MBE Evidence

Question 1

When is evidence relevant?

Answer 1

Evidence is relevant when it has a tendency to make a fact of consequence more to less probable.

Question 2

Irrelevant evidence is always…

Answer 2

inadmissible.

Question 3

All relevant evidence is admissible unless:

Answer 3

(1) it is kept out by some specific exclusionary rule of evidence or
(2) the Court keeps it out under Rule 403

Question 4

Rule 403: Relevant evidence may excluded if its probative value is substantially outweighed by the danger of:

Answer 4

• unfair prejudice
• confusion of the issues
• misleading the jury
• undue delay
• waste of time
• Needless presentation of cumulative evidence

Question 5

Similar Occurrences General Rule

Answer 5

If evidence involves some time, event, or person other than that involved in the present case, it is inadmissible.

Question 6

Public Policy Exclusions General Rule

Answer 6

Some evidence is excluded by the Federal Rules of Evidence because public policy favors the behavior involved.

Question 7

What are the public policy exclusions?

Answer 7

(a) Liability Insurance
(b) Subsequent Remedial Measures
(c) Settlement Offers
(d) Payment of Medical Expenses
(e) Plea Discussions

Question 8

Evidence of a party’s insurance against liability is not admissible to show…

Answer 8

Whether the party acted negligently or otherwise wrongfully.

Question 9

Liability insurance may be admissible to show…

Answer 9

(1) to prove ownership or control, if disputed;
(2) to impeach a witness (bias); or
(3) as part of an admission of liability.

Question 10

Evidence of repairs or other precautionary measures made following an injury is not admissible to show…

Answer 10

(1) negligence,
(2) culpable conduct
(3) a defect in product or its design or
(4) a need for warning to instruction

Question 11

Subsequent Remedial Measures may be admissible to show…

Answer 11

(1) to prove ownership or control, if disputed;
(2) feasibility; or
(3) that the opposing party destroyed evidence

Question 12

Evidence of a compromise (settlement) or an offer to compromise a civil claim is not admissible to…

Answer 12

(1) prove or disprove the validity or amount of a disputed claim, or
(2) impeach a witness by prior inconsistent statement or contradiction.

Question 13

Evidence that a party has paid or offered to pay an injured person’s medical, hospital, or similar expenses is…

Answer 13

Inadmissible to prove liability for the injury.

Question 14

For payment of medical expenses, what IS admissible?

Answer 14

Admissions of fact accompanying such payments and offers are admissible.

Question 15

What is character evidence?

Answer 15

Character evidence refers to a person’s general propensity or disposition.

Question 16

What are the three (3) methods of proving character?

Answer 16

(1) specific acts
(2) opinion testimony and
(3) reputation testimony

Question 17

Defendant’s Character in Criminal Case General Rule

Answer 17

In a criminal case the defendant is permitted to introduce evidence of their own good character to show their innocence.

Then, the prosecution may rebut it with evidence of the defendant’s bad character.

Question 18

When character is an essential element of a claim or defense…

Answer 18

When character is an essential element of a claim or defense, character is directly in issue and all forms of character evidence are admissible. Character is an essential element in defamation cases, child custody cases, and negligent hiring or entrustment cases.

Question 19

Evidence of a person’s other crimes, wrongs, or acts is admissible if…

Answer 19

relevant to an issue other than their character or propensity to commit the alleged crime or act.

These non-character purposes for offering evidence may include motive, intent, absence of mistake, identity, or common plan/scheme.

Question 20

Non-character purposes for offering evidence (MIMIC)

Answer 20

Non-character purposes for offering evidence may include motive, intent, absence of mistake, identity, or common plan/scheme

Question 21

Evidence of a defendant’s other acts of sexual assault or child molestation is admissible in…

Answer 21

A criminal or civil case where the defendant is accused of committing an act of sexual assault or child molestation. The party intending to offer this evidence must disclose it to the defendant 15 days before trial.

Question 22

CIVIL: Evidence of the alleged victim’s sexual behavior is admissible If…

Answer 22

it is not excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.

Question 23

CIVIL CASE: Evidence of the alleged rape victim’s reputation is admissible…

Answer 23

only if it has been placed in controversy by the victim.

Question 24

CRIM CASE: Once the defendant introduces evidence of the victim’s bad character for a pertinent trait, the prosecution may rebut with…

Answer 24

Reputation or opinion evidence of
(1) the victim’s good character or
(2) the defendant’s bad character for the same trait.

