Evidence

Question 1

When do the Federal Rules of Evidence not apply?

Answer 1

1. When determining preliminary questions of fact regarding the admissibility of evidence;
2. Grand jury proceedings;
3. Preliminary examinations in criminal case;
4. Sentencing, probation, and bail hearings;
5. Summary contempt proceedings;
6. For the issuance of warrants & criminal summons; and
7. Extradition or rendition proceedings

FRE 1101(c-d)

Question 2

In regards to evidence, what does the judge decide?

Answer 2

Preliminary questions about the competency of the evidence and whether:

• Evidence is admissible;
• Witnesses are qualified; and
• Privilege exists

FRE 104(a)

⚠️ Note: Except for deciding whether privilege exists, the judge is not bound by the FRE when deciding preliminary questions

Question 3

If a party believes evidence was erroneously admitted, how can the issue be preserved for appeal?

Answer 3

The party must, on the record:

1. Timely object or move to strike; and
2. State the specific ground, unless it was apparent from the context

FRE 103(a)(1)

Question 4

Define

judicial notice

Answer 4

Used by the court to accept certain, indisputable adjudicative facts as true without formal presentation of the evidence.

More Info: Judicial Notice

Question 5

What is the order of a trial?

Answer 5

1. Plaintiff or prosecutor’s opening statement
2. Plaintiff or prosecutor’s case-in-chief
3. Defendant’s case
4. Plaintiff or prosecutor’s rebuttal
5. Defendant’s rejoinder (D’s rebuttal of P’s rebuttal)
6. Closing arguments
7. Instructions given to the jury

In some cases, the Defendant will choose to give an opening statement at the beginning of trial, along with the plaintiff or prosecutor. In that case, the order of the other phases of trial remains the same.

Question 6

What is the scope of cross-examination?

Answer 6

• Subject matter of the direct examination;
• Matters affecting the witness’s credibility; and
• Additional matters if court so allows

⚠️ If questions exceed scope, can make an objection for “beyond the scope of direct”

Question 7

When are leading questions permitted?

Answer 7

1. Cross-examination (no restrictions);
2. Direct examination only if:
   
   • Question is regarding undisputed preliminary matters (e.g. “You were born on April 5, 1989, correct?”)
   • Witness is hostile;
   • Witness is less competent (trouble communicating due to language barrier, age, etc)
   • Witness needs help refreshing their memory (subject to judicial permission)

Question 8

What types of questions are not allowed?

Answer 8

1. Compound questions (requires multiple answers);
2. Assumes facts not in evidence;
3. Calls for conclusion or opinion (that witness is not qualified to make);
4. Repetitive (already answered); and
5. Argumentative (provokes argument instead of factual response)

Question 9

What are common objections to witness questions?

Answer 9

1. Beyond scope of direct;
2. Leading;
3. Assumes facts not in evidence;
4. Argumentative;
5. Compound;
6. Calls for narrative; or
7. Unresponsive (for witness testimony)

Question 10

Define

burden of persuasion

Answer 10

Obligation to present evidence to persuade the fact-finder that the allegations are true.

Does not shift during trial.

Question 11

Define

burden of production

Answer 11

Party’s obligation to establish a prima facie case (i.e. come forward with the evidence necessary to establish each element of the claims alleged)

Can shift during trial.

More info: Burden of Production

Question 12

A rebuttable presumption shifts the burden of _________ to the ______ party, but the burden of _________ remains with the _______ party.

Answer 12

A rebuttable presumption shifts the burden of production to the opposing party, but the burden of persuasion remains with the original party.

Question 13

What is the rule with presumptions in criminal cases?

Answer 13

Permissive presumptions are allowed (i.e. jury can infer, but is not required to do so).

Mandatory presumptions are unconstitutional because the burden of persuasion is shifted to D instead of the prosecution (which is required to prove every element beyond a reasonable doubt).

Ex. In a criminal case for murder, the judge cannot instruct the jury to “presume persons missing for 10 years are dead” because it would conflict with the prosecution’s burden and D’s presumption of innocence.

Question 14

What is a juror prohibited from testifying about after trial?

