Evidence MEE Rule Statements

Statement of Mental/Emotional/Physical Condition (Hearsay Exception)

A statement of the declarant's then-existing state of mind or emotional, sensory, or physical condition is not excluded as hearsay. Further, a statement of present intent, motive, or plan can be used to prove conduct in conformity with that state of mind. However, a statement of a memory or past belief is inadmissible hearsay when used to prove the fact remembered or believed, unless the statement relates to the validity or terms of the declarant's will. When a declarant's physical condition at a particular time is in question, a statement of the declarant's mental feeling, pain, or bodily health made at that time can be used to prove the existence of that condition but not its cause.

Circumstantial Evidence of State of Mind (Non-Hearsay Use)

A statement offered as circumstantial evidence of the declarant's mental state is not hearsay. For example, a testator's statement, "I am the queen of England," is not admissible to show its truth, but it is admissible to prove that the testator is not of sound mind.

Legally Significant Verbal Act (Non-Hearsay Use)

A statement offered to prove that the statement was made, regardless of its truth, is not hearsay. For example, in a slander action, the defendant's statement that the plaintiff is a murderer may be admissible to prove that the defendant made the statement but not to prove that the plaintiff is a murderer.

Effect on the Listener/Reader (Non-Hearsay Use)

A statement offered to show the effect on the person who heard it or read it is not hearsay. For example, in a negligence action, the defendant's statement to the plaintiff that the sidewalk in front of the defendant's house was icy may be admissible to show that the plaintiff had notice of the danger but not to show that the sidewalk was actually icy.

Double Hearsay

A statement that contains hearsay within hearsay may be admissible as long as each part of the combined statement conforms to a hearsay exception.

Opposing Party's Statement (Non-Hearsay)

A statement, or adoptive admission, made by a party to the current litigation is not hearsay if it is offered by an opposing party. The statement may have been made by the party in his individual or representative capacity (e.g., trustee). An adoptive admission is a statement of another person that a party expressly or impliedly adopts as his own. Further, a statement made by one person may be imputed to another based on the relationship between them, as is the case with an employee or agent, an authorized speaker, or a co-conspirator.

Impeachment

A witness may be impeached by calling into question her credibility. Impeachment evidence may be presented through the witness's own testimony, by the testimony of another witness, or by other extrinsic evidence that contradicts the witness's testimony.

Sensory Competence (Impeachment)

A witness may be impeached by showing a deficiency in her testimonial capacities to perceive, recall, or relate information.

Present Recollection Refreshed

A witness may examine any document to "refresh" her present recollection. The witness's testimony must be based on her refreshed recollection, not on the document itself. The document is not entered into evidence unless the adverse party introduces it into evidence.

Rehabilitation of Witness

A witness who has been impeached may be "rehabilitated" by the introduction of rebuttal evidence by either party to support the witness's credibility. Rehabilitation may be accomplished by: 1. Explanation or clarification on redirect examination; 2. Reputation or opinion evidence of his character for truthfulness; or 3. A prior consistent statement.

Witness's Character for Truthfulness

A witness's credibility may be attacked by testimony regarding the witness's character for untruthfulness, in the form of reputation or opinion testimony. The credibility of a witness may not be bolstered. Evidence of the truthful character of the witness is admissible only after the witness's character for truthfulness has been attacked. Generally, a witness may be asked about specific instances of conduct relating to truthfulness, but extrinsic evidence is not admissible to prove those instances.

Prior Inconsistent Statement (Impeachment)

A witness's prior statement that is inconsistent with a material part of the witness's testimony may be used to impeach the witness. Extrinsic evidence of a witness's prior inconsistent statement may be introduced only if the witness is given the opportunity to explain or deny the statement, and the opposing party is given the opportunity to examine the witness about it.

Logical Relevance

As a rule, evidence must be relevant to be admissible, and all relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision. Evidence is relevant if: 1. It has any tendency to make a fact more or less probable than it would be without the evidence (i.e., probative); and 2. The fact is of consequence in determining the action (i.e., material).