Question 25

The prosecution may offer evidence of a victim’s good character for peacefulness in a homicide case where

Answer 25

The defendant pleads self-defense.

Question 26

CRIM CASE: Evidence offered to prove the sexual behavior or disposition of a victim is generally

Answer 26

inadmissible.

However, specific instances of the victim’s sexual behavior may be admissible to prove that someone other than the defendant is the source of the injury, semes, or other physical evidence, or consent.

Question 27

Authentication General Rule

Answer 27

All evidence must be authenticated before being admitted.

Question 28

Physical evidence can be authenticated through…

Answer 28

witness testimony or by evidence that shows it has been held in a substantially unbroken chain of custody.

Question 29

Voice recordings may be authenticated by…

Answer 29

anyone who has heard the person speak and identified the recorded person as the speaker.

Question 30

Best Evidence Rule

Answer 30

To prove the content or a writing, recording, or photograph, the original writing must be produced if the terms of the writing are material
unless it’s a reliable duplicate,
all originals are lost/destroyed,
cannot be obtained by judicial process,
was not produced after proper notice, or
not closely related to a controlling issue.

Question 31

Witness Competency General Rule

Answer 31

Witnesses are generally presumed to be competent until the contrary is established.

Question 32

Present Recollection Revived General Rule

Answer 32

A witness may use any writing or object for the purpose of refreshing their present recollection.

The witness usually does not read from the writing while testifying because the writing is not authenticated and not in evidence.

Question 33

Past Recollection Recorded General Rule

Answer 33

If a witness states they have insufficient recollection of an event to testify, even after consulting a memorandum, the record may be read into evidence if a proper foundation is laid.

Question 34

Subsequent Remedial Measures Rule Statement

Answer 34

Evidence of repairs or other precautionary measures, such as a change in policy, made following an injury is not admissible to prove negligence, culpability, defect, or need for warning under the Federal Rules of Evidence. However, it may be admissible to prove ownership or control, feasibility, or that the opposing party destroyed evidence.

Question 35

Payments and Offers to Pay Medical Expenses Rule Statement

Answer 35

Payment or an offer to pay medical expenses is also considered a public policy exclusion under the FRE. Evidence of a party paying or offering to pay the injured party’s medical bills, hospital bills, or similar expenses is inadmissible to prove liability for the injury. However, any admissions of facts statements that accompany the payment(s) or offer of payment are admissible.

Question 36

Rape-Shield Law Rule Statement

Answer 36

Under the FRE, a rape victim’s past behavior is generally inadmissible.
Specific instances of the victim’s conduct are also inadmissible, unless in a criminal case it is offered to prove that someone other than the defendant is the source of the injury.
In civil cases evidence of the alleged victim’s past behavior is admissible if it is not excluded by another rule and its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to either party.

Question 37

Opinion Testimony- Lay Witness MEE Rule Statement

Answer 37

Opinion by lay witnesses are generally inadmissible unless it is
(1) based on the witness perception,
(2) helpful to clear understanding or determination of a fact issue, and
(3) not based on specialized knowledge.

Question 38

Opinion Testimony- Expert Witness MEE Rule Statement

Answer 38

Expert testimony is admissible when:
(1) the subject matter must be specialized knowledge, (2) based on sufficient facts or data;
(3) the opinion must be the product of reliable principles and methods; and
(4) the expert must have reliably applied the principles and methods of the facts of the case.

Question 39

Daubert test (TRAP) – Opinion Testimony

Answer 39

There are 4 principal Daubert factors that courts used to determine the reliability of experts’ principles and methodologies:
Testing of principle of methodology,
Rate of error,
Acceptance by experts in the same discipline, and
Peer review and publication.

Question 40

What are the two (2) methods of impeachment?

Answer 40

A witness may be impeached by either (1) cross-examination or (2) extrinsic evidence.

Cross-examination: eliciting facts from the witness that discredit their own testimony

Extrinsic evidence: calling other witnesses or introducing documents that prove the impeaching facts.

Question 41

Prior Inconsistent Statement MEE Rule Statement

Answer 41

A party may show by cross-examination or extrinsic evidence, that the witness, on another occasion, made statements inconsistent with their present testimony.

Prior inconsistent statements made under oath at a prior proceeding are admissible as nonhearsay and substantive evidence of facts stated.

Question 42

Bias (Impeachment) MEE Rule Statement

Answer 42

A witness may be impeached by evidence of bias. Evidence that a witness is biased or has an interest in the outcome of a case tends to show that the witness has a motive to lie.

