Evidence Flashcards
(30 cards)
DIA Approach to Hearsay Questions
D: Define hearsay
I: Important – why is it important to determine if a statement is hearsay?
A: Analyze exceptions
Define: Hearsay
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.
Exceptions to the Hearsay Rule
- Excited utterance
- Present sense impression
- Statement for purpose of medical treatment or diagnosis
- Business records
- Recollection recorded
- Then-existing state of mind
- Prior statement of identification
- Opposing party’s statement
- Statement against interest
- Public records
Define: Excited utterance
An excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress or excitement that it caused.
Define: Present Sense Impression
A present sense impression is a statement describing or explaining an event or condition made while or immediately after the declarant perceived it.
Define: Statement for Purpose of Medical Treatment or Diagnosis
These statement must be made for and reasonably pertinent to medical diagnosis or treatment and describe medical history, past or present symptoms or sensations, their inception, or their general cause.
Define: Business Records
A record of acts, events, conditions, opinions, or diagnoses is admissible if it is made at or near the time of the event recorded by a person with knowledge of the event.
Further, the making of the record must occur in the course of a regularly conducted business activity, and it must be the regular practice of the business to make such a record.
Define: Recollection Recorded
A record that is on a matter that the witness once knew about, but now cannot recall well enough to testify fully and accurately, which was made while the matter was fresh in the witness’s memory, may be read into evidence (however, the proponent may not offer it as an exhibit).
Define: Then-Existing State of Mind
If a statement shows a declarant’s mental, emotional, or physical condition (including motive, intent, or plan) it is not hearsay.
Define: Prior Statement of Identification
A witness’s prior identification is not considered hearsay.
Define: Opposing Party’s Statement
A statement made by an opposing party offered against that party is not hearsay.
Define: Statement Against Interest
A statement that a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it had a tendancy to expose the declarant to civil or criminal liability. The declarant must be unavailable.
Define: Public Records
Public records may be admitted in some circumstances but not matters observed by law enforcement personnel when proffered by the prosecutor against the defendant in a criminal case.
When is evidence relevant?
Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.
What is the 403-balancing test?
All relevant evidence is admissible unless a statute or rule says otherwise, or 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
- Needlessly presenting cumulative evidence
When is personal knowledge necessary?
General Rule: A witness must have knowledge of the matter she testifies about.
A lay witness must have personal knowledge. Her opinion must be rationally based on her perception; helpful; and not based on scientific, technical, or specialized knowledge.
An expert witness does not need personal knowledge but can instead testify based on facts he has been made aware of at trial or through some other means (e.g., facts not on the record if other experts would rely on them.
What are the seven ways to impeach a witness?
General rule: Any party may impeach a witness (even the party that called the witness).
- Prior inconsistent statements
- Bias and interest
- Conviction of a crime
- Bad acts
- Reputation or opinion for untruthfulness
- Sensory deficiencies
- Contradiction
Impeachment: Prior Inconsistent Statements
These can be used as substantive evidence as well if they fall within a hearsay exception or exclusion. The witness must be given the opportunity to explain or deny the statement if extrinsic evidence is used, unless the witness is the opposing party, not in court, or if the interests of justice so require.
Impeachment: Bias and Interest
The witness must be confronted on the stand. Extrinsic evidence can only be used if the witness is asked about the bias first.
Impeachment: Conviction of a Crime
Whether the conviction can be used depends on (mnemonic=NAD):
- The nature of the crime (felonies or misdemeanors of dishonesty are automatically admissible; any felony is admissible if it passes a balancing test)
- The amount of time that has passed (if more than 10 years after conviction or release has passed, whichever is later, it is generally not admissible); AND
- Whether the witness is a defendant (it’s less likely to be admitted if the witness is a defendant because the probative value must outweigh its prejudicial effect) (ONLY in criminal cases)
Impeachment: Bad Acts
Questioning about acts that are probative of truthfulness or untruthfulness (e.g., filing a false tax return) is permitted.
***Extrinsic evidence is not permitted*** (e.g., evidence that a witness lied on a job application or resume)
Impeachment: Reputation or Opinion for Untruthfulness
The witness cannot testify to specific acts.
Extrinsic evidence IS permitted because the witness IS extrinsic evidence.
Impeachment: Sensory Deficiencies
This is the ability to observe, remember, or relate accurately.
Extrinsic evidence is permitted.
Impeachment: Contradiction
If the witness made a mistake in her testimony or lied during direct examination, she may be contradicted.
Extrinsic evidence can be used if she doesn’t admit her mistake.
