ITT: Evidence Forum

[Stringer6]

LOL I just got destroyed by my evidence exam

What were the tricky parts?

Please don't say everything!

It was a 3 hour exam, 55 tough MC and 6 essay -- I only did 4 essays

What the poster above said about how complicated and in depth the subject matter is is correct -- feel like I don't really know anything after studying for 4 days

[brotherdarkness]

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[Tom Joad]

So the line in 104(a) referring to "whether a witness is qualified" is only with regards to expert witnesses, right? Whether lay witnesses have personal knowledge is 104(b)? And "whether evidence is admissible" is referring to hearsay questions?

Took it last year, but that sounds right.

[HiiPower2015]

I'm having trouble differentiating when a statement should be considered hearsay, and when a statement should not be considered hearsay because it is not being offered for the truth of the matter asserted. Does anyone have any tips on how to understand this for the exam? I understand that sometimes notice, and declarant's state of mind are typical non-hearsay purposes, but sometimes even those will be considered hearsay.

[Birdnals]

I'm having trouble differentiating when a statement should be considered hearsay, and when a statement should not be considered hearsay because it is not being offered for the truth of the matter asserted. Does anyone have any tips on how to understand this for the exam? I understand that sometimes notice, and declarant's state of mind are typical non-hearsay purposes, but sometimes even those will be considered hearsay.

Here is what I have in my outline, it is long but it is as short as I can make it to answer your question:
Hearsay- 464
• 801- Hearsay is an out of court statement offered in evidence to prove the truth of the matter asserted in the statement. Statement means a personal’s oral assertion, written assertion, or nonverbal conduct if the person intended it as an assertion. 802 makes hearsay generally inadmissible.
• Evidence the falls into one of the Hearsay exemptions/exceptions it is not automatically admissible. Must also satisfy the requirements of other evidentiary rules of relevance, not excludable for other reasons, or authentication rules and such.
• Declarant defined- 801(a) makes clear the rule doesn’t apply to radar, tracking dogs, or computer generated report if result of an automated process free from human input/intervention.
• If hearsay offered not for truth of matter asserted, a limiting instruction must be given on request, and it can still be barred under 403 if probative value is substantially outweighed by unfair prejudice- that the jury will make the prohibited inference despite limiting instruction.
• Examples where not being offered to show truth of the matter asserted:
-Show effect on listener- Offered to show effect on person who heard it, like knowledge, good faith, or reasonableness.
-Verbal Acts- Verbal acts or legally operative words are not hearsay. Uttering certain words has independent legal significance under the substantive law, like words forming a contract, slander, threats, and such. Thus we only care that these words were said, not that they are true.
-Verbal Part of Acts- statements offered only to show that the statements were made and explain an otherwise ambiguous acts. I.E., handing a bag of money to somebody and saying “this is a gift/bribe”. The conduct must have an independent legal significance though like the verbal acts example.
-Prior Inconsistent Statement for Impeachment- offered to show inconsistency between statements, not to show the truth of the assertions contained in the pretrial statement.
-To circumstantially prove declarant’s state of mind- Example, in husband’s claims for damages for loss of companionship, wife’s statement prior to death of “my husband is the cruelest man in the world” would be offered to establish circumstantially to show how wife felt about husband, not to prove he is actually the cruelest man in the world.
Hearsay Exemptions- 490
• Rule 801(d) defines some statements as nonhearsay which the hearsay rule is not a bar to admissibility. There are two categories: 1. Certain prior statements, and 2. Admissions by a party opponent.
• 801(d)(1)(a)- Prior inconsistent statements that do not satisfy the requirements of this rule are still admissible for impeachment governed by 611. For admissibility under 801 they need to meet 4 requirements: 1. Declarant must testify subject to cross at current trial, 2. Prior statement must be inconsistent with witness’s trial testimony, 3. The prior statement given under oath/penalty of perjury, and 4. The prior statement was made at trial, hearing, other proceeding, or in deposition. “Other proceedings” includes grand jury testimony, and require formalized proceedings with transcripts typically.
• 801(d)(1)(b)- Prior consistent statements are admissible to rebut an express or implied charge of recent fabrication, improper influence, or motive. Witness must be subject to cross at trial.
• 801(d)(1)(c)- Statements of identification made by witness prior to trial is admissible whether or not the witness makes an in-court identification so long as the witness is subject to cross examination about the statement at trial, the testimony of other witnesses who were present at the time of the identification is admissible.
• 801(d)(2)- Statement by Party Opponent recognizes 5 types of party admissions: 1. Individual admissions, 2. Adoptive admissions, 3. Authorized admissions, 4. Agent admissions, and 5. Co-conspirator admissions.
-801(d)(2)(A)- Individual admissions is any statement made by a party at any time if relevant and offered by opposing party. The statements need neither be incriminating, inculpatory, against interest, nor otherwise inherently damaging to the declarant’s case. Firsthand knowledge rules doesn’t apply here.
-801(d)(2)(B)- Adoptive admissions is a statement that a party adopts which is admissible as substantive evidence if offered against that party. There can be adoption of 3rd party statement by failing to deny or correct under circumstances in which it would have been natural to deny or correct the truth of the statement.
-801(d)(2)(C)- Authorized Admissions are statements made by a person authorized by a party to speak for that party if offered against that party. Only governs statements by agents who have speaking authority.
-801(d)(2)(D)- Agent Admissions are statements by agents/EE’s 1. Concerning a matter within the scope of their agency or employment and 2. Made during the existence of the agency or employment relationship. Admissible as substantive evidence if offered against the party. If the agency relationship is established, the statement is admissible even if the agent remains unidentified.
-801(d)(2)(E)- Co-Conspirator admissions allowed to be offered against co-conspirator if 1. There was a conspiracy in which the D and declarant participated, 2. The statements were made during the conspiracy, and 3. The statement was in furtherance of the conspiracy.

