Evidence

Question 1

Scope
(FRE)

Answer 1

Applicable in all federal civil and criminal proceedings

Exceptions:
1. Court’s determination on a preliminary question of fact
2. Grand jury proceedings
3. Misc. Proceedings:
* Sentencing
* Extradition
* Issuing a Warrant
* Criminal Preliminary Examinations
* Bail
* Probation

Question 2

Preliminary Questions Decided by Jury

Answer 2

Scope:
* Relevancy
* Personal Knowledge
* Authenticity
* Agency Relationship

Prima Facie Standard: Trial judge MUST determine there is** sufficient proo**f to support a jury finding the preliminary fact exists

Question 3

Preliminary Questions Decided by Judge

Answer 3

Scope:
* Competency
* Existence of Privilege
* Relevancy Exceptions
* Hearsay Exceptions

Information Considered: Trial judge may consider any non-privileged information when making this determination

Question 4

Shielding the Jury
(Preliminary Questions)

Answer 4

Trial judge MUST excuse the jury for any preliminary question to be resolved IF:
1. Determining the admissibility of a confession;
2. Witness is the criminal defendant AND requests jury to be excused; OR
3. If justice requires

Question 5

Judicial Notice
(Permissive)

Answer 5

A court MAY take judicial notice of any fact not subject to reasonable dispute because EITHER:
1. The fact is generally known within the court’s jurisdiction OR
2. The fact can accurately and readily be determined from sources whose accuracy cannot reasonable be questioned

Notice of Municipal Laws/Regulations: NOT Required

Question 6

Judicial Notice
(Mandatory)

Answer 6

A court MUST take judicial notice IF a party formally requests notice be taken AND provides the court with the necessary information

Notice of Federal/State Laws/Regulations: Required

Question 7

Presumptions
(Def. & Effect)

Answer 7

Requirement that a particular information be drawn from an ascertainable set of facts

Until rebutted, a presumption shifts the burden of production to the party against whom the presumption operates

Question 8

Common Presumptions

Answer 8

1. Mail Delivery: Properly mailed documents are presumed delivered
2. Death from 7-Year Absence
3. Against Suicide: If cause of death is in dispute, it is presumed not be from suicide
4. Legitimacy of Birth
5. Sanity
6. Chastity
7. Solvency
8. Regularity of Civil Duty Performance
9. Continuance for Natural Period
10. Bailee Negligence

Question 9

Raising Objections &
Offering Proof

Answer 9

To preserve a claim of error for appeal, a party opposing the introduction of evidence MUST:
* Timely object AND
* State specific grounds UNLESS apparent

Upon objection, the proffering party MUST offer proof of admissibility to preserve a claim of error for appeal

Question 10

Relevancy

Answer 10

Evidence is relevant IF it has any tendency to make any fact of consequence to the determination of the action more or less probable

Question 11

Probative
(Relevancy)

Answer 11

“Any Tendency”: Evidence could shift a fact finder’s view of the facts even the smallest degree

“More or Less Probable”: Evidence must have at least a minimial bearing on the case

Question 12

Material
(Relevancy)

Answer 12

“Fact is of consequence”: Fact must be related to the cause of action AND would be weighed by the fact-finder when deciding the case

Question 13

Excluding Relevant Evidence
(List)

Answer 13

[MS. PIGS]

M: Medical Expenses
S: Subsequent Remedial Measures
P: Prejudice/Confusion/Waste of Time
I: Insurance
G: Guilty Pleas
S: Settlement Offers

Question 14

Medical Expenses
(Relevancy)

Answer 14

Evidence of a payment or offer to pay another’s medical expenses is NOT admissible to prove liability

Question 14

Subsequent Remedial Measures
(Relevancy)

Answer 14

Evidence of precautionary measures made after an injury is NOT admissible for certain purposes

Admissible Purposes:
1. If Disputed: Ownership/Control/Feasibility
2. Opposing Party Destroyed Evidence
3. Impeachment

Inadmissible Purposes:
1. Negligence
2. Culpable Conduct
3. Product/Design Defect
4. Need for a Warning

Question 15

Prejudice/Confusion/Waste of Time
(Relevancy)

