Witness Exclusion and Impeachment in Court Proceedings, Exams of Law

Download Witness Exclusion and Impeachment in Court Proceedings and more Exams Law in PDF only on Docsity! Bar MBE 2022 – Evidence Questions And Answers With Complete Solution 1) each party is then entitled to cross-examine a witness called by the court 2) party may object to the court's examining or calling of a witness either at the time or at the next available opportunity when the jury is not present Correct Answers: What can each party do when a court calls or examines its own witness? Despite a juvenile conviction being GENERALLY INADMISSIBLE, a judge in a criminal case has DISCRETION to admit a juvenile conviction committed by a witness (NOT DEFENDANT) if evidence would be admissible to attack the credibility of an adult AND if the evidence is necessary to determine the DEFENDANT's guilt or innocence. Correct Answers: When is a juvenile conviction admissible? Through cross-examination and extrinsic evidence. To impeach a witness by extrinsic evidence of bias/interest, they must be asked about the facts that show bias/interest on a cross-examination. Note: The court has discretion to permit or not permit extrinsic evidence EVEN IF witness admits bias. Correct Answers: How can a witness be impeached because of their bias or interest? -Upon party's request, a trial judge must order witnesses excluded from courtroom -judge may also do this on their own -judge must NOT exclude: 1) a party or designated officer or employee of a party 2) a person whose presence is essential to the presentation of party's claim or defense 3) a person statutorily authorized to be present Correct Answers: When can a judge exclude or sequestrate a witness? Through cross-examination or extrinsic evidence that show that their perceptive senses and recollection were so impaired as to make it doubtful that they could have perceived those fact.s No foundation requirement for proving sensory deficiency with extrinsic evidence. Correct Answers: How can a witness be impeached because of their sensory deficiencies (i.e. bad eyesight/hearing, alcohol or drug use, poor memory)? Through cross-examination and extrinsic evidence. Cross-examination: make the witness admit they lied or were mistaken about some fact that they testified to during direct examination 1) if the witness admits, then impeached 2) if the witness denies, then can use extrinsic evidence Extrinsic Evidence: permitted UNLESS contradictory fact is collateral (meaning no significant relevant to the case or to witness's credibility Correct Answers: How can a witness be impeached because of their contradictory facts? 1) Court's determination of a preliminary question of fact relating to admissibility 2) grand jury proceedings 3) other miscellaneous proceedings (sentencing, extradition, bail, probation) Correct Answers: When does the Federal Rules of Evidence NOT apply? If it has ANY TENDENCY to make the existence of any fact that is OF CONSEQUENCE to the determination of the action MORE OR LESS PROBABLY than it would be without the evidence. Correct Answers: When is evidence relevant? Unfair prejudice; confusion of issues; misleading jury; wasting time; undue delay; needless presentation of cumulative (repetitive) evidence > (substantially outweighs) probative value Correct Answers: What is the FRE 403 Discretion to Exclude Relevant Evidence? In certain cases, a party may offer evidence that the witness made a timely complaint or prior statement of identification (prior consistent statement) and such prior identification can serve as substantive evidence (even when witness credibility not attacked). Example: identifying defendant as the perpetrator of the crime being charged Correct Answers: When can you bolster witness credibility without the purpose of impeachment/attacking witness credibility? No. Hearsay statements can only be made by a person. What a radar gun "said" or what a drug-sniffing dog did is NOT hearsay, but could be admissible under other rules of evidence. Correct Answers: Can hearsay derive from an animal or machine? misleading, compound, argumentative, narrative answers, calls for speculation, assume facts not in a evidence, conclusions, cumulative, non responsive, unduly harassing or embarrassing, lack of foundation Correct Answers: What are objections to improper questions and answers in direct and cross examinations of witnesses? Call a character witness to testify about the target witness's bad reputation or their low opinion of the target witness. Correct Answers: How can a witness be impeached because of their opinion or reputation evidence as a witness? If cross-examiner has good faith basis to believe the witness committed the misconduct, witness may be interrogated upon cross-examination with respect to misconduct if probative of truthfulness. Extrinsic evidence is NOT permitted. Cross-examination cannot refer to any consequences the witness may have suffered as as result of their bad act. (considered extrinsic evidence) Correct Answers: How