Christin Hill EVIDENCE I.

RELEVANCE

Bar Review

A. Two-Step Inquiry a. Is the evidence relevant (tends to prove or disprove a material fact)? i. General Rule: evidence that has any tendency to make a material fact more probable or less probable than it would be without the evidence its relevant (logical relevance), but evidence must relate to the time, event, or person involved in the present litigation ii. Exception: certain similar acts may be relevant if probative of a material issue: ( ) to prove cause and effect, (!) to show common plan or scheme of fraud, (") to show instrumentality, (#) to infer intent from prior conduct, ($) to rebut impossibility, (%) to establish value, (&) habit (need specific description ' recurrence), (() business routine. )ust show: substantial identity of material circumstances. b. If relevant, should the evidence nonetheless by excluded based on: i. Judicial discretion: e*clude if the probative value of the evidence is substantially outweighed by the danger of ( ) unfair pre+udice, (!) confusion of issues, (") misleading the +ury, (#) undue delay, ($) wasting time, or (%) cumulative evidence. ii. Public policy: . Liability insurance: not admissible to show negligence or ability to pay a. Rationale: to encourage use of insurance. b. But, admissible when relevant to show ownership and control, or impeach credibility of witness by showing interest or bias !. Subsequent remedial measures: not admissible to show negligence, culpability, defect, or a need for a warning or instruction. a. Rationale: encourage subse,uent repairs. b. But, admissible to show ownership and control, or impeachment (to controvert feasibility of precautionary measures). ". Settlements: not admissible to prove fault, liability or damage. a. Includes: actual compromises, offers to compromise, offers to plead guilty in a criminal case, withdrawn guilty pleas, pleas of nolo contendere, admissions of facts, liability or damage made in the course of settlement discussions. b. Limitations: i. T ere must be a claim w- a claimant that gives some indication that he plans to file a claim. ii! T e claim must be disputed as to eit er liability or amount iii. .n offer to pay ospital or medical expenses is not admissible either. But, an admission that accompanies the naked payment offer I/ admissible. B. Character Evidence a. !re"i#inary $ue%tion%: i. "or # at purpose do you see$ to offer c aracter evidence% . 0hen character is the ultimate issues in the case 1 ok !. 2o impeach the credibility of a witness 1 ok ii! & at met od to prove c aracter% '! Specific acts !. (pinion testimony ". 2estimony as to the persons general reputation in the community iii. & at type of case% 3riminal or civil? iv. & at trait of c aracter% It must be the specific trait which is substantively at issue in the case. b. )ivil cases: character evidence 452 admissible as circumstantial evidence to prove conduct. 6ut, character evidence is admissible in a civil case I7 character is directly at issue (e.g. defamation, negligent entrustment, loss of consortium). )ay prove by any method.

