Evidence Rule Blocks Flashcards
(34 cards)
Relevance
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).
Common Non-hearsay examples:
(1) Prior statements
(2) Opposing party statements
(3) Adoptive admission
(4) Vicarious Statements
Adoptive Admission
statement of another person that party expressly/impliedly adopts as his own (nodding head or saying yes to a question).
Silence in response to a statement is considered an adoptive admission if:
(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.
Confrontation Clause
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.
Present Sense Impression
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.
Excited Utterance
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.
Factors Indicating a statement was in response to an emergency (i.e. testimonial
(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.”
Past Statement of Identification
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**
Business Records Exception
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.
Prior Inconsistent Statements- Impeachment
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
Prior Inconsistent Statements - Substantive/truth of matter asserted
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.”
Rule for Defendant trying to prove character
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.
Subsequent Remedial Measure (Policy Exclusions)
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
Hearsay- General Rule Block
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
What hearsay exceptions only apply when the declarant is unavailable?
(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
Hearsay Exceptions unavailability immaterial
(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
Recorded Recollection exception
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.
Past Medical Treatment or Diagnosis exception
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.
Then existing state of mind exception
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.
Government records exception
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)
7 ways to impeach a witness
(1) prior inconsistent statements
(2) bias and interest
(3) Conviction of a crime
(4) Bad acts
(5) Reputation or opinion for untruthfulness
(6) contradiction.
Bad Acts - impeachment
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). (
Basic Conviction Rule - impeachment
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
