Evidence Flashcards

Question

\*\* Character evidence - criminal case

Answer 1

Although character evidence is generally inadmissible to prove a person acted in conformity with a particular trait, a criminal defendant may introduce eivdence of a relevant character trait to show his innocence - Opinion / reputation

Answer 2

HEARSAY exception; a statement made by a now-UNAVAILABLE declarant while believing her death was imminent that concerns the CAUSE or circumstances of what she believed to be her impending death is admissible. - Need not actually die as a result of the circumstances giving rise to her belief of imminent death - FRE: allows in both CIVIL cases and HOMICIDE prosecutions - TRADITIONAL: just HOMICIDE, and declarant must have DIED. Attempted homicide ≠ sufficient) \*\* Victim must have FIRST HAND KNOWLEDGE that the defendant was responsible for their injury. Cannot be a mere SUSPICION about the cause of impending death \*\* N/A to ATTEMPTED homicide / attempts! Or other crimes

Answer 3

Sometimes a failed dying declaration is an excited utterance - Defendant was available - Had some home of surviving

Answer 4

(C) is correct. Under Federal Rule of Civil Procedure 51(d)(2), a court may consider a plain error in the jury instructions that has not been preserved by an objection if the error affects a substantial right. This represents the only method to have the jury instruction reviewed. (A) is an incorrect statement of the law. Objection and preservation of the objection at trial is required. (B) is incorrect. Federal Rule of Civil Procedure 51 requires a proper objection on the record to preserve an objection to a jury instruction. Here, there was no objection on the record. (D) is an incorrect factual statement. Rule 51 specifically requires an objection on the record.

Answer 5

Method of impeachment; can be brought up on CROSS. - NO EXTRINSIC evidence

Answer 6

HEARSAY exception; under the excited utterance exception, a declaration made by a declarant during or soon after a startling event is admissible if - 1. It RELATES to the startling occurrence and 2. Was made under the STRESS of excitement produced by the startling event

Answer 7

Often overlap, analyze both! Excited utterance: 1. Statement must RELATE to a startling event 2. Statement must be made while still under the STRESS of excitement from the event Present sense impression: 1. Statement must DESCRIBE/explain an event/condition 2. Statement must be made while or immediately after perceiving the event (strict)

Answer 8

## Footnote (A) is correct. The Fourth Amendment prohibits unreasonable searches and seizures. As a general rule, warrantless searches and seizures in constitutionally protected areas are per se unreasonable absent an exception to the warrant requirement. Exigent circumstances are one such exception. If exigent circumstances exist, such as imminent destruction of evidence, the police may enter constitutionally protected premises without a warrant and seize the evidence to prevent its destruction. And this is true even if the exigency was created by the police-so long as it was not created in actual or threatened violation of the Fourth Amendment. Here, the exigency (the sounds of yelling and toilet flushing after police officers knocked on the door and asked for entry, suggesting that drugs were being destroyed) did not arise through a violation or threatened violation of the Fourth Amendment. Police officers may knock on a door to ask questions just like any member of society can-no warrant is required. Therefore, the officers could lawfully enter the motel room. For those reasons, (C) and (D) are incorrect. (B) is incorrect because the motel manager did not have actual or apparent authority to consent to the search of the occupied room. Overnight guests of a motel have a reasonable expectation of privacy in their room, which functions like a temporary residence. The officers could not reasonably assume the manager could authorize their entrance while the room was being occupied. In this case, the legal exception to the warrantless entry is the exigent circumstances, not consent.

Answer 9

1. Is it hearsay? 2. Does it meet an exception? 3. Does it violate the Confrontation Clause?

Answer 10

Can be AVAILABLE - 1. Present sense 2. Excited utterance 3. Current mental physical condition 4. Medical diagnosis 5. Recorded recollection 6. Business records UNAVAILABLE AT TRIAL - 7. Former testimony 8. Dying declaration 9. Statements against interest 10. Statement of personal/family history 11. Statement offered against party procuring declarant's unavailability (forfeiture by wrongdoing)

Answer 11

Generally, when a hearsay statement is admitted into evidence, the other party can impeach the CREDIBILITY of the DECLARANT with evidence that would be admissible had the declarant testified

Answer 12

HEARSAY exception; the testimony of a now UNAVAILABLE witness given at another HEARING is admissible in a subsequent trial as long as there is a sufficient SIMILARITY of PARTIES and ISSUES so that the opportunity to develop testimony or cross-examine at the prior hearing was meaningful. 1. ISSUES: the former testimony is admissible upon any trial of the same SUBJECT matter 2. PARTIES - The PARTY against whom the former testimony is offered must have had the opportunity to develop the testimony at the prior proceeding by direct, cross-, or redirect examination of the declarant. - The party against whom the testimony is offered or, in civil cases, the party's predecessor in interest (privity relationship) must have been a PARTY in the FORMER action - GRAND JURY testimony of an unavailable declarant is INADMISSIBLE as former testimony against the accused at trial. This is because grand jury proceedings do not provide the opportunity for cross-examination.

