Evidence

Question 1

Hearsay: Unavailable Witness Exceptions

Answer 1

1. Former Testimony
2. Statement against interest
3. Statement of personal/family history
4. statement against party that caused unavailability
5. Dying Declaration
6. CA: threat to inflict injury

Question 2

Hearsay: Availability Immaterial

Answer 2

1. Present Sense Impression (CA: contemporaneous statement)
2. Excited utterance (CA: Spontaneous Statement)
3. State of Mind (intent, motive, plan to prove conformity)
4. Medical Diagnosis/treatment
5. Recorded recollection
6. Business Record
7. Gov/publiv record
8. Learned Treatises
9. Judgment of previous conviction

Question 3

Hearsay: Business Record Exception

Answer 3

TRUMP
Record myst be
1) Record made at or near time of event
2) Making record was routine course of business (This doesn’t apply in CA)
3. Record was made Under duty to supply information for the record
4. Made as regular practice of that activity
5. Personal knwoledge of the record maker

FRE: opponent may challenge and show lack of trustworthiness
CA: burden on proponent to establish trustworthiness

Absence of record may be admisssible to show that something did not occur

Question 4

Hearsay: Public Records Exception

Answer 4

1. Activities
2. observations
3. Factual findings from investigation

Question 5

Hearsay: Present Sense Impression and CA equivalent

Answer 5

FRE: statement describing/explaining event made while/immediately after declarant perceived it.

CA: Contemporaneous Statements: offered to explain/qualify conduct of declarant made while declarant engaged in such conduct

Question 6

Hearsay: Excited Utterance and CA exception

Answer 6

FRE: Statement made about startling event/condition while declarant under stress/excitement of event. (distinguished from present sense impression, which describes event. EU only need be related to exciting event)

CA: Spontaneous statements:
1) purports to narrate/describe/explain act/condition/event perceived by declarant; AND
2) made spontaneously while declarant was under stress of excitement caused by perception

Essentially the same thing

Question 7

Confrontation Clause

Answer 7

In criminal trial, Confrontation Clause of 6thA requires that in order to admit an OOC testimonial statement of declarant against D:
1) Declarant must be unavailable; and
2) D must have had prior opportunity to cross-examine witness

Question 8

Confrontation Clause: Testimonial statement

Answer 8

Objective analysis of the circumstances. Statements made under circumstances that would cause an objective witness to reasonably conclude that the statement would be available for use at a later trial.

Question 9

Confrontation Clause: Forfeiture by Wrongdoing

Answer 9

This exception only applies if D acted with particular purpose of making witness unavailable

Question 10

Hearsay: 14thA considerations

Answer 10

Due process clause may prevent application of the hearsay rule when such rule unduly restricts a defendant’s ability to mount a defenses

Question 11

Hearsay: Former Testimony Excetpoin

Answer 11

Admissible if offered against a party who 1) was present in the previous trial; 2) involved the same issues; an d3) the party who it is offered agaainst had the same motive and opportunity to develop the testimony.
FRE: Civil case requires privity; CA: no privity requirement

Question 12

Hearsay: Dying Declaration

Answer 12

Believes death is imminent and statement concerns circumstances of the death
CA must actually die

Question 13

Hearsay: Statement against Interest

Answer 13

Contrary to declarant’ financial, legal, or property interests
Declarant had firsthand knowledge
Tended to render invalid a claim by him against another
CA Created such a risk of making him an object of hatred or social disgrace in the community
Reasonable person would not have made the statement unless he believed it to be true.

Question 14

Hearsay: Recorded Recollection

Answer 14

Witness is unable to testify about matter for which a record exists. Record is not excluded as hearsay if
1) Record is on a matter witness once knew about
2) Record made/adopted by witness when matter was fresh in witnesses memory
3) record accurately reflects the witnesses knowledge
4) Witness states she cannot recall the event will enough to testify fully and accurately, even after consulting the record on the stand

May be read into evidence. Record only admitted as evidence of offered by adverse party

Question 15

Hearsay Exemptions: Declarant witness prior statements

Answer 15

1. Prior Inconsistent statements (impeach and substantive evidence)
   -FRE: Penalty of perjury (no oath->only impeachement, not substantive)
   -CA: no oath requirement
2. Prior Consistent Statements:
   a. before declarant had reason to lie
   b. used to rehab declarant’s credibility
   FRE: only to rehabilitate
   CA: rehabilitate or substantive evidence
3. Prior statements of Identification
   Previous OOC identification of a person after perceiving that person
   CA: Memory must be recent

Question 16

Hearsay Exemptions: Opposing Party’s Statement

Answer 16

1. Made by party
2. adopted by party
3. Vicarious Statements
   -Employee/agent if w/i scope of employment
   - Authorized speaker
   -Co-conspirator made in furtherance of conspiracy

Question 17

Non-Hearsay Use

Answer 17

1. Effect on listener (typically notice)
2. Legally operative facts (K formation; Slanderous statement)
3. Circumstantial Evidence of state of mind
4. Identification (hotel receipt found on D’s person; used as circumstantial evidence that D had been to hotel)
5. Impeachment/rehabilitation

Question 18

Privileges

Answer 18

1. Spousal Immunity/Confidential Marital Comms
2. ACP
3. Physician/Psychotherapist
4. Other (clergy/penitent; acct/client; professional journalists; governmental privilege)

Question 19

Public Policy Exclusions

Answer 19

1. Subsequent Remedial Measures (CA: not applicable to strict laibility)
2. Compromise offers and Negotiations
3. Offers to pay medical expenses (CA: statemnents & offers inadmissable)
4. Liability insurance
5. Plea Negotiations
6. CA: Statements of Sympathy
7. Rape Sheild Rules

Question 20

Expert Witness Testimony Admissibility

Answer 20

Expert testimony permitted when
1) witness is qualified as an expert (knowledge, skill, experience, training, education)
2) testimony is helpful to the trier of fact
3) testimony is based on sufficient facts or data
4) testimony based on reliable principles and methods (FRE: Daubert; CA: Frye)
5) Expert has reasonably applied the principles and methods to the facts of the case

Question 21

Daubert/Frye

Answer 21

Daubert:
Methodology judged by (TestPEGS)
1) testability
2) publication and peer review
3) error rate;
4) Whether it is generally excepted in the relevant field
5) Standards and Controls

Frye: Whether it is generally accepted in the field

Question 22

CA Hearsay Exception: Threat of infliction of Injury Statement

Answer 22

In CA, a statement that purports to narrrate, describe, or explain the infliction or threat of physical injury upon the declarant and was made at or near the time of the infliction or threat of physical injury is not excluded as hearsay. To qualify, must be
1. Unavailable
2. Statement less than five years old
3. Statement must been made under circumstances that indicate trustworthiness
4. Statement was made in writing, electronically recorded, or made to a physician, nurse, paramedic, or LE official.