can a witness be impeached by bad acts involving untruthfulness? Foundation is not needed if prior inconsistent statement is the opposing party's statement, inconsistent statements is by the hearsay declarant, or the court chooses to disregard where justice so requires. Prior inconsistent statements are hearsay unless they were made under oath (prior hearing, deposition, etc.). If made under oath, then ADMISSIBLE, NONHEARSAY and may be admitted as substantive evidence. Rules that require a particular inference to be drawn from an ascertained set of facts and doesn't require additional proof. Common ones: 1) properly addressed, stamped, and mailed letters are presumed to be delivered 2) Someone who has been absent and unable to be located for 7 years or more is presumed dead 3) When cause of death is in dispute, the presumption is NOT suicide 4) Everyone is presumed to be born to legally married parents 5) Everyone is presumed to be solvent (able to pay off debts) and every debt is deemed collectible 6) People acting in an official office are presumed to be able to properly perform their duties 7) When ownership of a motor vehicle is established, it is presumed that the owner (or owner's agent) of the vehicle was the driver. Correct Answers: What are presumptions? Burden of production is shifted. (burden of persuasion never shifts in a case) Correct Answers: When presumption established, what kind of burden is shifted? In a CIVIL CASE, presumption can be overcome or destroyed when the adversary produces evidence contradicting the presumed fact. In a CRIMINAL CASE, a judge cannot instruct the jury to find a presumed fact against accused conclusive. The judge can only instruct jury that they MAY regard basic facts as sufficient evidence of presumed fact. (This is because in criminal cases, presumed facts that show guilty must be established beyond a reasonable doubt) Correct Answers: When is presumption rebutted? When part or all of a writing or recorded statement is introduced into evidence, adverse party may require proponent of evidence to introduce any other part or related writing or recorded statement that should in fairness be considered at the same time. (Ex. if a party only shows a clip from a tape recording, adverse party may request that the rest of the recording or another part of the recording be presented for additional relevant context) Correct Answers: What is the Rule of Completeness? To prove the content of a writing, recording, or photograph (including X-rays), the original must be produced IF its terms are MATERIAL. Secondary evidence (like oral testimony) are admissible ONLY IF proponent provides a satisfactory excuse for the original's absence. The original is MATERIAL if: 1) the document is legally operative or dispositive (i.e. contract, will, deed) 2) knowledge of a witness results from reading the document or looking at a photo (or x-ray) Originals and duplicates of documents are generally both admissible to satisfy this rule. Correct Answers: What is the Best Evidence Rule? 1) when the hearing involves admissibility of a confession 2) the defendant in a criminal case testifying at the hearing and requests the jury be excused 3) justice so requires Otherwise, judges have discretion whether or not to excuse the jury during the preliminary fact determination. Correct Answers: When MUST a jury be excused? When the absence of the original is justified: 1) loss or destruction (buy only when not in bad faith) 2) Cannot be obtained by any judicial process (in the hands of a third party outside of the court's jurisdiction and cannot be obtained with any reasonable effort) 3) In the hands of the adversary, but adversary fails to produce it after due notice Examples of secondary evidence: handwritten copies, notes, oral testimony, etc. Correct Answers: When is secondary evidence of contents admissible? When it is relevant and authenticated either by testimony of a witness that can say they recognize the object (such as the weapon found at the crime scene) or by evidence that the object has been held in a substantially unbroken chain of custody. And if the condition of the object is significant, it must be signboard it be in the substantially same condition at trial. Correct Answers: When is real evidence admissible? When the patient puts their mental condition at issue Correct Answers: When does psychotherapist/social worker-patient privilege NOT apply? 