Answer 15

A trial judge has broad discretion to exclude relevant evidence IF its probative value is substantially outweighed by:
1. Unfair Prejudice;
2. Confusion; OR
3. Undue Delay

Question 16

Admissibility of Similar Previous Occurrences
(Relevancy)

Answer 16

Plaintiff’s Accident History: Admissible IF:
1. Plaintiff made previous similar false claims OR
2. Plaintiff previously injured the same body part

Defendant’s Accident History: Admissible IF occurring under substantially similar circumstances to prove:
1. Existence of dangerous condition;
2. Dangerous condition caused the present injury; OR
3. Defendant had notice of the dangerous condition

Sale of Similar Property: Admissible to prove property value

Intent

Rebutting Impossibility

Habit

Question 17

Habit

Answer 17

1. Regularity: Habitual repetition of the response to certain stimuli
2. Specificity: Response represents particularized conduct to certain stimuli
3. Distinctiveness: Response occurs because of specific stimuli

Question 18

Insurance
(Relevancy)

Answer 18

Evidence of a party’s liability insurance is NOT admissible to prove liability

Inadmissible Purposes: Proving negligence or fault

Admissible Purposes:
* Impeachment
* If Disputed: Ownership or Control

Question 19

Guilty Pleas
(Relevancy)

Answer 19

A defendant’s offer/withdrawal to plead guilty/no contest AND any statements made during plea discussions are inadmissible for any purpose

Question 20

Settlement Offers
(Relevancy)

Answer 20

Statements made during settlement negotiations are NOT admissible to:
1. Prove validity OR amount of a claim OR
2. Impeach by prior inconsistent statement

Exceptions:
* No Disputed Claim: If both parties agree about BOTH liability AND damages

• Certain Criminal Cases: Admissible IF:
  1. Compromise negotiations during a civil claim AND
  2. One party is a governmental agency

Question 21

Authentication
(Def. & Effect)

Answer 21

Sufficient proof that a reasonable juror would find a writing genuine

Generally, any writing will NOT be admitted UNLESS properly authenticated

Question 22

Authentication
(Methods)

Answer 22

Pleading/Stipulation/Admission

Documents:
1. Eyewitness Testimony
2. Handwriting Verification
3. Ancient Documents
4. Reply Letter Doctrine
5. Self-Authentication

Photos/Videos:
1. Eyewitness Testimony
2. Operator Verification

Oral Statements:
1. Voice ID
2. Phone Call ID

Physical Evidence:
1. Eyewitness Testimony

Question 23

Authentication of Documents

Answer 23

Eyewitness Testimony: MUST have seen the writing executed

Handwriting Verification:
1. Lay Opinion: Familiar with writer’s handwriting in normal course of affairs
2. Expert Opinion: Compared with sample of writer’s handwriting
3. Fact-Finder Comparison

Ancient Documents: Document MUST be:
1. At least 20 years old when offered;
2. Condition creates no suspicion as to authenticity; AND
3. Found in a place where it would likely be kept

Reply Letter Doctrine: Document was written in response to a communication sent to the writer

Self-Authenticating Documents:
1. Official Public Documents Bearing Seals
2. Official Publications
3. Certified Copies
4. Newspapers
5. Notarized Documents
6. Commercial Papers

Question 24

Authentication of Photos/Videos

Answer 24

**Eyewitness Testimony**: Generally, **MUST** be: 1. Identified by witness as a **portrayal** of relevant issue **AND** 2. **Verified** by witness as a **fair and accurate representation** **Medical Pictures**: **MUST** show: 1. **Accurate** process; 2. **Machine working** properly; **AND** 3. Operator **qualified** to operate machine

Question 25

Authentication of Oral Statements

Answer 25

Authentication **MUST identify the speaker** **Voice Identification**: Anyone can opine **IF** they have ever heard the voice spoken **Phone Calls**: Any person on the call may authenticate by: 1. Recognizing speaker’s voice; 2. Speaker had particularized knowledge; 3. Acknowledgment of residence by speaker; **OR** 4. Discussing matters relevant to the business called