Answer 14

1. Statements made during the jury’s deliberations;
2. The effect of anything on a juror’s vote; or
3. Any juror’s mental processes concerning the verdict or indictment

FRE 606(b)

Question 15

What is the process for present recollection refreshed?

Answer 15

A witness can be shown a document to refresh his memory if:

1. The witness cannot recall the answer to the question;
2. The witness says that seeing a particular thing will refresh their memory;
   
   • Can use anything to jog their memory: writing, email, receipt, photograph, old shoe
3. After viewing the thing, the witness testifies that their recollection is refreshed

⚠️ Remember, this is not an exception to hearsay, and will generally not be admitted into evidence (unlike past recorded recollection)

Question 16

What is past recollection recorded?

Answer 16

Allows a witness to read a prior writing or record to the jury if the record:

1. Is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;​
2. Was made or adopted by the witness when the matter was fresh in the witness’s memory; and
3. Accurately reflects the witness’s knowledge

⚠️ Remember: This is a hearsay exception and can be admitted into evidence (unlike present recollection refreshed, which is not a hearsay exception and generally cannot be admitted into evidence). It may be received as an exhibit only if offered by an adverse party.

FRE 803(5)

Question 17

What are the main methods of impeachment?

Answer 17

1. Showing prior inconsistent statements;
2. Challenging the witness’s character for truthfulness;
3. Showing prior misconduct;
4. Showing bias; and
5. Showing witness has sensory or mental defect

Question 18

When testifying as to a witness’s reputation for truthfulness, can the witness discuss specific acts by the witness?

Answer 18

No, can only testify about their general opinion of the witness’s truthfulness or reputation in the community

FRE 608(a)

Question 19

Can you introduce extrinsic evidence to prove a prior conviction during felony impeachment of a witness?

Answer 19

Yes

Question 20

Define

extrinsic evidence

Answer 20

Evidence other than the witness’s testimony in the current trial

Question 21

Can an arrest be used to attack character for truthfulness?

Answer 21

No, cannot be used to impeach witness’s character for truthfulness because an arrest is not a conviction. Witness can be asked about underlying conduct, however.

Question 22

What types of prior criminal convictions can be used to impeach a witness?

Answer 22

1. Crimes punishable by death or by imprisonment for more than one year that are less than 10 years old (unless their probative value substantially outweighs its prejudicial effect and other party was given notice and chance to object); and
2. Misdemeanors involving dishonesty and/or false statements

FRE 609

Question 23

When is a felony not involving dishonesty admissible to impeach?

Answer 23

If witness is the criminal D:

• Only admissible if the probative value outweighs its prejudicial effect to D

If the witness is not the criminal D:

• May be admitted unless probative value is substantially outweighed by the prejudicial effect

Question 24

How do you rehabilitate a witness? (i.e. repair the damage)

Answer 24

1. Introduce prior consistent statement to rebut an express or implied charge that the witness’s testimony was recently fabricated or from a recent improper influence or motive (FRE(d)(1)(B));
2. Ask witness to clarify statements on re-direct; or
3. Introduce opinion or reputation testimony if the witness’s character for truthfulness was attacked (FRE 608(a))

⚠️ Can only directly rebut attacks; cannot bolster credibility

Question 25

What is the **Rule 403 balancing test**?

Answer 25

**Relevant** evidence may nonetheless be excluded if 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 ## Footnote [FRE 403](https://www.law.cornell.edu/rules/fre/rule_403)

Question 26

What is the **only** time evidence is admissible **without** the 403 balancing test?

Answer 26

If a witness has been convicted of a **felony or misdemeanor involving dishonesty** and it's less than 10 years old, there is no discretionary balancing test. It will be admitted, *even if it has a serious prejudicial effect.*

Question 27

What is the general rule regarding the admissibility of **character** **evidence** in civil cases?

Answer 27

Evidence of a person’s character or character trait is **not admissible** to prove that on a particular occasion the person acted **in accordance** with the character or trait. It may be offered, however, for a different purpose. ## Footnote [FRE 404(a)(1)](https://www.law.cornell.edu/rules/fre/rule_404)

Question 28

When **character** is an **essential element** of the claim, what type of character evidence is **admissible**?