1) Copies of certified public records or public records testified to as correct 2) Writing is collateral (minor importance) to the controversy/issue being litigated 3) opponent's testimony, deposition, or written admission about writing's contents 4) When it would be inconvenient to produce voluminous records, a summary or chart of those records is acceptable; however, proponent must make originals/duplicates available for inspection and copying and court may still order proponent to produce the records in court Correct Answers: What are exceptions to the Best Evidence Rule? Confidential communications between attorney (or someone client reasonably believes to be an attorney) and their client. It does not apply to underlying information, pre-existing documents, and physical evidence. Applies indefinitely even after client's death. Privilege is preserved if representatives of attorneys or clients communicate. Confidential communications to third persons (i.e. administrative assistant) privileged if necessary to transmit information between attorney and client. Professional legal consult with the purpose of obtaining or rendering legal services also counts. Joint clients who share the same attorney - the joint clients don't have attorney-client privilege between each other, but privilege still applies as to third parties. Correct Answers: When does attorney-client privilege apply? No privilege if: 1) attorney's services were sought to aid in the planning or commission of the act that the client should have known was a crime or fraud 2) for a communication relevant to an issue of breach of in a dispute between attorney and client 3) where the client has put the legal services at issue in the case 4) regarding a communication relevant to an issue between parties claiming through the same deceased client Correct Answers: What are the exceptions to the attorney-client privilege? Generally, only the disclosed material is waived (intentionally). No waiver if the disclosure of inadvertent and holder took reasonable steps to rectify. Undisclosed privileged material is only subject to the waiver IF 1) waiver is intentional 2) disclosed and undisclosed material contain the same subject matter AND 3) the material should be considered together to avoid unfairness Correct Answers: What are the limitations on attorney-client privilege and attorney work product waivers? Defendant's other acts of sexual assault or child molestation is admissible in a criminal or civil case where defendant is accused of committing an act of sexual assault or child molestation. Relevant and admissible for any purpose including defendant's propensity to commit sex crimes. Party intending to offer this evidence must disclose it to the defendant 15 days before trial or later with good cause. Correct Answers: When is a defendant's similar misconduct admissible in sex crime cases? 1) by pleading or stipulation 2) opponent's admission 3) eyewitness testimony 4) handwriting verifications, lay or expert witness or jury comparison 5) reply letter doctrine - evidence that it was written in response to communication sent to alleged author 6) ancient documents ( at least 20 years old, in a condition that seems authentic found in a place where it would likely be kept) 7) photographs IF identified by witness as portrayal of certain facts relevant to issue and verified by witness 8) x-ray, ECGs, etc. - cannot be authenticated by witness testimony, must establish custodial chain, working machine, process used was accurate, and operator was qualified Correct Answers: What are methods for authenticating documents? INADMISSIBLE: insurance or lack of insurance NOT admissible to prove negligence or wrongful action ADMISSIBLE: to prove anything else - ownership or control (if disputed) - impeach witness (show bias) - admission of liability where reference to insurance coverage cannot be severed without lessening its probative value (ex: "don't worry, my surname will pay for it") Correct Answers: When is liability insurance admissible and when is it inadmissible? INADMISSIBLE: repairs and precautionary measures following injury is NOT admissible to prove negligence, culpable conduct, defect in product/design, need for warning or instruction ADMISSIBLE: to prove ownership or control in dispute; to prove opposing party has destroyed evidence; to rebut claim that precaution was not feasible Correct Answers: When are subsequent remedial measures admissible and when are they inadmissible? INADMISSIBLE: compromise (settlement) or offer to compromise/settle civil claim NOT admissible to INADMISSIBLE: payments or offers to pay medical, hospital expenses, etc. are NOT admissible to prove liability for injury ADMISSIBLE: admissions of fact accompanying payments /offers are admissible (ex: "I'll pay your hospital bill. I shouldn't have tripped you." The first sentence is INADMISSIBLE. Second sentence is ADMISSIBLE) Note: be careful of wording - is payment or offer to pay absolute or a negotiation/compromise (settlement) (ex: I will offer to pay your medical bills, if.... XYZ) Correct Answers: When are payments and offers to pay medical expenses admissible and when are they inadmissible? It does not waive privilege against self-incrimination. Hence, it does not subject the accused to testifying at trial or cross-examination about other issues in the case. Correct Answers: What are the consequences of testimony by the accused on any preliminary matter? Lay witnesses cannot give an opinion as to whether they acted as an agent or whether a contract made. This is because these are legal conclusions that require specialized knowledge. Correct Answers: When is lay witness opinion testimony inadmissible? In a homicide case in which the defendant pleads self-defense, evidence of ANY KIND (not just character evidence) that victim was the first aggressor opens the door to evidence that the victim had a good character for peacefulness. Prosecution can introduce this evidence regardless of whether the defendant introduced character evidence of victim's generally violent propensity. Correct Answers: When can prosecution offer evidence of a victim's good character for peacefulness? Victim character evidence is NOT applicable to sexual assault cases. Defendant may introduce reputation and/or opinion evidence of a bad character trait of the alleged crime victim when relevant to show the defendant's innocence. Relevant when defendant claimed self-defense AFTER defendant introduced evidence of victim's bad character. Prosecution can rebut with reputation/opinion of 1) the victim's good character for the same trait OR 2) defendant's bad character for same trait Victim character evidence is only applicable to propensity related evidence. If evidence of victim's character for non-propensity purpose (like defendant's state of mind), this doesn't apply. Correct Answers: When can victim character evidence be admissible in a criminal case? 1) rationally based on the witness's perception 2) helpful to a clear understanding of the witness's testimony or helpful to determination of a fact in issue AND 3) not based on scientific, technical, or other specialized knowledge ex: state of emotion of a person, general appearance or condition of a person, matters involving sensory recognition, voice/handwriting identification, speed of moving object, intoxication, value of own property or service Correct Answers: When is opinion testimony by a lay witness admissible? When a statement is admissible only if said by a particular person (ex: opposing party), the identity of the speaker will need to be authenticated. Authentication: 1) voice can be identified by opinion of anyone who has heard the voice at anytime including after litigation has begun for testifying 2) telephone conversations can be authenticated by any party to the call who testifies that a) they recognize party's voice b) speaker had knowledge of certain facts that only a particular person would have c) they called a particular person's number and the voice answered as that person or person's residence OR d) they called a business and talked with the person answering the phone about matters relevant to the business Correct Answers: When does the identity of a speaker need to be authenticated and how? 1) witness must be qualified as an expert 2) witness must be at least reasonably certain about their opinion 3) subject matter just be one where scientific, technical, or other specialized knowledge would be helpful to jury 4) opinion must be based on sufficient facts or data 5) opinion must be product of reliable principles and methods 6) expert must have reliably applied the principles and methods to the facts of the case (such facts need not be admissible as evidence Note: expert witness does not need to disclose the basis of their opinion on direct examination (unless ordered by the court) but may be required to disclose on cross-examination. Correct Answers: How can expert witness be admissible? Character evidence offered as substantive evidence is okay for the following purposes: 1) when character is in issue as an essential element of a claim or defense, use to prove character (ex: defamation, negligent hiring or entrustment; child custody) 2) serve as circumstantial evidence of how a person probably acted during events of a case (only permitted in a few situations) 3) bad character for truthfulness might be offered for impeachment or rehabilitation purposes Correct Answers: What kind of purposes allows for admissibility of character evidence? INADMISSIBLE: generally inadmissible in CIVIL CASES to prove how a person probably acted during events of current case ADMISSIBLE: 1) evidence of defendant's prior similar acts in civil and criminal sexual assault and child molestation cases 2) CRIMINAL CASE - only if defendant opened the door and introduced evidence of own good character, then prosecution can introduce relevant character evidence regarding the defendant's good/bad character Correct Answers: When is character evidence admissible and when is it inadmissible? Once defendant opens the door by introducing character evidence, prosecution can rebut by: 1) offering evidence of defendant's bad character by calling its own character witnesses to provide reputation or opinion testimony about the defendant's bad character trait at issue 2) cross-examine defendant's character witnesses about specific acts of the defendant (not the witness) Questioning admissible only to impeach the witness by showing their lack of knowledge. NOT admissible to prove defendant's character. CANNOT introduce extrinsic evidence for this. Correct Answers: How can prosecution rebut defendant's character