Question 26

Authentication of Physical Evidence

Answer 26

1. Object is in **substantially** the **same condition**; **AND** 2. **EITHER**: * Witness **recognizes** the object as what they claim it is **OR** * Object was in a **substantially unbroken chain of possession**

Question 27

Best Evidence Rule (Def. & Scope)

Answer 27

To **prove the content** of a writing, recording, or photo, the **original MUST be produced UNLESS** the proponent provides a **satisfactory excuse** for the absence Applicable when: 1. **Legally Operative Writing OR Dispositive Instrument**: Writing creates rights or obligations; **OR** 2. **Witness’s Knowledge Stems ONLY from Reading Writing**: NOT applicable when witness has personal knowledge of the writing’s content

Question 28

Best Evidence Rule (Excuses & Effect)

Answer 28

**SATISFACTORY EXCUSES**: 1. **Loss/Destruction** of Original **UNLESS** Done in **Bad Faith** 2. Original **Unobtainable by Judicial Process** 3. Adversary **Fails to Produce after Notice** If excused, duplicates are admissible **UNLESS**: 1. A **genuine question** is raised about the original’s **authenticity** **OR** 2. **Circumstances** make it **unfair** to admit the duplicate

Question 29

Best Evidence Rule (Exceptions)

Answer 29

1. Summaries of Voluminous Records 2. Certified Public Records 3. Collateral Writings 4. Opposing Party Statements

Question 30

Witness's Competency

Answer 30

Witnesses are presumed competent 1. **Personal Knowledge**: Witness **MUST** be **minimally capable** of observing, recalling, and communicating events 2. **Oath/Affirmation**: Witness **MUST** **appreciate** their **duty to tell the truth**

Question 31

Judge's Competency

Answer 31

Presiding judge **MUST NOT** testify

Question 32

Juror's Competency

Answer 32

Jurors **MAY NOT** testify before the jury they are sitting A juror **MAY testify** regarding: 1. Whether any **extraneous prejudicial information** was given to the jury; 2. Whether an **outside influence** was **improperly brought** to the jury; 3. Whether there was a **mistake** on the **verdict form**; **OR** 4. Whether a **juror stated they relied on a racial stereotype**

Question 33

Dead Man Acts

Answer 33

Minority **ONLY** In **civil cases**, an **interested party MAY NOT testify** about a transaction or **communication** with the **deceased IF offered against the representative**

Question 34

Examination of Witnesses (Direct & Cross)

Answer 34

**DIRECT**: **Leading Questions**: Generally **NOT allowed UNLESS**: 1. Establishing Pedigree 2. Directing to A Relevant Place/Time 3. Hesitant/Confused Witness: 4. Hostile Witnesses **CROSS**: **Scope**: Generally limited to **scope of direct**, **including** any **reasonable inferences**, **AND** issues concerning witness's **credibility** **Leading Questions**: Allowed

Question 35

Examination of Witnesses (Court's Role)

Answer 35

**DISCRETION**: Trial judges have **broad discretion** to control questioning **EXAMINATION**: A court **may call** its own witnesses **AND** **examine** witnesses **EXCLUSION**: **Upon request**, the trial judge **MUST** order witnesses **excluded** from the courtroom **UNLESS** the witness is: 1. A **party** who is a **natural person**; 2. A **designated officer or employee** of a **party** who is **not a natural person**; 3. A **person** whose **presence is essential to the presentation** of a party’s case; **OR** 4. A person **statutorily authorized** to be present

Question 36

Refreshing Witness's Memory

Answer 36

If a witness **CANNOT recall information** to testify, they **MAY** use a writing to **refresh** their recollection, **BUT** they **MAY NOT read** the writing **while testifying** **ADVERSE PARTY OPTIONS**: 1. **Production** of Writing; 2. **Cross** Witness About Writing; **AND** 3. **Introduce** Relevant Portions

Question 37

Lay Opinions

Answer 37

Generally, lay witnesses **CANNOT** provide opinion testimony **UNLESS** court determines their **necessity** **ELEMENTS**: 1. **MUST** be **rationally based** on witness’s **perception** 2. **MUST** **help** the fact finder 3. **MUST NOT** be based on **specialized knowledge** **INAPPLICABLE CASES**: 1. Whether someone acted as an **agent** 2. Whether a **contract** was made

