Evidence: Relevance, Hearsay, and Impeachment
Relevance and the 403 Balance
Evidence is relevant if it has any tendency to make a fact more or less probable and the fact is of consequence. Relevant evidence may still be excluded for unfair prejudice, confusion, waste of time, or cumulative effect. Character evidence is generally inadmissible to prove conduct, with exceptions for criminal defendants, victims, and impeachment.
Hearsay
Hearsay is an out-of-court statement offered for its truth. Nonhearsay uses: effect on the listener, verbal acts, and impeachment. Then the exemptions (party-opponent statements, prior consistent statements, prior inconsistent statements under oath) and the exceptions (excited utterance, present sense impression, business records, public records, dying declaration, statements against interest, ancient documents, learned treatises).
Confrontation and Privileges
Testimonial hearsay requires the declarant's unavailability plus a prior opportunity to cross-examine. Privileges: attorney-client, physician-patient, spousal, clergy, and governmental.
Impeachment and Authentication
Impeachment by prior inconsistent statement, bias, conviction, contradiction, and reputation for truthfulness. Authentication requires identification sufficient to support a finding; the best evidence rule applies to the content of writings.
Traps
The classic trap is a statement offered to show its effect on the listener, which is not hearsay. Another is the business records exception, which requires a foundation of regular practice and contemporaneous entry. Do not confuse present sense impression (immediate) with excited utterance (startling event).
Worked Example
A bystander shouts, "The light was red!" immediately after a crash. Offered to prove the light was red, it is hearsay but admissible as an excited utterance or present sense impression. Offered to show why the driver braked, it is not hearsay at all.