evidence? Evidence of an alleged victim's reputation is admissible ONLY IF it has been placed in controversy by the victim. CRIMINAL CASES: admissible to prove someone other than defendant is the source of semen, injury, or other physical evidence. sexual behavior between victim and defendant is admissible by prosecution to prove consent CIVIL CASES: admissible if NOT excluded by any other rule AND probative value SUBSTANTIALLY OUTWEIGHS the danger of harm to the victim and of unfair prejudice to any party Correct Answers: What are the exceptions to the general rule that past sexual behaviors or dispositions of victims of sexual misconduct or inadmissible in civil and criminal proceedings? Admissible if relevant to some issue OTHER THAN their a character or propensity to commit the crime charged (usually offered in a criminal case, but can also be offered in a civil case like for tort actions) Examples of relevant issues that would make crimes, wrongs, acts admissible: motive, intent, mistake (absent of), identity (like M.O.), common plan or scheme, opportunity, preparation, knowledge Evidence must be sufficient to support a jury finding that defendant committed the misconduct. Correct Answers: What are exceptions to the general rule that evidence of a person's other crimes, wrongs, or acts is generally INADMISSIBLE if offered solely to prove character for purposes of inferring conduct in conformity? Writing or object can be used for the purpose of refreshing present recollection of the witness. However, witness may NOT read from the writing while testifying. These documents/objects can only be admitted into evidence if offered by the adverse party, otherwise, they are just received as exhibits NOTE: if witness refreshes memory before taking the stand, the adverse party can only cross- examine and have the writing produced at trial if justice requires it Adverse party is entitled to have the writing produced at trial and may cross-examine the witness about the writing and introduce portions of the writing relating to witness's testimony into evidence. If prosecution fails to produce or deliver a writing ordered, the judge must strike the witness testimony. The writing or object may Correct Answers: When and how can a document be used to refresh recollection? However, the statement of a child abuse victim who identifies their abuse in the course of treatment MAY BE ADMISSIBLE at court's discretion. Correct Answers: What is an admissible STATEMENT FOR MEDICAL DIAGNOSIS OR TREATMENT under the hearsay exception? Record by witness who now CANNOT REMEMBER the facts, made while the facts were fresh in their mind. If the memory of the testifying witness cannot be revived, the record can only be READ INTO EVIDENCE; cannot be admitted as an exhibit unless offered by an adverse party. Correct Answers: What is an admissible RECORDED RECOLLECTION under the hearsay exception? Record made in the regular course of business, consisting of matters within the personal knowledge of one with a business duty to transmit. Lack of such record may be used to show no occurrence of event. Existence of a record could also show no occurrence or non existence of a matter if it was regular practice of the business to record all such matters. Includes writing or record made as a memorandum of any act, event, condition, opinion, or diagnosis. Elements that must be met: 1) business (includes organization, occupation, nonprofits, etc.) 2) record must be have been made in the regular course of business 3) business must regularly keep such records 4) entry must be made at or time of the event 5) personal knowledge of the entry or must be within the knowledge of someone with a duty to transmit such matters to the person who recorded the information AUTHENTICITY MUST BE ESTABLISHED by a sponsoring witness, who can be a custodian of records or any person in the business who is knowledgeable about the business's record keeping (does not need to be the author of the record in question): 1) records custodian testify that the record meets the elements of the business record exception OR 2)certifying in writing that the record meets the elements of the business records exception WATCH OUT: multiple hearsay Correct Answers: What is an admissible BUSINESS RECORD under the hearsay exception? Records or reports of public agencies regarding their activities, and records of births, deaths, marriages, etc. Also includes recordings of matters observed pursuant to a duty imposed by law. Records of factual findings resulting from investigation authorized by law (like FAA report on cause of a plane crash) are admissible in CIVIL ACTIONS and AGAINST GOVERNMENT in criminal cases. Police reports (including FBI and other agency investigations) CAN be admitted under this exception (including officer's opinion and factual conclusions), BUT INADMISSIBLE AGAINST DEFENDANT IN CRIMINAL CASES Records of vital statistics are admissible if reported to a public office in accordance with legal duty. Absence of public record is admissible to