Evidence Rule Blocks

Question 1

Relevance

Answer 1

All relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision. Evidence is relevant if (i) it has any tendency to make a fact more or less probable than it would be without the evidence (i.e., probative), and (ii) the fact is of consequence in determining the action (i.e., material).

Question 2

Common Non-hearsay examples:

Answer 2

(1) Prior statements
(2) Opposing party statements
(3) Adoptive admission
(4) Vicarious Statements

Question 3

Adoptive Admission

Answer 3

statement of another person that party expressly/impliedly adopts as his own (nodding head or saying yes to a question).

Question 4

Silence in response to a statement is considered an adoptive admission if:

Answer 4

(1) The person was present and heard and understood the statement; (2) The person had the ability and opportunity to deny the statement; and (3) A reasonable person similarly situated would have denied the statement.

Question 5

Confrontation Clause

Answer 5

In general, a defendant is guaranteed the right to confront and cross-examine any witness. When determining if hearsay violated the confrontation clause, courts distinguish between inadmissible testimonial hearsay and admissible non-testimonial statements that relate to the emergency. If the objective primary purpose of the witness’s interrogation was to help the police to resolve an ongoing emergency, the witness’s statement was. Alternatively, if the objective primary purpose of the witness’s interrogation was to help the police investigation or if the witness reasonably believed that her statement would be used at trial, her statement was testimonial.

Question 6

Present Sense Impression

Answer 6

a statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it is not excluded as hearsay.

Question 7

Excited Utterance

Answer 7

A statement made about a startling event while the declarant is under the stress of excitement that it caused is not excluded as hearsay. The event must shock or excite the declarant, and the statement must relate to the event.

Question 8

Factors Indicating a statement was in response to an emergency (i.e. testimonial

Answer 8

(1)the nature of the dispute, (2)the scope of the potential harm to the victim, (3)the threat to additional identifiable victims, (4)the existence of a more generalized threat to the public, (5)the suspect’s choice of weapon, and (6)whether the suspect remained “at large” or had been located (but not yet apprehended) by the police and/or any other “first responders.”

Question 9

Past Statement of Identification

Answer 9

A past statement of identification is admissible if the declarant testifies and is subject to cross-examination about a prior statement.

Note- It is immaterial if they cannot recall the identification**

Question 10

Business Records Exception

Answer 10

Applies to records that were made at the time of or shortly after by someone with knowledge and the record was kept in the course of a regularly conducted activity of a business and making the record was a regular practice of that activity.

Question 11

Prior Inconsistent Statements- Impeachment

Answer 11

In order to introduce a prior out-of-court statement to impeach a witness’s credibility, there must be an inconsistency between the prior out-of-court statement and the witness’s trial testimony. The inconsistency must involve a relevant issue.

If a witness testifies to a lack of memory regarding a relevant issue contained in a prior out-of-court statement, the judge may find that this testimony is inconsistent with the out-of-court statement on the same issue

Question 12

Prior Inconsistent Statements - Substantive/truth of matter asserted

Answer 12

To be admissible to prove the truth of the matter asserted, the prior inconsistent statement must be made “under oath, subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.”

Question 13

Rule for Defendant trying to prove character

Answer 13

A defendant in a criminal case is permitted to offer evidence of a relevant character trait to prove that the defendant did not commit the charged offense. However, the defendant is limited to testimony about reputation or opinion.

Question 14

Subsequent Remedial Measure (Policy Exclusions)

Answer 14

When a party takes remedial measures that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct.

I.e. recalling a product

Question 15

Hearsay- General Rule Block

Answer 15

All relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision. Evidence is relevant if (i) it has any tendency to make a fact more or less probable than it would be without the evidence (i.e., probative), and (ii) the fact is of consequence in determining the action (i.e., material). Witnesses

Question 16

What hearsay exceptions only apply when the declarant is unavailable?

Answer 16

(1) Former Testimony
(2) Dying Declaration
(3) Statements Against Interest
(4) Statement of Personal or Family History
(5) Statement Offered Against Party Procuring Declarant’s Unavailability

Question 17

Hearsay Exceptions unavailability immaterial

Answer 17

(1) Present Sense Impression
(2) Excited Utterance
(3) Business Records Exception
(4) Then Existing State of Mind
(5) Past Medical Treatment or Diagnosis
(6) Recorded Recollection-
(7) Ancient Documents
(8) Government Records
(9) Learned Treatise

Question 18

Recorded Recollection exception

Answer 18

allows into evidence a record on a matter the witness once knew about but now cannot recall well enough to testify fully and was made when the matter was fresh in the witness’s memory. A written document admitted as recorded recollection may be read to the jury, but it may not be received as an exhibit unless it is offered as such by the adverse party.