[HiiPower2015]

I'm having trouble differentiating when a statement should be considered hearsay, and when a statement should not be considered hearsay because it is not being offered for the truth of the matter asserted. Does anyone have any tips on how to understand this for the exam? I understand that sometimes notice, and declarant's state of mind are typical non-hearsay purposes, but sometimes even those will be considered hearsay.

Here is what I have in my outline, it is long but it is as short as I can make it to answer your question:
Hearsay- 464
• 801- Hearsay is an out of court statement offered in evidence to prove the truth of the matter asserted in the statement. Statement means a personal’s oral assertion, written assertion, or nonverbal conduct if the person intended it as an assertion. 802 makes hearsay generally inadmissible.
• Evidence the falls into one of the Hearsay exemptions/exceptions it is not automatically admissible. Must also satisfy the requirements of other evidentiary rules of relevance, not excludable for other reasons, or authentication rules and such.
• Declarant defined- 801(a) makes clear the rule doesn’t apply to radar, tracking dogs, or computer generated report if result of an automated process free from human input/intervention.
• If hearsay offered not for truth of matter asserted, a limiting instruction must be given on request, and it can still be barred under 403 if probative value is substantially outweighed by unfair prejudice- that the jury will make the prohibited inference despite limiting instruction.
• Examples where not being offered to show truth of the matter asserted:
-Show effect on listener- Offered to show effect on person who heard it, like knowledge, good faith, or reasonableness.
-Verbal Acts- Verbal acts or legally operative words are not hearsay. Uttering certain words has independent legal significance under the substantive law, like words forming a contract, slander, threats, and such. Thus we only care that these words were said, not that they are true.
-Verbal Part of Acts- statements offered only to show that the statements were made and explain an otherwise ambiguous acts. I.E., handing a bag of money to somebody and saying “this is a gift/bribe”. The conduct must have an independent legal significance though like the verbal acts example.
-Prior Inconsistent Statement for Impeachment- offered to show inconsistency between statements, not to show the truth of the assertions contained in the pretrial statement.
-To circumstantially prove declarant’s state of mind- Example, in husband’s claims for damages for loss of companionship, wife’s statement prior to death of “my husband is the cruelest man in the world” would be offered to establish circumstantially to show how wife felt about husband, not to prove he is actually the cruelest man in the world.
Hearsay Exemptions- 490
• Rule 801(d) defines some statements as nonhearsay which the hearsay rule is not a bar to admissibility. There are two categories: 1. Certain prior statements, and 2. Admissions by a party opponent.
• 801(d)(1)(a)- Prior inconsistent statements that do not satisfy the requirements of this rule are still admissible for impeachment governed by 611. For admissibility under 801 they need to meet 4 requirements: 1. Declarant must testify subject to cross at current trial, 2. Prior statement must be inconsistent with witness’s trial testimony, 3. The prior statement given under oath/penalty of perjury, and 4. The prior statement was made at trial, hearing, other proceeding, or in deposition. “Other proceedings” includes grand jury testimony, and require formalized proceedings with transcripts typically.
• 801(d)(1)(b)- Prior consistent statements are admissible to rebut an express or implied charge of recent fabrication, improper influence, or motive. Witness must be subject to cross at trial.
• 801(d)(1)(c)- Statements of identification made by witness prior to trial is admissible whether or not the witness makes an in-court identification so long as the witness is subject to cross examination about the statement at trial, the testimony of other witnesses who were present at the time of the identification is admissible.
• 801(d)(2)- Statement by Party Opponent recognizes 5 types of party admissions: 1. Individual admissions, 2. Adoptive admissions, 3. Authorized admissions, 4. Agent admissions, and 5. Co-conspirator admissions.
-801(d)(2)(A)- Individual admissions is any statement made by a party at any time if relevant and offered by opposing party. The statements need neither be incriminating, inculpatory, against interest, nor otherwise inherently damaging to the declarant’s case. Firsthand knowledge rules doesn’t apply here.
-801(d)(2)(B)- Adoptive admissions is a statement that a party adopts which is admissible as substantive evidence if offered against that party. There can be adoption of 3rd party statement by failing to deny or correct under circumstances in which it would have been natural to deny or correct the truth of the statement.
-801(d)(2)(C)- Authorized Admissions are statements made by a person authorized by a party to speak for that party if offered against that party. Only governs statements by agents who have speaking authority.
-801(d)(2)(D)- Agent Admissions are statements by agents/EE’s 1. Concerning a matter within the scope of their agency or employment and 2. Made during the existence of the agency or employment relationship. Admissible as substantive evidence if offered against the party. If the agency relationship is established, the statement is admissible even if the agent remains unidentified.
-801(d)(2)(E)- Co-Conspirator admissions allowed to be offered against co-conspirator if 1. There was a conspiracy in which the D and declarant participated, 2. The statements were made during the conspiracy, and 3. The statement was in furtherance of the conspiracy.