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)riminal cases: i. Basic Rules: 6ad character, in any form, is 452 admissible at the initiative of the prosecution if the sole purpose is to show criminal propensity *+LESS , *+TIL 2he accused opens t e door by presenting evidence of good character for the pertinent trait in the form of reputation and opinion to show innocence. 5nly then may the prosecution respond by showing the bad character of the accused by: . )ross-examinin. the character witness (including whether he knows of or has heard of specific instances of the 8s misconduct) !. )allin. qualified #itnesses to testify to 8s bad reputation, or give their opinion as to 8s character. ii! Evidence of t e victims bad c aracter . In cases ot er t an rape / self defense: 8 may present evidence of the victims bad character when it is relevant to show the 8s innocence. a. 6y reputation or opinion (to show victims violent disposition). 6y knowledge of specific acts (to show 8s state of mind). b. 9rosecution may counter with reputation or opinion evidence of the (i) victim0s .ood c aracter, or (ii) the defendant0s bad c aracter for the same trait. !. In sexual misconduct cases (rape cases): victims past se*ual behavior is generally inadmissible. a. Exceptions in criminal cases: ( ) to prove that someone other than the 8 is the source of semen, in+ury, or other physical evidence (!) specific instances of se*ual behavior between 8 and : are admissible by the prosecution for any reason, and by the 8 to prove consent. b. Exceptions in civil cases: admissible if not e*cluded by any other rule and its probative value substantially outweighs the danger of the harm to the victim. ;vidence of the :s rep. is admissible only if placed in controversy by the :. iii. Evidence of a person0s ot er crimes or misconduct is generally inadmissible. . But, such evidence is admissible I7 it is relevant to some issue other than character or disposition. a. 1!I!1!I!).: motive (i.e. burn building to hide embe<<lement), intent (lack of good faith), absence of mistake, identity (stolen gun used or =signature> crimes), or common plan or scheme. b. To impeac credibility ? to show lack of truthfulness after the 8 testifies (per+ury convictions, for e*ample). !. .pplies in both civil and criminal cases. ". To be admissible: ( ) there must be sufficient evidence to support a +ury finding that the 8 committed the prior act, and (!) its probative value must not be substantially outweighed by the danger of unfair pre+udice. #. ;vidence of prior sexual assault or c ild molestation is al#ays admissible in a case where the 8 is accused of committing a se*ual assault or child molestation. /o, 8 need not open any doors for 9rosecution to raise issue. 4ot limited to prior convictions. Includes any evidence of prior acts. II. &'DICIAL N(TICE .. &udicia" Notice o) *act: 3ourt may take +udicial notice of indisputable facts that are either ( ) common $no#led.e in the community, or (!) easily capable of verification. ;ffect of +udicial notice: a. In a civil case: fact is conclusive b. In a criminal case case, jury may2 but is not required2 to accept as conclusive any +udicially noticed fact. 6. &udicia" Notice o) Law: 3ourts must take +udicial notice of federal and state la# and the official regulations of the forum state and the federal government. 3ourts may take +udicial notice of municipal ordinances, private acts, resolutions of )on.ress, or la#s of forei.n countries.

Christin Hill III. REAL EVIDENCE

Bar Review

.. De)ined: actual physical evidence addressed directly to the trier of fact. )ay be direct, circumstantial, original, or prepared (demonstrative). B. +enera" Condition% o) Ad#i%%i,i"ity a. 3ut entication: ob+ect must be identified as to what the proponent claims it to be, either by: i. Testimony of a witness that she reco.ni4es the ob+ect as what the proponent claims or ii. ;vidence that the ob+ect has been held in a substantially unbro$en c ain of possession. b. If the condition of t e ob5ect is si.nificant, it must be shown to be in substantially the same condition at trial. c. Balancin. test to weigh relevance of evidence v. convenience of bringing it to the courtroom, indecency or impropriety, or undue pre+udice. C. !articu"ar Type% o) Rea" !roo)a. P otos2 dia.rams2 maps etc. admissible if relevant. ;vidence used solely for e*planatory purposes permitted at trial, but usually not admitted into evidence. b. 1aps2 c arts2 models are usually admissible to illustrate testimony, but must be authenticated. c. ) ild may be e*hibited to prove race in paterntity suit. d. In5uries may be e*hibited, but court may e*clude if unfair pre+udice e. 3ourt has discretion to permit the 5ury to vie# places at issue in the trial f. 3ourt has discretion to permit experiments or demonstrations in the courtroom. IV. D(C'.ENTAR/ EVIDENCE A. In 0enera": court may admit relevant documentary evidence. 0hen you get a ,uestion about a writing, ask yourself " ,uestions: ( ) 0as it authenticated? (!) Is it hearsay? (or an e*ception?) and (") Is it the best evidence? B. Authentication: to be admitted, a writing must be authenticated by proof that shows that the writing is what the proponent claims it is. 2he proof must be sufficient to support a 5ury findin. (a reasonable +ury could find that the document is valid). 9roper authentications include: a. 3dmission by party against whom the evidence is offered. b! Eye#itness testimony c. ;vidence of the genuineness of the and#ritin. of the maker. )ay be opinion of a lay #itness with personal knowledge, or an expert who has compared the writing to samples of the makers handwriting. @ury may also determine genuineness through comparison of samples. d. ;vidence that the document is at least 67 years old, re.ular on its face, and was found in a place where such writings are kept (ancient documents rule). e. ;vidence that it was written in response to a communication sent to the claimed author. f. 0itness familiar with the scene in a p oto.rap may authenticate the photo by testimony that it is a correct representation of certain facts. 0hen no one can authenticate the scene, authenticate by showing that the camera was properly operating at the relevant time, and that the photo was developed from film obtained from that camera. g. 8-rays: must show that the process used is accurate, the machine in working order, and the operate was ,ualified. h. (ral statements: may be authenticated by anyone who has heard the voice at any time. 5r for telephone conversations, testimony from one of the parties to the call that ( ) he recogni<ed the other partys voice, (!) the speaker had knowledge of certain facts that only a particular person would haveA (") he called a particular persons number and voice answered as the personA or (#) he called a business and talked w- the person answering the phone about matters relevant to the business. i. +o aut entication needed for: ( ) certified copies of public records, (!) official publications, (") newspapers and periodicals, (#) trade inscriptions or labels, ($) acknowledged documents, (%) commercial paper (&) certified business records.