Answer 28

1. **Reputation** testimony; 2. **Opinion** testimony; and 3. Relevant **specific instances** of that person's conduct ## Footnote [FRE 405](https://www.law.cornell.edu/rules/fre/rule_405) ⚠️ Note: This is one of only a few circumstances in which specific instances/acts may be offered.

Question 29

When can evidence of **D's character** be admitted in a criminal case?

Answer 29

**By the defendant:** * Reputation or opinion evidence of D's own **good character** if trait is **pertinent** to charge (e.g. peacefulness if a murder trial) * ⚠️ Cannot be introduced by specific acts!! **By the prosecution:** * If D has "opened the door" by offering his own character evidence, the prosecution can introduce character evidence to **directly rebut** D's evidence; or * If D has introduced evidence of V's trait under [FRE 404(a)(2)(A)](https://www.law.cornell.edu/rules/fre/rule_404), prosecution can introduce evidence of D's same trait (e.g. "V is violent," "No, you're violent") * ⚠️ Can be introduced by reputation or opinion testimony, and **specific** **acts on cross-examination**. Extrinsic evidence of specific acts is not allowed.

Question 30

When can evidence of V's **character** be admitted in a criminal case?

Answer 30

**By the defendant:** * Reputation or opinion evidence on V's trait if **pertinent to a defense** asserted (e.g. showing V was violent to support first-aggressor claim) **By the prosecution:** * To **directly rebut** D's claim of V's bad character * Homicide cases: can rebut claim D's that V was the **first aggressor** by showing V had **character for peacefulness** (D is not required to "open the door") * Reputation, opinion, and specific acts allowed on cross

Question 31

Are **prior bad acts** admissible to prove D's character and that he acted in conformity therewith?

Answer 31

No, but they may be admissible to show: 1. Motive; 2. Intent; 3. Absence of Mistake; 4. Identity; 5. Knowledge; 6. Opportunity; 7. Preparation 8. Common Plan or Scheme ## Footnote ⚠️ Note: This list is **non-exhaustive**. [FRE 404(b)(2)](https://www.law.cornell.edu/rules/fre/rule_404)

Question 32

Is evidence of **habit** admissible?

Answer 32

Yes, to prove that a person or a business acted in **conformity with the particular habit or custom** on a particular occasion

Question 33

When is evidence of an **offer to settle a claim** admissible?

Answer 33

If the evidence is used to show: 1. A witness’s **bias or prejudice;** 2. **Negating** a **contention of undue delay;** or 3. Proving an **effort to obstruct** a criminal investigation or prosecution ## Footnote [FRE 408](https://www.law.cornell.edu/rules/fre/rule_408)

Question 34

Are **offers to pay medical bills** admissible?

Answer 34

Never to show **liabilty**. However, any separate admissions of liability made **in conjunction** with the offer are admissible. ## Footnote ⚠️ Note: Admissions in conjunction with offers to settle are **not** admissible, only for offers to pay medical bills. [FRE 409](https://www.law.cornell.edu/rules/fre/rule_409)

Question 35

In a criminal case, when is evidence of V's **sexual behavior admissible**?

Answer 35

1. **Specific instances** of V's sexual behavior, to prove that **someone other than D** was the source of **semen**, **injury**, or **other physical evidence**; 2. **Specific instances** of V's past sexual behavior with D, to prove **consent** 3. If omission of the evidence would violate **D's constitutional rights** ## Footnote [FRE 412](https://www.law.cornell.edu/rules/fre/rule_412)

Question 36

What is authentication by **chain of custody**?

Answer 36

Proves that the item in court has **not been materially altered** or **tampered** with. **Every** witness who handled the object must testify and state: 1. When the witness **took custody** of the evidence and **from whom/where;** 2. Precautions taken to **preserve** the evidence; 3. That the item was not **substituted**, nor **tampered with** while in their custody; and 4. When the custody of the item was **relinquished** and **to whom** (e.g. for fingerprint testing)

Question 37

What are **examples of methods** by which evidence can be authenticated?

Answer 37

* Testimony by a **custodian** of the records * Testimony by a person who **prepared** or **created** the document * E.g. the lab technician who created the report * Testimony by a **person who witnessed** the signing of the document * Testimony by an **expert** witness qualified to render an opinion on the issue * E.g. a handwriting expert testifying that the letter was written in the defendant's unique penmanship * Showing the trier of fact a **comparison** of the **unauthenticated** evidence with an **authenticated** specimen ## Footnote [FRE 901](https://www.law.cornell.edu/rules/fre/rule_901)

Question 38

How can a **physical object** be authenticated?

