Tangible Evidence; Privileges; Hearsay

Question 1

Authentication

Answer 1

All tangible evidence must be authenticated. To authenticate an item, the proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims it is.

Question 2

Spousal Testimonial Privilege

Answer 2

The testifying spouse can assert the privilege and refuse to testify against the other spouse.

Question 3

Confidential Marital Communications

Answer 3

Both spouses can assert the privilege and prevent the other spouse from testifying about confidential communications made during the marriage.

Question 4

Subsequent Remedial Measures

Answer 4

Admissible for purposes such as impeachment or to show ownership or control, but not to show negligence.

Question 5

Settlement Offers and Statements Made During Negotiations

Answer 5

Excluded. The offer must be made in response to a disputed claim. If there is not disputed claim and a settlement offer is made, it is not barred.

Question 6

Offers to Pay Medical Expenses

Answer 6

Offers to pay medical expenses are inadmissible to prove liability.

Question 7

Evidence of Liability Insurance

Answer 7

Not admissible to show liability, but is admissible to prove agency, ownership, control, or bias or prejudice.

Question 8

Hearsay

Answer 8

An out of court statement offered to prove the truth of the matter asserted.

Question 9

Non-Hearsay Exceptions to consider

Answer 9

• Prior statements
• Opposing party’s statements

Question 10

Hearsay Exceptions

Declarant unavailable as witness

Answer 10

• Former testimony
• Dying declaration
• Statement against interest
• Statement of personal or family history
• Statement against party that caused declarant’s unavailability

Question 11

Hearsay Exceptions

Declarant’s availability as a witness immaterial

Answer 11

• Present sense impression
• Excited utterance
• Statement of mental, emotional, or physical condition
• Statement made for medical diagnosis/treatment
• Recorded recollection
• Business records
• Public records
• Learned treatises
• Judgment of previous conviction

Question 12

Confrontation Clause

Answer 12

The admission of out of court “testimonial” statements violates a defendant’s right to confrontation if (i) the witness is unavailable to testify at trial and (ii) the defense has not had a prior opportunity to cross-examine the witness.