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Christin Hill

Bar Review

C. Be%t Evidence Ru"e: 2o prove the content of a writing, the original writing must be produced. /econdary evidence of the writing (e.g. oral testimony) is only admissible if the original is unavailable. a. 3pplies # ere ( ) the writing is a legally operative or dispositive instrumentA or (!) a witnesses knowledge of a fact results from having read it in the document. b. 9oes +(T apply # ere ( ) facts to be proven e*ist independently of the writing (witness has personal knowledge), (!) the writing is of minor importance to the controversy (collateral document rule), (") records are voluminous (can produce summary instead, must provide access to opposing side, and notice that youre presenting a summary)A (#) public records. c. )achine generated duplicates:exact copies of an original are admissible unless ( ) the authenticity of the original is challenged or (!) unfairness would result. d. If proponent cant produce the original, he may offer secondary evidence if a satisfactory e*planation is given for nonBproduction of the original. :alid e*cuses include: i. Loss or destruction of the original ii. 5riginal is in possession of a "rd party outside of the +urisdiction, and is unobtainable iii. 5riginal is in possession of an adversary who fails to produce the original. e. &ud0e decides admissibility of duplicates, other copies, etc. 6ut the 1ury decides: i. 0hether the original ever e*isted ii. 0hether a writing, etc. produced at trial is an original iii. 0hether the evidence offered correctly reflects the contents of the original. D. !aro" Evidence Ru"e: if an agreement is reduced to writing. 2he writing constitutes the whole agreement. 9rior contemporaneous negotiations or agreements are inadmissible to vary the terms of the writing. Cule does 452 apply ? prior contemporaneous negotiations are admissible to a. )omplete an incomplete ;, or e*plain an ambiguous term b! Reform a mista$e in a ; c. /how that the D is void or voidable, or that it was sub+ect to condition precedent d. /how subsequent modification or discharge of the written agreement. V. TESTI.(NIAL EVIDENCE A. Co#petency o) 2itne%%e%: witness must pass test of basic reliabilityA but they are generally presumed to be competent until the contrary is established. a. $ua"i)ication under the *edera" Ru"e% i. 0itness must have communicable personal $no#led.e .48 ii. 0itness must declare t at e #ill testify trut fully. ,. Specia" 0roup% i. ) ildren may testify depending on capacity-intelligence as determined by the +udge. ii. .n insane person may testify provided he understand the obligation to speak truthfully and he has the capacity to be truthful. iii. 9residing 5ud.e and 5urors may 452 testify iv. 9ead 1an 3ct (state law): bars an interested party from testifying to a personal communication w- a deceased when such testimony is against the deceaseds successor unless there is a waiver (rationale: fear of per+ury). B. *or# o) E3a#ination o) 2itne%% (@udge controlled) a. Leadin0 que%tion% generally improper on direct e*amination. 6ut, permitted i. 5n crossBe*amination ii. 2o elicit preliminary or introductory matter iii. 2o refresh a witnesses memory iv. 0hen a witness is hostile. b. 5ther improper forms of ,uestions i. )isleading (cant be answered w-out making an unintentional admission) ii. 3ompound (more than one ,uestion) iii. .rgumentative iv. 3onclusionary v. 3umulative vi. Enduly harassing-embarrassing vii. 3alls for narrative or speculation viii. .ssumes facts not in evidence