Question 38

Expert Opinions (Elements)

Answer 38

**EXPERT EVIDENCE**: Based on specialized knowledge **FACTUAL BASIS**: Supported by sufficient facts/data: * Based on expert's **personal knowledge**; * **Made known** to expert **at trial**; **OR** * **Reasonably relied upon by other experts** in the field **RELIABLE**: Based on **reliable principles and methods reliably applied** to the facts of the case **HELPFUL**: Must help the fact-finder

Question 39

Reliable Principles and Methods (Expert Opinions)

Answer 39

**[TARPS]** **T**: Testing of Principle/Methodology **A**: Acceptance by Experts in the Field **R**: Rate of Error **P**: Peer Review/Publication **S**: Standards Accepted in Field

Question 40

Opinion of Ultimate Issue (Expert Opinions)

Answer 40

Generally, experts **MAY** give **opinions central to the elements** of a case Experts **CANNOT** give opinions of a **criminal defendant’s mental state IF mental state is an element**

Question 41

Attorney-Client Privilege

Answer 41

Communications are privileged **IF**: 1. Between an attorney and client; 2. Confidential; **AND** 3. Made during professional legal consultation **Privilege Holder**: Client

Question 42

Doctor-Patient Privilege

Answer 42

(States **ONLY**) Communications are privileged **IF**: 1. Professional **doctor-patient relationship** for the **purposes of medical treatment**; 2. Information **concerns** medical treatment; **AND** 3. Information **necessary** for medical treatment **Privilege Holder**: Patient

Question 43

Spousal Immunity

Answer 43

Communications are privileged **IF** offered during a **CRIMINAL prosecution**: 1. Between **legally married spouses at the time of the proceeding**; **AND** 2. **Communication** occurred **between spouses at ANY TIME** **Privilege Holder**: Witness Spouse

Question 44

Marital Communications

Answer 44

Communications are privileged **IF** offered during **ANY proceeding**: 1. **Confidential communication** between **legally married spouses** at the **time of communication**; **AND** 2. Communication made in **reliance upon** the intimacy of the **marital relationship** (**Excludes** abusive language and business dealings) **Privilege Holder**: **BOTH** Spouses

Question 45

Testimonial Privilege Exceptions

Answer 45

1. Communications made to **aid wrongdoing** 2. **Confidential communication put at issue** by the privilege holder 3. Privilege holder claims other party **breached** their **duty of care**

Question 46

Waiver of Testimonial Privileges

Answer 46

A privilege may be waived by the holder by: 1. **Failing to claim** the privilege **OR** 2. **Voluntarily disclosing** the privileged matter

Question 47

Character Evidence (Civil Cases)

Answer 47

Generally **inadmissible** **UNLESS** character is an **element** of the case: 1. Defamation 2. Child Custody 3. Negligent Hiring/Entrustment

Question 48

Character Evidence (Introduction by Criminal Defendant)

Answer 48

**Pertinent Trait of Defendant**: **ALWAYS allowed** to introduce **reputational OR opinion** evidence **Pertinent Trait of Victim**: **ALWAYS allowed** to introduce **reputational OR opinion** evidence **UNLESS** barred by rape shield law

Question 49

Character Evidence (Introduction by Prosecutor)

Answer 49

**Pertinent Trait of Defendant** 1. **NEVER** allowed in State’s **case-in-chief** 2. **MATCH** character trait **offered** by defendant **against victim** 3. **REBUT** **character trait of defendant** by **EITHER**: * **Crossing** character witness with **specific instances**; **OR** * Calling **separate opinion OR reputation** character witness **Pertinent Trait of Victim** 1. **Peacefulness**: **ONLY** in **homicide** cases to **REBUT** evidence **victim** was **initial aggressor** 2. **Other Pertinent Trait**: **ONLY** with **reputational OR opinion** evidence to **REBUT** character trait introduced by defendant

Question 50

Rape Shield Law

Answer 50

**GENERALLY**: **INADMISSIBLE** to prove rape victim's sexual behavior or disposition is inadmissible **CRIMINAL CASES**: A defendant may offer specific instances of a rape victim’s character to prove: 1. Someone other than the defendant is the **source of physical evidence** **OR** 2. **Prior sexual encounters** between defendant and victim to suggest consent **CIVIL CASES**: Admissible **IF** its **probative value substantially outweighs** the **danger of harm** to the **victim** **AND** of any **unfair prejudice to any party**

