Evidence Flashcards
“Offered to Prove the Truth of the Matter”
f the out-of-court statement is introduced for any purpose other than to prove the truth of the matter asserted, there is no need to cross-examine the declarant); so the statement is not hearsay. The following out-of-court statements are not hearsay:
a. Verbal acts or legally operative facts (e.g., words of contract); defamatory words));
b. Statements offered to show their effect on the listener or reader (e.g., to prove notice in negligence case)); and
c. Statements offered as circumstantial evidence of declarant’s state of mind (e.g., evidence of insanity or knowledge).
Nonhuman Declarations
There is no such thing as animal or machine hearsay); there must be an out-of-court statement by a person. Thus, testimony about what a radar gun “said” or what a drug-sniffing dog did is not hearsay, but still must be relevant and authenticated to be admitted.
Non-Hearsay
Prior Statements by Witness ( prior statement is inconsistent with the declarant’s in-court testimony and was given under penalty of perjury; prior statement is consistent with the declarant’s in-court testimony and is (i) offered to rebut a charge that the witness is lying or exaggerating; prior statement is one of identification)
Statements by or Attributable to Opposing Party (Admissions by Party-Opponent) (To be an admission, the statement need not have been against the declarant’s interest when made, and may even be in the form of an opinion. Personal knowledge is not required); the admission may be predicated on hearsay):
- -Formal judicial admissions (e.g., in pleadings, stipulations, etc.) are conclusive.
- -Informal judicial admissions made during testimony and extrajudicial (evidentiary) admissions are not conclusive and can be explained.
- -Adoption via Silence (party heard and understood the statement; arty heard and understood the statement; and reasonable person would have denied the accusation.)
Vicarious Admissions
Authorized Spokesperson; Co-Conspirator; P-A; Partners; Co-Conspirators (NOT Co-Parties); Privies in Title and Joint Tenants - State Courts Only
Prelim Determination: Before admitting a hearsay statement as a vicarious admission, the court must make a preliminary determination of the declarant’s relationship with the party against whom the statement is offered. In making such a determination, the court must consider the contents of the statement, but the statement alone is not sufficient to establish the required relationship.
“UNAVAILABLITY”
Is exempt from testifying because of privilege);
b. Refuses to testify concerning the statement despite a court order);
c. Testifies that he does not remember the subject matter);
d. Is unable to testify due to death or physical or mental illness); or
e. Is absent (beyond the reach of the court’s subpoena), and the proponent is unable to procure his attendance by reasonable means.
HEARSAY EXCEPTIONS - DECLARANT UNAVAILABLE
Former Testimony: Statement made under oath at same or at other proceeding at which the party against
whom it is offered had motive and opportunity to develop testimony—NOT grand jury (no cross)
Statement Against Interest: Statement against declarant’s pecuniary, proprietary, or penal interest when made.
Dying Declaration: Statement made while declarant believed death was imminent, concerning the cause
or circumstances of the impending death. Homicide and civil (traditional rule: Beware of answer choices reflecting the traditional rule, which: (i) required that the declarant ultimately die of the injury and (ii) could not be used in civil cases)
Statement of Personal or Family History: Statement of personal or family history (e.g., birth, death, marriage) made by family member or one intimately associated with the family.
Statement Offered Against Party Procuring Declarant’s Unavailability: Statement of unavailable declarant offered
against party who intentionally procured declarant’s unavailability
HEARSAY EXCEPTIONS - DECLARANT’S AVAILABILITY IMMATERIAL
Present State of Mind: statement of a declarant’s then-existing state of mind, emotion, sensation, or physical condition is admissible. It is usually offered to establish a person’s intent or as circumstantial evidence that the intent was carried out.
Excited Utterances: An out-of-court statement relating to a startling event, made while under the stress of the excitement from the event (i.e., before the declarant had time to reflect upon it), is admissible. [tip: Sometimes a “failed” dying declaration may “succeed” as an excited utterance]
Present Sense Impressions: 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.
Declarations of Physical Condition: (i) statements of present physical condition, regardless of the purpose for which the statement is made); and (ii) statements of past or present physical condition made for the purpose of obtaining medical diagnosis or treatment.
Business Records: Business; Entry Made in Regular Course of Business; Personal Knowledge; Entry Made Near Time of Event; Authentication ( (i) testifying that the record is a business record, or (ii) certifying in writing that the record is a business record.)
Past Recollections Recorded: If a testifying witness’s memory cannot be revived, a party may introduce a memorandum that the witness made or adopted at or near the time of the event. For admissibility requirements, see VI.B.3.b., supra. The writing itself is not admissible); it must be read to the jury.
Official Records and Other Official Writings:
–Public Records and Reports—records setting forth the activities of the office or agency); recordings of matters observed pursuant to a duty imposed by law (except police observations in criminal cases)); or in civil actions and against the government in criminal cases, records of factual findings resulting from an investigation authorized by law. The writing must have been made by and within the scope of the duty of the public employee, it must have been made at or near the time of the event. Ex: Police reports;
–Records of Vital Statistics
– Statement of Absence of Public Record (Note, however, that a criminal defendant has a right to confrontation and may demand the presence of the person who prepared the certification. Thus, in a criminal
case, this type of evidence is admissible in the form of a certification only if the prosecution notifies the defense at least 14 days before trial and the defense does not object in writing within seven days of receiving the notice)
–Judgments
Ancient Documents and Documents Affecting Property Interests (more than 20 years old is admissible)
Learned Treatises (if called to the attention of, or relied upon by, an expert witness and Established as reliable authority by the testimony of that witness, other expert testimony, or judicial notice.)
