bar prep slides MBE Kaplan Flashcards
What is the doctrine of completeness?
When is it not applicable?
Doctrine of completeness- Where a party introduces part of a writing or recording, the adverse party may immediately introduce any other writing or part of the writing, which, in fairness, ought to be considered in conjunction with it.
Caveat: FRE 106 is not applicable to conversations - only to writings and recordings (a.k.a. Original Writing Rule).
__________ __________is a substitute for proof where the court accepts certain “adjudicative” facts as true without requiring formal presentation of evidence.
Adjudicative facts are those which concern the parties to some dispute and are helpful in determining the proper outcome in the case.
Judicial notice
under what circumstances is judicial notice mandatory?
When can judicial notice be raised?
T or F No contradictory evidence is permitted AFTER JN is taken, though can
challenge whether JN should be taken.
MANDATORY to take on request and with sufficient information.
May be raised for the first time either pretrial, during
trial, or even on appeal.
True
No difference between civil and criminal on when JN can be taken, but…
Effect of a jury instruction on judicial notice:
- can or must a civil jury accept a judicially noticed fact as conclusive?
- can or may a criminal jury accept a judicially noticed fact as conclusive
- civil jury must accept judicially noticed fact
2. criminal jury may accept a judicially noticed fact?
- what is an Irrebuttable presumption? where are they not allowed?
what is a rebuttable presumption?
- can NOT controvert/rebut with evidence
Irrebuttable NOT permitted in criminal cases – absolves government of BOP. - can controvert rebut with evidence
What is the bursting bubble presumptions theory? give some examples
Bursting Bubble” Presumptions Theory
• Once the opponent presents sufficient evidence that
the presumed fact is not true, presumption disappears.
EX: W seeking divorce, H is absent for 7 years = H “presumed” dead, but testimony that seen 3 yrs. ago, presumption does NOT apply; P must PROVE H is dead.
EX: Burglary: break into a house with valuables = “presumed” intent to steal, BUT if D leaves w/o taking anything, no presumption; Gov’t must prove D intended to commit felony therein.
T or F n federal court, state law controls presumptions in civil cases where state law controls
True
Define relevance
Evidence having any tendency to make the existence of any fact of consequence to action more or less probable.
403 balancing rule favors admission – admit
relevant evidence UNLESS probative value (PV) is substantially outweighed (60%+) by?
Danger of unfair prejudice, confusion, waste of time
What is the general rule regarding conformity Character evidence.
Character evidence is not admissible to prove that on a certain occasion the actor acted in accordance with his character.
What does character evidence look like? see mnemonic R.O.SA
To offer character evidence through witnesses what is required of the witness?
Reputation – collective opinion of a person’s character
Very general rule: if admissible will almost always be admitted
Opinion – one person’s opinion of a person’s character
Very general rule if admissible will almost always be admitted.
SA – Specific acts (specific instances of conduct) to illustrate person’s character.
Generally, If admissible SA more limited
exam tip: Specific acts involving different people, places, times, or events
2, CE offered through Witnesses, mainly
Requirement: witness must have sufficient familiarity (personal knowledge)
CE will be offered for one of three purposes. what are they? Mnemonic: I.C.E., as in “He has ICE in his veins.”
I.C.E. also explain general rule of admissibility
Impeachment” character evidence
• impeach (or rehabilitate) a witness with evidence of their character for truthfulness.
• General rule = Admissible.
2. “Conformity” character evidence, a.k.a. “propensity evidence.”CE offered as circumstantial evidence to show conforming conduct. • General rule = NOT admissible. FRE 404(a).
3. “Element” character evidence
• “Character at issue” – offered because it’s relevant to an essential element of the claim or cause of action.
• General rule = Admissible, but rare in civil cases; even more rare in criminal cases.
When CE is Relevant to element – “character at issue” - where character is an essential element of a cause of action, claim, or defense. It is admissible for this purpose but only limited to?