Answer 13

Appropriate when a fact is INDISPUTABLE or can be VERIFIED through scientific principles. 1. Facts that are not subject to reasonable dispute because they are GENERALLY KNOWN within the territorial jurisdiction of the trial court. - Facts need not be known everywhere as long as they are known in the community where the court is sitting - Need not actually reference verifying materials to judicially notice - Can take notice at any time, whether or not requested by a party, regardless of whether a criminal or civil case is involved 2. Facts that are not generally known and accepted but are easily VERIFIED by resorting to easily accessible, well-established sources (i.e., facts capable of certain verification) \*\* Civil: conclusively established. \*\* Criminal: jury MAY take judicial notice fact as conclusive. Prosecutor's burden of production presumptively met. \*\* Judicial notice may not be taken of a fact solely because it is personally known by the judge. Most state courts will not take judicial notice of the law of a foreign country.

Answer 14

1. Prior inconsistent statement 2. Bias/motive to misrepresent 3. Prior conviction 4. Specific acts of misconduct that bear on truthfulness, untruthfulness 5. Bad reputation in community for truth / veracity

Answer 15

Confidential marital COMMUNICATION (not something observed, etc.) made between spouses, during marriage - Policy: preserve the intimacy and confidence of the marital relationship - Available in CIVIL and CRIMINAL cases - Does not apply before marriage, but does endure AFTER death/divorce. - BOTH spouses are holders; ONE can render the OTHER incompetent from testimony!

Answer 16

1. Don't meet definition of hearsay - Verbal act - Declarant's insanity/knowledge - Impeachment - Impact on listener/reader 2. Hearsay EXCLUSIONS - Statements of OPPOSING PARTY - Certain statements by testifying witnesses subject to cross - Prior INCONSISTENT statements made under OATH - Prior ID's - Prior CONSISTENT statements that REHABILITATE

Answer 17

HEARSAY exception; a present sense impression is a statement that describes or explains an event or condition, and is made WHILE or IMMEDIATELY AFTER the declarant PERCEIVES the event or condition

Answer 18

A witness may be IMPEACHED on cross-examination with a prior act of misconduct that is PROBATIVE of TRUTHFULNESS even if the misconduct did NOT result in a conviction. - Within the discretion of the court - The cross-examiner must act in good faith with some reasonable basis for believing that the witness may have committed the bad act inquired about \*\* Federal Rule 608(b) permits cross-examination concerning prior bad acts if, in the discretion of the court, they are probative of truthfulness

Answer 19

NON-HEARSAY; prior identifications are admissible but person who MADE prior ID must be PRESENT at trial and SUBJECT TO CROSS - Sketch artist - Picking someone out of a police lineup

Answer 20

May testify to facts known to him or made known to him at or before trial. - Does not need to be a hypothetical question

Answer 21

## Footnote The scope of cross-examination is generally limited to: (i) matters brought up on direct examination; and (ii) matters concerning the witness's credibility (i.e., impeachment).

Answer 22

If probative of truthfulness, can be used for impeachment

Answer 23

Protects adverse TESTIMONY based on knowledge made before or during marriage, so long as witness spouse and party spouse are STILL MARRIED at the time of trial (lost on divorce/death) - Policy: preserve the harmony of the marriage - Available CRIMINAL cases only. - WITNESS-SPOUSE is the holder. Cannot be COMPELLED to testify against other spouse, but one spouse MAY testify against the other, with or without the consent of the party-spouse (except as to confidential marital communications)

Answer 24

HEARSAY exception, requires UNAVAILABILITY! Statements of a person, now unavailable as a witness, against that person's PECUNIARY, PROPRIETARY, or PENAL interest WHEN MADE are admissible - Rationale: people are unlikely to lie against their own interests - Need not be a party to the litigation for statement to qualify as a statement against interest - Pecuniary includes opening oneself up to liability for monetary damages - Declarant must have had PERSONAL KNOWLEDGE of the facts

