De Bar - Evidence

Front 1

evidence -- All relevant evidence is admissible unless

Back 1

i. A specific exclusionary rule applies, OR
ii. In the court’s discretion, probative value of the evidence is substantially outweighed by one or more of the following:
1. Factors promoting accurate fact-finding --
a. Unfair prejudice
b. Confusion of the issues
c. Misleading of the jury
2. Factors promoting efficiency
a. Undue delay
b. Waste of time
c. Unduly cumulative

Front 2

evidence -- When is evidence relevant?

Back 2

i. If it has any tendency to make a material fact more or less probable than would be the case without the evidence. DRE 401.

Front 3

evidence -- When is evidence of P's of D's accident history admissible?

Back 3

a. P’s accident history is admissible to prove the cause of P’s injuries
i. NOTE P’s accident history INADMISSIBLE to demonstrate P’s general character to be accident-prone.
b. D’s accident history is admissible if the other accident occurred under substantially similar circumstances to prove (i) existence of a dangerous condition, (ii) causation, or (iii) prior notice to D.
i. NOTE D’s accident history INADMISSIBLE to demonstrate D’s general character to be careless.

Front 4

evidence -- What is a habit?

Back 4

A repetitive response (frequent conduct) to a particular set of circumstances (particular conduct).

Front 5

evidence -- for what purposes is evidence of liability insurance admissible?

Back 5

i. To prove ownership or control of an instrumentality or location, if disputed by D.
ii. To impeach (e.g., witness is employed as a claims adjuster to show bias).

Front 6

evidence -- for what purposes is evidence of subsequent remedial measures admissible?

Back 6

i. To prove ownership or control of an instrumentality or location, if disputed by D.
ii. To prove feasibility of a safer condition, if disputed by D.

Front 7

evidence -- prerequisite to evidence settlement/offer of settlement/statements of fact during settlement negotiations being inadmissible?

Back 7

civil claim is disputed (as to validity of claim OR amount of damages)

Front 8

admissibility of plea bargaining (and related) under federal and DE rules?

Back 8

a. INADMISSIBLE in criminal case or subsequent civil litigation based on the same facts:
i. An offer to plead guilty
ii. A withdrawn guilty plea
iii. A plea of nolo contendere (only in subsequent civil litigation)
iv. Statements of fact made during plea discussions
b. ADMISSIBLE in subsequent civil litigation based on same facts:
i. A guilty plea.
c. DRE 410: (i) Offers of pleas and (ii) their withdrawal are NOT admissible.

Front 9

judicial notice under DRE?

Back 9

a. DRE 202:
i. Delaware courts MUST take notice of
1. US Constitution and constitutional cases
2. DE constitution, common law and statutes
ii. MAY take notice of
1. Common law, cases, and statutes of US and other jurisdictions
iii. May NOT take notice without proper notice to parties
1. Foreign law

Front 10

when can criminal D introduce evidence f his general character?

Back 10

a. A relevant character trait
i. NOTE A D’s “law-abiding” character trait is ALWAYS admissible.
b. Introduced by D
c. In the form of opinion or reputation evidence (i.e., evidence of specific acts canNOT be introduced)

Front 11

how can prosecution rebut criminal D's introduction of character evidence?

Back 11

a. May call its own reputation or opinion witnesses
b. May impeach D’s character witness’s knowledge of D with specific acts relevant to character trait D sought to prove (e.g., “Have you heard?”; “Did you know?”)
i. NOTEProsecution must have a good-faith basis for this type of rebuttal.
ii. NOTEProsecution must “take” the witness’s answer and cannot prove that a specific act of D actually occurred.

Front 12

When is evidence of a victim's character admissible in self-defense cases?

Back 12

D may introduce evidence of victim’s violent character to prove conduct in conformity.
i. In the form of opinion or reputation.

Front 13

how can prosecution rebut D's introduction of evidence of victim's general character for violence?

Back 13

1. Opinion or reputation evidence of victim’s character for peacefulness
2. Character evidence regarding D’s character for violence.

Front 14

evidence -- for what purpose is evidence of victim's sexual behavior admissible?

Back 14

i. Specific sexual behavior of victim to prove someone else committed crime.
ii. Evidence of victim’s sexual behavior with D to prove consent.
iii. To demonstrate victim’s motive to falsify a claim.

