Hearsay & Nonhearsay
A statement is not hearsay if it is offered to prove what instead of the truth of the matter asserted?
That the statement was made (such as to show its effect on the listener, state of mind, or legally operative words).
What is the difference between a present sense impression and an excited utterance?
A present sense impression describes an event while it is happening or immediately afterward, while an excited utterance requires a startling event and a statement made under the stress of excitement.
Is character evidence generally admissible to prove a person acted in conformity with that character?
No. Character evidence is generally inadmissible for propensity purposes.
Who decides whether evidence is admissible, and who decides credibility?
The judge decides admissibility, and the jury determines credibility.
Who holds the spousal immunity privilege?
The witness spouse.
What are the three prior statements by a testifying witness that are classified as nonhearsay under the Federal Rules?
Prior identification, prior inconsistent statement made under oath, and prior consistent statement offered to rebut a charge of recent fabrication or improper motive.
What must be shown before a recorded recollection may be admitted?
The witness once had personal knowledge, now has insufficient recollection, made or adopted the record while the matter was fresh, and can verify its accuracy.
What does MIMIC stand for?
Motive, Intent, absence of Mistake, Identity, and Common scheme or plan.
What three methods may be used to authenticate handwriting?
A lay witness familiar with the handwriting before litigation, an expert witness, or comparison by the trier of fact.
What four elements are required for the confidential marital communications privilege?
The communication was confidential, made during the marriage, applies in civil or criminal cases, and is held by both spouses.
Name the four types of opposing party statements that are treated as nonhearsay?
A party's own statement, adoptive admissions, statements by an agent or employee made within the scope of employment, and co-conspirator statements made during and in furtherance of the conspiracy.
What are the requirements for the business records exception?
The record was made at or near the time of the event, kept in the regular course of business, and contains information observed by employees or otherwise falls within a hearsay exception.
When may extrinsic evidence be used to prove a witness's prior inconsistent statement?
After the witness has an opportunity to explain or deny the statement, unless an exception applies.
May an expert witness testify about the ultimate issue in a case?
Yes, except in a criminal case the expert may not testify that the defendant had the required mens rea.
When is evidence of liability insurance admissible?
To prove matters such as ownership, control, agency, or bias—but not to prove negligence.
What four elements are required for the dying declaration hearsay exception?
The declarant is unavailable, believed death was imminent, the statement concerns the cause or circumstances of death, and it is offered in a homicide prosecution or civil case.
Why are police reports generally inadmissible under the public records exception in criminal cases?
Because public records do not include police reports offered against a criminal defendant.
A witness is asked about a prior dishonest act during cross-examination and denies it. May the examiner introduce extrinsic evidence proving the misconduct?
No. Extrinsic evidence is not permitted for specific instances of misconduct used solely to attack truthfulness.
What must a proponent establish to authenticate evidence?
Evidence sufficient to support a finding that the item is what the proponent claims it is.
When are subsequent remedial measures admissible?
For impeachment or to prove ownership, control, or feasibility of precautionary measures if disputed.
In a criminal case, when does the Sixth Amendment Confrontation Clause generally prohibit admission of testimonial hearsay?
When the declarant is unavailable, the statement is testimonial, and the defendant had no prior opportunity to cross-examine the declarant.
A declarant is unavailable because of illness. What five hearsay exceptions require the declarant to be unavailable?
Former testimony, statement against interest, dying declaration, forfeiture by wrongdoing, and statements of personal or family history.
What are the two categories of criminal convictions that may be used to impeach a witness?
Crimes involving dishonesty or false statements (automatically admissible) and felony convictions that satisfy the balancing test.
What three sources may an expert rely upon when forming an opinion?
Personal knowledge, facts admitted into evidence or presented through hypotheticals, and facts not in evidence if experts in the field reasonably rely on them.
Which plea-related statements are inadmissible under the Federal Rules of Evidence?
Offers to plead guilty, withdrawn guilty pleas, no contest pleas, and statements made during plea negotiations that do not result in a guilty plea.