Understanding Hearsay Exceptions and Rules in Legal Procedures, Exams of Nursing

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Federal Rules of Evidence Latest Exam with Correct Answers Solved by Expert Rule 401 - Verified Answer “Relevant evidence" is evidence which has any tendency to make the existence of any fact of consequence more probable or less probable Rule 402 - Verified Answer Relevant Evidence is generally admissible; Irrelevant Evidence is Inadmissible Rule 403 - Verified Answer Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or undue delay Rule 404 a - Verified Answer Character evidence is generally inadmissible Rule 404 b - Verified Answer Evidence of other crimes, wrongs or acts is not admissible to prove the character of the person Rule 104 b - Verified Answer evidence may be admitted on a conditional basis; up to the judge Rule 407 - Verified Answer Subsequent remedial measures may NOT be used to prove: negligence, culpable conduct, product defect, or need for a warning/instruction. BUT the court may admit this evidence for another purpose, such as impeachment, or, if disputed, proving ownership, control, or feasibility. Rule 408 - Verified Answer Compromise for consideration, or attempts to compromise, may not be used to prove liability for a claim or to impeach by prior inconsistent statement/contradiction, but admissible to prove: witness bias, negating a contention of undue delay, or proving an effort to obstruct criminal investigation/ prosecution. Rule 409 - Verified Answer Evidence of offer, promise, or payment of medical expenses is barred to prove liability for the injury Rule 410 - Verified Answering civil OR criminal case, guilty plea later withdrawn, nolo plea, ^statement made during plea proceeding, ^statement made during plea discussions w/ prosecuting authority if they did not result in guilty plea or resulted in later-withdrawn guilty plea, are INADMISSIBLE against D who made the plea, except ^^ items can come in (1) in any proceeding in which another statement made during same plea has been introduced, if in FAIRNESS the statements ought to be considered together or (2) in perjury prosecution if statement is made under oath, on record and w/ counsel present Under Rules 410 and 403, can evidence that a D rejected a complete immunity deal be admitted? - Verified Answer Normally YES, because provides a strong inference of innocence/demonstrates consciousness of innocence (U.S. v. Baggy) Rule 411 - Verified Answer Liability insurance is inadmissible for proving negligence / wrongful action; but not to prove other things such as bias, prejudice, agency, ownership, or control Rule 701 - Verified Answer Opinion testimony by lay witnesses must be based on rational perceptions of the witness, must be helpful to determining the witness's testimony or a fact in issue, and not based on scientific, technical, or specialized knowledge w/in scope of R702. -Note: MUST establish personal knowledge under 602. This is not required for expert testimony under 703 though. Rule 704 a - Verified Answer testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. Note 704(b) exception to this for expert witness opinion on red mental state element. Rule 801 - Verified Answer 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 Rule 802 - Verified Answer Hearsay is not admissible Rule 803(1) - Present sense impression exception to hearsay rule *Note: All 803 exceptions apply whether or not declarant is available as a witness. - Verified Answer statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. Description but NO ANALYSIS. -Note: applies more to external observations. If internal thoughts, try 803(3) then existing condition/state of mind. Rule 803(2) - Excited utterance exception to hearsay rule - Verified Answer statement relating to a startling event or condition, made WHILE the declarant was under the stress of excitement that it caused. Relates to startling event = may include analysis. Timing is important. Rule 803(3) - Statement of then-existing condition/state of mind exception to hearsay rule - Verified Answer statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotion, sensory, or physical condition (such as mental feeling, pain, or bodily health). But does NOT include a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will. -Does NOT apply to external facts that prompt feelings, e.g. "my head aches because I hit it an hour ago" -If the writing is not produced/delivered as ordered, court may issue any appropriate order; BUT if prosecution does not comply, court MUST strike W's testimony or, if justice so red’s, declare a mistrial. Rule 613 b - Verified Answer Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an pop to explain/deny and adverse party is given pop to examine W about it. Collateral matter rule applies b/c extrinsic evidence can cause confusion, waste of time, etc. Rule 613 a - Verified Answer When examining witness about W's prior statement, party