Category: evidence

Are there exceptions to the hearsay rule?

Yes, there are exceptions. If you read Federal Rules of Evidence 803 and 804  you will see a list of exceptions. Many states have identical exceptions. By way of example, consider the “excited utterance.”  This is an excited statement made in response to a startling event or condition. For example, let’s say immediately after being hit by a rock, Gary yells, “Mark threw a rock at me!” Gary’s statement that Mark threw a rock at him can likely be admitted into evidence to prove the truth of the matter asserted.  That is, the statement is probably admissible to prove that Mark threw the rock.   The statement would be admissible as an exception to the hearsay rule because it is an excited utterance.  ...

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What is double hearsay?

Double hearsay is also known as hearsay within hearsay.   This is where we have a statement that contains another statement.  Our double hearsay rule tells us that both the statement and the statement within the statement must be admissible, otherwise, only a portion of the evidence or possibly nothing gets admitted in court.   Here’s an example: Let’s say Sally works at a hospital.  Her job is to take down information when patients come in.   Patty comes to the hospital.  She is bleeding from her head.   Sally starts filling out her report: Sally asks what happened. Patty answers, “A flower pot fell on my head.” Now Sally’s report looks like this:   But there are two possible hearsay problems. First, is the report admissible?  You need to look at the evidence rules because this is an out of court statement. But even if the report is generally admissible, there is a hearsay problem within the report.  Patty told Sally about the flower pot.  Sally wrote it down.  That is also an out of court statement that is contained within the report. To admit the entire report in court, a judge will have to decide that the report *and* Patty’s statement to Sally are...

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What are the most common objections at US trials?

I’m not sure.  As far as I know, this information is not compiled at either the federal or state level. The most common objections at criminal trials might be different from objections at civil trials but I’m not sure. Here’s a guess at the most common objections at civil trials: Relevance  To be admissible at trial, evidence must be relevant.  Law professors like this type of question on exams because it is so fundamental students often forget about it.   To be relevant, under Rule 401 of the Federal Rules of Evidence, the evidence must make a consequential fact more or less likely to be true.  Balancing against relevance is the possibility of prejudice.  That is, if evidence would make it likely that a jury would dislike one of the parties, and that prejudice outweighs the value of the evidence, then a judge might not admit the evidence even if it has some relevance to the trial. Hearsay   Generally speaking, a person cannot testify about what another person said outside the courtroom, for the truth of the matter asserted.  Wally can’t testify that Terry told him last week that the defendant, David, caused a car crash.  Terry can testify as to what she personally witnessed but Wally can’t testify for her.  Likewise, Wally can’t read a note that Terry wrote about David causing the accident.  There are some exceptions.  I’ll try to...

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What is the Best Evidence Rule?

The so-called “Best Evidence Rule” is an old rule which provides that if a party is trying to prove the contents of a document, the document should be introduced into evidence unless there is a good reason to not enter the document into evidence. The term “Best Evidence Rule” is actually misleading and Federal Rule of Evidence 1002 now calls it “Requirement of the Original” which is much more helpful. Let’s say a party is testifying about the contents of a contract to try and prove that the opposing party breached the contract.  The party might want to testify that, “Article 2 of the Contract says ‘David promises to sell his red car.’   But David never sold the car.  So I’m suing him.”   The Requirement of the Original rule or Original Document rule tells us that instead of just testifying about what Article 2 of the contract said, we should enter the contract into evidence.  Unless there is proof of fabrication, a photocopy of the contract should be fine, too. Don’t Get Tricked The rule only applies if someone is trying to prove the contents of a  document.  For example, let’s say you wanted to testify that you bought milk yesterday.  That’s fine.  You don’t have to enter into evidence a receipt for the milk.  On the other hand, if you testify that the milk receipt stated that...

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