Evidence

Question 1

Relevance

Answer 1

Evidence must be relevant to be admissible. Relevant if:

• Probative of (making more or less likely)
• A material fact

Question 2

FRE 403

Answer 2

• A judge may use their discretion to exclude evidence if the probative value is significantly outweighed by danger of:
  
  • Unfair prejudice
  • Confusion of the evidence
  • Misleading the jury
  • Undue delay/waste of time, or
  • Needless presentation of cumulative evidence

Question 3

Public policy exclusions

Answer 3

• Subsequent remedial measures
• Settlement offers or negotiations
• Offers to pay medical expenses
• Plea negotiations
• Liability insurance
• Sexual conduct

Question 4

Subsequent remedial measures

Answer 4

• Evidence that D took precaution after injury occurred
• Inadmissible to show:
  
  • Liability
  • Fault
  • Defect in product
• Admissible to show:
  
  • Impeachment
  • Feasibility of repair
  • Ownership/control (if in dispute)

Question 5

Settlement offers/negotiations

Answer 5

• Evidence that D took precaution after injury occurred
• Inadmissible to show:
  
  • Liability
  • Validity of claim
  • Amount of a claim
  • Impeachment by prior inconsistent statement
• Admissible to show:
  
  • Impeachment by bias

Question 6

Offers to pay medical expenses

Answer 6

• Inadmissible to show:
  
  • Liability for injuries
• BUT: Statements or conduct accompanying the offer may be admissible

Question 7

Plea negotiations

Answer 7

• Not admissible (too prejudicial)
• Includes:
  
  • Withdrawn guilty please
  • Nolo contendere please
  • Offers to plead guilty
  • Statements made while negotiating a plea

Question 8

Past sexual conduct of the victim

Answer 8

• Criminal cases: generally not admissible in cases involving sexual misconduct. Exceptions:
  
  • Show that D was/was not the source of physical evidence (bruises, semen)
  • Show V’s past sexual conduct with D to show consent
  • Other circumstances in which exclusion would violate D’s due process
• Civil cases: generally not admissible, unless probative value substantially outweighs harm to V/prejudice to a party
  
  • Evidence of reputation is admissible only if V brings it up.

Question 9

Past sexual conduct of defendant

Answer 9

In either a criminal or civil case in which a defendant is accused of committing an act of sexual assault/child molestation, evidence that the defendant committed any other sexual assault or child molestation is admissible to prove any relevant matter.

Note: c.f. character evidence/specific bad acts.

Question 10

Character evidence (civil case)

Answer 10

Inadmissible to prove conduct in conformity with that character trait

• Except if character is an essential element of the claim or defense (e.g., defamation)
• Except if proving past sexual assault in a sexual assault case

But prior bad acts may be admissible for non-character purpose

Question 11

Character evidence (criminal case)

Answer 11

• Character of defendant inadmissible to prove propensity
  
  • Except D may “open the door” by introduce reputation or opinion evidence of her good character
  • Prosecution may rebut D’s evidence with character evidence about the same trait
• Character of victim (V): D may introduce reputation or opinion to prove a defense
  
  • Prosecution may rebut with reputation, opinion or specific acts evidence
  • Prior sexual conduct of V is admissible to show that someone else is the source of physical evidence OR to prior relationship → consent

Question 12

Prior bad acts

Answer 12

“MIMIC” evidence resembles character evidence but is admissible to show purposes other than propensity:

• Motive
• Intent
• Absence of Mistake
• Identity (or signature modus operandi)
• Common plan

Question 13

Causes of action/defenses where character is at issue

Answer 13

• Defamation (defend by truth of defamatory statement)
• Negligent hiring
• Negligent entrustment
• Child custody (fitness to parent)
• Self defense (reasonable belief of deadly harm)
• Entrapment (D did not have predisposition to commit crime; rebuttable by P)

Question 14

Habit evidence

Answer 14

A semi-automatic response to a specific and frequent situation. May resemble character evidence, but is admissible:

• For an organization, a habit is a routine practice of the org.
• Look for multiple past occurrences, language like “always,” “every day,” “frequently,” “instinctively”

Question 15

Impeachment by prior conviction

Answer 15

Consider both timing and type.