need not show/disclose its contents to the W, but upon request, party must show/disclose its contents to an adverse party's atty. Rule 702 - Verified Answer Witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's specialized knowledge will help trier of fact to understand evidence/ determine a fact in issue; AND (b) testimony is based on sufficient facts/data; AND (c) testimony is the product of reliable principles and methods; AND (d) expert has reliably applied the principles/methods to the facts of the case. -Part (c) of this rule reflects Dauber (5 factors for scientific testimony) / Kuhn (Dauber factors apply to non-scientific testimony) -Admissible only if expert believes it w/ a reasonable degree of certainty. Rule 703 - Verified Answer The facts in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. -If experts in particular field would reasonably rely on certain kinds of facts/data in forming an opinion, they need not be admissible facts/data for the opinion to be admitted. -If underlying facts/data otherwise inadmissible, proponent of the opinion may ONLY disclose them to the jury if their probative value in helping jury evaluate opinion substantially outweighs prejudicial effect. If admitted this way, jurors can ONLY consider the evidence to assess reliability of expert's opinion, NOT for its truth. Rule 704 b - Verified Answer Exception to opinion on ultimate issue rule: No expert witness testifying w/r/t the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime Rule 804 - Hearsay Exceptions ONLY when declarant is unavailable as a witness -Criteria for being unavailable? - Verified Answer Declarant is considered "unavailable" if declarant (1) is exempt from testifying b/c court rules that a privilege applies; (2) refuses to testify about subject matter despite a court order to do so; (3) testifies to not remembering the subject matter; (4) cannot be present or testify b/c of death or a then- existing infirmity, physical or mental illness; or (5) is absent from trial/hearing and the statement's proponent has not been able to procure (A) the declarant's attendance [for former testimony or statement against party who wrongfully caused declarant's unavailability] or (B) declarant's attendance or testimony [for dying declaration, statement against interest, or statement of personal/family history]. -Note: declarant is not considered "unavailable" if proponent of statement wrongfully caused declarant's unavailability to prevent them from testifying. Rule 804 - Hearsay Exceptions ONLY when declarant is unavailable as a witness (b)(1) Former testimony - Verified Answer Testimony that (A) was given as a witness at a trial, hearing, or lawful depot, whether during current proceeding or different one, AND (B) is now offered against a party who had (or in a civil case, whose predecessor in interest had) an OPPORTUNITY and SIMILAR MOTIVE to develop it by direct, cross, or re-direct examination, is not excluded by the rule against hearsay if the declarant is unavailable as a witness. NOTE: Grand jury testimony of an unavailable declarant is NOT admissible as former testimony b/c grand jury prods do not provide pop for cross- exam. Rule 804 - Hearsay Exceptions ONLY when declarant is unavailable as a witness (b)(2) - Dying Declaration - Verified Answering a prosecution for HOMICIDE ONLY or in a civil case, a statement that the declarant, while believing the declarant's death to be imminent, made about its cause or circumstances, is not excluded by the rule against hearsay. -Declarant doesn't have to die for it to be admissible but must be unavailable as a witness. -Suspicion, no matter how well-founded, is not enough; statement must be based on actual knowledge. Rule 804 - Hearsay Exceptions ONLY when declarant is unavailable as a witness (b)(3) - Statement Against Interest is not excluded by the rule against hearsay if the declarant is unavailable as a witness. Rule? - Verified Answer statement that (A) a reasonable person in declarant's position would have made ONLY if the person believed it to be true b/c, WHEN MADE, it was so contrary to the declarant's financial or criminal interest/great tendency to invalidate declarant's claim against someone else/expose declarant to civil or criminal liability, AND (B) is supported by CORROBORATING CIRCUMSTANCES that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability Rule 804 - Hearsay Exceptions ONLY when declarant is unavailable as a witness (b)(4) - Statement of Personal or Family History is not excluded by the rule against hearsay if the declarant is unavailable as a witness. Rule? - Verified Answer statement (A) about declarant's own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, marriage, or similar facts of personal/family history, even though declarant had no way of acquiring personal knowledge about that fact; or (B) about another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately assoc'd w/ the person's family that the declarant's