Answer 38

1. **Personal knowledge**: Testimony of a **witness with personal knowledge** that the item is what it's claimed to be; 2. **Distinctive characteristics**: by the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item (e.g. engraved initials on the gun); 3. **Chain of custody** ## Footnote [FRE 901(b)(1)](https://www.law.cornell.edu/rules/fre/rule_901) and [FRE 904(b)(4)](https://www.law.cornell.edu/rules/fre/rule_901)

Question 39

How do you authenticate **x-rays and** other evidence whose accuracy depends on **unseen processes**?

Answer 39

Proponent must: 1. Establish a valid **chain of custody**; 2. Show that the machine was **working properly**; 3. Show that an **accurate process** was used; and 4. The **operator** of the machine was **competent** to operate it

Question 40

What are the three ways to **authenticate handwriting**?

Answer 40

1. Testimony of **lay person** who was **familiar with the handwriting** *before litigation began* * E.g. Mother testifies that she recognizes the handwriting as her son's 2. Comparison by a **qualified expert** *(can use handwriting specimen written in preparation for trial)* 3. Comparison by **trier of fact**: jury can compare side-by-side specimens

Question 41

What are the **only 2 situations** in which the **Best Evidence Rule** applies?

Answer 41

1. **Terms** of the writing are being **proven** (e.g. contents of a will or photo); or 2. **Witness relies** on contents of the original during his/her testimony ## Footnote ⚠️ Be careful: The Best Evidence answer on the MBE is **usually wrong.** Unless it is these 2 scenarios, the original copy is not needed. Also, the Best Evidence Rule only applies to situations where **material terms** are at issue. Be wary of questions where the terms are not material.

Question 42

When are **duplicates** admissible under the Best Evidence rule?

Answer 42

* There is no genuine question as to the **original's** authenticity (FRE 1003); * All originals are **lost** or **destroyed** and **not** by the proponent acting in bad faith (FRE 1004(a)); * Original cannot be obtained by any available **judicial process** (FRE 1004(b)); * Party against whom the original was going to be used **had control** of the original and failed to produce it at trial (FRE 1004(c)); or * Needed to prove the contentS of an **official, certified record** (FRE 1005)

Question 43

Are **lay** (non-expert) **opinions** admissible?

Answer 43

Only if they are based on first-hand knowledge and: 1. Rationally based on the **witness’s perception**; 2. Helpful to clearly **understanding the witness’s testimony** or to **determining a fact in issue**; and 3. Not based on **scientific, technical, or other specialized** knowledge ## Footnote [FRE 701](https://www.law.cornell.edu/rules/fre/rule_701)

Question 44

What are the **requirements** for **expert testimony**?

Answer 44

1. Witness is **qualified** to be an an expert by knowledge, skill, experience, training, or education; 2. Witness's **scientific, technical, or other specialized knowledge** will help the **trier of fact to understand** the **evidence** or to **determine a fact** in issue; 3. Testimony is based on **sufficient facts or data**; 4. Testimony is the product of **reliable principles & methods**; and 5. Expert has **reliably applied the principles** and **methods** to the facts of the case ## Footnote [FRE 702](https://www.law.cornell.edu/rules/fre/rule_702)

Question 45

What are the basic **testimonial privileges**?

Answer 45

1. Attorney/client 2. Psychotherapist/client 3. Spousal 4. Doctor/patient 5. Clergy-penitent (some jurisdictions)

Question 46

What is required for a privilege to apply?

Answer 46

1. Persons in the conversation are in a **protected/privileged** relationship; 2. Communication was **intended to be confidential** (i.e. outside the presence of a third party); 3. **Holder** is asserting the privilege; 4. Privilege was **not waived**; and 5. **No exceptions** apply

Question 47

When is a privilege **waived**?

Answer 47

1. Privilege is **not timely asserted**; 2. Privilege is waived via **contract**; or 3. Holder intentionally tells a **third party** about the communication

Question 48

Under what circumstances does **attorney-client** privilege **not** exist?

