Evidence

Hearsay and circumstances of its admissibility

Hearsay is a statement that is made outside of court that is offered to prove that something is truthful. Hearsay is usually inadmissible unless an exception is made. An exception may be a statement of the declarant's frame of mind, sensory, emotional, or physical condition at the time. Statements of memory or belief are not admissible.

For example, previous testimony, as it relates to the current case, can be an exception to hearsay. This is used when a declarant is unavailable for cross-examination or if one wishes to develop the testimony during cross-examination. Other exceptions to the hearsay rule include statements by an authorized spokesperson, principal-agency statements, statements made between business partners, and statements made between co-conspirators.

Prior statements made by a witness can be admissible if the party admitting the statement discloses it to the other party's attorney. Generally, present sense is admissible if it describes an event as it was happening or immediately after. An excited utterance, which is when a statement is made while under the stress of excitement, can also be admissible.

Any hearsay that might be tied to a medical record that can prove factual information is also admissible. This is because a medical professional made a diagnosis or treatment based on professional knowledge.

Other things like business records, public records/reports, and learned treatises are usually considered to be admissible. Business records are assumed to have a level of truth; therefore, they're typically exempt from hearsay. This exemption plays a heavy role in business litigation. Likewise, records, including vital information or a public office's activities, are also usually admissible. However, public records and reports are only admissible if the opposition party doesn't cast doubt on them.

Learned treatises may be admissible if an expert relies on them or if they're brought to their attention during the examination. These include treatises, pamphlets, and periodicals.

A witness has to be given the opportunity to explain their prior statement. A party-opponent making an admission is excluded from hearsay because it falls under an adversary system instead of qualifying as hearsay. If parts of each hearsay, also known as "hearsay within hearsay" combine to make an exception to the rule, hearsay can be admissible. An exception to this allows a witness to read a writing if they have forgotten about it, they wrote it, they see it, and it doesn't jog their memory, or if the witness can attest that it was accurate at the time it was written.

Statements made by someone who puts them at a severe disadvantage over not saying anything are considered credible and admissible. The Sixth Amendment states that anyone accused of a crime has the right to confront a witness. Using hearsay in a criminal case can violate this amendment.

Presentation of evidence

The presentation of evidence is one of the most commonly tested topics, accounting for six to seven questions. When submitting a piece of evidence, it must first be authenticated. The person submitting it must provide enough support to prove that the evidence is what they say it is before it is admitted to the court to prove a fact in a case.

Evidence can either be physical, like public records or a recording, or include the testimony of a witness with knowledge or comparison by an expert witness of a trier or fact. This is done through a mode and order process, in which both evidence is presented, and witnesses are examined in court. To avoid wasting time, reasonable control by the court should be exercised to make the procedures aimed at deciding the truth efficient and prevent the witnesses from being either harassed or embarrassed.

A lawyer can object to the admissibility of evidence at trial. The other lawyer can counter the objection by describing the evidence and explaining its relevance to the case to make it admissible. If the judge can be persuaded, the evidence may be included in the trial. Evidence that is admissible for one party, but not the other is considered to have limited admissibility. Usually, one party will admit it for one reason, while the other party won't be able to admit it under different circumstances. In situations like this, the scope of evidence will be restricted by the court, and the jury will be instructed on how to move forward.

Remember, the judge is there to decide an issue of law. The jury decides which issues in a case are fact and apply those facts to the law to come to a verdict. They work together to decide the outcome of a case. Judicial notice is made when a fact has been presented as true despite no formal presentation of evidence. These facts are usually indisputable and, in civil cases, considered conclusive. These are historical records, public records, or what time the sun set that day.

When it comes to evidence in the form of witness testimony, you can have a witness testify only if the evidence suggests that they have personal knowledge of the situation. All witnesses are considered competent unless proven otherwise. As long as a witness can observe, recall, and relate facts accurately, they are deemed competent. If a witness cannot observe, recall, and relate, they would be considered unable to give accurate testimony. This leaves it up to the jury to decide if the witness is deemed competent when rendering a verdict.

A witness may give a testimony to prove their knowledge of the situation. This rule does not apply to expert testimony. When a witness might have difficulty remembering, a lawyer can show the witness a document that may help jog their memory. If the witness starts to remember based on seeing the document, the document is then removed, and the witness is expected to recall from their memory. A lay opinion can be helpful in a fact in an issue. A lay opinion is only allowed if it's based on the perception of a rational witness. This does not allow for specific knowledge, such as technical or scientific knowledge.

Remember that a witness can be impeached to call into question their credibility. This can be done with a contradiction, meaning that a witness's testimony can be contradicted if they make two different statements in court. A witness that has been rehabilitated has their credibility rebuilt on a limited scope based on what a principal witness has established as the truth. If a witness gives a testimony that is inconsistent with prior statements, their prior statement can be brought up during cross-examination. It may only be submitted as evidence if the witness is given the opportunity to explain the discrepancy during cross-examination. The court can decide that a specific testimony is false if it's contradicted by evidence that proves otherwise. The testimony in question has to be relevant to the credibility of the question being asked and the case itself.

Cross-examination should be kept to the subject at hand and to matters in regard to a witness's credibility. Furthermore, questions cannot be leading unless it is necessary to develop the testimony of a witness in cases of cross-examination or when a party calls out an adverse party or hostile witness. If requested by a certain party, witnesses can be excluded so they cannot hear other witnesses' testimony. The court can also order this. Additional matters may be allowed only on direct examination.

During a trial, specific instances of conduct can be called into question. These aren't criminal convictions but specific actions that may call into question how truthful the witness will be. If there is evidence that a witness shows bias or interest, it does not prove that a witness is untruthful, unlike conviction of a crime, corruption, or other forms of misconduct.

You cannot use a bias or an interest to attack someone's character. A witness' character can be attacked if they have a reputation for being truthful or untruthful. Evidence of a witness's truthfulness can only be admitted after their character has been attacked. If a declarant of hearsay testifies as a witness, their credibility may be attacked by the evidence. This evidence usually suggests that the declarant has had inconsistent statements or conduct.

However, if you are trying to impeach a witness on the grounds that they have been convicted of a crime, that crime must have been punishable by either a year in prison or death. If the witness' conviction happened more than ten years ago, there are limits to using it as a means to impeach. If the conviction has been pardoned, annulled, or given a certificate of rehabilitation, the conviction cannot be used as a means of impeachment.

There are two ways a witness can be rehabilitated. Either evidence that proves their truthfulness and honesty has to be introduced, or evidence of a prior statement that corroborates their truthful nature has to be introduced into evidence.

Privileges and other policy exclusions

It is a good idea to take the time to familiarize yourself with the various privileges and other policy exclusions you may face in court. These privileges and exclusions include marital communications, doctor-patient communication, and attorney-client privileges (and others, which we'll describe below).

There are two kinds of spousal privilege:

• "Spousal communications privilege" means anything shared in confidence in a valid marriage cannot be used in court.
• "Spousal testimonial privilege" means that spouses do not have to testify against each other in court.