Reputation
Family Records: statements of fact concerning personal or family history contained in family Bibles, engravings on tombstones, etc., are admissible (regardless of whether the declarant is available).
Market Reports
RESIDUAL “CATCH-ALL” EXCEPTION OF FEDERAL RULES
For a hearsay statement that is not covered by a specific exception to be admitted, the Federal Rules provide a catch-all exception, which requires:
- That the hearsay statement possess circumstantial guarantees of trustworthiness);
- That the statement be strictly necessary); and
- That notice be given to the adversary as to the nature of the statement.
NOT meant to be broad. Before evidence can be admitted under this exception, an elaborate pretrial notice procedure must be followed to assure that the other party has an opportunity to prepare to meet the hearsay evidence.
CONSTITUTIONAL ISSUES
Under the Confrontation Clause, a hearsay statement will not be admitted (even if it falls within a hearsay exception) when: (i) the statement is offered against the accused in a criminal case); (ii) the declarant is unavailable); (iii) the statement was “testimonial” in nature); and (iv) the accused had no opportunity to cross-examine the declarant’s testimonial statement prior to trial. However, the defendant forfeits his right of confrontation if he committed a wrongful act that was intended to keep the witness from testifying.
“Testimonial” Statement
Statements Made in the Course of Police Interrogation:
- -If the primary purpose of police interrogation is to enable the police to help in an ongoing emergency (e.g., 911 call during ongoing crime), statements made in the course of the negotiation are nontestimonial.
- -On the other hand, statements by a young child abuse victim to a school teacher about the abuse are not testimonial because the primary purpose of the conversation is protection of the child, not prosecution of the perpetrator.
- -When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal investigation (e.g., statements to police describing a crime after it has concluded), statements are testimonial.
Affidavits or Written Reports of Forensic Analysis
Affidavits, certificates, or other written reports that summarize the findings of forensic analysis and have the effect of accusing a targeted individual of criminal conduct (e.g., fingerprint test results) are testimonial and may not be admitted unless the defendant previously had an opportunity to cross-examine the author of the report.
Judicial Notice
Civil (judicially noticed is conclusively established—lower burden) or criminal (fact may be accepted as conclusive, but the jury is not required to do so.)
Best Evidence Rule
Under the best evidence rule, the original writing must be produced when proving the material terms of that writing. 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 by serious misconduct of the proponent.
When you are trying to establish the contents of a writing, recording, or photo the original must be produced or shown to be unavailable.
Voluminous Doc Exception: the contents of voluminous writings that are otherwise admissible may be presented in the form of a chart as long as the original documents are available to the other party for examination and copying.
Character Evidence
Criminal—prosecution cannot initiate evidence of D’s bad character merely to show she is more likely to have committed the crime. However, if D puts her good character into issue (e.g., by testifying), prosecution may rebut with evidence of D’s bad character.
–MIMIC Exception: evid of prior crimes/bad acts never admissible to show D probably acted unlawfully again and committed crime charged BUT may be admissible if they are used to prove: Motive; Intent; Mistake/Knowledge (absence of); Identity; Common scheme or plan [MIMIC]—doesn’t need authentication
• Prosecutor can not intro any evidence of bad character if meant to show that he probably acted in conformity with his bad character and committed the crime charged (“propensity to commit a crime”)
• Defendant can intro good char evidence (limited to reputation and opinion—NOT specific acts (Q91)) to establish he did not do the crime charged with
Civil—cannot offer character evidence unless character is in issue (substantive)
• Can not intro any char evidence to show that party probably acted in conformity with that character trait during the event that gave rise to this lawsuit
• If the litigant has some other legit purpose for intro of character and it’s relevant, then can introduce it:
• To show negligent entrustment
• Est a char trait in a defamation case
Witness Testimony on Character Evidence
A defendant may call a qualified witness to testify as to the defendant’s good reputation (or that he has heard nothing bad) for the trait involved in the case. Witness may also give personal opinion concerning that trait of D. However, witness may not testify as to specific acts of conduct of the defendant to prove the trait in issue.
Witness Impeachment
Prior inconsistent statement: Do not come in as substantive truth unless prior was given under oath in prior legal proceeding. Otherwise, comes in only for impeachment. [Exception: There are certain exceptions to this foundational requirement. For instance, if the inconsistent statement was made by a hearsay declarant, the declarant may be impeached despite the lack of a foundation]
Bias or Motive to Misrepresent: Always admissible and even allow extrinsic evidence if witness denies
Prior Conviction: • Dishonesty or false statement—it comes in (ex: perjury). Trial judge has no discretion to ignore.
• Felony: can use to impeach, trial judge has discretion to exclude
• If too remote, cannot use to impeach (remote if more than 10 years from date of release for confinement from conviction)
Prior Bad Acts: Only inquired into on cross to impeach. Court can use discretion to exclude if value outweighed.
• No extrinsic evidence if witness denies the specific act.
Reputation or opinion evidence of untruthfulness (may be proven by extrinsic evidence)