Front 15

c. Procedure for Evidence of Victim’s Sexual Conduct Offered to Attack Victim’s Credibility, 11 Del. C. § 3508:

Back 15

i. D makes written motion; offer of proof; and explains relevancy of such evidence
ii. If offer of proof is sufficient, court orders a hearing out of presence of jury in which victim may be questioned
iii. If court concludes evidence is relevant, court may issue an order stating what evidence may be introduced and the nature of questions permitted.

Front 16

when is character evidence admissible in a civil case?

Back 16

1. ADMISSIBLE where such character is an essential element of a claim or defense [RARE].
a. Tort action alleging negligent hiring or entrustment
b. Defamation
c. Child-custody disputes
i. NOTE character may be proven by reputation, opinion, or specific acts

Front 17

evidence -- when are prior bad acts of D admissible?

Back 17

b. ADMISSIBLE to demonstrate something specific about the crime charge:
i. Motive
ii. Intent
iii. Absence of a mistake/accident
iv. Identity (opportunity and means to commit crime; signature)
v. Common scheme or plan (an overall criminal transaction)

Front 18

evidence -- when is evidence of prior bad acts of sexual misconduct admissible?

Back 18

i. Rule: Evidence of prior specific sexual misconduct is ADMISSIBLE for any relevant purpose, including to demonstrate action in conformity.
1. NOTE Only specific acts; NO opinion or reputation evidence.

Front 19

methods of authenticating a doc?

Back 19

i. Witness’s personal knowledge (e.g., W signed the doc).
ii. Proof of handwriting
iii. Ancient Document Rule
iv. Solicited Reply Doctrine - Doc was received in response to a prior communication by the alleged author.
v. Self-Authenticating Documents (i.e., burden of proof shifts away from offeror)

Front 20

evidence -- Elements of the ancient doc method of authentication

Back 20

Authentication may be inferred if:
1. Doc is at least 20 years old
2. Doc is facially free of suspicion, and
3. Doc is found in a place of natural custody.

Front 21

evidence -- methods of proving handwriting to authenticate a doc?

Back 21

1. Lay person opinion - On basis of familiarity with another’s handwriting as a result of normal course of affairs, W testifies that that person wrote the doc.
2. Expert comparison opinion
3. Jury comparison

Front 22

evidence -- what are self-authenticating docs?

Back 22

1. Official publications (e.g., government docs)
2. Certified copies of public or private records on file in a public office
3. Newspapers or periodicals
4. Trade inscriptions or labels
5. Acknowledged documents (i.e., docs executed before a notary)
6. Commercial paper (e.g., PN)
7. Certified domestic or foreign records of regularly conducted activity (e.g., 911 phone call records, teachers’ records, doctors’ records) if advance notice is given to other party.

Front 23

evidence - what is the conditional relevancy standard?

Back 23

i. Conditional Relevancy Standard - Doc is ADMISSIBLE so long as there is some evidence from which a reasonable juror could conclude document is genuine.

Front 24

evidence -- what is the BER?

Back 24

a. Rule: A party who seeks to prove the contents of the writing must either produce the original writing, or provide an acceptable excuse for its absence. If BER applies, contents of a writing canNOT be proven by secondary evidence (e.g., oral testimony).

Front 25

evidence -- when does a party seek to prove the cotents of a writing thereby triggering BER?

Back 25

i. Where the writing offered is a legally operative document, itself creating rights and obligations (e.g., a patent, deed, mortgage, K, divorce decree)
ii. Where a W testifies to facts learned solely from reading a writing.
1. I.e., W (i) has no personal knowledge (ii) of a fact that exists independently of a writing that records the fact.

Front 26

evidence -- what docs will satisfy when BER applies?

Back 26

i. Whatever doc or docs were intended as originals by parties;
ii. A negative or print from a negative
iii. A computer printout of digital records
iv. Any duplicate (e.g., photocopy or carbon copy) UNLESS admission would be unfair OR a genuine question is raised as to authenticity of the original

Front 27

evidence -- what is a sufficient excuse under BER?

Back 27

i. Must demonstrate by preponderance of the evidence:
1. Original is lost or cannot be found with due diligence
2. Original has been destroyed and not due to bad faith
3. Original cannot be obtained with legal process.

Front 28

evidence -- intro of DNA evidence in DE?

Back 28

a. In any criminal proceeding, evidence of a DNA profile is ADMISSIBLE to prove or disprove identity if the proponent:
i. Notifies other party at least 45 days before the proceeding
ii. Provides, if requested, to the other party:
1. Duplicates of audiographs
2. Lab protocols and procedures
3. Identification of each probe utilized
4. Description of methodology

Front 29

evidence -- competency requirements for Ws?