Answer 25

NON-HEARSAY; aka ADMISSION, may be introduced by an opponent, and the party cannot keep the statement out of evidence - C.f. party cannot introduce his OWN out-of-court statement into evidence unless it falls within a hearsay exception - Need not be unavailable

Answer 26

HEARSAY exception; under the FRE, statements regarding past symptoms and medical history made to assist in diagnosis or treatment are admissible, EVEN if made to a doctor employed to testify

Answer 27

Will usually constitute hearsay if offered to prove the truth of the matter asserted therein... 1. Impeachment: witness has, on another occasion, made statements that are inconsistent with some MATERIAL part of his PRESENT testimony 2. Impeachment + SUBSTANTIVE (admissible non-hearsay) if it was UNDER OATH as part of a trial, hearing, deposition, other proceeding (incl. grand jury), i.e., under penalty of perjury - Admissible for the truth of what it asserts

Answer 28

Under the FRE, a statement by an opposing party (i.e., a statement MADE by or ATTRIBUTABLE to a party and offered against that party) is not hearsay under the Federal Rules - A declarant's statement may be attributable to a party because of the RELATIONSHIP between them, e.g., President of a company being sued, co-conspirator

Answer 29

If a witness's memory is incomplete, the examiner may seek to REFRESH her memory by allowing her to refer to a writing or anything else, provided she then testifies from present recollection and does not RELY on the writing - Anything can be used to refresh recollection, including asking a leading question - The witness cannot read from a writing while testifying - Opposing counsel can see the document, conduct cross with it, and introduce relevant portions

Answer 30

The information may be READ into evidence under the RECORDED RECOLLECTION exception to the HEARSAY rule - When a witness states that he has insufficient recollection of an event to enable him to testify fully and accurately, even after he has consulted a memorandum or other record given to him on the stand, the record itself may be read into evidence if a proper foundation is laid for its admissibility 1. Personal knowledge of the facts when he made the document 2. Personally made the document himself / adopted by the witness 3. Record was made when the matter was fresh in the witness's mind 4. Accurately reflects the witness's knowledge, i.e., witness vouches for it \* It does not matter who is offering the information when it is merely being READ into evidence, c.f. actually admitting the document into evidence, which requires authentication

Answer 31

Information received from any source is allowed provided that it is the KIND of information that is reasonably relied upon by other experts in the field - Inadmissible evidence - Personal observation - Authoritative text - Facts which are reasonably relied upon by other experts in the field

Answer 32

To be admissible, a photograph must have proper foundation, i.e., - 1. IDENTIFIED by a WITNESS as a portrayal of certain facts relevant to the issue, and - Sufficient if the witness is familiar with the scene or object depicted 2. VERIFIED by the witness as a correct representation of those facts - E.g., a witness who is familiar with the accident scene as an accurate representation of that scene \* It is not necessary to call the photographer to authenticate the photograph - The identity of the photographer and the purpose for which the photograph was taken are irrelevant to the issue of admissibility

Answer 33

Conduct may be admissible as a statement if it is ASSERTIVE, i.e., intended by the actor to be a substitute for words.

Answer 34

INADMISSIBLE to prove 1. Negligence 2. Ability to pay ADMISSIBLE to prove 1. Ownership or control 2. Impeachment 3. Admission of liability

Answer 35

The FRE excludes offers to pay medical expenses, but not statements made in connection with such offers. - Public policy exception to relevance INADMISSIBLE: culpable conduct ADMISSIBLE: for all other purposes - Admissions of fact accompanying offer to pay, "shut up and be charitable!"

Answer 36

Public policy exclusion

Answer 37

A prior consistent statement is admissible if offered to - 1. Rebut a charge that a witness is lying because of some improper motive 2. To rehabilitate the credibility of a witness who has been impeached on some other non-character ground.

Answer 38

Before an object is admissible into evidence, the proponent must LAY A FOUNDATION, i.e., offer SOME evidence to help establish the object is what it purports to be - Can include testimony of a party

Answer 39

If at any time a party HEARS an accusation and FAILS to protest and the judge determines that a reasonable person would have protested, both the accusation and the silence are considered an adoptive statement of party opponent

Answer 40

1. Authentication 2. Best Evidence Rule 3. Hearsay

Answer 41

AUTHENTICATION: a document can be AUTHENTICATED by evidence that it is 1. At least 20 years old when offered into evidence 2. Is in a CONDITION that creates no suspicion as to authenticity 3. Found in a PLACE where such a writing would be kept HEARSAY exception: statements in authenticated documents prepared before Jan 1, 1998