show no existence of matter. NOTE: A criminal defendant MAY demand the presence of the person who prepared the certification. In a criminal case, this type of evidence is admissible in the form of a certification ONLY IF the prosecution notifies the defense at least 14 days before trial and the defense does not object in writing within 7 days of receiving the notice (unless the court sets a different timeline). Writing MUST have been made 1) by and within the scope of the duty of a PUBLIC employee 2) must have been made at or near the time of the event Ex: payroll records, weather bureau records of temperatures WATCH OUT: multiple hearsay Correct Answers: What is an admissible PUBLIC RECORD OR REPORT under the hearsay exception? A certified copy of a judgment of a prior felony conviction is admissible to prove any fact essential to the judgment in a civil case. In a criminal case, the government may use this for this purpose only against the accused; against others, it may be used only for impeachment purposes. This hearsay exception does not apply to records of prior acquittals. A civil judgment is INADMISSIBLE in a subsequent criminal proceeding because of different standards of proof. A civil judgment is also usually INADMISSIBLE in subsequent civil proceedings, subject to certain statutory exceptions (proving family history, personal history, land boundaries, etc.) Correct Answers: What is an admissible JUDGMENT under the hearsay exception? Statements in authenticated documents prepared before January 1, 1998 are admissible. Correct Answers: What is an admissible ANCIENT DOCUMENT under the hearsay exception? Statements in a document affecting an interest in a property (ex: deed, will) if the statement is relevant to the document's purpose. Hearsay exception does NOT apply if later dealings with the property are INCONSISTENT with the truth of the statement asserted or the intent of the document. Correct Answers: What is an admissible DOCUMENT AFFECTING PROPERTY INTERESTS under the hearsay exception? Statements from authoritative works admitted if called to attention of expert witness and established as reliable authority. Admissible as substantive proof if 1) the treatise is established as reliable authority and 2) the excerpt is relied upon by an expert during direct examination or brought to an expert's attention on cross-examination If admitted, such statements are READ INTO EVIDENCE, but NOT received as exhibits. Correct Answers: What is an admissible LEARNED TREATISE under the hearsay exception? Reputation evidence concerning a person's character, a person's personal or family history, land boundaries, or a community's general history. Correct Answers: What is an admissible REPUTATION under the hearsay exception? Statements for fact found in family Bibles, jewelry engravings, tombstones, etc. Correct Answers: What is an admissible FAMILY RECORD under the hearsay exception? Market reports and public compilations GENERALLY USED AND RELIED ON BY THE PUBLIC or persons of a particular occupation. Correct Answers: What is an admissible MARKET REPORT under the hearsay exception? Yes, an opposing party's statement is not hearsay. The statement does NOT have to be against the declarant's interest when made, and may even be in the form of an opinion. Personal knowledge is not required; the statement may be predicated on hearsay. (Ex: plaintiff introduces statement made by the defendant (perhaps through a witness like a defendant's agent) that points to defendant's guilt or liability) Correct Answers: Is a statement by or attributed to the opposing party admissible? Yes, a party's formal judicial statement ARE CONCLUSIVE as opposing party statements and cannot be contradicted during trial. A party's formal judicial statement in one case can be admitted against them as an extrajudicial statement in another case. Examples of formal judicial statements: statements made in pleadings, stipulations, etc. Ex: If a defendant pleads guilty to a traffic charge relating to a car accident, that plea can be admitted against them as an opposing attorney's statement in a subsequent civil case arising out of the same accident. A party's informal judicial statements made during testimony and extrajudicial statements are NOT CONCLUSIVE as opposing party statements and can be explained. Correct Answers: Are judicial and extrajudicial statements admissible? If a a party remains silent in the face of an accusatory statement, their silence may be considered an implied acquiescence to the truth of that statement if: 1) party heard and understood the statement 2) party was physically and mentally capable of denying the statement 3) a reasonable person would have denied the accusation if they believed it was not true EXCEPTION: silence in the face of accusations bey police in a criminal case is almost NEVER considered an admission of crime Correct Answers: When is a statement admissible against a party who expressly or impliedly adopts or acquiesces in the statement of another? PRELIMINARY DETERMINATIONS: court must first make a preliminary determination of the declarant's relationship with the party against whom the statement is offered - whether the declarant was authorized to speak for the party, whether the declarant's was the party's agent/employee, or whether the declarant and party were co- conspirators. Answers: When is a STATEMENT OFFERED AGAINST THE PARTY PROCURING DECLARANT'S UNAVAILABILITY of a NOW-UNAVAILABLE witness admissible? 