Evidence
Evidence tests relevance, character evidence, impeachment, hearsay and its exceptions, confrontation, privilege, and expert testimony. Expect questions that turn on the purpose for which a statement is offered.
Relevance and character
Relevant evidence tends to make a fact more or less probable and is generally admissible unless unfair prejudice substantially outweighs probative value. Character evidence is inadmissible to prove conduct, except for specific purposes such as character for truthfulness after impeachment, or in self-defense cases.
Hearsay
Hearsay is an out-of-court statement offered for its truth. Nonhearsay includes statements offered for effect on the listener or to show state of mind. Exceptions include present sense impression, excited utterance, then-existing mental or physical condition, business records, public records, and statements against interest.
Confrontation
The Confrontation Clause bars testimonial hearsay unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine.
Worked example
A bystander tells an officer, “The blue car ran the red light.” If offered to prove the blue car ran the light, it is hearsay; the excited utterance exception may apply if the bystander was still under the stress of the event. If offered to explain why the officer stopped the blue car, it is nonhearsay.
Traps
Do not label every out-of-court statement hearsay; check the purpose. Do not use character evidence as propensity. Do not forget the hearsay exception must be stated, not just “it’s admissible.” Watch prior consistent statements and impeachment by omission.