Answer 42

1. ID the statement 2. Who is declarant? Party v. nonparty 3. Purpose of evidence - Truth? [hearsay] - Effect on the listener / reader? - Knowledge or notice on the part of a listener

Answer 43

HEARSAY exception; statements in a document affecting an interest in property are admissible if they are relevant to the purpose of the document

Answer 44

CMR! - No privilege regarding a communication that is relevant to an issue of breach of duty by the attorney to his client or by the client to his attorney - Attorney is able to invoke the privilege on behalf of his clients

Answer 45

Before a writing may be received in evidence, it must be authenticated by proof showing that the writing IS what the proponent claims it is. - Only requires proof sufficient to support a JURY finding of genuineness (less than preponderance of the evidence) - The authenticity of a document is a PRELIMINARY FACT to be decided by the JURY

Answer 46

To prove the CONTENTS of a WRITING (writing, recording, photograph), where its terms are material, the original must be produced or must be shown to be unavailable - The writing must actually be OFFERED into evidence - Secondary evidence of the writing, such as oral testimony regarding the writing's contents, is permitted only after it has been shown that the original is unavailable for some reason other than the serious misconduct of the proponent - Properly authenticated COPIES of recorded writings may be used in lieu of originals - Does not apply where fact to be proved exists INDEPENDENT of the writing / witness's knowledge of the fact was not derived from the writing

Answer 47

Cannot bolster the credibility of your own witness unless the credibility has been ATTACKED (impeached) - If so, second witness can testify as to her OPINION of the first witness's character for truthfulness or REPUTATION for honesty

Answer 48

The burden of producing sufficient evidence to create a fact question of the issue involved - If a plaintiff makes out a PRIMA FACIE CASE, he has met his burden of going forward with the evidence and the burden shifts to the defendant - Can be met through use of a PRESUMPTION - Shifts back and forth between the parties

Answer 49

The burden of a party to persuade the jury to decide an issue in its favor - Satisfied when the jury finds a party has been more persuasive in arguing his side of the issue than the other party - Each party must present persuasive evidence - If, after all the evidence is in, the issue is equally BALANCED in the mind of the jury, then the party with the burden of persuasion must lose - Does not shift from party to party during the course of a trial

Answer 50

Yes! Traditionally, no...must have been 1. An adverse party / ID'd with an adverse party 2. Hostile / uncooperative 3. Required by law to call 4. Gives surprise testimony that is harmful to the party calling them

Answer 51

The judge may call and examine the witness, but the parties are entitled to cross-examine the witness - A court is entitled to examine any witness, including an expert, called by any party, and may also call a witness on its own or at a party's request - A party may also object to the court's examining or calling a witness either at that time or at the next opportunity when the jury is not present (to spare counsel the potential embarrassment of objecting to the judge's questions in front of the jury)

Answer 52

Before evidence can be admitted under this exception, however, an elaborate pretrial notice procedure must be followed to assure that the other party has an opportunity to prepare to meet the hearsay evidence.

Answer 53

Pursuant to the clergy-penitent privilege, a person has a privilege to refuse to disclose, and to prevent others from disclosing, a confidential communication by that person to a member of the clergy in the clergy member's capacity as a spiritual adviser. - Applies to both civil and criminal cases - Where the privilege exists, it can be claimed by the person who made the confidential communication, her guardian or conservator, or her personal representative if she is deceased

Answer 54

All witnesses are competent unless physically or mentally impaired in some fashion, or unless they are too young to understand the oath and the need to testify truthfully. - There is no precise age at which a CHILD is deemed competent to testify; it depends on the capacity and intelligence of the particular child.

Answer 55

Ordinarily, a witness is not disqualified merely because they have an interest in the litigation. - Dead Man Act: in a civil case, interested person is incompetent to testify as to a personal conversation with the deceased if offered AGAINST the representatives/successors of the deceased, i.e., the EXECUTOR, administrator, heir, legatee, or devisee, - Not in the FRE, but will apply under Erie circumstances

Answer 56

If Defendant testifies, automatically places character for TRUTH at issue. Prosecutor can present evidence he is not a truthful person.

Answer 57

Any item that is expected to be offered into evidence. Evidence must be disclosed to the opposing party 15 days before trial. - Court may waive that requirement on a showing of good cause - Other part can then seek delay based on required notice

Answer 58

Parties may obtain discovery from individuals with knowledge of any discoverable matter, not just parties to the action

Answer 59

The opinions of experts who are RETAINED in anticipation of litigation but who are not expected to testify at trial may be discovered only upon - 1. A showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means 2. When a medical report for an exam conducted under FRCP 35 is requested.

