Evidence
Evidence
Evidence questions test relevance, character, impeachment, hearsay, and the Confrontation Clause. Ask three questions: is it relevant, is it excluded by a specific rule, and is it hearsay with an applicable exception?
Relevance and character
- Relevant evidence must make a fact more or less probable. Rule 403 excludes evidence whose probative value is substantially outweighed by unfair prejudice or confusion.
- Character evidence is barred to prove propensity, with exceptions for the accused, the victim, and sexual assault cases. Habit evidence is admissible to prove conduct.
Hearsay
- Hearsay is an out-of-court statement offered for its truth. Nonhearsay includes effect on the listener, verbal acts, and state of mind.
- Exemptions include party-opponent statements. Exceptions include present sense impression, excited utterance, business records, public records, learned treatises, and judgments of conviction.
- Hearsay within hearsay requires an exception for each layer.
Impeachment and confrontation
- Impeach with prior inconsistent statements, bias, conviction, and reputation for truthfulness. Prior consistent statements rebut fabrication or recent motive.
- Testimonial hearsay requires the declarant to be unavailable and previously cross-examined (Crawford). Statements to police during an ongoing emergency are nontestimonial (Davis v. Washington).
Worked example
A victim tells an officer at the scene, while the attacker is still nearby, that the attacker hit her. The statement is nontestimonial because the emergency is ongoing, and it qualifies as an excited utterance. It is admissible even if the victim does not testify.
Traps
- Using impeachment evidence substantively without an exception.
- Forgetting that business records require a custodian or qualified witness.
- Missing the distinction between lay and expert opinion.