Back 29

1. Personal knowledge, DRE 602, and
2. Must demonstrate an appreciation of the duty to testify truthfully through an oath or affirmation. DRE 603

Front 30

evidence -- what is a dead man statute?

Back 30

i. An interested W is incompetent to testify against the estate of a decedent concerning communications or transactions between the W and the decedent.

Front 31

evidence -- at what age is a child presumed competent to testify in DE?

Back 31

Children age 5 or older are presumed competent.

Front 32

Video testimony of child un DE?

Back 32

i. In any criminal case, court may order ALL questioning of Ws under the age of 12 to be videotaped in a location designated by the court.
ii. Who may be present?
1. The child W
2. Deputy Atty General
3. D’s attorney, and
4. Any person whose presence would contribute to the welfare and well-being of the W.
5. What about D?
a. Court may permit him to observe and hear the videotaping in person, OR
b. Exclude D, provided he is able to observe and hear the W AND communicate with his attorney.

Front 33

evidence -- admitting contents of writing under past recollection recorded hearsay exception?

Back 33

i. Elements for admissibility of contents of a writing:
1. Refreshing recollection fails
2. W had personal knowledge at a prior time
3. Writing was either (i) made by W, or (ii) adopted by W
4. W’s making or adoption occurred while event was fresh in W’s memory, and
5. W can vouch for accuracy of the writing when it was made or adopted.
ii. NOTEOnly contents of the writing are admissible by proponent, NOT writing itself.
1. Result? Proponent may read writing to the jury.

Front 34

evidence -- testimonial immunity in DE

Back 34

W’s testimony and any info directly or indirectly derived from such testimony canNOT be used against W in a criminal case.
1. Exception Prosecutions for perjury or contempt.

Front 35

evidence -- when is lay opinion testimony admissible?

Back 35

a. Rationally based on W’s perception (i.e., W has personal knowledge), and
b. Opinion is helpful to the jury in deciding a fact.

Front 36

evidence -- requirements for admission of expert testimony?

Back 36

a. Expert must be qualified through education or experience,
b. Must have scientific, technical, or other specialized knowledge that will be helpful to the jury in deciding a fact
c. Expert’s opinion must be based on a reasonable degree of probability or reasonable certainty.
d. Expert’s opinion must be reliable

Front 37

evidence -- daubert factors for determining reliability of expert testimony?

Back 37

1. Testing, if any, of the principles/methods used by expert
2. Rate of error of principles/methods
3. Acceptance by other experts in the field of principles/methods
4. Peer review/publication of principles/methods

Front 38

evidence -- DRE on court-appointed experts

Back 38

3. DRE 706: Court-appointed experts are permitted; may be agreed to by parties or selected solely by the court.

Front 39

evidence -- when is EE not permitted to impeach?

Back 39

i. EE is NOT PERMITTED to impeach regarding prior bad acts and contradictory facts that are collateral.

Front 40

evidence -- when is a prior inconsistent statement admissible to impeach and as substantive evidence?

Back 40

May be admitted to impeach AND as substantive evidence if the prior statement was made:
1. (i) Orally under oath, and (ii) at a formal hearing, proceeding, trial, or deposition, OR
2. By the opposing party (e.g., a party admission).

Front 41

evidence -- DRE procedure for admitting EE to prove a prior inconsistent statement?

Back 41

2. NOTE DRE 613 requires the witness first be given opportunity to explain before EE of prior statement is admitted.
ii. DRE 613(c): EE is ADMISSIBLE if W hedges and does not either admit or deny a prior inconsistent statement.

Front 42

evidence -- evidence of W's character for truthfulness?

Back 42

ONLY reputation or opinion admissible.

Front 43

evidence -- types of criminal convictions that may be used to impeach a W?

Back 43

i. Conviction of any crime of which dishonesty/false statement was an element (e.g., fraud, perjury), OR
1. NOTE A narrow category
ii. Conviction of any felony; any two-year felony in DE.
1. NOTECourt will likely engage in a probative value v. prejudice determination
a. NOTE DRE 609 expressly requires this.

Front 44

evidence -- time limit for use of criminal convictions to impeach a W?

Back 44

i. Rule: Conviction or release from prison, whichever is later, must be within 10 years of trial to be admitted to impeach W.
1. Exception Where proponent demonstrates probative value of conviction on the issue of credibility is SUBSTANTIAL.