Answer 60

Records of a physician's observations, opinions, and treatment are admissible if the physician developed opinions about the injuries for purposes OTHER than litigation or trial.

Answer 61

Failure to object = waiver of any ground for objection - If no objection is made, otherwise inadmissible evidence will be admitted

Answer 62

Places CREDIBILITY at issue, not CHARACTER!

Answer 63

Method of IMPEACHMENT. Evidence that a witness is biased tends to show that he has a motive to lie. - Always material, allowable - EXTRINSIC evidence allowed for proof; foundation requires - 1. Witness must first be questioned about the facts that show bias on cross-examination 2. If the witness, on cross-examination, ADMITS to the facts claimed to show bias, then the trial judge may allow the extrinsic evidence to be introduced

Answer 64

1. Witness is given an opportunity to explain / deny - Can be before / after introduction of extrinsic evidence 2. Adverse party is given opportunity to examine witness about the statement

Answer 65

One's repeated response to a specific set of circumstances. - May be admitted to prove that on a particular occasion the person acted in accordance with the habit. - C.f. character, which describes one's disposition in respect to general traits

Answer 66

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted - Regardless of whether the declarant is testifying... - If a statement is hearsay, and no exception to the hearsay rule is applicable, the evidence must be excluded upon appropriate objection to its admission

Answer 67

The witness's attorney should instruct the client not to answer the questions and move for a PROTECTIVE ORDER in the court in the district where the deposition is taken - If granted, court may require the party opposing the motion to pay the moving party's reasonable expenses, including attorney's fees - Deponent need not be a party to the case, they can directly move for a protective order - A deponent need not answer deposition questions merely because the deposing party can move to compel discovery

Answer 68

Evidence of pretrial experiments that does not require expert testimony is treated no differently under the Federal Rules from other evidence - Admissible if it is relevant / not barred by an exclusionary rule/ Rule 403 balancing test - RELEVANT to the extent that it REPLICATES CONDITIONS, is useful / probative (if not, probably outweighed by Rule 403, unfair prejudice or waste of time) - FRE do not require a representative of the adverse party to be present at the experiment. Attorney can subject the conditions of the experiment to scrutiny through cross-examination - Person conducting the experiment need not be an independent observer. Bias can be elicited on cross-examination.

Answer 69

- FRE generally excludes evidence of an alleged victim's sexual BEHAVIOR for public policy reasons, evidence of SPECIFIC INSTANCES of sexual conduct between the alleged VICTIM and the ACCUSED may be admitted to show consent - SPECIFIC INSTANCES of the alleged VICTIM's sexual conduct tending to show that someone other than the accused was the source of semen, injury, or other PHYSICAL EVIDENCE

Answer 70

Under the FRE, when a witness has used a writing to refresh his recollection on the stand, or the document is read into evidence as a recorded recollection, the ADVERSE party can introduce that writing into evidence, i.e., the party NOT using it to refresh the witness's recollection

Answer 71

"MIMIC" M: Motive I: Intent M: Mistake (lack of) I: Identity C: Common plan or scheme \*\* Admissible only if defendant is CONTESTING the non-character issue - Can come in as substantive evidence, not character evidence

Answer 72

Both settlement OFFERS and STATEMENTS made during settlement negotiations are inadmissible - Policy: want to encourage the voluntary settlement of disputes without being worried about prejudice at trial; encourage free-wheeling discussions of settlement - There must be an ACTUAL DISPUTE that has arisen between the parties. e.g., rushing out immediately, blurting out settlement officer is insufficient. - E.g., offer to compromise, bargaining INADMSSIBLE 1. Prove / disprove the validity or amount of a claim 2. Impeach by prior inconsistent statement ADMISSIBLE: all other purposes

Answer 73

Photocopies = duplicates, treated the same as originals Handwritten copies = secondary evidence, admissible only if the original/duplicate is unavailable

Answer 74

STATE PRIVILEGE ONLY! Applies in diversity actions. Applies if 1. There was a professional relationship between the physician and patient for the purposes of medical treatment 2. The information was acquired for the purpose of DIAGNOSIS or TREATMENT 3. The information was NECESSARY for diagnosis or treatment Privilege belongs to the PATIENT - Waiver: the patient offers his own doctor's testimony as evidence