Question 51

Other Purposes for Admitting Character Evidence

Answer 51

**[I A KOOL PIMP]** **I**: Intent **A**: Absence of Mistake **K**: Knowledge **O**: Opportunity **O**: Other Purpose **L**: Lack of Accidence **P**: Plan **I**: Identity **M**: Motive **P**: Preparation

Question 52

Impeachment (Def. & Scope)

Answer 52

A witness may be impeached by **ANY** party **METHODS**: 1. Cross-Examination 2. Extrinsic Evidence **BOLSTERING**: **Generally**: Not Allowed **Exceptions**: 1. Timely Complaints 2. Prior Identifications

Question 53

Impeachment (Methods)

Answer 53

**CASE-SPECIFIC FACTS**: 1. Prior Inconsistent Statements 2. Bias 3. Sensory Deficiencies **GENERAL UNTRUTHFUL CHARACTER**: 1. Untruthful Character 2. Prior Convictions

Question 54

Prior Inconsistent Statements

Answer 54

A witness may be impeached by showing the witness made a **previous statement inconsistent with** their **current testimony** **Inconsistent Statements**: 1. Previous **contradictory** statements 2. **Prior omissions** of a fact **IF** it would have been **natural** for the witness **to include** the fact 3. **Currently memory** of a fact **IF** the witness **previously claimed lack of memory** **Foundation for Extrinsic Evidence**: 1. Witness given **opportunity to explain/deny**; **AND** 2. **Adverse party** given an **opportunity to examine**

Question 55

General Untruthful Character (Impeachment)

Answer 55

**Opinion & Reputational Evidence**: Direct OR Cross **Specific Instances**: Cross ONLY * **NOT** allowed to impeach with **extrinsic evidence**

Question 56

Impeachment with Prior Convictions (Types of Crime)

Answer 56

**CRIMES OF DISHONESTY**: Any witness may be impeached by any crime requiring an act of dishonesty or false statement * **Narrowly Construed**: Only crimes with **dishonest acts as elements** * **No Judicial Discretion**: Courts have **NO discretion to bar** impeachment on these grounds **FELONY CONVICTIONS**: * **Criminal Defendant**: Admitted IF **probative value outweighs** its **prejudicial effects** * **Any Other Witness**: Admitted IF **prejudicial effects substantially outweigh** its **probative value**

Question 57

Hearsay (Def. & Effect)

Answer 57

An **out-of-court statement offered to prove the truth of the matter asserted** **OUT OF COURT**: Any statement NOT made by the declarant at the current proceeding **STATEMENT**: Any assertion intended to communicate a fact **TRUTH OF THE MATTER ASSERTED**: Party offers the statement for the fact-finder to believe the truth of the statement’s content **Generally Inadmissible Without Exception**

Question 58

Impeachment with Prior Convictions (Limitations)

Answer 58

**TIME LIMITS**: 1. **Generally**: Inadmissible IF more than **10 years since conviction or release** (whichever is later) 2. **Judicial Discretion**: Courts MAY admit an older conviction IF: * **Probative value substantially outweighs** its **prejudicial effect**; **AND** * Proponent gives opposing party **reasonable written notice** **PARDONS**: A conviction **CANNOT** be used to impeach a witness **IF** the witness was **pardoned** **AND EITHER**: * Pardon based on **rehabilitation** **AND** witness has **not been subsequently convicted of a felony**; **OR** * Pardon based on **innocence**

Question 59

Not Offered to Prove the Truth of the Matter Asserted

Answer 59

**[OLE PINK]** **O**: Occurrence of Statement **L**: Legally Binding Statements **E**: Effect on Witnes **P**: Publication **I**: Impeachment **N**: Notice **K**: Knowledge

Question 60

Hearsay Exemptions

Answer 60

1. Prior Witness Statements 2. Opposing Party Statements

Question 61

Prior Witness Statements (Hearsay)