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3ns#ers that may be stricken i. Facks foundation (witness has insufficient personal knowledge) ii. 4onBresponsive (witness did not answer the specific ,uestion asked). iii. 4ote: re,uest must be made before 0 answers if the ,uestion is ob+ectionable d. &itness can0t read er testimony from a prepared writing. But2 a #ritin. can be used: i. 2o refres a #itnesses recollection . 3an use anything to refresh memory ? no authentication, hearsay, or best evidence problems b-c writing is not offered into evidence. !. 0itness must say =I can0t remember.> ". 2he adverse party is entitled to have whatever writing is used to refresh a witnesss recollection produced at trial, to crossBe*amine the witness thereon, and to introduce portions relating to the witnesss testimony into evidence. G 5C G ii. Ender the recorded recollection doctrine, if a witness still cant remember, the writing itself may be read into evidence I7 the proponent proves that: . 2he witness had personal $no#led.e of the facts in the writing at one time !. 2he writing was made by t e #itness or under her direction, or it was adopted by the witness ". 2he writing was timely made when the matter was fresh in the witnesss mindA #. 2he writing is accurateA and $. 2he witness must be unable to remember all or part of t e details . +ote: this is hearsay, but recorded recollection is an e*ception to the hearsay rule. C. (pinion Te%ti#ony a. Lay opinion: admissible if: ( ) rationally based on t e perception of the witness (personal knowledge), (!) the opinion is elpful to the trier of fact (no legal conclusions), and (") not based on scientific, technical, or other speciali<ed knowledge. 4ote: Fay opinions are 452 admissible re whether one acted as an a.ent or whether an a.reement was made. b. Expert opinion: # basic re,uirements (as determined by the +udge): i. Sub5ect matter must be appropriate for e*pert testimony: the opinion must be sufficiently reliable that it is elpful to the trier of fact . 2he met odolo.y underlying the opinion must be reliable !. 2he opinion must be relevant (must fit the facts of the case). ii. 0itness must be qualified as an e*pert: ,ualifications need not be formal or academic. /kill or e*perience is sufficient. iii. ;*pert must possess reasonable certainty or probability regarding the opinion: more than mere speculation. iv. 5pinion must be supported by a proper factual basis. 7acts supporting the opinion must be either: . 7acts w-in the personal knowledge of the e*pert !. 7acts not w-in personal knowledge, but supplied to the e*pert by the evidence ". 7acts not w-in personal knowledge, not in evidence, as long as they are of a type that e*perts in that field would reasonably rely upon in making out of court professional decisions. c. Learned trestises i. 3an be used to rebut or impeac your opponents e*pert I7 . Hour opponent0s expert relies on t at text or treatise !. Elicit an admission on crossBe*amination =are you familiar w- I, do you consider it authoritative or reliable?> ". )all your o#n expert witness to testify that the te*t is reliable. #. Judicial notice. ii. 3an be used for its trut I7 (e*ception to the hearsay rule): . Celiance by your e*pert on direct e*amination !. .dmission on crossBe*amination of your opposing e*pert ". 2estimony of any e*pert 5C #. @udicial notice iii. Limitations: ( ) e*pert must testify (at trial or deposition) unless +udge takes +udicial notice (!) treatise is admitted by being read to the +ury. 2e*t itself is not received as evidence. $

