Evidence

Question 1

What are the hearsay exclusions?

Answer 1

(1) prior statements of a testifying witness; and (2) statement made by party-opponent

Question 2

Former Testimony Hearsay Exception:

Answer 2

(1) testimony made under oath at current or different proceeding; (2) declarant is now unavailable to testify; and (3) party against who testimony is now offered had a chance and similar motive to develop the testimony by direct, cross, or redirect examination

Question 3

Statement Against Interest Hearsay exception:

Answer 3

(1) declarant unavailable; (2) statement was against declarant’s pecuniary, proprietary, or penal interest when made; (3) such that a reasonable person wouldn’t make it unless they believed the statement was true

Question 4

Dying Declarations

Answer 4

Admissible in a homicide or civil case if (1) declarant is unavailable; (2) statement is about cause or circumstances surrounding impending death; and (3) declarant believed death was imminent

Question 5

Excited Utterance Hearsay Exception

Answer 5

(1) out of court statement related to startling event; (2) statement made under stress of the exciting event is admissible

Question 6

Present sense impression Hearsay Exception:

Answer 6

(1) describes or explains an event; (2) made immediately after or while declarant perceives the event

Question 7

Present State of Mind Hearsay Exception:

Answer 7

statement of declarant’s then existing state of mind is admissible (Includes motive, intent, emotional, sensory, or physical condition)

Question 8

Business Records Hearsay Exception:

Answer 8

(1) business record; (2) made as a record of any act, event, condition, opinion; (3) so long as the entry is one made in the regular course of business

Question 9

Is a prior civil judgment admissible as an exception to hearsay in a subsequent criminal proceeding?

Answer 9

No

Question 10

Is a prior criminal conviction admissible in a subsequent criminal or civil proceeding?

Answer 10

• Yes, if it is a felony conviction it is a hearsay exception to prove any fact essential to the judgment
• In criminal cases, the prosecution can only use prior felony convictions to prove the underlying crime occurred against the defendant

Question 11

During the presentation of evidence:

Answer 11

The trial judge has broad discretion to control mode and order of examining witnesses and presenting evidence

Question 12

When may an agent’s statement be introduced against the principal by an opposing party?

Answer 12

• admission was made within the scope of the agency;

- the statement was made during the existence of an agency relationship

Question 13

Evidence of a person’s other crimes, wrongs, or acts is….

Answer 13

generally inadmissible if offered to prove propensity, BUT is admissible if relevant to some other non-character purpose such as showing MIMIC (motive, intent, mistake (absence of), identity, or common plan).

Question 14

What is the rule for present recollection refreshed?

Answer 14

When a witness on the stand cannot remember what he is testifying, he may be allowed to review a recording (writing, pic, other doc) regarding the subject matter of his testimony to jog his memory; the document used does not itself need to be admissible because it is not being introduced into evidence

Question 15

Statement against interest hearsay exception:

Answer 15

(1) declarant is unavailable to testify; (2) statement was against declarant’s penal/ pecuniary interest when made
(i. e. statement implicating yourself in a conspiracy)

Question 16

When does a co-conspirator’s statement qualify as a vicarious statement of an opposing party?

Answer 16

If made in furtherance of the conspiracy, by a participant of the conspiracy

(i.e. the statement cannot be made to thwart the conspiracy)

Question 17

Subsequent remedial measures:

Answer 17

• Policy exclusion
• inadmissible to prove negligence, culpability, defect, or inadequate instruction
• may be admissible to show control/ ownership if disputed, rebut a claim that precaution wasn’t feasible, or proving the other party destroyed evidence

Question 18

Civil settlements policy exclusion rules:

Answer 18

• evidence of offer to settle + conduct and statements made in course of settlement is inadmissible to prove/ disprove a validity of a claim or impeach by prior inconsistent statement
• there must be an actual claim or indication that a claim would be filed and a dispute of liability or amount

Question 19

Plea Discussion Policy Exclusion:

Answer 19

-offers to plead guilty;
-withdrawn guilty plea;
-nolo contendere; or
-statements of fact made during plea discussion=
generally not admissible against defendant who made the pleas

Question 20

Payments and offers to pay medical expenses:

Answer 20

• inadmissible to prove culpability

- admissions accompanying offers are admissible

Question 21

How can a criminal defendant prove character?

Answer 21

(1) reputation; or (2) opinion testimony of defendant’s pertinent trait
(i. e. trait for peacefulness in a violent crime or honest in fraud)

Question 22

Once a criminal defendant opens the door to character evidence, what are the state’s options?

Answer 22

(1) cross examine defendant’s witness; or
(2) call its own reputation/ opinion witness to testify about defendant’s bad character for the trait at issue (i.e. defendant is violent or a liar)

Question 23

When is MIMIC evidence admissible?

Answer 23

the defendant is contesting the non-character issue

Question 24

What are testimonial statements?

Answer 24

statement made during the course of police interrogation; as long as the interrogation is for the purpose of investigating a completed crime

Question 25

When is a hearsay statement inadmissible under the confrontation clause (EVEN IF A HEARSAY EXCEPTION APPLIES):

Answer 25

(1) offered against a criminal defendant; (2) declarant is unavailable; (3) statement is testimonial; and (4) the defendant had no chance to cross examine the declarant’s testimonial statement before trial

Question 26

What are the elements of the learned treatise hearsay exception?:

Answer 26

(1) called to the attention of an expert on cross or relied upon during expert’s direct examination; (2) established as authority by the witness, by other experts, or upon judicial notice by the court
- exception allows statements from the document to be read into evidence, but publication isn’t received as an exhibit

Question 27

Do party’s have a right to exclude witnesses from hearing the testimony of other witnesses?

Answer 27

Yes, if a party requests that a witness be sequestered, the court must honor the request; judge has no discretion to deny the request; if the request is denied this is error

Question 28

What documents are considered self authenticating?

Answer 28

• (1) printed newspapers/ periodicals; (2) trade signs, tags, or labels; or (3) official publications purporting to be issued by public authority
• because the documents are self authenticating they are not required to be supported by testimony

Question 29

When is a statement by an opposing party made by an employee admissible against the employer?

Answer 29

if it concerns any matter within the scope of employment and was made during the course of the employment

Question 30

Past recollection recorded hearsay exception:

Answer 30

(1) witness’s memory cannot be revived; (2) can introduce record wtiness made/ adopted at or near the time of the event; (3) record can be introduced into evidence if proper foundation is laid

Question 31

The prior testimony hearsay exception applies when:

Answer 31

(1) witness is now unavailable; and (2) was given at trial/ depo in another proceeding where the parties and issues were sufficiently similar so that the opportunity to develop testimony/ cross examine at the prior hearing was meaningful