Question 43

Sensory deficiencies (Impeachment) MEE Rule Statement

Answer 43

A witness may be impeached by showing that their faculties of perception and recollection were impaired making it doubtful that they could have perceived those facts.

Question 44

Rehabilitation (Impeachment) MEE Rule Statement

Answer 44

A witness who has been impeached may be rehabilitated by: explanation on redirect,, prior consistent statements, or good character for truthfulness testimony.

Question 45

Hearsay General Rule

Answer 45

Under the Federal Rules of Evidence (FRE), hearsay is an out of court statement offered for the truth of the matter asserted. Statements that are hearsay are generally inadmissible unless it falls within a hearsay exception or is considered nonhearsay.

Question 46

Habit Evidence Rule Statement

Answer 46

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the party acted in accordance with the habit
or routine practice.

A habit is a regular response to a repeated situation (i.e. going down a stairway two stairs at a time), and usually has four key elements:
(1) specificity;
(2) repetition;
(3) duration; AND
(4) is semi-automatic or reflexive.

Question 47

Impeachment: Prior Convictions General Rule Statement

Answer 47

Under the FRE, evidence of prior convictions may be admitted to attack a witness’s character for truthfulness in certain instances.

Question 48

Prior Convictions – Prior felony or misdemeanor convictions involving dishonesty Rule Statement

Answer 48

Prior felony or misdemeanor convictions involving dishonesty (a dishonest act or false statement) are always admissible to impeach a witness.

All other misdemeanors are NOT admissible to impeach.

Question 49

Prior Convictions – Felonies that DO NOT involve dishonesty Rule

Answer 49

Felonies that DO NOT involve dishonesty are admissible in the following cases:
(1) in a civil or criminal case where the witness is not a criminal defendant (subject to the FRE 403 exclusions); and
(2) in a criminal case where the witness is a defendant, but only if the probative value outweighs its prejudicial effect.
if 10-years have passed since the later of the witness’s conviction or release from confinement, evidence of the conviction is admissible only if: (1) its probative value substantially outweighs its prejudicial effect; and (2) the proponent gives an adverse party reasonable written notice of the intent to use it.

Question 50

Prior Convictions – Felonies 10 yr Rule

Answer 50

If 10-years have passed since the later of the witness’s conviction or release from confinement, evidence of the conviction is admissible only if:
(1) its probative value substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it.

A felony is a crime that (in the convicting jurisdiction) was punishable by: (a) death; OR (b) imprisonment for more than one year.

Question 51

Impeachment: Hearsay Declarants Rule

Answer 51

When a hearsay statement has been admitted into evidence, the declarant’s credibility may be attacked (and then supported) by any evidence that would be admissible if the declarant had testified as a witness.

Question 52

Multiple Hearsay General Rule

Answer 52

When evidence contains hearsay within hearsay (multiple or double hearsay), each level of hearsay must fall within an exception to be admissible.

Question 53

Non-Hearsay General Rule

Answer 53

f an out-of-court statement is offered to prove something other than the truth of the statement, it is non-hearsay and is ADMISSIBLE. Common non-hearsay statements include: (1) verbal acts of independent legal significance; (2) statements offered to show the effect on the listener; (3) a prior inconsistent statement used to impeach; and (4) circumstantial evidence of the speaker’s state of mind.

Question 54

What are the four (4) common non-hearsay statements?

Answer 54

Common non-hearsay statements include:
(1) verbal acts of independent legal significance;
(2) statements offered to show the effect on the listener; (3) a prior inconsistent statement used to impeach; and (4) circumstantial evidence of the speaker’s state of mind.

Question 55

Hearsay Exclusion: Statements by a Party Opponent Rule Statement

Answer 55

Under the FRE, statements by a party opponent are deemed to be non-hearsay. A statement by a party opponent is
(1) any statement offered against an opposing party, (2) that either:
(a) was made by the party in an individual or representative capacity;
(b) is adopted or believed to be true by the party (silence may be sufficient if a reasonable person would have denied the statement after hearing it);
(c) was made by an person authorized to make a statement on the subject;
(d) was made by the party’s agent or employee on a matter within the scope of that relationship; OR
(e) was made by the party’s co-conspirator during and in furtherance of the conspiracy.