Answer 61

A prior statement by a testifying witness subject to cross-examination is **NOT hearsay IF**: 1. **Identification** 2. **Prior Inconsistent Testimony** 3. **Prior Consistent Statement Rehabilitating Witness**

Question 62

Opposing Party Statements (Hearsay)

Answer 62

An opposing party’s statements are **NOT hearsay IF**: 1. Statement **offered against an opposing party**; **AND** 2. Statement **made or adopted by** an **opposing party**

Question 63

Judicial Statements (Opposing Party Statements)

Answer 63

**Formal Judicial Statements** (Pleadings/Stipulations): Allowed **Informal Judicial Statements** (Testimony): NOT Allowed

Question 64

Adoptive Statements (Opposing Party Statements)

Answer 64

Party expressly or impliedly acquiesces to another’s statement 1. **Signature** 2. **Oral Agreement** 3. **Silence**: * The party **heard and understood** the statement; * The party was **physically and mentally capable of denying**; **AND** * A **reasonable person would have denied**

Question 65

Vicarious Statements (Opposing Party Statements)

Answer 65

Another’s statements attributable to a party because of the relationship between them 1. **Authorized Spokesperson** 2. **Predecessors-in-Interest** 3. **Co-Conspirators**: Admissible against a co-conspirator **IF** the statement was **made during AND in furtherance of** the conspiracy 4. **Agents**: Admissible against the principal **IF** the statement: * Concerns any matter **within the scope** of the relationship; **AND** * Was made **during the existence** of the relationship

Question 66

Declarant Unavailablity

Answer 66

**[APRIL]** **A**: Absence **P**: Privilege **R**: Refusal **I**: Incapacity **L**: Lack of Memory

Question 67

Hearsay Exceptions (Declarant Unavailable)

Answer 67

**[DAFT]** **D**: Dying Declaration **A**: Against Interest **F**: Forfeiture **T**: Testimony

Question 68

Dying Declaration

Answer 68

An **unavailable witness’s** hearsay statement is admissible hearsay **IF**: 1. Offered in a **homicide** prosecution **OR** any **civil case**; 2. Declarant **believed death** was **imminent**; **AND** 3. Statement **concerned** the **cause or circumstances of** the anticipated **death**

Question 69

Statements Against Interest

Answer 69

An **unavailable witness’s** hearsay statement is admissible hearsay **IF**: 1. Statement is **against the interest of** the **declarant at the time** made; 2. **No reasonable person would make the statement unless believing it was true**; **AND** 3. In a current **criminal case AND** the statement **exposes** the **declarant to criminal liability**, the statement **MUST be corroborated**

Question 70

Forfeiture

Answer 70

An **unavailable witness’s** hearsay statement is admissible hearsay **IF**: 1. **Opposing party engaged in OR acquiesced in wrongdoing intentionally procuring** the **declarant’s unavailability**; **AND** 2. Opposing party’s **wrongdoing caused the unavailability**

Question 71

Prior Testimony (Hearsay)

Answer 71

An **unavailable witness’s** hearsay statement is admissible hearsay **IF**: 1. Statement was testimony **given under oath**; **AND** 2. Opposing party had an **opportunity** **AND** **similar motive** to develop declarant’s testimony * **Opportunity**: Opposing Party **OR** Predecessor in Interest (Civil Cases **ONLY**)

Question 72

Hearsay Exceptions (Declarant Availability Irrelevant)

Answer 72

**[PP BEST ARM]** **P**: Present Sense Impressions **P**: Public Records **B**: Business Records **E**: Excited Utterances **S**: State of Mind **T**: Treatises **A**: Ancient Documents **R**: Recorded Recollection **M**: Medical Treatment

Question 73

Present Sense Impressions

Answer 73

A hearsay statement is admissible **IF**: 1. Statement **describes OR explains** an event or condition **AND** 2. Statement **made while OR immediately after** the declarant perceives the event or condition

Question 74

Public Records (Hearsay Exception)

Answer 74

A hearsay statement is admissible **IF**: 1. Record **made by a public office**; 2. Record was **made at or near the time** of the event; 3. Record was **made by AND within the scope** of the official’s duties; **AND** 4. **Opposing party** has **not shown** the record is **untrustworthy**