info is likely to be accurate. Rule 804 - Hearsay Exceptions ONLY when declarant is unavailable as a witness (b)(6) - Statement offered against a party that wrongfully caused the declarant's unavailability - Verified Answer statement offered against a party that wrongfully caused - or acquiesced in wrongfully causing - the declarant's unavailability as a witness, and did so intending that result. Rule 805 - Verified Answer Hearsay within Hearsay Rule 901 - Verified Answer Requirement of Authentication or Identification Character is in issue and therefore admissible in what cases? - Verified Answer- Defamatory statement in defamation suit -Negligent entrustment [i.e. competency of driver in action for entrusting driver w/ vehicle] -Child custody dispute - fitness as parent -Loss of consortium -Entrapment defense [no propensity to commit the crime] Character is always inadmissible to prove CONDUCT in a CIVIL case except - Verified Answer if civil claim is based on sexual assault or child molestation, in which case D's prior acts are admissible. OR if character is directly in issue. 404(a)(2)(A) - exceptions to prohibition on use of character evidence to prove that on a particular occasion the person acted in accordance with that character or trait - Verified Answer For a defendant in a CRIMINAL case, defendant may offer evidence of his own pertinent trait, and if that evidence is admitted, prosecutor may offer evidence to rebut it 404(a)(2)(B) - exceptions to prohibition on use of character evidence to prove that on a particular occasion the person acted in accordance with that character or trait - Verified Answer For a defendant or victim in a CRIMINAL case, subject to limitations in Rule 412 (rape shield), D may offer evidence of an alleged victim's pertinent trait, and if that evidence is admitted, prosecutor may (i) offer evidence to rebut it and (ii) offer evidence of the D's same trait 404(a)(2)(C) - exceptions to prohibition on use of character evidence to prove that on a particular occasion the person acted in accordance with that character or trait - Verified Answer For a defendant or victim in a HOMICIDE case, the prosecutor may offer evidence of the alleged victim's trait of PEACEFULNESS to rebut evidence that victim was first aggressor. 404(a)(3) - exceptions to prohibition on use of character evidence to prove that on a particular occasion the person acted in accordance with that character or trait - Verified Answer Exceptions for a witness - evidence of witness's character may be admitted under rules 607, 608, 609. Collateral matter rule - Verified Answer Application of Rules 403 & 611 403 - probative value substantially outweighed by danger of unfair prejudice/confusing/misleading/cumulative/etc 611- mode/order of examining witnesses and presenting evidence => cross-examiner cannot use extrinsic evidence (call other witnesses or produce documentary evidence) solely to contradict the witness Rule 611(c) - Verified Answer Leading questions should NOT be used on direct, except as necessary to develop witness's testimony. Court should allow leading questions on direct if a party calls a hostile witness, adverse party, or witness identified w/ adverse party, and on cross-exam. Rule 705 - Disclosing facts/data underlying expert opinion - Verified Answer Unless court orders otherwise, expert may state opinion and give reasons for it w/o first testifying to underlying facts/data. BUT expert may be red to disclose those facts/data on cross-exam. Refreshed & Recorded Recollection in Practice (interaction of rules 612 and 803(5)) - Verified Answer1. Witness (W) testifies in court that she can't recall 2. Identify "memory jogger" and ask W if that might refresh her recollection 3. Show memory jogger to opposing counsel & W: allow W to review it, but NOT read it aloud or show to jury. 5. Take memory jogger away (or ask her to put it down) 6. Ask W if recollection refreshed. If "yes," ask W to testify from revived memory. If "no," try recorded recollection: 1. W testifies in court she can't completely & accurately recall events, even after reviewing [Memory Lapse] 2. Identify a memorandum/record made or adopted by W 3. Show document to opposing counsel and then to W 4. Establish through questioning W that: -W once had personal knowledge of fact/event recorded -W subsequently prepared a record of the facts. -W made or adopted the record when her knowledge was fresh in her memory -W can vouch that the info in the record was accurate 5. Ask permission from judge to read document aloud to the jury; or to allow the W to read it. ----Note: It's not red to attempt to refresh memory via 612 before using 803(5), but it may be less hostile to W to go in that order. ----Note: If declarant testifies to not remembering subject matter, whether real or feigned, he is considered to be "unavailable as a witness" under 804(a)(3), so the 804(b) hearsay exceptions may apply. Rule 807 - Residual exception to hearsay rule - Verified Answer hearsay statement is not excluded by the rule against hearsay if all of the following apply: (1) the statement has equivalent circumstantial guarantees of trustworthiness;(2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and (4) admitting it will best serve the purposes of these rules and the interests of justice. -The proponent also must give an adverse party reasonable notice (FRE 807(b)) Testimonial or non-testimonial? Prior testimony at a preliminary hearing, before a grand jury, or at a formal trial - Verified Answer TESTIMONIAL. Therefore, 6thA confrontation clause issue if declarant not available for cross-exam, & D did not have a prior opportunity to cross-exam the declarant Testimonial or non-testimonial? Casual remarks to an acquaintance - Verified Answer NON-TESTIMONIAL. No 6thA confrontation clause issue. Testimonial or non-testimonial? Statement made in the course of police interrogation under circumstances objectively indicating that primary purpose of interrogation is to enable police assistance to meet an ongoing emergency - Verified Answer NON- TESTIMONIAL. No 6thA confrontation clause issue. Davis, Bryant Testimonial or non-testimonial? Statements in furtherance of a conspiracy - Verified Answer NON-TESTIMONIAL. No 6thA confrontation clause issue. Testimonial or non-testimonial? Statements made with involvement of government officers in the production of testimony "with an eye toward trial" - Verified Answer TESTIMONIAL. Therefore, 6thA confrontation clause issue if declarant not available for cross-exam, & D did not have a prior opportunity to cross-exam the declarant Testimonial or non-testimonial? A lab technician's signed report offered to prove an element in a criminal case - Verified Answer TESTIMONIAL. When a lab report is admitted, the analyst who did the testing must come into court and be subject to cross- exam in order to comply with the Confer. Cl. It is NOT sufficient to call a different analyst to testify about the general process, because this cannot reveal any lies or errors made by the original analyst. But could avoid this problem by having the second analyst re- test the sample, and then testify to the results of his re-test (obligation to do this is on prosecution, not D). -Note: Lab reports are generally admissible under the business records exception Lay or expert opinion testimony? "This substance appears to be cocaine." - Verified Answer Lay opinion, so long as a foundation of familiarity with the substance is established. Such testimony is not based on specialized knowledge within the scope of Rule 702, but rather is based upon a layperson's personal knowledge Lay or expert opinion testimony? Describing how a narcotic was manufactured, or describing the intricate workings of a narcotic distribution network - Verified Answer Expert. Witness needs to qualify as an expert under 702. Lay or expert opinion testimony? "This substance appears to be blood." - Verified Answer Lay opinion. Such testimony "results from a process of reasoning familiar in everyday life."' Lay or expert opinion testimony? "This bruising around the eyes is indicative of skull trauma." - Verified Answer Expert; witness must be qualified under 702. Such testimony "results from a process of reasoning which can be mastered only by specialists in the field." Lay or expert opinion testimony? Testimony by the owner or officer of a business about the value or projected profits of the business - Verified Answering most courts = lay testimony. Particularized knowledge that the witness has by virtue of his or her position in the business. Lay or expert opinion testimony? A banker or landowner testifying to various land values - Verified Answer Expert. Witness must be qualified under 702. Lay or expert opinion testimony? Person testifies to results obtained from running forensic software on a computer. - Verified Answer Expert. Requires familiarity with computers, the particular software, and how to interpret the results, and therefore he must testify as an expert under Rule 702 Lay or expert opinion testimony? Person who had smoked marijuana over a thousand times, dealt in marijuana as many as twenty times, and had compared Colombian marijuana with marijuana from other places as many as 20 times - Verified Answer Was allowed to testify as an expert that the marijuana in this case was from Colombia based on the look, smell, and high it gave. Need to qualify fewer than 702. Dauber Factors (use with Rule 702 expert witness testimony to determine whether methods used by expert are reliable) - Verified Answer on-exhaustive list of factors: 1. Whether theory or technique has been tested 2. Whether it has been subject to peer review and publication 3. The technique's error rate 4. The existence of standards controlling the technique's application 5. General acceptance in the relevant scientific community (after Dauber, this factor is no longer dispositive by itself as it was in Frye) Non-hearsay