Question 56

Hearsay Exclusion: Prior Statements by a Witness Rule Statement

Answer 56

Under the FRE, prior statements by a declarant-witness are deemed to be non-hearsay if:
(1) the declarant testifies;
(2) the declarant is subject to cross-examination about a prior statement; AND (3) the prior statement:

(a) was inconsistent with the declarant’s testimony and was given under penalty of perjury at a court proceeding or deposition;
(b) identifies a person as someone the declarant perceived earlier (statements identifying a person after hearing that person’s voice typically qualify under this rule); or
(c) is consistent with the declarant’s testimony

and is offered to either
(i) rebut that the declarant is lying or
(ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground.

Question 57

Hearsay Exception: Co-Conspirator Admissions Rule Statement

Answer 57

A co-conspirator’s statement is admissible if offered against another conspirator if:
(1) a conspiracy existed between the declarant and defendant-conspirator;
(2) the statement was made during the conspiracy;
(3) the statement was in furtherance of the conspiracy; AND
(4) some independent evidence to establish the existence of the conspiracy is proven (outside of the statements themselves).

Question 58

Hearsay Exception: Present Sense Impression Rule Statement

Answer 58

Present sense impression is an exception to the hearsay
rule.
A present sense impression is a statement describing an event made by the declarant:
(a) while observing the event; OR (b) immediately thereafter.
A few minutes after the event is within the period contemplated under this hearsay exception.

Question 59

Hearsay Exception: Excited Utterance Rule Statement

Answer 59

An excited utterance is an exception to the hearsay rule. An excited utterance is a statement (1) relating to a startling event or condition, (2) made while the declarant was under the stress of excitement that the event/condition caused.

Question 60

Hearsay Exception: Business Records Rule Statement

Answer 60

Business records are an exception to the hearsay rule. A business record is admissible if it is:
(1) a record of events, conditions, opinions, or diagnoses;
(2) kept in the regular course of business;
(3) made at or near the time of the matter described; (4) made by a person with knowledge of the matter;
(5) is the regular practice of the business to make such a record; AND
(6) the opponent party does not show that the record was made under circumstances indicating a lack of trustworthiness.

Question 61

Are law enforcements reports admissible under the Business Records Exception?

Answer 61

NO.

Courts have held that law enforcement reports are inadmissible against a criminal defendant under the business records exception.

Question 62

Hearsay Exception: Statements Made for Medical Diagnosis/ Treatment Rule Statement

Answer 62

A statement is NOT excluded by the hearsay rule when the statement:
(1) is made for and reasonably pertinent to medical diagnosis or treatment; AND
(2) describes medical history or symptoms (past or present).

Question 63

Hearsay Exception: Statements of Mental, Emotional, or Physical Condition Rule Statement

Answer 63

Statements of the declarant’s then-existing state of mind (i.e. motive, intent, or plan) OR emotional, sensory,
or physical condition are an exception to the hearsay
rule.

However, statements of memory or belief offered to prove a fact remembered/believed is NOT admissible UNLESS it relates to the validity or terms of the declarant’s will.

Question 64

Hearsay Exception: Dying Declaration Rule Statement

Answer 64

A dying declaration is an exception to the hearsay rule. Under the FRE, a dying declaration MAY ONLY be used in either: (a) a civil case; OR (b) a criminal homicide case.
* In order to be admissible:
(1) the declarant must be unavailable;
(2) the statement was made under a sense of impending death; AND
(3) the statement was about the circumstances or cause that put the declarant in the position of impending death.

Question 65

When is a declarant deemed unavailable as a witness?

Answer 65

if he: (a) is exempted from testifying due to privilege; (b) refuses to testify despite a court order to do so;
(c) testifies that he does not remember the subject matter;
(d) cannot be present to testify because of death or illness; OR
(e) is beyond the reach of a court’s subpoena, and his attendance cannot be procured by reasonable means.

Question 66

Hearsay Exception: Statement Against Interest

Answer 66

A statement against interest is an exception to the hearsay rule, and is admissible when:
(1) it’s a statement against the declarant’s penal, proprietary, or pecuniary interest when made
(2) the declarant has firsthand knowledge;
(3) a reasonable person in the declarant’s position would have made the statement only if the person believed it to be true; AND
(4) the declarant is unavailable.

Question 67

Hearsay Exception: Public Records

Answer 67

Under the FRE, the following records are admissible under the government or public records hearsay exception:
(1) a record describing the policies and practices of a public office;
(2) observations made by someone in accordance with his duties by law (except police reports in criminal cases); and
(3) factual findings from a legally authorized investigation (but are only admissible in civil cases or against the government in criminal cases).

HOWEVER, if the opposing party shows that the record was made under circumstances indicating a lack of trustworthiness, the record will NOT be admitted.