Se Mnemonic: That person is Darn N.I.C.E.
What are the permitted methods of admission? hint ROSA
D- defamation N- negligent entrustment, hiring, supervision, etc I- Immigration; C- Child custody; E-Entrapment defense(criminal case).
Reputation, opinion, specific acts all permissible methods
- What is Impeachment Character evidence? purpose
- What are the two permitted methods to admit? R and O
can a party call a witness (extrinsic evidence in both criminal and civil cases?
explain the limited admissibility of this evidence
CE offered to impeach/rehabilitate a witness to show that the witness is or is not worthy of belief.
Purpose impeachment by reputation or opinion relating to truthfulness
- yes Party may call a witness (extrinsic evidence) in both civil and criminal cases.
o Method: On direct exam, reputation and/or opinion only; NOT specific acts.
o NOTE: Limited admissibility. On request, the judge would give an instruction
to limit the scope of this testimony to matters of credibility for this witness and that it is not to be used substantively.
EX: Defense witness (DW) testifies she consider that Plaintiff’s witness (PW) is a liar and so does everyone in the neighborhood.
- impeachment by prior bad acts relating to truthfulness
what is required? - what is permitted method? example
3/ extrinsic evidence allowed?
- Specific acts must be probative for the witness’s truthfulness. A Conviction is NOT required, but proof of the act by preponderance of the evidence (POTE) required
- Permitted Method: Questions on cross-examination ONLY about W’s OWN prior bad acts
EX: Q: “Isn’t it true you were fired from your last job for stealing?”
NO extrinsic evidence permitted. Examiner is stuck with W’s answer. Even if W denies and cross examiner has W’s letter admitting to stealing and former Employer ready to testify to W’s stealing, can NOT admit letter or call Employer.
FRE 608(b):CE Impeachment by Prior Bad Acts (SA):
1.Give examples of bad prior acts that would be admissible.
Give examples of bad prior acts that would be inadmissible.
Admissible: filing a false tax return; • putting incorrect information on an employment application; • using a false name; • falsifying a resume or academic record; and • lying about age, marital status, employment.
inadmissible: use of drugs or alcohol;
• failure to pay debts; and
• gambling and
prostitution.
what are the limits of CE for purpose of impeachment by prior bad acts?
The bad acts must be probative of truthfulness.
• Questions must be asked
in good faith.
• The bad acts cannot be
too remote in time. The judge will employ the 403 test.
• Only questions of fact are allowed; not rumors.
other crimes Character evidence general rule?
what is the other crimes CE admissible to prove?
why offered? MIMIC + (POLK)
Other Crimes Evidence Rule
• Restatement of general rule barring conformity CE
• Evidence of other crimes, wrongs, or acts (specific acts) NOT admissible to show conforming conduct.
Evidence of other crimes, wrongs, or acts are ADMISSIBLE to prove something else (a.k.a. “special relevance”) Typically, circumstantial evidence offered in a criminal case by
the prosecution in rebuttal
• Pre-trial notice required by prosecutor w/o request; showing
specific non-propensity purpose and reasoning
Motive Intent absence of Mistake Identity Common scheme or plan; also + (POLK) \+ Preparation, Opportunity, Lack of Accident, Knowledge NOT CE at all!
Give some MIMIC + examples
• MOTIVE, INTENT - similar
EX: Prisoner challenging solitary confinement; Gov’t can offer inmate’s other bad acts to show prison’s motive to confine.
• IDENTITY / SIGNATURE / HANDIWORK / UNIQUE MO
EX: D charged with 8 separate murders of women where “Stop Me Before I Kill Again” written in lipstick on mirror; D caught in act with Victim #9; proof of D committing murder of #9 admissible to ID D as killer of victims #1-8.
• ABSENCE OF MISTAKE OR ABSENCE OF ACCIDENT
EX: D charged with stealing neighbor’s car; D defends claiming mistakenly thought OK; prior charge for stealing neighbor’s car shows not mistaken.