• Timing:
  
  • Within 10 years: admissible
  • > 10 years: probative value must significantly outweigh prejudice and proponent must give adverse party advance notice
• Type (subject to 10 year restriction):
  
  • Crimes involving dishonesty: admissible
  • Other misdemeanor: not admissible
  • Other felony (punishable by > 1 year in prison):
    
    • Of a witness: admissible
    • Of criminal D: only admissible if P shows that probative value outweighs prejudice to D

Note: For any “admissible,” note that 403 balancing will always apply.

Question 16

Methods of impeachment of a witness

Answer 16

• Dishonest character or prior criminal conviction
• Prior inconsistent statements
• Bias
• Sensory deficiency

Question 17

Requirements for tangible evidence

Answer 17

Tangible evidence: documents and physical objects (c.f. testimony evidence)

• Authentication
• Best evidence rule
• Parol evidence rule

Question 18

Authentication

Answer 18

Establishing that the item is genuine and what the proponent claims it to be. Generally requires W’s firsthand knowledge or familiarity

• Physical objects includes weapons, injury, models, photos, X-rays, incident scene, demos. Authenticate by
  
  • Testimony
  • Distinctive characteristics, or
  • Chain of custody
• Documents: authenticate by
  
  • Stipulation
  • Testimony, or
  • Handwriting verification by comparing to another genuine item or by lay opinion
  • Self-authenticating documents include certified/public/official records, periodicals, ancient documents (20+ years old)
• Oral statements: authenticate identity of the speaker by testimony

Question 19

Best evidence rule

Answer 19

When attempting to prove the contents of a writing, recording, or photograph, the original document or a reliable duplicate must be produced.

• Exceptions: The original is not required if it is unobtainable, lost or destroyed, opposing party refuses to produce it, or it regards a collateral matter.
  
  • Exception does not apply if lost or destroyed by the proponent in bad faith
  • Copies of public records must be certified
• Alternative proof: allowed for public records, voluminous records and party admission

Note: does not apply if merely proving the existence of a document.

Question 20

Parol evidence rule

Answer 20

Bars extrinsic evidence of prior or contemporaneous statements that contradict the written agreement (if integrated agreement).

• Integrated writing: intended as final expression of the parties’ agreement; partial okay
• Extrinsic evidence allowed to attack validity or explain terms

Question 21

Refreshed recollections

Answer 21

• Present recollection refreshed:
  
  • Testifying witness can refresh memory by looking at any evidence
  • Document itself is offered into evidence)
• Past recollection recorded:
  
  • Testifying witness once had personal knowledge of…
    
    • But now cannot recall well enough (refreshing attempted and fails)
    • Was made or adopted by W when the matter was fresh in memory, and
    • Accurately reflects W’s knowledge
  • Testimony admissible by hearsay exception
  • Document not admitted unless adversary introduces to evidence file

Question 22

Opinion testimony

Answer 22

• By a lay witness: generally not allowed, unless:
  
  • To prove common sense impressions e.g., appearance, intoxication, speed, handwriting
  • If based on W’s perception and helpful to clarify understanding of the issue
• Expert: allowed if scientific, technical, or specialized testimony will help the trier of fact, and:
  
  • Qualified by knowledge, skill, training, experience, or education
  • Based on sufficient facts or data personally observed or made aware of (need not be admissible)
  • Product of reliable methods reasonably relied on by experts in the field
  • Applied the methods and principles reliably to the facts and
  • Reasonably certain in her opinion (probably true, no guessing).
  • May embrace ultimate issue but not criminal defendant’s mental state

Question 23

Reliability factors (expert testimony)

Answer 23

• Generally accepted in relevant scientific community,
• Peer reviewed (capable of retesting),
• Published,
• Low error rate

Question 24

Evidentiary privileges

Answer 24

• Spousal
  
  • Immunity
  • Marital communications
• Attorney-Client
• Physician-Patient
• Psychotherapist-Patient
• Self-incrimination
• Miscellaneous (by states—e.g., clergy, accountant, etc.)

