements

Answer 21

In a civil or criminal case, evidence of a felony conviction against a non-criminal defendant witness is admissible if the probative value is not substantially outweighed by the danger of unfair prejudice. (normal 403 analysis)

In a criminal case, evidence of a felony conviction used against a defedant-witness is admissible only if the probative value outweighs the prejudicial effect to the defendant. (reverse 403)

If more than 10 years have passed since the conviction or release (whichever is later), the evidence of the conviction will only be admissible if the probative value substantially outweighs the prejudicial effect and the proponent gives reasonable notice of the intent to use it. (reverse 403 + )

Question 22

Character evidence: civil case

Answer 22

In a civil case, character evidence is not admissible to prove that a person acted in accordance with that character or trait on a particular occasion. In other words, propensity evidence is inadmissible.

However, character evidence (reputation, opinion, and specific acts) is admissible when character is an essential element of a claim or defense, such as: defamation, negligent hiring or entrustment, and child custody.

Question 23

Character evidence: criminal case generally

Answer 23

In a criminal case, the prosecution is not permitted to introduce bad character evidence about a defendant in order to prove he has the propensity to commit crimes, thus he is likely to have committed the crime in question.

Question 24

Character evidence: criminal case defendant’s character

Answer 24

A defendant may introduce reputation or opinion evidence of his own good character to show that it is inconsistent with the crime charged.

If the defendant “opens the door,” the prosecution may call a witness to rebut and attack the defendant’s claims of good character with reputation or opinion-based evidence, or cross-examine the defendant’s character witness and ask about the defendant’s reputation, opinion, or specific bad acts by the defendant. Note that the prosecution can only “ask” about specific bad acts; it must accept the witness’s answer without entering extrinsic evidence.

Question 25

Character evidence: criminal case victim’s character

Answer 25

A defendant may introduce reputation or opinion evidence of the victim’s character trait if it is relevant to the defense asserted.

If the defendant “opens the door,” the prosecution may introduce rebuttal (reputation or opinion) evidence of the victim’s character trait or attack the defendant’s character regarding the same trait that the defendant attacked of the victim

Question 26

Character evidence: specific bad acts

Answer 26

Evidence of a crime, wrong, or other bad act is not admissible to prove a person’s character in order to show the person acted in accordance with the character. However, evidence of prior bad acts may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Modus operandi can be used as identity evidence.

Question 27

Habit evidence

Answer 27

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion, the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated of whether there was an eyewitness.

Question 28

Sex-offense cases: victim propensity evidence

Answer 28

In civil or criminal cases involving alleged sexual misconduct, evidence of the victim’s sexual conduct or predisposition is generally barred.

In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and unfair prejudice to any party.

Question 29

Expert testimony

Answer 29

The subject matter of expert testimony must be scientific, technical, or some other specialized knowledge that will help a trier of fact understand evidence or determine a fact at issue that focuses on the relevance of testimony.

A witness must be qualified as an expert by knowledge, skill, experience, training, or education. The testimony must be based on sufficient facts or data and the product of reliable principles and methods. Finally, the witness must apply these principles and methods reliably to the facts of the case.

Question 30

Prior out-of-court identification

Answer 30

Under the FRE, a previous out-of-court identification of a person after perceiving that person is deemed non-hearsay if the witness is testifying at the current trial and is subject to cross-examination.

Question 30

Prior out-of-court identification

Answer 30

Under the FRE, a previous out-of-court identification of a person after perceiving that person is deemed non-hearsay if the witness is testifying at the current trial and is subject to cross-examination.

Question 31

Prior inconsistent statements hearsay exemption

Answer 31

Prior inconsistent statements made under oath at a trial, hearing, or deposition qualify as non-hearsay and can be admitted as substantive evidence therefor.