Note- does not need to be made by the declarant.

Question 19

Past Medical Treatment or Diagnosis exception

Answer 19

A statement describing past or present symptoms is not hearsay if it is made for medical diagnosis or treatment. A statement of the cause or source of the condition is admissible if it is reasonably pertinent to diagnosis or treatment. The statement need not be made to a physician and nor be made by the patient.

Question 20

Then existing state of mind exception

Answer 20

A statement of present intent, motive, or plan can be admissible as a hearsay exception to prove conduct in conformity with that state of mind.

Question 21

Government records exception

Answer 21

Government Records: Certain records of public agencies and administrators may be excluded if the circumstance is indicate a lack of trustworthiness. Activities; observation; and factual findings are generally admissible

Law enforcement: police reports being used against criminal defendants can only introduce the activities, not what was observed or concluded. But, may still come in under the recorded recollection exception (officer cannot remember)

Question 22

7 ways to impeach a witness

Answer 22

(1) prior inconsistent statements
(2) bias and interest
(3) Conviction of a crime
(4) Bad acts
(5) Reputation or opinion for untruthfulness
(6) contradiction.

Question 23

Bad Acts - impeachment

Answer 23

Questioning about acts that are probative of truthfulness or untruthfulness
(e.g., filing a false tax return) is permitted. Extrinsic evidence is not permitted. Note that on both exams, the question was whether a party could admit extrinsic evidence that the witness lied on a job application or resume (and the answer is that extrinsic evidence would not be permitted). (

Question 24

Basic Conviction Rule - impeachment

Answer 24

Felony conviction (not involving truth/honesty) may be admitted against a non-defendant witness under 403 balancing test (its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.)

Used against the defendant if probative value outweighs its prejudicial effect

Question 25

Conviction - greater than 10 years - impeachment

Answer 25

If more than 10 years have passed since the conviction or since the release (whichever is later) the evidence will ONLY come in if the probative value substantially outweighs the prejudicial effect AND the proponent gives notice to the other side.

Question 26

Types of spousal privilege

Answer 26

(1) Spousal Immunity
(2) Confidential Marital Communications Privilege

Question 27

Spousal Immunity

Answer 27

The general rule is that the spouse of a criminal defendant may not be called, or compelled as a witness by the prosecution. The spousal immunity privilege can be asserted only during a valid marriage. The right to assert the privilege expires upon divorce or annulment, but applies to events that occurred before the marriage.

Holder- Majority of states - witness spouse, i.e. may waive and testify

Question 28

Confidential Marital Communications

Answer 28

Communication made between spouses while they were married is privileged if the communication was made in reliance on the sanctity of marriage. This privilege extends beyond marriage but only applies to conversations in reliance of the marriage.

Holder- Majority rule- Privelege is held by Both spouses.

Question 29

Attorney Client Privilege

Answer 29

A confidential communication between a client and an attorney for the purpose of obtaining or providing legal assistance for the client is privileged.

Question 30

Attorney Client Privilege- Corporation as Client

Answer 30

Federal rule- the privilege extends to communications within the employee’s corporate duties necessary for the purpose of securing legal advice for the corporation. (i.e. here is what happened, do I need a lawyer?)

Other states limit to the “control group”, meaning employees in a position to control or take a substantial part in a decision.

Question 31

Rule for inadvertent disclosure

Answer 31

inadvertent disclosure of privileged communication or information does not waive the privilege if the holder of the privilege:i) Took reasonable steps to prevent disclosure; and ii) Promptly took reasonable steps to rectify the error.

Question 32

Physician patient privilege

Answer 32

Although there is no common-law privilege or federal law privilege, most states protect communications the purpose of obtaining medical treatment. The patient holds the privilege; thus, only the patient may decide whether to waive it.

Question 33

Psychotherapist-Patient Privilege

Answer 33

The federal courts and all states recognize some form of privilege for confidential communications between a psychiatrist, psychologist, or licensed social worker and a patient in the course of diagnosis or treatment. The patient holds the privilege, but the psychotherapist must assert the privilege in the patient’s absence.

Question 34

Rape Shield

Answer 34

• The rape shield does not apply when to evidence necessary to raise a defense (consent, DNA evidence). This exception is used to ensure a defendant maintains his right to due process.