Question 25

Attorney - Client Privilege

Answer 25

• Protects: confidential communication between client and attorney made with purpose to seek legal advice
  
  • Confidential: client made reasonable efforts to keep communication private; ot made in the presence of unecessary parties
  • Communication: underlying facts/evidence aren’t covered
• Term: indefinite, unless waived by client.
• Belongs to: client, but attorney may invoke privilege on client’s behalf.
• Exceptions:
  
  • Furthers what client should have known was a crime or fraud,
  • Disputes between former joint clients
  • Dispute between attorney and client

Question 26

Spousal privileges

Answer 26

• Marital communications
  
  • Protects: communications made between spouses
  • Term: survives the marriage
  • Belongs to: both spouses
    
    • Spouse can refuse to reveal confidential communications
    • Spouse can also prevent the other from revealing the communications
• Spousal Immunity
  
  • Prevents: spouse from being compelled to testify against spouse in a criminal case
  • Term: Applies during the marriage, but can cover communications about events that precede marriage
  • Belongs to: witness spouse
• Neither privilege applies when:
  
  • One spouse is suing the other
  • One spouse is charged with a crime against spouse or either spouse’s children

Question 27

Physician - Patient Privilege

Answer 27

• Protects: communications made to medical professional for the purposes of diagnosis or treatment
• Belongs to: patient, but medical professional may invoke privilege on patient’s behalf if patient cannot
• Exceptions:
  
  • Patient puts his condition at issue (e.g., personal injury suit, dispute between physician and patient)
  • Disclosure is important to prevent future injury to a person,
  • Patient sought to aid planning of crime/tort
  • Patient waived by contract

Note: only applies in some states, assume N/A for MBE unless otherwise stated

Question 28

Pyschotherapist - Patient Privilege

Answer 28

• Protects: statements made to psychotherapist/licensed social worker
• Belongs to: patient, but therapist may invoke privilege on patient’s behalf if patient cannot
• Exceptions:
  
  • Result of court order
  • Mental condition at issue
  • Commitment proceeding

Question 29

Hearsay

Answer 29

An out-of-court statement offered for the truth of the matter asserted; inadmissible unless it meets an exception

• Not hearsay:
  
  • Prior statements of declarant-witness (consistent, inconsistent, or of identification)
  • Prior statements of opposing party, including judicial, adoptive, vicarious, or co-conspirator admissions

Question 30

Hearsay exceptions requiring unavailable declarant

Answer 30

• Former testimony under oath, provided that opposing party had opportunity and motive to cross-examination
• Dying declaration
  
  • Statement must be related to cause or circumstances of death
  • Declarant need not actually die
  • Homicide and civil cases only
• Statement against interest at the time statement was made
  
  • Statement pertains to collateral matter: admissible
  • Statement would subject declarant to criminal liability, need corroborating circumstances of trustworthiness
• Statement of personal or family history

Question 31

Forfeiture against wrongdoing:

Answer 31

Applies to hearsay exceptions that require D to be unavailable

• If party engages in wrongdoing for the purposes of making declarant unavailable AND
• Declarant becomes unavailable as a result, then
• Party cannot claim the declarant is unavailable, AND
• The door is open to use anything the declarant said against the party.

Question 32

Unavailable declarant

Answer 32

• Applies when declarant is (“PRISM”):
  
  • Exempted from testifying due to privilege
  • Refuses to testify
  • Incapacity or deceased
  • Someplace else and cannot be subpoenaed
  • Inadequate memory of subject matter
• Not considered unavailable if party caused unavailability for purposes of preventing testimony
• Unavailability alone will not make any of declarant’s statements admissible; hearsay exception must still apply

Question 33

Hearsay exceptions that do not require an unavailable declarant

Answer 33

• Excited utterance—statement about a startling event made while under stress of event
• Present sense impression—statement describing event made during or immediately after
• Statement of present mental/physical condition to prove conduct in conformity; no past state of mind or memories and no statements as to cause of physical condition
• Statement made for purpose of medical treatment or diagnosis
  
  • Need not be made to medical personnel to qualify; statements about cause okay
  • Need not be made by patient; statement of close relation favored for reliability
  • Might still be barred by physician-patient privilege
• Recorded recollection—record used to refresh the W; may be admitted into evidence
• Business records—kept in regular course and made during regular practice of business, near or at the time of the event by one with knowledge;
  
  • Not if made in anticipation of lawsuit
  • Medical records qualify if they relate to diagnosis/treatment but not if about liability
  • Police reports qualify but hearsay statements therein must meet their own exception
• Public records about the agency activities, observations by one with a duty to report or findings from a legal investigation; not admissible for use against a criminal defendant
  
  • Absence of record also admissible