Front 45

evidence -- prior bad acts reflecting adversely of W's character for truthfulness

Back 45

a. Procedure? MUST confront W on cross. No EE allowed.
i. Result? W’s response must be taken; cross-examiner NOT permitted to rebut W’s response with EE.
ii. NOTE EE of prior bad act may be admissible if relevant for some other purpose.
b. Proponent’s basis? Must have a good-faith basis.
i. Permission to make inquiry is subject to court’s discretion.
c. NOTE Distinguish between the act and results of the act. For example, asking about W’s arrest is NOT permitted, but inquiring about the conduct underlying the arrest is.

Front 46

9. Procedure for Evidence of Victim’s Sexual Conduct Offered to Attack Victim’s Credibility, 11 Del. C. § 3508:

Back 46

a. D makes written motion; offer of proof; and explains relevancy of such evidence
b. If offer of proof is sufficient, court orders a hearing out of presence of jury in which victim may be questioned
c. If court concludes evidence is relevant, court may issue an order stating what evidence may be introduced and the nature of questions permitted.

Front 47

evidence -- ii. Prior Consistent Statement to Rebut a Charge of Recent Fabrication -- Hearsay Exclusion

Back 47

1. Elements for admission:
a. W’s testimony is impeached on basis of recent fabrication or as a product of improper influence,
b. W made a prior consistent statement
c. W’s prior consistent statement was made before the motive to fabricate arose

Front 48

evidence -- elements of the A-C privilege:

Back 48

1. Confidential communications
a. NOTEclient’s intent counts with respect to confidentiality
i. NOTEAs between joint clients, privilege applies only to third parties.
b. NOTEcommunications do NOT include underlying information, pre-existing documents, or physical evidence.
2. Between attorney or representative and client or representative
3. Made during a professional legal consultation
4. Unless waived or an exception applies.

Front 49

evidence -- elementsof subject-matter waiver of A_C privilege:

Back 49

Voluntary waiver as to some communications will constitute waiver as to other communications if:
a. Partial disclosure is intentional,
b. Disclosed and undisclosed communications concern the same subject matter, and
c. Fairness requires disclosure of both undisclosed and disclosed communications.

Front 50

evidence -- exceptions to A_C privilege (Fed and DE)

Back 50

1. Future crimes or frauds
2. Client puts legal advice in issue (e.g., a defense on the grounds of following legal advice)
3. Dispute between attorney and client (e.g., malpractice suit).
4. Claims through same, deceased person
5. Documents attested by lawyer
6. Actions between joint clients, DRE 502.

Front 51

evidence -- elements of the physician-patient privilege

Back 51

1. Confidential communication or information acquired by physician from patient
2. For purpose of diagnosis or treatment of a medical condition
a. Medical condition? PPP applies to physical and psychotherapy conditions. DRE 503.
i. NOTEFederal law limits PPP to psychotherapy.

Front 52

evidence -- exeptions to physician patient privilege (fed and DE)

Back 52

1. Patient expressly or impliedly puts physical or mental condition in issue
2. Hospitalization proceedings
3. Court-appointed examinations of patient
4. Child abuse cases

Front 53

evidence -- spousal immunity

Back 53

A spouse cannot be compelled to testify about ANYTHING against the defendant spouse in a criminal action.
1. NOTE Holder of this privilege is the WITNESS spouse.
2. SI applies only if marriage exists at the time of testimony

Front 54

evidence -- elements of confidential communications between spouses privilege

Back 54

In ANY case, a spouse is NOT required, and is NOT allowed in the absence of consent by the other spouse, to disclose a communication between spouses made in reliance on the intimacy of the marital relationship.
1. NOTEHolder of this privilege is BOTH spouses b/c consent is required.
2. This privilege survives the end of the marriage. In other words, confidential statements made during the course of a marriage cannot be revealed despite a later divorce.

Front 55

exceptions to both spousal privileges

Back 55

1. Communications or acts in furtherance of jointly-perpetrated future crime or fraud;
2. Communications or acts destructive of the family unit (e.g., child abuse).

Front 56

evidence -- DE clergy privilege

Back 56

1. Person may refuse to disclose a confidential communication made to a member of clergy for purpose of obtaining spiritual advice.

Front 57

evidence -- DE voter privilege and exceptions

Back 57

1. Voter may refuse to disclose tenor of vote by secret ballot
a. Exceptions 
i. Where vote was cast illegally, or
ii. Where vote was cast under DE election laws.

