Kaplan Pgs 478-498 - Expert Testimony And Hearsay

Question 1

If someone is giving opinion testimony and is a lay witness, what is the testimony limited to?

Answer 1

The opinion is limited to testimony that is:
– rationally based on the witness’ perception
– helpful to clearly understand the witness’ testimony or to determine a fact in issue
– not based on scientific, technical, or other specialized knowledge

Question 2

What is the proper scope of non-expert opinion testimony?

Answer 2

They can speak about:
– perceptions regarding speed and measurements
– physical states such as intoxication or injury
– personal emotions of others such as fear or sorrow
– sensory descriptions such as taste, sound, smell
– value of their own land
– sanity of the testator when given by subscribing witness to the will.

Legal conclusions must be avoided, such as seeing someone is schizophrenic, an alcoholic, or that they fractured their spine.

Question 3

Is law-enforcement considered to be expert or lay opinion?

Answer 3

This is a grey area, sometimes their testimony falls into lay opinion and sometimes it is qualified as expert testimony

Question 4

How do federal courts assess the reliability of scientific evidence?

Answer 4

By asking the following questions:
– has the methodology been tested?
– are there known rates of error?
– has the methodology been generally accepted?
– has the methodology been subject to peer review?

Question 5

What is the most common way to impeach an expert witness?

Answer 5

By showing he is biased. This can be by showing he’s getting a large fee to testify, or that he always aligns himself with a particular point of view, etc.

Question 6

When can you attack a witness’ character for truthfulness?

Answer 6

– you can do this through testimony about the witness’ reputation for having a character for truthfulness or untruthfulness, and then the other side can come back with testimony in the form of opinion about that character, but evidence of truthful character can only be introduced after the witness’ character for truthfulness has been attacked.

Evidence of bias is not considered to be an attack, so the other side would not be able to introduce evidence of truthfulness after bias

Question 7

If a witness testifies at trial that the defendant was with her at the time of the burglary, and the prosecution introduces evidence that she is well known in the neighbourhood for being a liar, what can the defense do?

Answer 7

They can introduce other opinion or reputation testimony about her honesty.

But if the prosecution had only introduced that she had been dating the defendant, that would not allow the defense to introduce evidence about her reputation for honesty because all that the prosecution was talking about was bias

Question 8

Once a witness takes the stand, what are the things they can be cross examined about?

Answer 8

– their own acts of untruthfulness, and

– the specific acts of the person that they were being a witness for

Question 9

What’s the difference between the common law and the FRE in relation to impeachment of a witness by evidence of a criminal conviction?

Answer 9

– Common law: the conviction of a person of treason or any felony, a misdemeanour involving dishonesty, or the obstruction of justice is said to be an “infamous“ crime and renders the convicted person totally incompetent as a witness.
– FRE: the witness can still testify, but the opposing party can bring up the past crimes to undermine the witness’ credibility

Question 10

When can you bring in evidence of a juvenile adjudication against a witness to destroy their credibility?

Answer 10

– if it is offered in a criminal case
– if the adjudication was of a witness and not the defendant
– if an adult were to be convicted of that same offense, the record would be admissible to attack the adult’s credibility, and
– admitting the evidence is necessary to fairly determine guilt or innocence

Question 11

Can you introduce a conviction to undermine a witness’ credibility if the conviction is pending on appeal?

Answer 11

Yes, but the evidence of the appeal is also admissible

Question 12

Is a previous nolo contendere plea admissible against a witness to attack their credibility?

Answer 12

Yes

Question 13

Is it proper to attack a witness’ religious beliefs or opinions in order to attack their credibility?

Answer 13

No

Question 14

The court should exercise what kind of control over the mode and order of examining witnesses?

Answer 14

Reasonable control

Question 15

What is the rationale for the requirement that the court exercise reasonable control over the mode and order of examining witnesses?

Answer 15

– To make sure procedures are effective for determining the truth
– to avoid wasting time
– to protect witnesses from harassment or undue embarrassment

Question 16

What are the rules for what you can ask about on cross-examination?

Answer 16

– Matters affecting the witness’ credibility

– otherwise the subject matter should not go beyond the subject matter of the direct examination

Question 17

What are the times that it’s OK to use leading questions?

Answer 17

– On cross-examination
– for a hostile witness, an adverse party, or a witness that is identified with an adverse party
– to establish preliminary background information about a witness
– to jog a witness’ memory
– to lay foundation
– to help a young or timid witness

Question 18

What is a statement with regard to hearsay?

Answer 18

A person’s oral or written assertion, or nonverbal conduct if intended as an assertion

Question 19

What is a declarant?

Answer 19

A person who makes a statement

Question 20

When is hearsay not allowed to be admitted?

Answer 20

Any statement not made in court, is potentially hearsay if it is offered for its truth.