Character Evidence (Sex-Offense Cases)

Evidence offered to prove the sexual behavior or sexual predisposition of a victim generally is not admissible in any civil or criminal proceeding involving sexual misconduct. In a civil case, the court may admit evidence offered to prove a victim's sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.

Liability Insurance

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. However, such evidence may be admissible for another purpose, such as to prove agency, ownership, or control, or to prove a witness's bias or prejudice.

10-Year Rule (Impeachment)

If more than 10 years have elapsed since the conviction (or release from confinement, whichever is later), then evidence of the conviction is admissible only if: 1. The probative value of the conviction substantially outweighs its prejudicial effect; and 2. The proponent gives an adverse party reasonable written notice of the intent to use such evidence so that the adverse party has a fair opportunity to contest the use of such evidence.

Character Evidence (Civil Cases)

In a civil case, evidence of a person's character generally is inadmissible to prove that the person acted in accordance with that character on a particular occasion, unless: 1. Character is an essential element of a claim or defense; or 2. The claim for relief is based on the defendant's sexual misconduct and the evidence concerns past sexual assault or child molestation by a defendant.

Prior Bad Acts (Criminal Cases)

In a criminal case, evidence of a specific act is not admissible to prove a person's character in order to show that the person acted in accordance with that character on a particular occasion. Such bad acts are admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Further, when a character witness is cross-examined, the court may allow a party to inquire into specific acts committed by the person about whom the witness is testifying.

The Sixth Amendment Confrontation Clause

In a criminal trial, the Confrontation Clause of the Sixth Amendment requires that, in order to admit an out-of-court testimonial statement of a declarant (i.e., hearsay) against a defendant: 1. The declarant must be unavailable; and 2. The defendant must have had a prior opportunity to cross-examine the declarant. In determining whether a statement is testimonial, courts consider an objective analysis of the circumstances, rather than the subjective purpose of the participants. A statement made during a police interrogation that had the primary purpose of ascertaining past criminal conduct is testimonial. By contrast, a statement made to police during the course of questioning with the primary purpose of enabling police to provide assistance to meet an ongoing emergency (e.g., a 911 call) is not testimonial, nor is a statement made by a fatally wounded victim as to the identity of his assailant in response to police questioning, because the statement was made to assist the police in addressing an on-going emergency.

Victim's Character (Criminal Cases)

Usually in a "self-defense" claim, a defendant is permitted to introduce pertinent evidence of a victim's character (usually for violence) through reputation or opinion evidence, when it is relevant to a defense. If the defense "opens the door," the prosecution may introduce rebuttal evidence of the victim's character trait through reputation or opinion testimony, or attack the defendant's character regarding the same trait.

Impeachment of Hearsay Declarant

When a hearsay statement is admitted into evidence, the credibility of the declarant may be attacked (and, if attacked, supported) by any evidence that would be admissible if the declarant had testified as a witness. The declarant need not be given the opportunity to explain or deny any inconsistent statement or conduct.

Prior Bad Acts (Civil Case)

When character evidence is admissible as evidence in a civil case, it may be proved by specific instances of a person's conduct.

Subsequent Remedial Measures

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defective product or design, or the need for a warning or instruction. However, evidence of subsequent remedial measures may be admissible for other purposes, such as impeachment or ownership or control of the cause of the harm.

Defendant's Good Character (Criminal Cases)

When the defendant "opens the door" by offering evidence of his good character, the prosecution is free to rebut the defendant's claims by attacking the defendant's character. This can be done by calling a witness to rebut and attack the defendant's claims of good character with reputation or opinion testimony, or by cross-examining the defendant's character witness and asking about the defendant's reputation, opinions about the defendant's character, or specific bad acts by the defendant. A prosecutor cannot introduce extrinsic evidence to prove bad acts if the defendant denied them.