Answer 48

If: 1. Communication was sought to faciliate a **crime or fraud;** 2. Lawyer's client is now **deceased** and disclosure is necessary to **effectuate a will;** 3. Communication is necessary for the lawyer to **defend** him/herself; and 4. Lawyer had two **joint clients** who are **now adverse** to one another

Question 49

Under what circumstances does **doctor-patient** privilege **not** apply?

Answer 49

1. Personal injury cases where **patient's condition is at issue**; 2. If the examination or communication was made for the **purpose of litigation;** 3. If the communication was used to faciliate a **crime**; 4. If there is a **dispute** between the doctor and patient (e.g. malpractice); or 5. Patient **waived** the privilege

Question 50

Compare **spousal immunity** and **marital communications** privilege

Answer 50

* **_Spousal immunity_** * Can only be asserted **during** the marriage (terminates upon divorce or annulment) * Can be asserted by the **witness-spouse only** * Can apply to communications **before** marriage * **Crimina**l cases only * **_Marital communications_** * Can be asserted at any time, including **after divorce** or **death** of a spouse * Can be asserted by **either party** * Only covers communications **during** marriage * **Civil and criminal** cases

Question 51

# Define hearsay

Answer 51

Out of court statement offered to prove the truth of the matter asserted. **Inadmissible** unless an exception applies. ## Footnote [FRE 801](https://www.law.cornell.edu/rules/fre/rule_801) ⭐️ Memorize this definition.

Question 52

What is considered a **statement** for **hearsay** purposes?

Answer 52

* **Oral assertion**; * **Written assertion**; or * **Nonverbal conduct/gestures**, if the person intended it as an assertion (e.g. shaking your head "yes") ## Footnote [FRE 801](https://www.law.cornell.edu/rules/fre/rule_801)

Question 53

What type of statements **do not** constitute "offering to prove the truth of the matter asserted," and thus are considered **_non_**hearsay?

Answer 53

1. Statements that have independent **legal significance** (e.g. tortious words, defamation, transactional words ("I accept the offer"); 2. Statements to prove the **state of mind** of the declarant or the listener; 3. Statements to show the **effect on the listener** (e.g. to show D saying "I'm going to kill you" frightened P); 4. Statements offered for solely for **impeachment** ## Footnote ⚠️ Be careful: Some statements are admissible because they are **non**hearsay. Some statements are admissible because they *are* hearsay and qualify under an **exception**.

Question 54

Are statements by an **opposing party** admissible as **nonhearsay**?

Answer 54

Yes, out-of-court statements made by a party to the litigation are **always admissible as nonhearsay** when offered by the opposing party. ## Footnote Ex. Max is suing Ian for negligence. All of Ian's and Max's out-of-court statements are admissible.

Question 55

What type of **declarant-witness** statements (that would otherwise be hearsay) are considered **_non_**hearsay according to the FRE?

Answer 55

1. Prior **sworn inconsistent** statements; 2. Prior **consistent** statement; and 3. Prior **identification** ## Footnote ⚠️ Remember: **These are not hearsay exceptions.** They are considered **_non_**hearsay, or "hearsay exemptions." [FRE 801(d)(1)](https://www.law.cornell.edu/rules/fre/rule_801)

Question 56

Name the **3 types of prior statements** that are considered **nonhearsay**. What is **required** to admit them?

Answer 56

1. Prior sworn inconsistent statements; 2. Prior consistent statements; and 3. Prior statements of identification In order to be admissible, the **declarant must**: 1. **Testify** at the present trial; and 2. Be **subject** to **cross-examination** ## Footnote ⚠️ Be extremely careful about fact patterns with prior statements when the declarant is not available to testify. Unless the declarant is currently testifying, the statements will be inadmissible.