Ie: David is on trial for murdering his wife who was last seen alive on August 25 and his body was never found. The prosecution calls Wendy to testify that the wife called her on August 30 and said, “David has threatened to kill me.“ This testimony is hearsay if offered to prove David threatened the wife, but not hearsay if just proving that the wife was still alive on August 30

Question 21

When is nonverbal conduct considered to be hearsay?

Answer 21

When it is intended as an assertion. This includes things like gestures such as pointing a finger, nodding, giving a thumbs up, or silence when it is meant to communicate, and sign language

Question 22

What is a good approach when doing a hearsay analysis?

Answer 22

– determine the assertion or conduct that is the out-of-court statement: decide if it is nonverbal conduct, or non-assertive conduct, etc.
– determine who is the declarant: distinguish between the person who made the statement and the witness that is testifying about it, and whether the declarant is a party or a non-party
- determine the purpose that the evidence is offered for: if it is offered for its truth, it is hearsay. If it is offered for a non-truth purpose, it is not hearsay
– apply possible hearsay exceptions

Question 23

What are situations where words themselves have legal significance aside from their truth, and are thus considered to be non-hearsay?

Answer 23

– Tortious words: the actual words of slander or libel in a defamation action
– transactional words: the actual words of offer and acceptance in a contract, or the words of intent in a transfer, sale, will, or deed

Question 24

What are the two different forms of verbal acts that are considered to be non-hearsay?

Answer 24

– Words of legal significance

– explanatory words that accompany ambiguous physical actions

Question 25

How does an explanatory word that accompanies an ambiguous physical action classify itself as a verbal act and thus as non-hearsay?

Answer 25

The words’ legal significance is independent of their truth.

Ie: if you hand someone a pen and also say “this is a gift,” without those words, it would be unclear what was happening with the pen

Question 26

What are the three categories of nonhearsay?

Answer 26

Verbal acts, statements of state of mind, statements to impeach the witness

Question 27

What are the two categories of hearsay exceptions?

Answer 27

Exemptions and exceptions

Question 28

What is the difference between hearsay exemptions and hearsay exceptions?

Answer 28

1) The FRE specifically exempts some out of court statements from being hearsay even though they are offered for their truth. This includes the two categories of:
– prior statements of a declarant/witness
– statements made by the opposing party

If the FRE has exempted some statements, they are considered to be NONHEARSAY

2) EXCEPTIONS are considered to be hearsay, but they are admissible for some other purpose

Question 29

When is a statement not considered to be hearsay based on the declarant testifying and being subject to cross-examination about a prior statement?

Answer 29

If the statement is either:
– a prior sworn INCONSISTENT statement
– a prior CONSISTENT statement, or
– a prior IDENTIFICATION

Question 30

What is a prior inconsistent statement?

Answer 30

When a statement that was previously made is inconsistent with the declarant’s testimony and the statement was given under penalty of perjury at a trial, hearing, other proceeding, or in a deposition

Question 31

When can you introduce a prior consistent statement of a witness?

Answer 31

When the statement is consistent with the declarant’s testimony and offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive

Question 32

When is a prior identification permitted?

Answer 32

When the statement identifies a person as someone the declarant perceived earlier

Question 33

What are the requirements for an opposing party’s statement to be introduced and not considered hearsay?

Answer 33

If the statement is offered against an opposing party, and the statement is:
– made by the party
– a statement that the party manifested that it adopted or believed was true
– made be someone that the party authorized to make a statement on the subject: the statement has to be considered, but the statement doesn’t alone establish the declarant’s authority
– made by the party’s agent or employee on a matter within the scope of that relationship and while it existed: the statement must be considered, but it does not by itself establish the existence or scope of the relationship
– made by the party’s co-conspirator during and in furtherance of the conspiracy: the statement must be considered, but it does not by itself establish the conspiracy

Question 34

What are the different categories of nonhearsay/exemptions?

Answer 34

– opposing party statement
– adoptive statement or statement by silence
– authorized statement
– vicarious statement of an agent or employee
– co-conspirator’s statement
– prior sworn inconsistent statements
– prior consistent statements
– prior identifications

Question 35

What is the difference between FRE803 and FRE804?

Answer 35

• 803 says that the evidence is admissible even if the declarant is available to be a witness
• 804 requires that the declarant be unavailable

Question 36

What are the hearsay exceptions that do not require that the declarant be unavailable (803)?

Answer 36

– present sense impression
– excited utterance
– then-existing state
– statement made for medical diagnosis or treatment
– recorded recollection
– records of a regularly conducted activity
– absence of a record of a regularly conducted activity
Dash Public records
– public records of vital statistics
– absence of a public record
– records of religious organizations about personal or family history
– certificates of marriage, baptism, or other ceremonies
– family records
– records of documents that affect an interest in property
– statements in documents that affect an interest in property
– statements in ancient written documents
– market reports and similar commercial publications
– statements in learned treatises
– reputation about personal or family history
- reputation concerning character
– judgement of a previous conviction
– judgement involving personal, family, or general history

Question 37

What is the difference between the hearsay exceptions of present sense impression and excited utterance?