Front 58

evidence -- DE trade secrets privilege and exceptions

Back 58

1. Person may refuse to disclose trade secrets
a. Exceptions
i. Concealment causes fraud, or
ii. Will result in injustice

Front 59

evidence -- governmental privilege under DE law

Back 59

1. US or any state government may refuse to disclose state secrets

Front 60

evidence -- informant privilege under DE law and its exceptions

Back 60

1. US or any state may refuse to disclose identity of an informant
a. Exceptions
i. Informant becomes a witness, or
ii. Other party shows informant’s testimony would materially aid a claim or defense

Front 61

evidence -- what is hearsay?

Back 61

1. An out-of-court statement
2. Offered to prove the truth of the matter asserted in the statement.

Front 62

evidence -- when is a statement not offered to prove the truth of the matter asserted in the statement?

Back 62

1. Verbal Act (Legally Operative Words) - A situation where substantive law attaches legal rights and obligations to certain words simply because they were spoken.
a. E.g., words of contracting; term of patent or copyright; making of gift; bribe; perjury; fraud; defamation; words of permission.
2. To Show Effect on Person Who Heard or Read the Statement
a. E.g., to prove notice; apprehension of injury, motive
3. Circumstantial Evidence of Speaker’s State of Mind
a. E.g., to prove insanity.

Front 63

evidence -- when is a prior statement of a trial W not considered hearsay under fed rules?

Back 63

1. Verbal Act (Legally Operative Words) - A situation where substantive law attaches legal rights and obligations to certain words simply because they were spoken.
a. E.g., words of contracting; term of patent or copyright; making of gift; bribe; perjury; fraud; defamation; words of permission.
2. To Show Effect on Person Who Heard or Read the Statement
a. E.g., to prove notice; apprehension of injury, motive
3. Circumstantial Evidence of Speaker’s State of Mind
a. E.g., to prove insanity.

Front 64

evidence -- when is a prior statement of a trial W not considered hearsay under DE rules?

Back 64

a. 11 Del. C. § 3507: In a criminal case, prior statements of a W who is present and subject to cross-examination are ADMISSIBLE as substantive evidence.

Front 65

evidence -- elements for party admission hearsay exclusion

Back 65

a. Any statement
b. made by a party is ADMISSIBLE
c. if it is offered against the party.
2. NOTE No personal knowledge requirement here; rather, party need only have made the statement.

Front 66

evidence -- party admissions of an agent of a party admissible when?

Back 66

i. The statement concerns matters within the scope of agency or employment, and
ii. Is made during the existence of the agency or employment relationship.

Front 67

evidence -- hearsay exclusion for statements of co-conspirators under DRE

Back 67

1. Made during course of conspiracy,
2. In furtherance of the conspiracy
3. Conspiracy is proved by a preponderance of the evidence.

Front 68

evidence -- B/c of confrontation clause, Prosecution may NOT use a hearsay statement against D EVEN IF it falls within an exception if:

Back 68

1. The statement is testimonial;
2. The declarant is unavailable; and
3. D has had no opportunity for cross-examination either before or during the trial

Front 69

evidence -- what is a testimonial statement for purposes of confrontation clause?

Back 69

i. Grand jury testimony
ii. Statements made in response to police interrogation if purpose of the interrogation was to establish or prove facts potentially relevant to a later prosecution.
iii. Affidavits prepared for use at trial
iv. Police reports prepared for prosecutorial purposes (e.g., crime-scene reports; CSI lab reports).
v. Non-testimonial statements?
1. Business records
2. Response to police questioning where primary purpose is to assist police to meet an ongoing emergency.

Front 70

evidence -- elements of former testimony hearsay exception:

Back 70

a. W is unavailable,
b. Former testimony given at a former proceeding or deposition,
c. Offered against a party who, on the prior occasion, had an opportunity and motive to cross-examine or develop testimony of W, and
i. NOTE No opportunity to cross at a grand jury proceeding.
d. Issue in both proceedings is essentially the same

Front 71

evidence -- grounds for unavailability for purposes of hearsay exception

Back 71

a. Privilege
b. Absence from jurisdiction
c. Illness or death
d. Lack of memory
e. Stubborn refusal to testify

Front 72

evidence -- elements of statement against interest hearsay exception

Back 72

a. Declarant (Any person, not just parties) is unavailable,
b. Statement is against declarant’s pecuniary, proprietary or penal interest.
i. NOTE Must be against declarant’s interest when statement was made.
ii. NOTEDeclarant’s personal knowledge is required.
2. Statements against penal interest offered to exculpate a criminal D --
a. Statement against interest MUST be accompanied by circumstances showing trustworthiness of the statement.

