What is the basic requirement for former testimony to be admissible?

The party against whom the former testimony is offered must have had the chance to cross-examine and fully develop the testimony at the prior event.

Is grand jury testimony generally admissible under the former testimony exception? Why?

Nope. Grand jury's do not afford cross-examination rights to the opposing party.

What is the present state of mind exception to the hearsay rule?

A declarant's present statement regarding their own plans, motive, emotional state, intent to do something, physical condition, is admissible.

What are the requirements for a statement against penal interest to be admissible as a hearsay exception?

(1) declarent has personal knowledge about the statement

(2) statement was against their interest when it was made

(3) declarant MUST be unavailable

Does a declarant need to be party to the case for the statement against interest exception to apply?

No.

What are the 4 main categories of non-hearsay that can be easily memorized by thinking about a character on the Simpsons?

Statements about:

(1) Legally operative facts

(2) Effect on the listener

(3) State of mind (current mental state)

(4) Admissions (of a party opponent)

Statements of identification are also often non-hearsay.

Is evidence of subsequent remedial measures admissible? What are the exceptions

Generally not admissible as a public policy.

Exceptions: (1) to show control / ownership (2) to show there is better way to do something or to improve a condition (3) to show it is possible to make safer

What are the important qualities of the confidential marital communications privilege?

(1) survives divorce (2) only applies to confidential communications that occurred DURING the marriage (3) May be used in both criminal and civil settings (4) Both spouses may assert the privilege. (either spouse can prevent the other from testifying)

What are the important qualities of the spousal privilege?

(1) protects all communication (does not matter if it was confidential or not) (2) protects communication during and before the marriage (3) Does NOT survive divorce (4) may only be used in a criminal setting (5) privilege may only be asserted by the witness spouse

In what proceedings may the dying declaration exception be used?

(1) Homicide cases

(2) civil proceedings

What are the requirements of the dying declaration exception?

(1) declarant they believed they would die imminently (they don’t have to actually be dead) (2) the hearsay statement related to the cause of their imminent death (3) the hearsay statement must be founded upon the declarants reasonable and first hand perception of what happened.

If someone witnesses a crime and self-records an audio note about it and later wishes to introduce the recording as evidence at trial because they can't remember the contents, is the recording admissible?

It is admissible under the present sense impression exception since it was based on first hand knowledge.

What are the requirements of a recorded recollection exception?

(1) Made temporally close to the event (2) based first hand knowledge (3) memory cannot be refreshed (4) the court has reasonable belief that the recording was accurate when created

When is lay witness testimony admissible?

(1) when not based on a specialized, scientific, learned, technical knowledge base. (2) lay witness has first hand knowledge (3) the testimony is relevant

What are the primary items to which the best evidence rule applies?

Writings, x-rays, photos, audio tapes, videos

What is the big exception to the best evidence rule?

A testifying witness may testify about their personal knowledge that is related but NOT RELIANT on the contents of the item to which the best evidence rule applies.

How are preliminary questions of admissibility determined?

(1) judges determine admissibility (matter of law) (2) both sides can argue admissibility (3) arguments are in camera (away from jury)

Who holds the physician/patient privilege?

(1) held by patient (2) only the patient (or their attorney on their behalf) may assert the privilege

The doctor may not assert the privilege.

When may a party inquire about a witness's prior bad acts?

(1) only on cross (2) and only when the prior acts tend to weigh on character for truthfulness.

Is extrinsic evidence of prior bad acts admissible?

NEVER. Your stuck with the witness's answer.

Does a photograph need to be authenticated?

Yes, but any witness can authenticate. The photographer need not testify.

Is finger print evidence admissible if the lab tech who analyzed the prints is unavailable?

No. It is inadmissible. The confrontation clause gives the defendant the right to cross examine those who create and offer forensic evidence.

When does the recorded recollection exception apply?

(1) based on first hand knowledge (2) when the issue was temporally close to the recording (fresh in the mind of the declarant) (3) witness can recollect at trial

How can a recorded recollection be entered into evidence?

(1) can be read into evidence by the offeror

(2) can only be offered as an exhibit of offered by the opposing party.