Answer 37

– present sense: must be spontaneous and the statement must be made while or immediately after the declarant perceived the event
– excited utterance: does not require spontaneity as long as the statement was made under the stress of excitement

Question 38

What is the rationale behind the hearsay exception of excited utterance?

Answer 38

Emotional stress suspends the process of reflective thought that is needed to consciously fabricate something

Question 39

What is the necessary requirement for the hearsay exception of excited utterance?

Answer 39

The declarant must speak while he is under the stressful influence of a startling event or condition. The state of excitement can include the later shock or emotional distress that can persist even after the “excitement“ has subsided

Question 40

What are the things that can be included in the hearsay exception for “then existing state”?

Answer 40

– a statement about the declarant’s then-existing state of mind: things like motive, intent, or plan
– emotional condition: mental feeling
– sensory condition: pain
– physical condition: bodily health

Question 41

What are some of the different things you can describe as a hearsay exception to statements made for medical diagnosis or treatment?

Answer 41

– Medical history
– past or present symptoms
– the symptom’s inception
– the symptom’s general cause

As long as the statements were made for the purpose of treatment or diagnosis

Question 42

If a statement was made to a medical provider that did not relate to diagnosis or treatment, does it still fall under the exception to hearsay for statements made for medical diagnosis or treatment?

Answer 42

No, so the statement would be considered to be hearsay and would thus not be admissible

Question 43

Must a statement be made to a medical professional in order for it to be a hearsay exception under statements made for medical diagnosis or treatment?

Answer 43

No, the statement could be made to a hospital attendant, an ambulance driver, or even members of the person’s family

Question 44

Under the hearsay exception for recorded recollection, is it necessary that the witness be the person who physically created or wrote the recollection himself?

Answer 44

No, it can include situations when the witness was not the author as long as the witness adopted the writing, which means he examined it and affirmed its correctness at a time when his memory was fresh

Question 45

What are the required elements in order for the hearsay exception of “records of a regularly conducted activity“ to apply?

Answer 45

– The record was made at or near the time by someone with knowledge
– the record was kept in the course of a regularly conducted activity of the business
– making the record was a regular practice of that activity
– the record is shown by the testimony of a custodian or qualified witness or via certification
– neither the source of the information nor the method of circumstances of preparation show a lack of trustworthiness

Question 46

Does the hearsay exception for “records of a regularly conducted activity“ apply to organizations that are not for profit?

Answer 46

Yes, it applies to businesses, institutions, associations, professions, occupations, and callings of every kind, whether or not they are done for profit

Question 47

What is included in the hearsay exception for “absence of a record of a regularly conducted activity?“

Answer 47

Evidence that a matter is NOT included in a record of a regularly conducted activity can be admitted and will not be considered to be hearsay if:
– it is admitted to prove that the matter did NOT occur or exist
– a record was regularly kept for a matter of that kind, and
– neither the source of the information nor other circumstances show a lack of trustworthiness.

Ie: if there is no hospital admission record showing that the party got treatment for his injuries, that can be used as evidence that he did not seek treatment

Question 48

What is included in the hearsay exception for public records of vital statistics?

Answer 48

Records of birth, death, or marriage, if reported to a public office according to a legal duty. This could include a birth certificate or a marriage license

Question 49

What is involved in the hearsay exception for an absence of a public record?

Answer 49

Testimony or a certification that a diligent search failed to disclose a public record or statement if this is admitted to prove that:
– the record or statement does not exist, or
– a matter did not occur or exist if a public office regularly kept a record of that kind.

If there is a lack of a birth certificate in the usual place that it would be registered, that is admissible

Question 50

What is involved in the hearsay exception for records of religious organizations concerning personal or family history?

Answer 50

Statements of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or other facts of personal or family history that are contained in a regularly kept record of a religious organization are admissible as hearsay exceptions. I.e.: record of a marriage maintained by the church

Question 51

What is involved in the hearsay exception for certificates of marriage, baptism, or similar ceremonies?

Answer 51

A statement of fact that is contained in a certificate made by a person that is authorized by a religious organization or by law to perform the act, attesting that the person performed a marriage or similar ceremony, and purporting to have been issued at the time of the act or within a reasonable time after it, is admissible as a hearsay exception. I.e.: the date of marriage on a marriage certificate

Question 52

What is involved in the hearsay exception for family records?

Answer 52

A statement of fact about personal or family history contained in a family record like a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker can be admitted.