1. Statements by an opposing party do NOT have to be against interest when made vs. Statements against interest must have been against interest when made 2. Statements by an opposing party do NOT require the declarant to have personal knowledge of facts vs. Statements against interest require that declarant MUST have personal knowledge of the facts. 3. Statements by an opposing party do NOT require the declarant to be UNAVAILABLE vs. Statements against interest REQUIRE the declarant to be unavailable. 4. Statements by an opposing party REQUIRE the declarant to be a party vs. Statements against interest do NOT require the declarant to be a party. Correct Answers: What are the differences between STATEMENTS BY AN OPPOSING PARTY and STATEMENTS AGAINST INTEREST? A hearsay statement not covered by a specific exception can be admissible, if: 1) it possesses sufficient guarantees of trustworthiness (consider the totality of the circumstances in which the statement was made and the evidence that corroborates the statement) 2) it is strictly necessary (more probative as to the fact for which it is offered than any other evidence that the proponent can reasonably produce) 3) the proponent gives reasonable NOTICE to the adversary as to their intent to offer the statement, include the substance of the statement and the name of the declarant. Such notice generally must be given in WRITING in ADVANCE OF THE TRIAL or hearing, but may be given in any form during trial or hearing if the court, for good cause, excuses a lack of earlier notice Correct Answers: What is the residual "catch-all" hearsay exception of federal rules? An otherwise admissible hearsay statement, is INADMISSIBLE if: 1) the statement is being offered AGAINST THE ACCUSED in a CRIMINAL CASE 2) the declarant is unavailable 3) the statement was "testimonial" in nature AND 4) the accused had no opportunity to cross-examine the declarant's testimonial statement prior to trial Correct Answers: Under the Confrontation Clause of the Sixth Amendment, when is a hearsay statement INADMISSIBLE even if it falls within a hearsay exception? Testimonial evidence includes sworn testimony such as at a grand jury, prior trial, preliminary hearing. It also includes statements to law enforcement for the purpose of police interrogation (sworn and unsworn) and certain documents. TESTIMONIAL if statements made in a police interrogation are made with the primary purpose of establishing or proving past events potentially relevant to a later criminal prosecution. NOTE: child abuse victim's statement to a school teacher about abuse are NOT testimonial, because the primary purpose is to protect the child, not prosecute the perpetrator. TESTIMONIAL if affidavits, certificates or other written reports that summarize the findings of forensic analysis have the effect of ACCUSING a targeted individual of CRIMINAL CONDUCT. CANNOT be admitted UNLESS defendant previously had an opportunity to cross-examine the author of the report. The testimony of the analyst's supervisor, who was not involved in the testing, is NOT sufficient to admit the results. No confrontation violation IF forensic expert, while testifying as to their independent analysis of data, makes only a general reference to a non testifying analyst's report to demonstrate a partial basis for their opinion. HOWEVER, if the primary purpose of the police interrogation is to enable the police to help in an ONGOING EMERGENCY, statements made in the course of the interrogation are NONTESTIMONIAL. (ex: a 911 call during ongoing crime) Ongoing emergency/crime factors: 1) nature of dispute (public vs. private) 2) whether the perpetrator is still at large 3) the scope of the threat to the victim and to the public 4) the type of weapon involved Correct Answers: What is testimonial evidence? Hearsay rules and other exclusionary rules of evidence cannot be applied where such application would deprive the accused of their right to a fair trial or deny their right to compulsory process. Correct Answers: When do hearsay rules not apply in the context of due process rights? No unless the prior bad acts are probative of truthfulness. Otherwise prior bad acts are considered extrinsic evidence, which can not be introduced for impeachment purposes. They can be used to show intent, lack of mistake, etc. Specific acts of defendant's honesty can be brought out on cross-examination, but not through the use of extrinsic evidence, like having a witness testify about the defendant's prior bad acts. Correct Answers: Can prior bad acts be admissible for impeachment purposes?