Question 75

Public Records (List)

Answer 75

**Activities of the Office** **Observations Under Duty to Report** * **Criminal Cases**: Excludes police observations **Factual Findings from Investigations** * **Civil Actions**: Allowed * **Offered Against Criminal Defendant**: NOT Allowed * **Offered Against Prosecution**: Allowed **Court Judgements** * **Prior Criminal Convictions**: Allowed * **Prior Criminal Acquittals**: NOT Allowed * **Prior Civil Judgments**: NOT Allowed

Question 76

Business Records

Answer 76

A hearsay statement is admissible **IF**: 1. Record **made by a business**; 2. Record was **made in the regular course of business** (Business **consistently AND ordinarily** keep records of this type); 3. Record was **made at or near the time** of the event; 4. Record was **made by a person with personal knowledge** of the event; **AND** 5. **Opposing party** has **not shown** the record is **untrustworthy**

Question 77

Excited Utterances

Answer 77

A hearsay statement is admissible **IF**: 1. Declarant s**poke while excited by a startling event**; **AND** 2. Statement **relates to the startling event**

Question 78

Present State of Mind

Answer 78

A hearsay statement is admissible **IF** the **statement regards declarant’s then-existing internal state** **INTERNAL STATE**: **Conditions of Declarant**: * Emotions * Sensory Perceptions * Physical Status **State of Mind**: * Motive * Intent (Present/Future) * Plan **EXCEPTION**: In **proving** the **validity of a will**, declarant’s memory or belief is NOT admissible

Question 79

Treatises (Hearsay)

Answer 79

A hearsay statement is admissible **IF**: 1. Document is an **excerpt from a treatise**; **AND** 2. Document **established as** a **reliable** authority by EITHER **expert testimony OR judicial notice** **INTRODUCTION**: Document is read into the record

Question 80

Ancient Documents (Hearsay)

Answer 80

A hearsay statement is admissible **IF** it is an **authenticated document prepared before 1998**

Question 81

Recorded Recollection

Answer 81

A hearsay statement is admissible **IF**: 1. **Declarant** has an **insufficient recollection to testify** fully and accurately; 2. Declarant had **personal knowledge** of the facts **at** the **time of creation**; 3. Document was **made or adopted by** the **declarant**; 4. Document was **made when** the matter was **fresh** in the declarant’s mind; **AND** 5. Document **accurately reflects** the declarant’s **knowledge** **INTRODUCTION**: 1. **Introducing Party**: Witness may read the document into the record 2. **Adverse Party**: May introduce the document as an exhibit

Question 82

Medical Treatment (Hearsay)

Answer 82

A hearsay statement is admissible **IF**: 1. Statement **made for medical treatment** (Subjective); 2. Statement was **reasonably pertinent to medical treatment** (Objective); **AND** 3. Statement **describes medical history, symptoms, or their inception**

Question 83

Residual Hearsay Exception

Answer 83

A hearsay statement is admissible **IF**: 1. **Inadmissible under** any **other** hearsay **exception**; 2. Statement **MUST possess sufficient guarantees of trustworthiness** based on the **totatlity of the circumstances**; 3. Statement **MUST be strictly necessary** (**More probative than any other reasonably available evidence**); **AND** 4. Proponent **MUST** give **reasonable notice** to opposing parties, **including** the **substance** of the statement **AND** the declarant’s **name**

Question 84

Constitutionality of Hearsay

Answer 84

Under the **Confrontation Clause**, a hearsay statement is **NOT admissible IF**: 1. **Offered against a criminal defendant**; 2. **Declarant** is **unavailable**; 3. **Statement** was **testimonial** in nature; **AND** 4. **Defendant had no opportunity to cross**-examine the declarant

Question 85

Testimonial Statements

Answer 85

**TESTIMONIAL**: 1. Sworn Testimony 2. Affidavits 3. Statements to Police with **Primary Purpose to Provide Information for Later Prosecution** 4. Incriminating Forensic Reports **NONTESTIMONIAL**: 1. Statements to Police with **Primary Purpose to Aid Ongoing Emergency** 2. Forensic Reports Unrelated to Specific People