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Evidence
University of Baltimore School of Law
Smalkin, Frederic N.

Evidence Outline—Smallkin Summer 2012
 
General Provisions on Evidence
·         Rulings on Evidence
o   An erroneous ruling will still stand unless it affects a substantial right of a party
o   Objecting
§  Not necessary in MD unless dealing with a constitutionally based objection
§  Specific grounds required in fed
o   Offer of proof
§  Used on a ruling that excludes evidenceàneed to show what would have been given unless it’s clear from context
·         Preliminary Questions
o   Judge makes preliminary admissibility decisions
o   The accused may testify as to preliminary questions without being susceptible to cross examination
·         Limited Admissibility
o   If evidence is admissible only for a particular purpose, the court upon request may restrict evidence to its proper scope and instruct the jury accordingly
·         Remainder of Related Writings or Recorded Statements
o   If one side seeks to admit a portion of a writing or recording, an adverse party may require introduction of any other part of the writing that’s necessary to fairly be considered along with it
Hearsay
·         Anything that is oral and out of court where the declarant isn’t available for cross
·         Definition of Hearsay
o   A Statement
§  Oral or written assertion
§  Can be conduct if that conduct is clearly intended by the person as an assertion
o   Made by someone other than the declarant
§  Declarant is the person who made the original statement or assertion
§  Someone else is repeating the declarant’s statement in court
§  NOTE: A witness can also be the declarant; meaning, a witness can testify to what he saw but he may have HS problems if he tries to testify to what he told another person
o   Offered into evidence to prove the truth of the matter asserted
§  Look to the why the statement was made by the witness
·         For truth of the matter asserted = HS
o   Generally not admissible
·         Not for the truth of the matter asserted = NOT HS
o   Example: offered to show it was uttered
o   Example: offered to show notice
·         Policy Reasons Behind Hearsay Limits
o   Want the ability to cross a witness for the purposes of analyzing their:
§  Perceptions
§  Memory
§  Sincerity
§  Context of conversations
·         NOT hearsay
o   Statements that have legal significance
§  This is applicable where the law attaches rights or obligations to certain statements, whether or not the person meant what they said. What is important is that they were said, period.
§  The statement essentially relates to a substantive law of the case
§  Examples:
·         Contracts: offer and acceptance
·         Defamation
·         Slander
·         A statement offered to show the element of open and notorious in an adverse possession case
·         Donative intent
·         Self defense
§  Greetings are not hearsay
§  Communications made by inanimate objects or animals are not hearsay
§  Statements offered to show their effect on the state of mind of the person who heard them are not hearsay (knowledge, belief, reasonableness)
§  In self-defense, reasonable fear of the victim is usually an issue, so statements made to the defendant regarding the victim’s dangerous or violent character are relevant and isn’t considered HS
o   Exemptions
§  Prior inconsistent statements—a statement is not HS if the declarant testifies at trial or hearing and is subject to cross concerning the statement, and the statement is inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, proceeding, or deposition
§  Consistent with the declarant’s testimony and offered to rebut an express or implied charge against the declarant of recent fabrication, improper influence, or motive
·         Would usually be HS because it’s showing the truth of the matter asserted BUT, we are attempting to rebut a lie, so it’s an exception and is exempt from the HS rule
§  Identification of a person made after percei

or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to allow them to testify fully and accurately
·         Ways to handle a witness that doesn’t remember: (1) try to refresh memory, OR (2) try to get in under record recollection
·         Must be made or adopted by the witness
·         If it’s admitted it may be read into evidence, but it must be offered by an adverse party
§  Business Records
·         Suppliers (who has the personal knowledge), entrants (one who inputs the information), custodians (keep records in their control), and witnesses (anyone who has enough info to lay the predicate)
·         Computer records ok
·         Need a supplier completing record during the regular course of business
·         3rd party business records can be considered the business record of another in contractor/subcontractor type scenarios
§  Absence of Business Records
§  Public Records
·         Activities of office or agency—limited admissibility
·         Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel
o   Included: weather reports, 911 call transcripts, car titles, prison records
o   Not included: police records (because they are going to contain hearsay and aren’t as accurate as they could be—only helpful for investigative purposes)
In civil actions and proceedings and against the government in criminal cases, factual findings resulting from an investigation made pursuant to