Evidence

Question 1

DIA Approach to Hearsay Questions

Answer 1

D: Define hearsay

I: Important – why is it important to determine if a statement is hearsay?

A: Analyze exceptions

Question 2

Define: Hearsay

Answer 2

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.

Question 3

Exceptions to the Hearsay Rule

Answer 3

1. Excited utterance
2. Present sense impression
3. Statement for purpose of medical treatment or diagnosis
4. Business records
5. Recollection recorded
6. Then-existing state of mind
7. Prior statement of identification
8. Opposing party’s statement
9. Statement against interest
10. Public records

Question 4

Define: Excited utterance

Answer 4

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.

Question 5

Define: Present Sense Impression

Answer 5

A present sense impression is a statement describing or explaining an event or condition made while or immediately after the declarant perceived it.

Question 6

Define: Statement for Purpose of Medical Treatment or Diagnosis

Answer 6

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.

Question 7

Define: Business Records

Answer 7

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.

Question 8

Define: Recollection Recorded

Answer 8

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).

Question 9

Define: Then-Existing State of Mind

Answer 9

If a statement shows a declarant’s mental, emotional, or physical condition (including motive, intent, or plan) it is not hearsay.

Question 10

Define: Prior Statement of Identification

Answer 10

A witness’s prior identification is not considered hearsay.

Question 11

Define: Opposing Party’s Statement

Answer 11

A statement made by an opposing party offered against that party is not hearsay.

Question 12

Define: Statement Against Interest

Answer 12

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.

Question 13

Define: Public Records

Answer 13

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.

Question 14

When is evidence relevant?

Answer 14

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.

Question 15

What is the 403-balancing test?

Answer 15

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

Question 16

When is personal knowledge necessary?

Answer 16

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.

Question 17

What are the seven ways to impeach a witness?

Answer 17

General rule: Any party may impeach a witness (even the party that called the witness).

1. Prior inconsistent statements
2. Bias and interest
3. Conviction of a crime
4. Bad acts
5. Reputation or opinion for untruthfulness
6. Sensory deficiencies
7. Contradiction

Question 18

Impeachment: Prior Inconsistent Statements

Answer 18

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.

Question 19

Impeachment: Bias and Interest

Answer 19

The witness must be confronted on the stand. Extrinsic evidence can only be used if the witness is asked about the bias first.

Question 20

Impeachment: Conviction of a Crime

Answer 20

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)

Question 21

Impeachment: Bad Acts

Answer 21

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)

Question 22

Impeachment: Reputation or Opinion for Untruthfulness

Answer 22

The witness cannot testify to specific acts.

Extrinsic evidence IS permitted because the witness IS extrinsic evidence.

Question 23

Impeachment: Sensory Deficiencies

Answer 23

This is the ability to observe, remember, or relate accurately.

Extrinsic evidence is permitted.

Question 24

Impeachment: Contradiction

Answer 24

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.

Question 25

General Rule: Character Evidence

Answer 25

Character evidence is inadmissible to prove that someone acted in accordance with his character at the time the event occurred. Some exceptions apply.

Question 26

Character Evidence: Civil Cases

Answer 26

Civil: Character evidence is only permitted when character is an essential element of the case. Character is an essential element in cases involving negligent entrustment or hiring, defamation, or child custody. Reputation, opinion, and specific acts can be used to prove character.

Question 27

Character Evidence: Criminal Cases

Answer 27

Generally, character evidence is inadmissible in the prosecutor’s case-in-chief to prove that the defendant acted in conformity with his own character.

However, the defendant in a criminal case may introduce evidence of a pertinent (relevant) character trait to prove that he acted in conformity with his character at the time in question.

He can do this by reputation or opinion.

Then, the prosecutor may rebut by using reputation, opinion, or cross-examining the defendant’s witness by asking about specific acts.

Question 28

Sixth Amendment Confrontation Clause

Answer 28

If a statement is testimonial, the declarant is unavailable, and the defendant did not have the opportunity to cross-examine the declarant, then admission of the statement will violate the defendant’s right to confrontation.

Note: A statement is not “testimonial” if the primary purpose of the statement is to address an ongoing emergency.

Question 29

In what cases can evidence be excluded even if it is relevant?

Answer 29

1. Privileges: Attorney-client privilege, the spousal privileges, the physician-patient privilege (recognized in some jurisdictions), or the psychotherapist-patient privilege (recognized federally) can keep otherwise admissible evidence from being admitted.
2. Offer to Settle: Not admissible to prove the validity of a disputed claim.
3. Offer to Pay Medical Expenses: Not admissible to prove liability or existence of injury
4. Subsequent Remedial Measure: Not admissible to prove negligence or liability, but may be used for impeachment, or to prove ownership, control, or feasibility of precautionary measures if disputed.
5. Insurance: The existence of an insurance policy is not admissible to prove liability, but may be used to prove agency, ownership or control, or impeachment.

Question 30

MIMIC

Answer 30

Evidence relevant for a noncharacter purpose:

1. Motive
2. Intent
3. Mistake/Accident (absence of)
4. Identity
5. Common scheme/plan