Front 73

evidence -- elements of ddying declaration hearsay exception

Back 73

a. Declarant is unavailable,
b. Statement is made under a belief of impending and certain death, and
i. NOTEDeclarant must give up ALL hope of recovery
c. Statement concerns the cause or surrounding circumstances of declarant’s death.
2. NOTE If admission is sought in a criminal case, it will ONLY be admitted in a homicide case.

Front 74

evidence -- elements of excited utterance hearsay exception

Back 74

a. Statement concerns a startling event, and
b. Statement was made while declarant is still under the stress of excitement caused by the event.

Front 75

evidence -- elements of present sense impression hearsay exception

Back 75

a. A statement describing an event
b. Made while the event is occurring or immediately thereafter.

Front 76

evidence -- elements of present state of mind hearsay exception

Back 76

a. A statement concerning declarant’s present state of mind, feelings, emotions
b. Made contemporaneously as declarant experiences.

Front 77

evidence -- declaration of intent hearsay exception

Back 77

a. A statement of declarant’s intent to do something in the future.
i. NOTE Includes statement of intent to engage in conduct with another person, and such statement is ADMISSIBLE to prove participation by that other person.

Front 78

evidence -- elements of present physical condition hearsay exception

Back 78

a. A statement made to anyone
b. About declarant’s current physical condition

Front 79

evidence -- elements of hearsay exceptions for statements for purpose of medical treatment

Back 79

a. A statement made to anyone able to render aid,
b. Concerning:
i. Past symptoms;
ii. Present symptoms; or
iii. The general cause of the condition
c. And made for the purpose of diagnosis or treatment.

Front 80

evidence -- elements of business records hearsay exception

Back 80

a. Records are of a business of any type,
b. Records are of a type made in the regular course of business
c. Business regularly keeps such records
d. Records are made at or about the time of the event recorded
e. Contents of records consist of
i. Information observed by employees of the business, or
ii. A statement falling within an independent hearsay exception.
2. Exception Police reports prepared for prosecutorial purposes offered against criminal D.

Front 81

evidence -- elements of public records hearsay exception

Back 81

a. Records of a public office or agency
b. Records set forth:
i. Activities of the office or agency (e.g., payroll records)
ii. Matters observed pursuant to a duty imposed by law, or
iii. Findings of fact or opinions resulting from an investigation authorized by law.
2. Exception Police reports prepared for prosecutorial purposes offered against criminal D.

Front 82

evidence -- DE hearsay exception for child's statements regarding abuse:

Back 82

1. Out-of-court statement of a child victim or witness under 11 years of age at the time of the proceeding and concerning an element of the offense relating to sexual abuse, physical injury, death, abuse or neglect is ADMISSIBLE if:
a. Child is present and is subject to cross-examination, OR
b. Child is unavailable b/c of death, absence, total failure of memory, persistent refusal, physical or mental disability, privilege, incompetency (including fear to testify), or a substantial likelihood that the child would suffer severe emotional trauma from testifying, AND child’s statement possesses particularized guarantees of trustworthiness.

Front 83

evidence -- factors DE court may consider when determining whether a child's statement regarding abuse has particular guarantees of trustworthiness:

Back 83

1. Child’s personal knowledge of the event,
2. Age and maturity of the child,
3. Certainty that statement was made
4. Motive child may have to falsify
5. Timing of the child’s statement
6. Who heard the statement
7. Pain or distress when making the statement
8. Ring of verity/internal consistency or coherence/age-appropriate terminology
9. Whether EE shows D had opportunity to commit the act complained of in statement.

Front 84

evidence -- DE hearsay exception for infirm adults' statement regarding abuse

Back 84

1. An out-of-court statement made by an infirm adult or a patient or resident of a state facility is ADMISSIBLE if the statement concerns a material element of abuse, neglect, exploitation or mistreatment.

Front 85

evidence -- impeaching a hearsay declarant?

Back 85

i. Rule: ANY method of impeachment is available against the hearsay declarant whose statement is admitted into evidence.

Front 86

evidence -- effect of a presumption under DRE?

Back 86

i. DRE 301: In civil cases, a presumption shifts the burden of proof.

Front 87

evidence -- effect of res ipsa under DRE

Back 87

i. DRE 304: Res Ipsa permits but does NOT require an inference of negligence.