Question 68

Hearsay Exception: Past Recollection Recorded

Answer 68

A past recollection recorded is a record made on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately. A past recollection recorded is an exception to the hearsay rule, and is admissible if: (1) the witness had personal knowledge of the events at one time; (2) the writing was made or adopted by the witness; (3) the writing was made while the events were
still fresh in the mind of the witness; (4) the writing is accurate; AND (5) the witness can no longer remember the event.

If admitted, the record MAY be read into evidence. However, the record MAY ONLY be received as an exhibit if it is offered by an adverse party.

Question 69

Sixth Amendment Right to Confront Witnesses

Answer 69

The Sixth Amendment’s Confrontation Clause (as applied to the states via the Fourteenth Amendment) gives a criminal defendant the right to confront witnesses against him.
The use of an out-of-court statement (even if it falls within a hearsay exception or exemption) violates a defendant’s Sixth Amendment rights when:
(1) the statement is “testimonial”;
(2) the declarant is unavailable to be cross- examined at trial; AND
(3) the defendant did not have an opportunity to cross-examine the declarant before trial.

Question 70

What makes a statement testimonial (Confrontation Clause)?

Answer 70

Courts have held that the following statements are testimonial in nature:
(a) statements made to grand juries (and in other similar situations);
(b) an affidavit or certified report containing forensic laboratory results; and
(c) statements made to the police whose primary purpose (when viewed objectively) is to collect testimony to be used at a later trial.

HOWEVER, statements made to the police where the primary purpose of the questioning was to assist the police in an ongoing emergency are NOT considered testimonial.

Question 71

Spousal Privileges: Spousal Immunity

Answer 71

A witness-spouse in a valid marriage may refuse to testify against his or her spouse in a criminal case (even if the spouse is not a defendant). The witness- spouse alone holds the privilege, and the privilege ends after divorce. Spousal immunity DOES NOT apply in civil cases.

Question 72

Spousal Privileges: Confidential Marital Communications

Answer 72

Confidential Marital Communications: Communications between a husband and wife are privileged in both civil and criminal cases if: (1) made during the course of a valid marriage; AND (2) were intended to be confidential.
The privilege is held by both spouses (either may assert it), and applies even after divorce.

If a spouse divulges the content of communications to a third-party, the privilege for those disclosed communications no longer applies.

Question 73

When does Spousal Privilege NOT apply?

Answer 73

(a) in cases between the spouses; OR (b) when a spouse commits a crime against the other spouse or their children.

Question 74

Attorney-Client Privilege

Answer 74

The attorney-client privilege protects confidential communications between an attorney and client from disclosure if: (1) the communication was confidential (it was not knowingly made in front of third-parties); AND (2) the communication was made to facilitate legal services.

Question 75

When does Attorney-Client Privilege NOT apply?

Answer 75

(a) legal services are sought to further a crime or fraud; (b) there is litigation related to a breach of duty between the attorney and client;
OR
(c) jointly represented clients are subsequently involved in civil litigation against each other.

Question 76

Attorney Work Product Doctrine

Answer 76

The work product doctrine protects ALL materials prepared by an attorney or his agents in anticipation of or during litigation.
Such materials are protected from disclosure UNLESS a party can show:
(1) a substantial need for the materials exist; AND
(2) a substantial equivalent of the materials cannot be obtained without undue hardship.

Question 77

Physician-Patient Privilege

Answer 77

Most states recognize a Physician-Patient Privilege. In those States, confidential patient communications made to a physician for the purpose of medical diagnosis or treatment ARE PRIVILEGED.

Question 78

Do federal courts recognize a Physician-Patient Privilege?

Answer 78

Federal courts DO NOT recognize a Physician-Patient Privilege. However, under the FRE, state law governs privilege for civil cases regarding a claim or defense for which state law supplies the rule of decision (e.g. in a diversity action filed in federal court).

Question 79

Psychotherapist-Patient Privilege

Answer 79

All states recognize a Psychotherapist-Patient Privilege, which protects
(1) confidential patient communications,
(2) made to a psychotherapist (psychologist, psychiatrist, or social worker),
(3) for the purpose of psychological treatment.

Exceptions:
(i) court-ordered examinations;
(ii) civil commitment proceedings to determine if hospitalization is required;
(iii) when the psychological condition is placed “in issue” by the patient (i.e. a personal injury lawsuit relating to the condition); and
(iv) the dangerous-patient exception – the therapist has a duty to warn when he knows (or reasonably should know) that the patient poses a serious threat of violence to foreseeable victims.