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Bar Review

D. Cro%%-E3a#ination a. 9arty has absolute ri. t to cross-examine any witness who testifies live (if witness refuses to answer any crossBe*amination ,uestions after testifying on direct, or dies before direct, direct testimony must be stricken). b. Fimited to (i) the scope of direct examination, including all reasonable inferences that may be drawn from it, and (ii) testing the credibility of the witness. c. )ollateral <minor= 1atters 9octrine: 4o e*trinsic evidence is allowed to contradict a witness as to a collateral matter (anything whose only relevance is to show the contradiction). 3rossB e*aminer is bound by the answers given by the witness. E. Credi,i"ity 4 I#peach#ent a. Accreditin0 your own witne%% i. +o bolsterin. your o#n #itness unless there has first been impeachment ii. Prior statements of identification made by t e #itness are admissible (e.g. id in police lineBup) (identifications are by definition 454Bhearsay) (witness must be present in court and available for crossBe*amination). b. I#peachin0 your own witne%% 4 allo#ed if the witness is i. .n adverse party or identified w- an adverse party ii. Jostile iii. 5ne whom the party is re,uired by law to call iv. Kives surprise testimony that is affirmatively harmful c. I#peachin0 your adver%ary5% witne%%: a witness may be impeached by either crossB e*amination (eliciting facts from the witness) or by e*trinsic evidence (by putting other witnesses on the stand who will introduce facts discrediting testimony) through: i! Prior inconsistent statements . Kenerally admissible only to impeac ? not for its truth !. But, if the prior inconsistent statement was given under oath .48 at a trial, hearing, or in a deposition, such a statement I/ admissible for its truth. ". Extrinsic evidence is admissible to prove the prior inconsistent statement, but must give witness an opportunity to explain or deny the statement (at any time) #. Prior inconsistent statements of a party > an admission 1 so its fully admissible for its truth (even when not made under oath). ii. Evidence of bias: may be shown by e*trinsic evidence after a foundation is laid by in,uiry on crossBe*amination of the target witness. iii! Prior conviction of crime . )ust be a felony or a crime involvin. dis onesty (deceit) or false statement (no discretion to e*clude if involves dishonesty). 3ant use +uvenile convictions or crimes from L' years since release. !. Extrinsic evidence of conviction is admissible (certificate of conviction and no foundation necessary). iv! Specific acts of deceit or lyin. may be as$ed about in cross-examination . E!.!: 8id you lie on your !LL$ income ta*es? !. Good fait re,uired, with reasonable basis for believing that the act was done by the witness. ". .ct in,uired about must involve deceit or lyin. #. +o extrinsic evidence permitted. Hou must take the answer of the witness. v. Bad reputation or opinion for trut or veracity. )ay call the community mouth to the stand, to testify to the witnesss bad reputation. 3ant testify to specific instances of deceit or lying. d. Reha,i"itatin0 A)ter I#peach#ent i! Explanation on re-direct ii. Good reputation (opinion) for truth or veracity may be shown if impeachment involved a character attack (prior convictionA act of deceit or lyingA bad reputation for truth). iii. Prior consistent statements may be used to rebut an e*press or implied charge of fabrication or improper influence of motive (must be preBmotive statement). . 3ant use to rebut charge of prior inconsistent statement !. .dmissible for its truth