Ie: a family tree in the front of a family Bible can be admitted to prove ancestry

Question 53

What is involved in the hearsay exception for records of documents that affect an interest in property?

Answer 53

This is for records of documents that purport to establish or affect an interest in property if:
– the record is admitted to prove the content of the original recorded document, plus its signing and delivery by each person who signed it
– the record is kept in a public office, and
– a statute authorizes recording documents of that kind in that office

Ie: a real property deed

Question 54

What is involved in the hearsay exception for statements in documents that affect an interest in real property?

Answer 54

A statement that is contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document’s purpose is an exception to hearsay

Ie: boundaries contained in a real property deed

Question 55

What is the hearsay exception for statements in ancient documents?

Answer 55

Statements in documents that were prepared before January 1 of 1998 and whose authenticity have been established are considered to be exceptions to hearsay.

At common law the document had to be at least 30 years old, and federally the document had to have been in existence for at least 20 years, but that rule has been amended to include a specific date

I.e.: a document was prepared in 1996, so a party can admit a scanned copy of that document under this exception even though the scan occurred more recently

Question 56

What are the only times that a learned treatise can be used as hearsay exceptions?

Answer 56

– after an expert witness has relied on the document, or

– it has been called to an expert witness’ attention on cross-examination

Question 57

How do you establish a learned treatise as authoritative in order for it to be a hearsay exception?

Answer 57

By either testimony or judicial notice

Question 58

Once a learned treatise (or part of it) has been read into evidence, what can it be used for?

Answer 58

As substantive evidence or for impeachment

Question 59

What is involved in the hearsay exception for reputation concerning personal or family history?

Answer 59

A persons reputation among his family by blood/adoption/marriage, or among his associates or in the community about things like his birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or similar fact of personal or family history is an exception to hearsay.

Ie: a witness can testify about his birthday without having to rely on his birth certificate

Question 60

What are the hearsay exceptions for “reputation concerning boundaries or general history“ and “reputation concerning character?”

Answer 60

People are allowed to introduce their reputation in the community or among their associates regarding:

• boundaries of land or customs that affect the land
• general historical events that are important to that community
• reputation about that person‘s character

Question 61

What are the different hearsay exceptions that fall under 804 and require that the declarant be unavailable as a witness?

Answer 61

– Statement under the belief of imminent death
– statement against interest
– statement of personal or family history
– statement offered against a party that wrongfully caused the declarant’s unavailability

Question 62

What are situations that a declarant is considered to be unavailable as a witness for the purpose of rule 804?

Answer 62

– if he is exempted from testifying because of a privilege
– if he refuses to testify despite a court order
– if he testifies as to not remembering the subject matter
– if he can’t be present because of death, infirmity, physical illness, or mental illness
– if he is absent and the statement’s proponent has not been able, by process or other reasonable means, to procure his attendance

Question 63

What is the mnemonic to help remember the hearsay exceptions under 804 that require the declarant to be unavailable?

Answer 63

San Francisco fire department

– statement against interest
– former testimony
– family
– dying declaration

Question 64

Under the confrontation clause when is a statement made to a police officer considered to be testimonial and when is it nontestimonial?

Answer 64

• testimonial: statements made at a crime scene to police during an investigation of the crime, and for that purpose
  – Non-testimonial: statements made to police “under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.”

Question 65

How do you determine if a statement made to a police officer is testimonial or non-testimonial under the confrontation clause?

Answer 65

The primary purpose of interrogation standard is applied. This is a combined inquiry that accounts for both the declaration and the interrogator and includes factors to figure out if there was an ongoing emergency. The main question is, “Whether in light of all the circumstances, and viewed objectively, the primary purpose of the conversation was to create an out-of-court substitute for trial testimony.“

Factors:
- The nature of the dispute
- the scope of the potential harm to the victim
– the threat to additional identifiable victims
– the existence of a more generalized threat to the public
– the suspect’s choice of weapon
– whether the suspect remains “at large“ or had been located by the police or first responders

Question 66

What is the rule for hearsay within hearsay?

Answer 66

When one out of court statement offered for its truth contains another out-of-court statement, then each layer must be examined separately, and a hearsay exception must be found for each. Otherwise the entire statement is inadmissible.

Question 67

What is an example of hearsay within hearsay?

Answer 67

If the custodian of a business record introduced into evidence an entry made by his employer recording a statement made to him by the defendant that said, “the goods I sold you were not our usual quality.“

The entry itself would be a business record and the statement included therein would be an admission

Question 68

What are the elements that have to be met in order for the residual exception to hearsay to be applied?

Answer 68

– The statement has equivalent circumstantial guarantees of trustworthiness
– it is offered as evidence of a material fact
- it is more probative on the point that it is offered for than any other evidence that the proponent could get through reasonable efforts
– admitting it will best serve the purposes of the FRE and the interests of justice