Felonies (Impeachment)

When the witness is a criminal defendant, evidence of a felony conviction for a crime not involving dishonesty or false statement is admissible only if its probative value outweighs the prejudicial effect to that defendant, subject to the 10-year rule. For witnesses other than a criminal defendant, such evidence generally must be admitted. The court does have the discretion, however, to exclude the evidence when the party objecting to the impeachment shows that its probative value is substantially outweighed by its prejudicial effect

Public Records (Hearsay Exception)

A hearsay exception applies to a record or statement of a public office or agency that sets out: 1. The activities of the office or agency; 2. An observation of a person under a duty to report the observation (except for an observation of a law enforcement officer offered in a criminal case); or 3. Factual findings of a legal investigation, when offered in a civil case or against the government in a criminal case. Similarly, testimony that a diligent search failed to disclose a public record or statement may be admitted to prove that the record or statement does not exist, or that a matter did not occur or exist, if a public office regularly kept a record of statements for a matter of that kind.

Opinion Testimony (Lay Witness)

A lay (non-expert) witness is generally not permitted to testify as to his opinion. However, lay opinions are admissible with respect to common-sense impressions such as appearance, intoxication, speed of a vehicle, or another's emotions. To be admissible, the opinion must be: 1. Rationally based on the perception of the witness; and 2. Helpful to a clear understanding of the witness's testimony or the determination of a fact in issue.

Business Records (Hearsay Exception)

A record of an act, event, condition, opinion, or diagnosis is not excluded as hearsay if: 1. The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling; 2. The making of the record was a regular practice of that activity; and 3. The record was made at or near the time by (or from information transmitted by) someone with knowledge.

Statement Made for Medical Diagnosis/Treatment (Hearsay Exception)

A statement describing medical history or past or present symptoms to any person is not excluded as hearsay if it is made for medical diagnosis or treatment. A statement of the cause or source of the condition is admissible as an exception to the rule against hearsay if it is reasonably pertinent to diagnosis or treatment. However, a statement that falls within this hearsay exception still may be inadmissible if it is protected by the physician-patient privilege. Under this hearsay exception, the statement need not necessarily be made by the patient, so long as it is made for the purpose of medical diagnosis or treatment.

Present Sense Impression (Hearsay Exception)

A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it is not excluded as hearsay.

Assertive Conduct (Hearsay)

A statement is a person's oral or written assertion, or it may be nonverbal conduct intended as an assertion. An example of assertive conduct is a defendant nodding his head up and down to indicate a "yes" answer to a question.

Excited Utterance (Hearsay Exception)

A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused is not excluded as hearsay. Under this exception to the hearsay rule, the event must shock or excite the declarant, and the statement must relate to the event, but the declarant need not be a participant in the event (i.e., the declarant can be a bystander).

Authentication

All tangible evidence must be authenticated. To authenticate an item, the proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims it is.

Past Recollection Refreshed

An accurate memorandum or record that was made or adopted by the witness when it was fresh in the witness's memory, and which concerns a matter that a witness once had knowledge of but now has insufficient recollection of to testify about, may be read into evidence under the recorded recollection hearsay exception. It may also be received as an exhibit only if offered by an adverse party.

Opinion Testimony (Expert Witness)

An expert witness is qualified to testify as to her opinion, if: 1. The witness is qualified as an expert by knowledge, skill, experience, training, or education; 2. The testimony is based on sufficient facts or data; 3. The testimony is the product of reliable principles and methods; and 4. The witness applied the principles and methods reliably to the facts of the case. The subject matter of an expert witness's testimony must be scientific, technical, or other specialized knowledge, and must help the trier of fact understand the evidence or determine a fact in issue.

Offers to Pay Medical Expenses

Evidence of the payment, offer to pay, or promise to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

Witness's Bias or Interest (Impeachment)

Because a witness may be influenced by his relationship to a party , his interest in testifying, or his interest in the outcome of the case, a witness's bias or interest is always relevant to the credibility of his testimony, and consequently, a witness may be impeached on that ground.

Character Evidence

Character evidence, which is generalized information about a person's behavior - such as information that the defendant is a criminal, a bad parent, or an inattentive driver - is generally inadmissible. Character evidence is admissible for impeachment and other limited purposes. If admissible, proof of character must usually be in the form of reputation or opinion testimony.

Compromise Offers and Negotiations

Compromise offers made by any party, as well as any conduct or statements made during compromise negotiations, are not admissible to prove or disprove the validity or amount of a disputed claim, or for impeachment. If there is no disputed claim and a settlement offer is made, it is not barred.