Answer 75

Presumption does NOT shift the burden of persuasion; burden of persuasion remains on the same party throughout the trial - In a criminal case, if a presumption establishes guilt, it must be proved beyond a reasonable doubt

Answer 76

Inconsistency if it would have been NATURAL for the witness to include the fact in the statement if they believed it to be true - Present lack of memory on its own is insufficient, unless being feigned - If statement remembers on the stand but not in the prior statement, inconsistent

Answer 77

Evidence is relevant if it makes the existence of any fact of consequence to the determination of the action more likely or less likely than it would be without the evidence. - A court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice (suggesting a decision on an emotional or otherwise improper basis)

Answer 78

After the initial disclosure process, a party may submit a request for production or inspection if the party wants to PHYSICALLY inspect evidence - Good cause need not be shown for the request

Answer 79

Without waiting for a discovery request, a party must provide to the other parties 1. COPIES or DESCRIPTIONS of tangible things that are in the disclosing party's possession or control and that the disclosing party may use to support its claims or defenses 2. INSURANCE AGREEMENTS under which an insurer may be LIABLE for all or part of any judgment that might be entered

Answer 80

In general, discovery may be had of any NON-PRIVILEGED matter that is RELEVANT to any party’s claim or defense and PROPORTIONAL to the needs of the case.

Answer 81

May testify as to anything that is rationally based in the witness's PERCEPTION (eyewitness / heard) - No legal conclusions 1. General appearance / condition of a person 2. State of emotion 3. Matters involving sense recognition 4. Voice / handwriting ID 5. Speed of moving object 6. Value of own services 7. Rational/irrational conduct of another ("he was acting crazy") 8. Intoxication ("she was drunk")

Answer 82

A "statement" under the Federal Rules is an oral or written assertion or nonverbal conduct by a PERSON intended as an assertion - Does NOT include 1. Machine readouts 2. Animals

Answer 83

E.g., to determine extent of injuries - Physician patient privilege does not apply because no TREATMENT is contemplated - Atty-client privilege does apply as long as doctor is not called as a testifying expert

Answer 84

For public policy reasons, evidence of repairs or other precautionary measures made AFTER an injury is inadmissible to prove negligence or culpable conduct. - Policy: encourage people to make such repairs INADMISSIBLE to prove - 1. Negligence 2. Culpable conduct 3. Design defect 4. Need for warning / instruction Admitted to prove: 1. Ownership/control if controverted 2. Feasibility of precautionary measure 3. Destruction of evidence

Answer 85

BUSINESS record hearsay exception, may be used to show the NON-OCCURRENCE of an event

Answer 86

Related to the public records HEARSAY exception. Evidence in the form of a certification or testimony from the custodian of public records that she has diligently SEARCHED and FAILED to find a record is admissible to prove - 1. That a matter was not recorded 2. Inferentially, that a matter did not occur. \* Does not require unavailability of the declarant

Answer 87

A declarant is unavailable if 1. She is exempted from testifying because the court rules that a PRIVILEGE applies 2. She REFUSES to testify concerning the statement despite a court order to do so 3. She testifies to NOT REMEMBERING the subject matter of the statement 4. She cannot testify because she has DIED or is ILL 5. She is ABSENT and the statement's proponent is unable to procure her attendance or testimony by process or other reasonable means - All states permit extradition of witnesses against the accused in criminal cases; less so in criminal cases

Answer 88

If the person is not under a business duty to convey the information, multiple hearsay problem! - Entrant's own observations, observations of those under a business duty to report are not hearsay (business records exception)

Answer 89

Statements of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime, may be admissible against co-conspirators as vicarious statements of a party-opponent. by virtue of the RELATIONSHIP between the co-conspirators

Answer 90

- Preliminary facts to be decided by the JURY: whether the proffered evidence is RELEVANT - Preliminary facts decided by the JUDGE: which involve whether the EVIDENCE is competent, that is, not barred by an exclusionary RULE 1. QUALIFICATION of person to be a witness 2. existence of a PRIVILEGE 3. ADMISSIBILITY of evidence (e.g., whether hearsay exception applies) \*\* Trial court may consider any nonprivileged relevant evidence, even if such evidence would not be admissible at trial

Answer 91

When PART of an act, conversation, or writing is introduced into evidence, the FRE provide that the adverse party may compel the proponent of the evidence to introduce any part thereof that ought, in FAIRNESS, to be considered at the same time. - No foundation need be laid for another part of a record that has already been introduced - Does not require proof of relevance. The standard is fairness

Evidence Flashcards

(116 cards)