Thanks for that. That is a good summary of non-hearsay uses. I'm hoping that even if I reach the wrong conclusion on whether its actually hearsay, my analysis can be right now!!

[Birdnals]

No problem. I basically went through the Understanding Evidence book, and condensed their key points of all the sections we covered in our class. Document ended up being around 17 pages, and is pretty helpful for a straightforward application of the black letter law. If anybody wants it PM me your email and I will shoot it over to you.

[HiiPower2015]

No problem. I basically went through the Understanding Evidence book, and condensed their key points of all the sections we covered in our class. Document ended up being around 17 pages, and is pretty helpful for a straightforward application of the black letter law. If anybody wants it PM me your email and I will shoot it over to you.

I'm still a little confused about knowledge, because sometimes when evidence is offered to prove knowledge then it is hearsay.

For instance, say that A is charged with knowingly possessing marijuana but he claims he didn't know it was in his car. A's statement that he needed to go pick up a package would be hearsay correct?

But on the other hand, say that a boss is informed that an employee is sexually harassing another employee. In that instance, it would not matter whether the sexual harassment actually occurred, and it would be non-hearsay to show whether he had notice/knowledge.

Is this correct, and if so how do you differentiate between the two?

[Birdnals]

No problem. I basically went through the Understanding Evidence book, and condensed their key points of all the sections we covered in our class. Document ended up being around 17 pages, and is pretty helpful for a straightforward application of the black letter law. If anybody wants it PM me your email and I will shoot it over to you.

I'm still a little confused about knowledge, because sometimes when evidence is offered to prove knowledge then it is hearsay.

For instance, say that A is charged with knowingly possessing marijuana but he claims he didn't know it was in his car. A's statement that he needed to go pick up a package would be hearsay correct?

But on the other hand, say that a boss is informed that an employee is sexually harassing another employee. In that instance, it would not matter whether the sexual harassment actually occurred, and it would be non-hearsay to show whether he had notice/knowledge.

Is this correct, and if so how do you differentiate between the two?

In your pot example, it would be a statement by a party opponent, so you would have no problems.

A better example is A says he didn't know he was buying pot but thought it was oregano for his g-ma's world famous stew. The drug dealer saying "$10 dollars for the pot" would not be hearsay because we aren't trying to prove that it was actually pot or that it actually cost $10, but only that A knew he was buying pot.

Again, all these require a 403 balancing, but yes.

Another good example is a guy calling his mom to tell her he is going to Atlanta. If we are using it as circumstantial proof that he actually went to Atlanta it is hearsay. If we are using it to prove the phones worked, or he spoke english, or something then it is not hearsay.

[brotherdarkness]

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[Birdnals]

Another good example is a guy calling his mom to tell her he is going to Atlanta. If we are using it as circumstantial proof that he actually went to Atlanta it is hearsay. If we are using it to prove the phones worked, or he spoke english, or something then it is not hearsay.

This would get it under the then-existing state of mind exception and used for the truth of the matter, rite?

