Evidence

Question 1

Business records exception

Answer 1

Record must be kept in the course of regularly conducted business activity. These include non profit business

Sporadic, occasional notes about a business activity will not suffice

Question 2

Business records cont’d

Answer 2

Documents created for a special one time purpose won’t qualify eg doc writes letter to employer saying patient can’t lift weights. On the other hand docs notation in patient’s chart at doc office will be admissible

Records made in anticipation of litigation won’t meet the requirement of regular practice. Also the fact that they are being kept for litigation purposes probably means that the source of information or method or circumstances of preparation indicate a lack of trustworthiness

Record must be made by a person with personal knowledge or source must have personal knowledge and working in the business unless some other hearsay exception applies to the source statement

Entry must be made at the time or near the time of the matter recorded

Answer 3

Thus statements by consumers who are witnesses to an accident even if made to a police officer or other person with a business duty to compile a report will not be admissible

Question 4

Business records cont’d

Answer 4

Complaints by consumers will not qualify

THE SOURCE MUST BE ACTING AS PART OF A BUSINESS OPERATION. WHETHER P’S business or some other business

Answer 5

But if the third party information from a source who is not an employee of the business that keeps the record falls within some other hearsay exception then the entire report may nonetheless be admissible

Answer 6

Don’t use business records where the record is kept by D and offered by P. If the record is kept by the D and offered by the P the business records exception will almost certainly not be the best choice on the MBE. That’s because in this scenario,the record out to always be admissible as an admission.

The Business record exception is likely to be the best choice only where the record is being offered either by the business that made the record or by a third party rather than by the litigation adversary that made the record

Answer 7

The Business record itself must be admitted not merely oral testimony about what the business record says that’s because the best evidence rule says to prove the contents of a writing the original writing is required

Answer 8

Hospital records are often introduced to prove the truth of statements contained in them. Even statements in the record that are not declarant of symptoms. Eg patient said he was hot by truck may be admitted if part of the record. But totally extraneous matter will not be admitted

Answer 9

If the information comes from the patient the situation will not normally satisfy the requirement that the person supplying the info must have been acting pursuant to the requirements of a business. However the hospital records can usually be admitted for the limited purpose of showing that the patient made a particular statement then some other exception may apply to allow the patients statement to be offered for the truth of the matter asserted

Answer 10

For instance if the Patient is the P, the D will be able to introduce the statement against him because it’s an admission. If the Patient was reporting his current symptoms or other bodily condition the statement of present physical condition or statement for purposes of medical diagnosis or treatment exception will likely apply

Answer 11

Computer prints out will be admissible to prove the truth of the matters stated in the print out. The proponent must show the print out comes from data that was entered in to the system relatively promptly and the procedures by which the data was entered were all reasonably reliable

Answer 12

Evidence is relevant if it merely increase or decrease the probability even by a small amount that the material fact is so.

Issues of relevance are much more likely in the case of circumstantial evidence

Answer 13

Witness must testify from personal knowledge. W must state facts not opinions.

However under fre 701 a W may give an opinion if it is rationally based on his own perceptions and is helpful to the jury

Answer 14

Young children can testify as long as the child can take the oath to testify truthfully and can speak from personal knowledge

Answer 15

NB but in a civil diversity case, the federal court must generally honor a state rule of competency such as a rule disabling children from giving the kind of testimony in question

Answer 16

Under fre opinions on ultimate issues are allowed except when they relate to the mental state of a criminal D

Answer 17

Nb- any party has the ABSOLUTE RIGHT to require the judge to exclude all witnesses from hearing other witnesses testimony. So once a party makes the request from sequestration the judge does not have a discretion to deny the request

Answer 18

Exception to sequestration

A party who is a natural person
An officer or employee which is not a natural person designated as it’s representative by it’s attorney
A person whose presence is shown to be essential
A person authorized by statute to be there

Answer 19

The evidence of past similar injuries or accidents will often be admitted to show that the same kind of mishap occured in the present case or to show that the D was negligent in not fixing the problem after the prior mishaps. But the P will have to show that the conditions were the same in the prior and present conditions

Answer 20

Past safety.- conversely the D will usually be allowed to show due care or the absence of a defect by showing that there have not been similar accidents in the past however D must show that conditions were the same in the past as when the accident occurred and had there been any injuries in the past they would have been reported to D

Question 21

Settlements

Answer 21

Fre 408 applies only if the claim is one that is disputed as to validity or amount

Answer 22

If there has been no claim at all 408 won’t apply

Answer 23

Collateral admissions of fact made during the course of settlement of negotiations are covered by fre 408

Question 24

Offers to plead guilty

Answer 24

The fact that the D has offered to plead guilty to a crime where no actual guilty plea ever resulted may not be shown to prove that D was guilty or conscious of his guilt. This also applies to any other statement made in the course of plea discussions from being used against the D

Answer 25

Similarly the fact that D made a guilty plea and then later withdrew it may not be admitted against D in the ultimate trial

Answer 26

The plea offer or withdrawn plea and the accompanying factual admissions are also not admissible in any later civil case

Answer 27

Preliminary questions concerning the admissibility of evidence shall be determined by the court. In making it’s determination it is not bound by the rules of evidence except those with respect to privileges.

Answer 28

Under fre 104 the judge may consider inadmissible hearsay in making her preliminary ruling on the admissibility of the pedestrian statement to the nurse

Answer 29

Evidence of other crimes wrongs or act is not admissible to show character of a person and that they acted in conformity with that character

Question 30

Evidence of a pertinent trait of character offered by an accused

Answer 30

What traits are pertinent depends on the nature of the crime charged and any defenses raised

Answer 31

Habit evidence requires a showing that the actor in question consistently acts in a particular way. AND ONE PRIOR EXPERIENCE IS NOT SUFFICIENT TO ESTABLISH A HABIT

Answer 32

Although 609 indeed says that evidence of a prior conviction is not usually admissible for the purpose of impeaching a witness if the conviction occurred more than ten years prior trial, here the D prior conviction is not being offered to impeach his credibility but rather to establish absence of mistake

Answer 33

An entire statement or conduct made in compromise negotiations regarding a disputed claim is inadmissible even if it falls under an hearsay exception NB