What is present recollection refreshed?

When a witness cannot remember, ANYTHING (usually a writing) can be used to refresh their memory, but the witness cannot actually read from the item.

Are their any hearsay issues with present recollection refreshed?

Nope. The writing itself is not admitted into evidence. It simply jog's the witness's memory.

What are the former testimony requirements?

(1) unavailable declarant (2) the testimony is from a prior sworn event (deposition, trial, hearing, trial). (3) similar parties who has the opportunity to fully develop testimony.

What are the elements of the business records exception?

(1) created during the regular course of business (2) the creation of such records was normal/typical practice of the business (3) the record was made temporally close (near in time) to the recorded event

What does "normal business practice" mean?

Related to the purpose for which the business exists.

What are the essential elements of the statements of medical diagnosis / treatment exception?

(1) reasonably related/pertinent to the cause of the physical condition / condition being discussed / or the symptoms.

(2) the statement was made for the purpose of assisting treatment

What portions of a medical statement are generally suppressed?

Statements indicating fault of a person or identity of a person are generally suppressed because they are not pertinent to the medical condition / diagnosis / symptom.

What are the elements of the present sense impression exception?

(1) the statement describes or explains an even or condition of which the declarant has first hand knowledge.

(2) The statement was made close to or at the time of the declarant perceiving.

If a person calls the police and says they want to murder their spouse in October, and they are arrested for a murder of the spouse that took place the following May, is the phone call admissible evidence?

Yes. This would be an valid "state of mind" hearsay exception. The person stated their present intent to do something in the future.

What are the 5 primary categories of past crimes or behavior that are an exception to the general rule barring character evidence?

(1) Motive (2) Intent (3) Mistake (lack there of) (4) Identity (5) Common plan / scheme

Also, opportunity, knowledge, plan, identity, preparation.

What is the proper foundation for admitting a photograph?

(1) must be identified by a witness familiar with the scene (not necessarily the photographer)

(2) witness must confirm that the photo is an accurate representation of the scene.

What is the maximum amount of time felony conviction can be used to impeach a witness?

10 years

When may a felony conviction be inadmissible even when it is within the time limit?

FRE 403 balance test. It is inadmissible if the probative value of the evidence is outweighed by the danger of unfair prejudice.

If 2 business partners jointly consult with an attorney and that subsequently have a falling out, and they sue each other and want to introduce evidence from the conversations with the attorney, does the attorney / client privilege apply?

No. If jointly represented, the privilege no longer applies.

What is the American rule?

Each side pays for their own attorney fees. Attorney fees are generally not recoverable by the opposing side.

In criminal cases, when may the prosecutor introduce evidence of the victim's character?

When the asserted defense makes the character trait relevant. For example, when evidence of the victim's tendency for violence when the defendant is arguing self defense.

What does the 6th amendment require in a criminal case?

It ensures the defendant has an opportunity to cross examine witnesses about testimonial hearsay statements.

What is a testimonial hearsay statement?

Statements made in preparation for a prosecution. Statements made to emergency personnel and police are considered testimonial.

On the MBE, be careful of statements where someone heard another say something.

If the declarant's statement is based on hearsay and there is no personal knowledge, then the statement is inadmissible.

What are 3 valid methods for validating a handwriting example?

(1) comparison by a lay witness who is previously familiar with the subject handwriting (2) comparison by the jury or trier of fact (3) comparison by a hand writing expert (NOT REQUIRED)

What is the best evidence rule?

In proving the subject matter of a document, writing, ERD, other record, photo, the original must be used.

A criminal defendant is accused. The suspect apparently speaks with a stutter according to a witness. Would evidence of the defendant speaking with the a stutter (in court) violate the 4th amendment's bar against compelling self incrimination?

No, because speaking with a stutter is not testimonial in nature.

Once an expert witness is accepted by the court, what are the requirements for the expert testimony to be valid?

(1) opinion is based on facts / data (2) these facts / data are reasonably relied upon by similar experts in the field to come to conclusions in that area of science, tech, industry, etc.

What are the 3 proper forms of character evidence in a civil case?

(1) reputation (2) opinion (3) specific acts