Correct. It would be an exception to the Hearsay general exclusion rule, meaning it is still hearsay but can be brought into evidence anyways. The distinction between exception/exclusion really only matters on multiple choice.

[brotherdarkness]

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[Birdnals]

No, the reason it is an exclusion in that example is because it is specifically not being used for the truth of the matter asserted. To be an exclusion used for truth of the matter asserted it has to be a different exclusion, like statement by a party opponent or something.

[brotherdarkness]

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[Birdnals]

No, the reason it is an exclusion in that example is because it is specifically not being used for the truth of the matter asserted. To be an exclusion used for truth of the matter asserted it has to be a different exclusion, like statement by a party opponent or something.

Fuck. So, the statement about going to Atlanta could be brought into Evidence, but couldn't be used for the truth? I understand how a prior inconsistent (or consistent) statement can still be relevant if not used for the truth, but how would this statement be probative without being used for the truth?

The statement about going to Atlanta could be brought in for the truth if under the present mental sense exception, or for some other exclusion like if the person saying it is the party opponent.

The statement could be brought it under the exception of not being offered for the truth of the matter asserted if it is brought in to show the phones were working, or that he spoke adequate English to converse, or that he was alive at the time making the call. The fact that it isn't being offered for the truth of the matter asserted is exactly what makes it not be hearsay.

[brotherdarkness]

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[Birdnals]

You're good man. You got it all for the essays and such, just a few small technicalities for multiple choice to shore up. Go over that outline I sent you a time or two and you will be golden.

[brotherdarkness]

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[Birdnals]

If I'm not mistaken, dying declarations only work in civil cases and homicide cases. Other criminal cases, like attempted murder, manslaughter, assault, etc., don't get the dying declarations exception.

ETA: The personal knowledge requirement tripped me up on this one, too. A guy who gets shot is presumed to have personal knowledge (he probably saw who shot him), but a person who is dying because someone strapped a bomb underneath his car likely won't have personal knowledge. Just something to keep in mind.

The part about criminal cases is correct I believe. I will add that in.

Also, if the guy has a bomb strapped to his car wouldn't be making a dying declaration, because he wouldn't have impending knowledge of death, correct?

ETA: reading comp fail on my part. If he was dying due to car bomb he would need personal knowledge of anything admitted (i.e., "Frank said he wanted to kill me for stealing his wife" or "a cell phone rang before the bomb went off, must have been a cell phone bomb" or something)

ETAA: I believe there is an inference he is saying things he has personal knowledge of. The only issue would be hearsay within hearsay like "tom said frank said he was going to kill me" or something else to prove the declarant who was dying didn't actually have personal knowledge.
^poorly worded, not inference of personal knowledge but would be let in unless there was an objection due to lack of personal knowledge which would have to be argued in 104(b) hearing.

[brotherdarkness]

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[Birdnals]

The car bomb thing was my professor's example, and almost everyone got it wrong. The gist of it was that the guy's car had blown up and he was lying in it, burning, and knew he was going to die. Some first responder runs up and the dying dood yells out, "Frank did this." According to my professor, if this were a criminal case where Frank was charged with homicide, despite the criteria of the dying declarations exception being met, the statement would be inadmissible due to a lack of personal knowledge. Perhaps if the guy had seen Frank strapping the bomb to his car it would be admissible, but then again, if you see someone strap a bomb to you car, chances are you're not getting in.

Yeah, in that outline I think I start both 803 and 804 sections by saying all require declarant's first-hand knowledge. So on a MC this seems pretty easy because there is no corroboration (which isn't required for dying dec but encouraged in all exceptions) or anything else to show first-hand knowledge.

But on an essay I would say we need further facts to know if he actually had firsthand knowledge like if there is any 104(b) evidence which can be brought in to show how he could have known it was frank.


ETA: Again, take everything I say with a grain of salt because I haven't looked at my evidence shit in over a week so I could be remembering things wrong. When in doubt consult that awesome kalvano cheat sheet that was going around earlier ITT

[brotherdarkness]

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[odoylerulez]

Under 24 hours before my exam.

Once again:




fuck

[brotherdarkness]

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[odoylerulez]

Police reports can't be used against the defendant in a criminal trial under the public records exception. Seems like they'd be pretty easy to fit into the business records exception. I assume I'm forgetting something, because it seems silly to keep them out under one rule when they're so easily let in by another...

Is there any distinction between adversarial/non-adversarial proceedings here? It seems to me that why the police report is taken may be a clue here. This was confusing the hell out of me earlier.

Example - a complaint by a police officer would not be admissible under this exception, but perhaps a police log that doesn't focus on the defendant would??


I don't even know. Fuck evidence

Edit: ignore me. I'm mixing up rules.