Evidence

Question 1

Rule for present sense impression

Answer 1

A present sense impression, an exception to the hearsay rule, is a statement describing or explaining an event or condition made while perceiving or immediately after an event. A few minutes pause is within the period contemplated by this exception.

Question 2

Rule for excited utterance

Answer 2

An excited utterance, an exception to the hearsay rule, is a statement relating to a startling event made while the declarant is still under the stress of excitement that is caused.

Question 3

Rule for Confrontation Clause

Answer 3

The Sixth Amendment gives defendants the right to confront witnesses against them.

Question 4

Rule for Confrontation Clause on hearsay

Answer 4

The Sixth Amendment gives defendants the right to confront witnesses against them. The use of an out of court statement violates the defendant’s Sixth Amendment rights, even if the statement falls within a hearsay exception, if

1) the statement was testimonial;
2) the witness who made the statement is unavailable to testify at trial; and
3) the defendant has not had an opportunity to cross-examine the witness before trial.

Question 5

Rule for when a statement is “Testimonial”

Answer 5

A statement is testimonial if, viewed objectively, the primary purpose of the statement was to create an out of court substitute for trial testimony.

Statements made to police officers in the course of an investigation are often testimonial.

Question 6

Rule for testimonial v. ongoing emergency

Answer 6

Statements made to police to assist in the investigation and prosecution are testimonial, however, statements to police to meet an ongoing emergency are nontestimonial.

Factors to determine the existence of an ongoing emergency are:

• the nature of the dispute,
• the scope of potential harm,
• generalized threat to the public,
• suspects weapon,
• whether the suspect remains at large.

Question 7

Rule for out of court statement of identification

Answer 7

A statement is not hearsay when the declarant testifies and is subject to cross-examination about a prior statement identifying a person.

Question 8

Rule for identification by voice and lay witness identification

Answer 8

Identifying a person after hearing the person’s voice qualifies as a statement of identification. Lay witness voice identification is typically admissible unless there is a taint of impermissive suggestion.

Question 9

Basic rule for Character evidence

Answer 9

Evidence of a person’s character is not admissible to prove that on a particular occasion the person acted in accordance with that character or trait. However, such evidence may be admissible to prove Motive, Identity, absence of Mistake, Intent, Common scheme or plan.

Question 10

Rule for Miranda

Answer 10

Miranda protects against self-incrimination by compelled communication or testimony. Miranda warnings are required only when a suspect is in custody and under interrogation.

Question 11

Rule for “custody” for Miranda purposes

Answer 11

For Miranda purposes, custody can be established if a reasonable person under similar circumstances would believe that she was in custody.

Question 12

Rule for Hearsay

Answer 12

Hearsay is a statement made by the declarant, other than while testifying at the current trial, to prove the truth of the matter asserted. Hearsay is inadmissible unless admissible under another rule.

Question 13

Rule for recorded recollection

Answer 13

A recorded recollection is a record that in made while the matter was fresh on the witness’s memory. If the witness can authenticate the record, it may be read to the jury as an admissible exception to the hearsay rule, but may not be admitted as an exhibit unless under another rule or by an opposing party.

Question 14

Rule for “refreshing witness’s recollection”

Answer 14

If a witness testifies to lack of memory, the FRE permits the use of almost anything to refresh a witness’s recollection. The witness must read it to himself. It is improper to read aloud to the jury and it may be admitted only if offered by an opposing party.

Question 15

Rule for Impeachment

Answer 15

Under the FRE, a witness’s credibility may be attacked to impeach the witness by

1) specific instance of conduct / bad acts
2) prior inconsistent statements
3) bias and interest
4) conviction of a crime
5) reputation or opinion for truthfulness
6) sensory defects
7) contradiction.

Question 16

Rule for impeachment by Specific Instances of Conduct /Bad Acts & Extrinsic evidence to support attack

Answer 16

A witness’s credibility may be attacked on cross-examination by questioning him with specific instances of conduct ONLY if the conduct is probative of the witness’s character for truthfulness or untruthfulness.