Question 57

When is a **prior *inconsistent* statement** admissible as both ***substantive*** evidence AND evidence to **impeach?**

Answer 57

If: 1. The declarant is available to **testify** and subject to **cross-examination**; and 2. The prior inconsistent statement was a **sworn** statement under penalty of perjury at a **prior** **trial, hearing, deposition, or other legal proceeding** ## Footnote ⚠️ Note: If the statement was not made under oath, it **cannot** be admitted for substantive evidence. Only for impeachment purposes. This is tricky, so watch out. [FRE 801(d)(1)(A)](https://www.law.cornell.edu/rules/fre/rule_801)

Question 58

When is a **prior *inconsistent* statement** only admissible to **impeach**? (and not as substantive evidence)

Answer 58

If the statement was **not made under oath**, it will only be allowed to impeach. If the statement was made under oath, it is admissible to impeach **and** as substantive evidence.

Question 59

When is a **prior *consistent* statement** admissible as **nonhearsay?**

Answer 59

If: 1. Declarant is a **currently testifying witness** and subject to **cross-examination**; and either: 2. Statement is offered to **rebut charge** that declarant recently **fabricated** testimony or was subject to **undue influence** or **motive**; or 3. Statement is to **rehabilitate** the declarant's **credibility** as a witness when attacked on another ground ## Footnote [FRE 801(d)(1)](https://www.law.cornell.edu/rules/fre/rule_801)

Question 60

When is a **prior identification** admissible as **nonhearsay?**

Answer 60

Admissible as **substantive** evidence if: 1. Declarant is a **currently testifying witness** and subject to **cross-examination**; and 2. Witness **identified the person prior** to trial (e.g. in a lineup) ## Footnote [FRE 801(d)(1)(C)](https://www.law.cornell.edu/rules/fre/rule_801)

Question 61

What is the hearsay exception for **present sense impressions**?

Answer 61

Statement is admissible if: 1. It **describes** or **explains** an event; and 2. Made **during** the event or **immediately** afterwards ## Footnote Ex. "A red car is driving next to us" [FRE 803(1)](https://www.law.cornell.edu/rules/fre/rule_803)

Question 62

What is the hearsay exception for **excited utterances**?

Answer 62

Statement is admissible if it: 1. Relates to a **startling event** or **condition**; and 2. Was made while the declarant was **under the stress of excitement** that it caused ## Footnote Ex. "Oh my gosh, look, the house across the street is on fire!!" [FRE 803(2)](https://www.law.cornell.edu/rules/fre/rule_803)

Question 63

What is the hearsay exception for statements made for **purpose of medical diagnosis** **or treatment**?

Answer 63

Statement is admissible if it: 1. Was made to **medical personnel** (doctors, nurses, anyone involved in treatment); 2. Was **made for** - and is **pertinent** to - **medical diagnosis or treatment** (e.g. describes medical history; past or present symptoms or sensations; their inception; or their general cause) ## Footnote [FRE 803(4)](https://www.law.cornell.edu/rules/fre/rule_803)

Question 64

What are the rights of an **adverse party** when **past recollection recorded** is used?

Answer 64

1. Inspect the writing; 2. Cross-examine with it; 3. Show it to the jury for comparison; and 4. Introduce relevant portions into evidence for its truth

Question 65

What is the hearsay exception for **past recollection recorded**?

Answer 65

Recorded recollection is admissible if: 1. The record is on a matter that the witness **once knew** about but **cannot recall well enough to testify on;** 2. The record was made or adopted by the witness when the matter was **fresh in the witness’s memory**; and 3. The record **accurately reflects** the witness’s knowledge If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party. ## Footnote [FRE 803(5)](https://www.law.cornell.edu/rules/fre/rule_803)

Question 66

What is the hearsay exception for **business records?**

Answer 66

A record of an act, event, condition, opinion, or diagnosis is admissible if: 1. The record was made in the **regular course of business**; 2. The record was made "**at or near the time**" of the matter recorded; 3. Record was made by an **employee o**f the business **with knowledge** of the matter recorded ## Footnote [FRE 101(b)(4); 803(6)(A)–(C)](https://www.law.cornell.edu/rules/fre/rule_803)

Question 67

What are the hearsay **exceptions** if the declarant is **unavailable**?

Answer 67

1. Former testimony; 2. Statement against interest; 3. Dying declaration; 4. Statement of personal or family history; and 5. Statements against party that caused declarant to be unavailable

Question 68

When does the hearsay exception for **former testimony** apply?