Common plan or scheme
+ OPPORTUNITY
EX: D charged with burglary on 6/1 at #1 Main Street; defense claiming not in area; Gov’t offers D caught stealing at store on 6/1 at #2 Main Street.
CE Look-a-likes: Habit, Routine Practice – FRE 406
Evidence of the habit of a person, or routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant and admissible to prove?
conduct in conformity with the habit or routine practice.
EX: Commonly, to prove business mailed letter
Subsequent remedial measures (SRM)s are inadmissible to prove? why?
What are the exceptions?
NOT ADMISSIBLE to prove negligence, culpable conduct, design defect, or the need for a warning.
• Why? Encourage persons to fix dangerous conditions and make products safe
EX: Fix carpet after trip and fall
Exceptions to SRMs: Exceptions:
1. to impeach –
EX: DW says, never would put on warning; BUT, put warnings onproduct now.
- To show ownership or control if disputed (requires some defense),
EX: Defense: Not my truck, BUT D paid for repairs. - feasibility of precautionary measures, or
EX: Defense: Couldn’t have made it safer; BUT, in fact, D did using then-available tech.
EX: Defense: Warning not necessary; BUT, D puts warning on product now.
Evidence of an offer to settle a civil claim, which is DISPUTED either as to validity or amount, and statements made in connection therewith, are _________ to prove liability or amount.
INADMISSIBLE
Claim must be DISPUTED as to liability or amount
oSuit need not yet be filed, but liability or fault MUST be disputed EX: Driver says, “I shouldn’t have been drinking, but you were speeding; let’s settle this for $10K” = NOT Admissible
• All or noting – If it applies:
oNeither offer ($10K), actual payment (actually gave $10K), nor
“admission of fact” (I shouldn’t have been drinking) are admissible.
Compromise Rule - “Statements Made With Offers To Settle” – Generally inadmissible. what are the exceptions?
Exceptions:
• To show bias or prejudice
EX: Multiple parties; D1 settles with P and now D1 testifies for P v. D2
• To negate a contention of undue delay (laches)
EX: Waited to sue because we were discussing settlement
• Can’t even use to impeach!
EX: Auto accident; D says, Drinking, $10K to settle; if testifies not drinking, still can’t use
Evidence of paying or offering to pay medical bills (hospital or similar) is ____________to prove liability.
Name any and all parts of the following statement that are admissible
EX: Auto accident; D says, “I shouldn’t have been drinking, I’ll pay your med bills.
INADMISSIBLE
Admission of fact: “I shouldnt have been drinking”
• Offer and actually paying = NOT admissible
• “Admission of fact” – “I shouldn’t have been drinking” = Admissible • No dispute required
Distinguish between offers to settle and offers to pay medical expenses
Offers to settle v Offers to pay medical Expenses
- Dispute required?
- admissibility of offer?
- Admissions?
Offers to settle v. Offers to pay medical Expenses
Dispute required No dispute required
Both: Offer inadmissible
Admissions Admissions severed and
inadmissible admissible
A plea and any statements made during plea negotiations by a defendant to a prosecutor in a criminal proceeding will be?
will be inadmissible against the defendant in a later proceeding if the plea is NOT entered, NOT accepted by court or is later withdrawn – never final.
- Excludes offer to plea, actually pleading guilty, and admissions of fact. EX: D says to Prosecutor, “Look I did it, how about if I plead guilty and get probation?”
- Pleas of nolo contendere – can’t be used at all.
Evidence that a person was or was not insured is INADMISSIBLE to prove negligence or fault. Exceptions?
Exceptions:
• Proof of agency, ownership or control
EX: D denies owning or using car involved in accident, but pays insurance on it
• Bias or prejudice of a witness - limited admissibility
EX: D’s witness is D’s insurance agent; bias to exculpate D
_________ law controls privileges. federal CL or in diversity
action, state CL (Erie doctrine).
Common law
