Hearsay MRE 801
DIARY:
D: Define Hearsay
–hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted
I: State why it’s important to determine if a statement is hearsay
–hearsay is not admissible unless it comes within an exception
A: Analyze exceptions
- -Excited Utterance: a statement relating to a startling event or condition made while the declarant was under the tree of excitement caused by the event or condition
- -Present sense impression: a present sense impression is a “statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter”
- -Opposing party’s statement (party admission): statement that is not hearsay if it is offered against a party and it is the party’s own statement or one in which the party has manifested an adoption or belief in its truth
R: Discuss relevancy
- -Even if statement is admissible under hearsay exception, must be relevant
- -relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence
Y: Yes or no to 403 Test
–relevant evidence will be excluded if its probable value is substantially outweighed by the danger of unfair prejudice or because it would confuse the issues, mislead the jury, or waste time
Allowing Convictions for Impeachment
Felony or misdemeanor where element of the crime is dishonesty = automatically admissible
Other felonies = only theft felonies are admissible subject to 403 balancing test
- -look at age of conviction and how probative it is of veracity
- -if it’s being used against the defendant, court looks at similarity of conviction to the charged offense and if it would deter the defendant from testifying
- –less likely to be admitted if the witness is defendant
ALL SUBJECT TO 10 YEAR RULE!
- conviction required
- extrinsic evidence permitted
MRE 701 Opinion Testimony of Lay Witness
Witnesses’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to clear understanding of the witness’ testimony or the determination of a fact in issue
Allows a lay witness to offer opinion testimony “as long as the opinion is rationally based on the perception of the witness and helpful to clear understanding of her testimony or a fact in issue”
MRE 702 Testimony by Expert Witness
If court determines that scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise if (1) the testimony is is based on sufficient facts or data, (2) the testimony is the produce of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case
MRE 403
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence
MRE 901
Requirement of Authentication or Identification
-the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims
MRE 601 Comptent Witness
Unless the court finds after questioning a person that the person does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably, every person is competent to be a witness except as otherwise provided in these rules
-won’t be looked at unless challenged by opposite party to trigger courts competency analysis
MRE 401 Relevancy
Relevant evidence is evidence having any tendency to make the existence of any fact that is a consequence to the determination of the action more probable or less probable than it would be without the evidence
To be relevant:
- evidence must be material (i.e. consequence to the determination of the action )
- it must have probative value (i.e. make a fact of consequence to the action more or less probable than it would be without the evidence)
Catch-All Hearsay Exception
Exception may be applied where the evidence is hearsay not within any recognized exception, provided all of the following criteria are met:
1) there are guarantees of trustworthiness equivalent to those in the enumerated exceptions;
2) the evidence is proof of one or more material facts;
3) the evidence is necessary, meaning it is more probative than any reasonable alternative;
4) admission of the evidence serves the interest of justice
MIMIC
Prior bad acts evidence is admissible to prove:
1) motive
2) intent
3) mistake
4) identity
5) common plan or scheme
note: these are always subject to FRE 403 balancing test
How to Organize/Begin Evidence Q
CARE
Course –> Area –> Rule –> Exception
Major areas:
- Relevance (include character)
- Witnesses
- -impeachment
- -opinions and experts
- Hearsay
Questions to first ask:
- Is it criminal or civil case?
- In what form is the evidence offered?
- Which party is offering the evidence?