Answer 68

Former testimony is admissible if: 1. Declarant is **unavailable**; 2. Testimony was given under oath **as a witness** at a trial, hearing, or lawful deposition (either the current one or a different one); and 3. The party against whom the testimony is being offered had an **opportunity** and **similar motive** to develop the testimony by direct, cross-, or redirect examination (i.e. the prior cross-examination is a reasonable substitute for cross-examination in the current case) ## Footnote [FRE 804(b)(1)](https://www.law.cornell.edu/rules/fre/rule_804)

Question 69

When does the exception for **dying declarations** apply?

Answer 69

1. The proceeding is either a **homicide** case or **civil** case; and 2. Declarant is **unavailable**; 3. Declarant believed **death was imminent**; and 4. Statement was about the **cause or circumstances** surrounding the declarant's imminent death ## Footnote ⚠️ Note: The declarant does not need to be dead, only unavailable. [FRE 804(b)(2)](https://www.law.cornell.edu/rules/fre/rule_804)

Question 70

When does the exception for a **statement against interest** apply?

Answer 70

1. Declarant is **unavailable**; 2. Statement is **against** the declarant’s **proprietary** or **pecuniary interest** or would expose the declarant to **civil** or **criminal liability**; and 3. A **reasonable person** in the declarant’s position **would not** **have made the statement** unless she believed it to be true _And, if it is a criminal case or the statement exposes declarant to criminal liability:_ 4. Statement must be supported by **corroborating circumstances** that clearly indicate its **trustworthiness** ## Footnote [FRE 804(b)(3)](https://www.law.cornell.edu/rules/fre/rule_804)

Question 71

What is the difference between an **opposing party statement** and a **statement against interest**?

Answer 71

Opposing party statement: * Must be made by an **opposing party** in the suit * Does not need to be against party's interest * Declarant does not need to be unavailable Statement against interest: * Can be made by **anyone** * Must be **against party's interest** (e.g. "It was me who killed her") * Declarant must be **unavailable** ## Footnote ⭐️ Essentially, remember this, *a statement against interest can never be made by a party opponent.* Why? Because party opponents must be available and present at trial, otherwise it would violate their constitutional right to confrontation.

Question 72

When does the hearsay exception for **statement** **of personal or family history** apply?

Answer 72

1. Declarant is **unavailable**; and 2. Statement is regarding the **declarant's own** birth, adoption, legitimacy, ancestry, marriage, divorce, or other familial relationship; or 3. Statement concerns another person's family history and the declarant is **so intimately associated** with the person’s family that the declarant’s information is **likely to be accurate** ## Footnote [FRE 804(b)(4)](https://www.law.cornell.edu/rules/fre/rule_804)

Question 73

What is the **residual hearsay exception**?

Answer 73

A hearsay statement that is not covered under FRE 803 or 804 may be admissible if: 1. Statement has **equivalent circumstantial guarantees of trustworthiness**; 2. It is offered as evidence of a **material fact**; 3. It is **more probative** on the point for which it is offered **than any other evidence** that the proponent can reasonably obtain; and 4. Admitting it will best serve the purposes of the **FRE** and the **interests of justice** ## Footnote [FRE 807](https://www.law.cornell.edu/rules/fre/rule_807)

Question 74

What is the importance of the **Confrontation Clause** (in an evidentiary context)?

Answer 74

Provides that **testimonial hearsay** against a criminal D who has **not had the opportunity to cross-examine** the declarant, violates D's 6^th Amendment right to "confront the witnesses against him."

Question 75

What is **testimonial evidence** in the context of the Confrontation Clause?

Answer 75

1. Prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and 2. Police interrogations (unless during an emergency) ## Footnote See [*Crawford v. Washington*](https://www.oyez.org/cases/2003/02-9410)

Question 76

When can testimonial evidence be admitted **without violating** the Confrontation Clause?

Answer 76

1. Declarant is unavailable; and 2. Criminal D had a prior opportunity to cross-examine the declarant ## Footnote ⚠️ Remember: A criminal D forfeits this right if they cause the unavailability of the declarant **with the intent** to prevent them from testifying. See [*Giles v. California*](https://www.oyez.org/cases/2007/07-6053)

Question 77

Can hearsay within hearsay ("**double hearsay**") be admitted?

Answer 77

Yes, as long as **each** hearsay statement is admitted under a hearsay exception