Extrinsic evidence is not permitted to support the attack.

Question 17

Rule for IMPEACHMENT by prior inconsistent statements & extrinsic evidence

Answer 17

Prior inconsistent statements are admissible to impeach a witness at trial.

Extrinsic evidence is admissible if it is relevant to a material issue (other than credibility) AND the witness is given the opportunity to explain or deny the statement AND the adverse party is given an opportunity to examine the witness about it. [these limits do NOT apply to extrinsic evidence offered against an opposing party]

Question 18

Rule for impeachment by bias and interest

Answer 18

A witness may be asked about a bias or interest.

If the witness denies the bias or interest, extrinsic evidence may be permitted.

Question 19

Rule for impeachment by prior conviction of a crime

Answer 19

A witness’s prior convictions may be admitted to attack a witness’s character for truthfulness if

• a prior felony (unless 10 years passed since conviction or release or the probative value substantially outweighs the prejudicial effect and the proponent gives reasonable notice)
• prior misdemeanor involving dishonesty

Question 20

Rule for impeachment by reputation or opinion for truthfulness

Answer 20

A witness’s credibility may be attacked or supported by reputation about the witness’s truthfulness in the community or opinion testimony about the witness’s character for truthfulness.

Question 21

Rule for impeachment by sensory defects

Answer 21

A witness’s ability to remember, observe, or relate facts accurately may be attacked on impeachment.

Evidence of memory loss is relevant because it has a tendency to suggest the witness’s testimony is less reliable.

Question 22

Rule for impeachment by contradiction

Answer 22

Under the FRE, if a witness made a mistake or lied during direct examination, the witness may be contradicted.

Extrinsic evidence is admissible to impeach the witness if she does not admit her mistake or lie.

Question 23

Rule for relevancy

Answer 23

Evidence is relevant if it has any tendency to make a fact of consequence more or less probable than without the evidence. Relevant evidence is admissible, unless inadmissible pursuant to another rule.

Question 24

Rule for extrinsic evidence for a witness’s truthfulness

Answer 24

Extrinsic evidence to impeach a witness’s character for truthfulness is inadmissible. Admission into evidence of a document containing the falsehood might violate the extrinsic evidence rule, but questioning the witness about such a document does not.

Question 25

Rule for standard of review for alleged error in an evidentiary rule

Answer 25

The standard of review regarding an alleged error in evidentiary ruling is abuse of discretion.

Question 26

Rule for suspect’s post-Miranda communication

Answer 26

If a custodial suspect who has invoked a right to counsel initiates post-invocation communication, the suspect’s subsequent statements may be admissible.

Question 27

Rule for Miranda after suspect’s release

Answer 27

If a suspect has been released from interrogative custody, the Miranda right to counsel terminates after 14 days. After that time, fresh Miranda warnings are required for custodial interrogation.

Question 28

Rule for SUBSTANTIVE use of prior inconsistent statement

Answer 28

Under the FRE, certain prior inconsistent statements are not hearsay and are admissible to prove the truth of the matter asserted if the prior statement was made under oath, subject to the penalty of perjury at a trial or other proceeding. [if the witness’s statement does not meet this rule, it may be still be used to impeach.]

Question 29

Rule for business records exception

Answer 29

A business record is a record of an act made at or near the time by someone with knowledge and the record was kept in the course of a regularly conducted business activity.

Question 30

Rule for hearsay for non-verbal conduct

Answer 30

Hearsay is defined to include a person’s oral or written assertion and nonverbal conduct if the person intended it as an assertion.

Question 31

Rule for habit evidence

Answer 31

Habit evidence is admissible to prove that a person acted in conformity with that habit, even if the only evidence is the person’s testimony about their own habit.

Question 32

Rule for evidence of stipulated facts

Answer 32

Evidence to stipulated facts do not prove any disputed fact and are a “waste of time.”

Question 33

Rule for offer to settle or compromise

Answer 33

Evidence to settle or compromise a disputed claim is inadmissible. [discuss when the claim became disputes and when the offer/statement was made.