Judgments of Previous Convictions (Hearsay Exception)

Evidence of a final judgment of conviction is not excluded as hearsay if: 1. The judgment was entered after a trial or guilty plea, but not a plea of no contest (i.e., nolo contendere); 2. The conviction was for a crime punishable by death or imprisonment for more than one year; and 3. The evidence is offered to prove any fact essential to sustain the judgment.

Habit Evidence

Evidence of a person's habit or an organization's routine is admissible to prove that the person or organization acted in accordance with the habit or routine on a particular occasion. A habit is a person's particular routine reaction to a specific set of circumstances.

Witness Competence

Generally, every person is presumed to be competent to be a witness. A non-expert witness must have personal knowledge of a matter in order to testify about that matter.

Hearsay

Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted. Hearsay evidence generally is inadmissible unless it falls within an exception or exclusion.

Recorded Recollection (Hearsay Exception)

If a witness is unable to testify about a matter for which a record exists, that record is not excluded as hearsay if the following foundation is established: 1. The record is on a matter that the witness once knew about; 2. The record was made or adopted by the witness when the matter was fresh in the witness's memory; 3. The record accurately reflects the witness's knowledge; and 3. The witness states that she cannot recall the event well enough to testify fully and accurately, even after consulting the record on the stand.

Character Evidence (Criminal Cases)

In general, the prosecution is not permitted to introduce evidence of a defendant's bad character to prove that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question. A defendant is permitted to introduce evidence of his good character as being inconsistent with the type of crime charged if the evidence is pertinent to the crime charged.

Legal Relevance

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Crimes Involving Dishonesty or False Statement (Impeachment)

Subject to the 10-year restriction, any witness may be impeached with evidence that he has been convicted of any crime—felony or misdemeanor—involving dishonesty or false statement.

Confidential Marital Communications

The Confidential Marital Communications privilege provides that communication made between spouses while they were married is privileged if the communication was made in reliance on the sanctity of marriage. The privilege continues even after the marriage has ended. Under the majority view, either spouse may assert the privilege and refuse to testify about the communication or prevent the other spouse from testifying.

Prior Statements (Non-Hearsay)

The Federal Rules identify three types of prior statements that are not hearsay: 1. Prior inconsistent statements; 2. Prior consistent statements; and 3. Prior statements of identification. In all three cases, the witness who made the statement must testify at the present trial or hearing and be subject to cross-examination concerning the statement in order for it to be admissible. A prior statement of identification can be admitted for substantive purposes. A prior inconsistent statement can also be admitted for substantive and impeachment purposes. A prior consistent statement may be admissible (i) to rebut an express or implied charge that the declarant recently fabricated her statement; or (ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground.

Best Evidence Rule

The best evidence rule requires that the original document, or a reliable duplicate, be produced in order to prove the contents of a writing, recording, or photograph, including electronic documents, x-rays, and videos. This rule applies only when the contents of the document are at issue, or a witness is relying on the contents of the document when testifying.

Non-Hearsay

The following types of statements, which otherwise would qualify as hearsay, are expressly defined as non-hearsay: 1. Opposing party's statements; and 2. Prior statements.

Spousal Immunity

The general rule for Spousal Immunity is that the spouse of a criminal defendant may not be called as a witness by the prosecution, or be compelled to testify against his spouse in any criminal proceeding. In federal courts (and a majority of states), the witness spouse holds the privilege and may choose to testify but cannot be compelled to do so.

Declarant Unavailable (Hearsay Exceptions)

There are five exceptions to the hearsay rule that apply only if the declarant is unavailable as a witness: 1. Former testimony; 2. Dying declaration; 3. Statement against interest; 4. Statement of personal or family history; and 5. Statement offered against a party that wrongfully caused the declarant's unavailability. An unavailable declarant is a person who:1. Is exempt on the grounds of privilege; 2. Refuses to testify despite a court order to do so; 3. Lacks memory of the subject matter of the statement; 4. Is unable to testify due to death, infirmity, or physical or mental disability; or 4. Is absent and cannot be subpoenaed or otherwise made to be present.