purposes for evidence - Verified Answer-Effect on listener (e.g., to show notice, motive, explain behavior) -Legally operative words/verbal acts (words of contract, defamation, gift, permission) -Circumstantial evidence of declarant's state of mind ("I am Dracula") -Prior inconsistent statement (offered to impeach declarant's in-court testimony) **What matters in these cases is simply that the words were spoken; the declarant's testimonial capacities/the truth of the words are irrelevant 801 (d) - Statements that are NOT hearsay (exemptions) and can testify even against the wishes of the other spouse. Privilege lasts ONLY during marriage and terminates upon divorce/annulment. Spousal confidential communications privilege - Verified Answer Protects confidential spousal communications DURING marriage; applies in both criminal and civil cases. Both spouses own the privilege, so defendant can stop witness-spouse from testifying. Divorce does NOT retroactively terminate the privilege. "Confidential" means not made w/in the KNOWN hearing of a 3rdP; if someone is eavesdropping it's still privileged less negligence is shown on the part of the speaker. Judicial Notice - Verified Answer Process of establishing facts w/o presenting evidence. Courts can take judicial notice of facts not subject to reasonable dispute because they are either generally known w/in the tx or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned (e.g., a calendar). -Procedure: party must request it, or court has discretion on its own. Civil: court instructs jury it MUST accept noticed fact as conclusive. Criminal: Court instructs jury it MAY, but is NOT REQUIRED, to accept judicially noticed fact, and prosecution's burden of producing evidence on that point is satisfied. -May occur at any time, even on appeal. Dead Man's Act - Verified Answer Provides that a party/person interested in the event, or her predecessor in interest, is incompetent to testify to a personal transaction or communication w/ a deceased when such testimony is offered against the representative or successor in interest of the deceased (aka executor, heir, devisee, etc.). Designed to protect from perjured claims. -Bar to competency ONLY applies to civil cases How can evidence that a witness is biased or has an interest in the outcome of the suit be introduced? - Verified Answer Either on direct if a proper foundation is laid (then can introduce extrinsic evidence), OR on cross-examination without a foundation (but no extrinsic evidence w/o foundation). Rule 803(18) Exception to hearsay rule - Verified Answer statement contained in a treatise, periodical, or pamphlet if (A) the statement is called to the attention of an expert witness on cross-exam or relied on by the expert on direct exam, AND (B) the publication is set’s as a reliable auto by the expert's admission or testimony, by another expert's testimony, or by judicial notice. If admitted, the statement may be READ into evidence but NOT received as an exhibit. Admission of polygraph evidence? - Verified Answer Should not be admitted under Rule 403 b/c the probative value of polygraph evidence is substantially outweighed by the tendency of its results to mislead and confuse the jury. See also Rule 702 for reliability of scientific testimony. Most joss have held that probative value is slight b/c of significant rate of error & also jurors tend to give too much weight to a polygraph test. Rule 301 - Verified Answer Presumptions - In a civil case, party against whom a presumption is directed has the burden of producing evidence to rebut the presumption (burden of "going forward"). But this rule does not shift the burden of persuasion, which remains on the party who had it originally (the person bringing the case). When a client is examined by a doctor at the attorney's request, under what privilege are the communications between the client and doctor protected? - Verified Answer The attorney-client privilege. The communications between the doctor and attorney are also protected under arty-client privilege. NOTE the physician-patient privilege does not apply because no treatment is contemplated (plus, that privilege is statutory (not CL), so don't assume it unless Q says the tx has it). Rule 608 ACN. If a witness has been impeached with ONLY certain kinds of impeachment evidence, the witness can be rehabilitated with character for truthfulness. What are these certain kinds of impeachment? - Verified Answer ONLY prior bad acts, prior convictions, and character for untruthfulness. -ACN specifically states that evidence of bias or interest does NOT count; & courts have been ambiguous as to other forms of impeachment. What are 2 situations in which a prior inconsistent statement can be used BOTH to impeach AND as substantive evidence? - Verified Answer(1) when it was made under oath - not hearsay under 801(d). (2) when the statement itself falls under an exception to the hearsay rule, such as an excited utterance.