Evidence

Question 1

Statements by Opposing Party (Admissions by Party-Opponent)

Answer 1

• non-hearsay
• no personal knowledge required
• must be attributable to the party and offered against the party
• does not have to be against the party’s interest when it was made
• may be in the form of an opinion - just has to do with one of the relevant facts of the case
• does not matter if the party is a testifying witness

Question 2

Adoptive Statements of an Opposing Party (silence in the face of an accusatory statement)

Answer 2

(i) the party must have heard and understood the statement
(ii) the party must have been physically and mentally capable of denying the statement
(iii) a reasonable person would have denied the accusation under the same circumstances

does not apply when you fail to respond to an accusation or statement by the police - does not constitute an implied admission of the criminal act

Question 3

Vicarious Statement of an Opposing Party

Answer 3

• co-conspirator
• authorized spokesperson
• partners
• principal-agent

Question 4

Non-verbal conduct intended as an assertion

Answer 4

•a nod (can be hearsay; but often it constitutes a statement of a party-opponent which is not hearsay)

Question 5

Hearsay

Answer 5

• a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to assert the truth of the matter asserted.

Question 6

Vicarious Statement of an Opposing Party: Employer-employee

Answer 6

An employer may be held liable for statements made by an employee where:

(i) the statement was made while the person was employed by the employer (not before or after)
(ii) statement related to the employment

Question 7

Prior Inconsistent Statement - Extrinsic Evidence

Answer 7

• must be related to the case
• must cast doubt on the witness’s credibility
• witness must be given an opportunity to explain or deny her statement at some point during the trial
• adverse party must be given the opportunity to examine the witness about the statement

Question 8

Prior Inconsistent Statement from a Deposition

Answer 8

• non-hearsay made under penalty of perjury (under oath at a prior trial or proceeding, or in a
deposition)
• just has to be testifying and subject to cross-examination
• can be used to impeach, and as substantive evidence

Question 9

Prior Inconsistent Statement - Generally

Answer 9

• a prior inconsistent statement considered non-hearsay when the declarant is (i) now testifying at trial and subject to cross-examination and (ii) made under the penalty of perjury at a prior hearing, trial, or other proceeding, or in a deposition
• must not be a collateral matter
• no foundation requirement for a hearsay declarant
• first question the witness, then offer extrinsic evidence if the witness denies/fails to remember

Question 10

Spousal Immunity

Answer 10

• lasts during the marriage and terminates upon divorce/annulment
• if a marriage exists, the privilege can be asserted even as to matters that took place before the marriage
• not held by spouses jointly
• witness spouse asserts it
• can only be invoked in criminal cases

Question 11

Marital Communications Privilege

Answer 11

• communication must be made during the marriage
• does not have to be just spoken conduct, any conduct intended as communication
• both spouses hold the privilege
• applies to civil and criminal cases
• does not apply to communications made before the marriage
• spouse does not have to be a party
• can refuse to disclose the communication or prevent another from disclosing, a confidential communication made between the spouses while they were husband and wife
• divorce will not terminate the privilege retroactively, but does not apply to communications after the divorce
• known presence of a stranger destroys it
• must be made in reliance upon the intimacy of marriage