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*. !rivi"e0e% a. 3ttorney-)lient: 3onfidential communications between attorney and client made during professional legal consultation are privileged from disclosure unless waived by the client or the representative of the deceased client. i. Elements: . 2he right parties !. )onfidential communication (not physical evidence of preBe*isting docs) ". Intent by client to establish a professional le.al relations ip (includes retainer agreement negotiations, even if representation is ultimately denied). ii. 4ote: applies to the attys agent as well, including a doctor who e*amines the client at the attys re,uest (e.g. to assess the e*tent of in+ury). iii. Exceptions: situations where privilege does not apply (first " negate all prof privileges): . 7uture crime or fraud !. 0hen client or patient affirmatively puts communication in issue ". 8ispute between the parties as to the professional relationship (actions for fees or malpractice). #. 0here two or more parties communicate w- attorney about a matter of common interest, no privilege between them b. P ysician:Psyc iatrist-Patient: 2he patient has a privilege against disclosure of confidential information ac,uired by the physician-psychiatrist in a professional relationship entered into for the purpose of obtaining treatment. i. ;ey Elements: . 9atient must be see$in. treatment !. Information ac,uired must be confidential and necessary for treatment. ii. Note: doctorBpatient privilege does not apply in federal courts. 4or does it apply where the patient puts medical treatment at issue (personal in+ury). iii. &aiver of the physician patient privilege is common especially because of the 9atient Fitigation ;*ception. 9rivilege is waived if patient sues or defends by putting physical or mental condition in issue. c. ?usband-&ife Spousal Privile.es. i. 8oes not apply to intraBfamily in+ury cases (i.e. child abuse, incest) ii. 8ual 9rivilege: . Spousal Immunity Privile.e: one spouse cant be forced to give adverse testimony against the other in a criminal case. Ce,uirements: a. @alid marria.e at the time of trial b. 9rotects against any and all testimony (including preBmarriage facts) c. ?older of privile.e is #itness spouse not party spouse d. .pplies only in criminal cases !. )onfidential 1arital )ommunications Privile.e: spouse cant be re,uired (or allowed without consent from other spouse), to disclose confidential communication made by the other during the marriage. Ce,uirements: a. )arriage not necessarily at time of trial, but at time of protected communication. b. Protects only confidences not all testimony. /o spouse can take the stand, but may be stopped from revealing marital communications. c. Eit er spouse olds t e privile.e, not +ust the witness. d. 9rivilege applies in both civil and criminal cases. d. Procedural Issue: federal evidence law applies in federal courts b-c its procedural. 6ut, there are " e*ceptions where state evidence law applies in fed courts I7 state substantive law applies: i. Presumptions and burdens of proof ii. )ompetency of #itnesses (state dead mans statute) iii. Privile.es (if federal ,uestion case, federal common law applies) +. E3c"u%ion and Seque%tration o) 2itne%%e%: generally +udge may order witnesses e*cluded from the courtroom (upon party re,uest or on his own motion). 6ut, the +udge may not e*clude: ( ) a party or a designated officer-employee of a party, (!) a person whose presence is essential to the presentation of a partys case, or (") a person statutorily authori<ed to be present.

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Christin Hill

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VI. 6EARSA/ A. 9efinition: out of court statements offered for the purpose of establishing the truth of the matter asserted in the statement. a. 7 $ue%tion% i. Is it an outBofBcourt statement? ii. 0hat precisely is the outBofBcourt statement? iii. Is it being offered for the purpose of establishing its truth? b. Rationa"e: it denies the opponent the opportunity to crossBe*amine the person whose perception, memory and sincerity are in issue. 0here we only care about the witnesses perception, memory or sincerity (rather than the declarant) its not hearsay. c. Non-6ear%ay i. @erbal 3cts: words of offer, acceptance, defamation, conspiracy, bribery, cancellation, misrepresentation, waiver, permission. ii. 5utBofB3ourt statements offered to s o#s its effect on t e earer: to show notice to, or the good faith of, or reason for action or inaction by the person who heard or read the outBofBcourt statement. iii. 5utBofB3ourt statements to s o# declarant0s state of mind. d. Generally, a witnesses own prior statements are also hearsay. 6ut, certain prior statements are admissible: i. 9rior inconsistent statement given under oat as part of a proceeding or deposition ii. 9rior consistent statement to rebut c ar.e of recent fabrication or improper motive iii. 9rior statements of identification made by a witness on t e #itness stand. e. !arty Ad#i%%ion% 8 hear%ay (statement of a party offered against the party), so they .C; admissible. i. 4eed not be against interest at time of making statement ii. 4eed not be based on personal knowledge iii. 3an be in the form of a legal conclusion (=I was negligent>) iv. @icarious admission: a statement by an employee concerning a matter w-in the scope of her employment I/ admissible against the employer if made during e*istence of the relationship. B. E3ception% to the 6ear%ay Ru"e a. "ormer testimony: testimony given in earlier proceeding by person now unavailable is admissible if ( ) meaningful opportunity for crossA and (!) unavailability of the declarant. i. 1eanin.ful opportunity: ( ) same issue and motive, and (!) same identity of party (party against whom offered must have been a party in the first proceeding or, in civil case, at least in privity with party in first proceeding). ii. *navailability: 3ourt e*empts declarant from testifying due to privilegeA declarant refuses to testify b-c of privilege or other reasonA declarants memory failsA declarant is dead or sickA or proponent of statement cannot procure declarants attendance by process of other reasonable means. b. Statements a.ainst interest: declaration of a person, now unavailable as a witness, against 8eclarant must that persons pecuniary, proprietary or penal interest (or statement which would e*pose be unavailable declarant to civil liability or defeat a civil claim by declarant) at the time the statement was made. Ce,uirements: i. /tatement must have been a.ainst interest # en made ii. 8eclarant must have personal $no#led.e of facts iii. 8eclarant must be unavailable iv. 8oes not have to be a party (distinguish party admissions). c. 9yin. declaration: /tatement made by a declarant while believing his death is imminent. Ce,uirements: i. )ade under sense of impendin. deat (need evidence that the declarant believed he was going to die) ii. 8eclarant need not die but must be unavailable at time of trial iii. .dmissible in omicide or any civil cases iv. )ust concern cause or circumstances of impendin. deat . d. Statements of personal or family istory (e.g. birth, death, marriage) made by family member or one closely associated with the family. e. Statement of unavailable declarant offered a.ainst party # o procured t e unavailability . (

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Spontaneous statements (unavailability not re,uired): i. T en existin. state of mind when state of mind is in issue (=I believe I am the pope>) ii. Statements of existin. intent to do somet in. in t e future : admissible to infer that what was intended was done (=In ten days I will kill myself.>) iii. Excited utterance: ( ) startling event, (!) statement made under stress of e*citement, (") concerns the facts of the startling event. Fook for nature of event, time lapse, language. iv. Present-sense impression: a statement describing or e*plaining an event or condition made while the event was happening (=/panos at the door.>) v. 8eclaration of t en existin. p ysical condition: admissible by anyone who hears it (=It hurtsM>). vi. 8eclaration of past p ysical condition: statements made describing medical history. .dmissible if: ( ) made to medical personnel, (!) pertinent to either diagnosis or treatment (even if diagnosis is only for the purpose of giving testimony). g. Business records: Cecords made as a memo of any business transaction is admissible if: i. 2he record is germane to business ii. It appears that the record was made in the re.ular course of business iii. 2he business record consists of matters #:in t e personal $no#led.e of the entrant or within the knowledge of someone with a duty to transmit such matters. iv. ;ntry made at or near the time of the transaction v. .uthenticity established by the custodian ( ) testifying that the record is a business record, or (!) certifying in writing that the record is a business record. C. I#portant Te%t Note%a. Preliminary fact questions upon which admissibility depends are decided by t e 5ud.e, and she is not bound by the rules of evidence to make this determination (i.e. she can use hearsay). b. Hou are entitled to impeac t e credibility of a earsay declarant, even when hes absent, by any evidence which would be admissible for impeachment if the declarant had testified live. c. 1ixin. earsay and #ritin.s: remember best evidence rule. 0here a witness want to testify to a recorded message, which meets a hearsay e*ception, it is still inadmissible unless you satisfy the best evidence rule (i.e. e*plaining the absence of the recording itself). D. Con%titutiona" I%%ue%: /i*th .m gives the accused in a criminal case the ri. t of confrontation. 2herefore, outBofBcourt statements, which are =testimonial in nature> (made to law enforcement personnel for the use of investigation or prosecution of a crime) will be admissible against the accused in a criminal case 54FH I7: a. 2he declarant is unavailable .48 b. 2he defendant has a prior opportunity to cross e*amine c. Exception: 8oes not apply if the prosecution demonstrates that the 8 had forfeited his 3onfrontation 3lause ob+ection by wrongdoing that prevented the declarant from testifying at trial.