Evidence

Question 1

Methods of Impeachment

Answer 1

Contradiction, Prior insonsistent statement, bias or interest, sensory deficiencies, reputation and/or opinion of untruthfulness, prior acts of misconduct, prior criminal conviction

Question 2

Impeachment by Prior Inconsistent Statement

Answer 2

-May be used to impeach present testimony
-May be established through cross-extrinsic evidence
-If PIS is hearsay, inadmissible as substantive evidence (truth of matter asserted)

Question 3

Impeachment by prior instances of misconduct

Answer 3

-May be questioned on cross-exam about any prior misconduct probative of truthfulness
-Arrests are not misconduct
-No extrinsic evidence permitted

Question 4

Impeachment based on opinion or reputation for untruthfulness

Answer 4

-Witness may be impeached by testimony describing his reputation for untruthfulness in the community

Question 5

Impeachment by prior conviction

Answer 5

-Felonies not involving dishonesty/false statements
>If W is D: admissible if govt shows probative value outweighs prejudicial effect
>If W is not D: admissible but court can exclude under 403

-Prior conviction involving act of dishonesty:
>Always admissible - court has no discretion to exclude under 403 - includes felonies and misdemeanors

-Convictions more than 10 years old: not admissible unless probative value substantially outweights unfair prejudice and adverse party is given notice

Question 6

Present recollection refreshed

Answer 6

-Use of documents to refresh W’s memory during testimony
-W cannot read aloud from a document, but can look at it briefly, then continue testimony unassisted
-Opponent may inspect and offer into evidence anything used to refresh W’s memory
-Document is not read into evidence

Question 7

Recorded recollection

Answer 7

-Contents of a record/document W previousl ymade or adopted is read into evidence
-Requirements
>W once had knowledge of the record’s subject matter
>W’s memory is insufficient to testify as to the record’s contents
>Record was made or adopted by W when the matter was fresh in W’s memory
>Record accurately reflects W’s knowledge
-Recorded recollection is a hearsay exception, as such, it may be read into evidence

Question 8

Lay opinions

Answer 8

-Opinion testimony is admissible if it is (1) rationally based, (2) helpful, and (3) not expert (not based on scientific, technical, or other specialized knowledge)
-Examples: speed of a car, emotional state of an individudla, voice or handwriting recognition, sense recognition, intoxication

Question 9

Expert opinions

Answer 9

Expert testimony is admissible if:
(1) Helpful
(2) Qualified - expert must possesss special knowledge, skill, experience, training, or education
(3) Reasonable certainty - expert must believe in her opinion to a reasonable degree of certainty
(4) Proper factual basis - opinion must be based on facts (may base opinion on admitted evidence, personal knowledge, or inadmissible evidence properly relied upon)
(5) Reliable principals reasonably relied upon - if expert opinion is based on scient, court also considers whether evidence is: (i) peer tested and capable of retesting; (ii) published; (iii) has a low error rate; and (iv) reasonably accepted in the field of study

Question 10

Testimonial privileges

Answer 10

-Attorney-client
-Clergy-penitent
-Spousal
-Martial communications
-Governmental
-Psychotherapist/social worker-patient
-Self-incrimination

-NOTE: these privileges are not FRE rules; the MBE usually assumes the existence of these privileges, but an answer choice indicating any of these privileges is an evidentiary rule will be incorrect

Question 11

Attorney-client privilege

Answer 11

-to be protected, must be (1) intended to be confidential, and (2) made to facilitate legal services
-Exceptions: (1) crime or fraud, and (2) attorney defending malpractice claim

Question 12

Spousal testimonial privilege

Answer 12

-CRIMINAL ONLY
-A person whose spoude is a D in a criminal case cannot be: (A) called as a witness by the prosecution, or (B) compelled to testify against his spouse in a criminal proceeding
-Only the W spouse may invoke the privilege (i.e., D cannot prevent a willing spouse from testifying against her)
-Privilege can only be invoked during marriage

Question 13

Marital communications privilege

Answer 13

-Confidential communications made during marriage are privileged in any later proceedings (applies even if spouses divorce after confiential communication was made)
-Either spouse may invoke the privilege
-A spouse can lose the privilege if he breaks confidentiality (relays to third party) (the other spouse still retains the privilege)
-Exceptions: (A) suits between spouses, (B) suits in which one spouse is charged with a crime or tort against children, and (C) suits ni which spouses are co-defendants

Question 14

Authentication: Ancient documents

Answer 14

Automatically authenticated if: (1) 20 or more years old, (2) does not rpesent any irregularities on its face, and (3) found in a place of natural custody

Question 15

Authentication: Photos

Answer 15

must have personal knowledge to authenticate

Question 16

Authentication: Voice

Answer 16

Whether heard firsthand or through a recording, a voice may be identified by anyone who heard the voice at any time

Question 17

Authentiation: Non-unique items

Answer 17

-item facially indistinguishable from others of its kind (e.g., bag of white powder, generic syringe)
-proponent must establish “chain of custody,” i.e., that the proffered evidence is the same item it is claimed to be

Question 18

Best evidence rule

Answer 18

-If evidence if offered to prove the contents of a writing, an original document must be used unless it is unavailable
-also allows duplicates
-testimony regarding contents is admissible if original is lost or destroyed, unless done so in bad faith by proponent of testimony
-Voluminous documents exception - a voluminous series of ducments may be summarized in court - originals relied upon must be available for inspection

Question 19

Judicial notice of laws

Answer 19

-court MUST take notice of federal and state laws and regulations
-court MAY (has descretion) take notice of all other laws (municipal ordinances, foreign laws, etc)

Question 20

Effect of judicially-noticed facts/laws

Answer 20

Civil: jury MUST take judicially-noticed facts as conclusive
Criminal: jury MAY take judicially-noticed facts as conclusive, but is not required ot

Question 21

Hearsay definition

Answer 21

Hearsay - an out-of-court statement offered to prove the truth of the matter asserted
-is generall inadmissible, subject to certain exceptions and exemptions

Question 22

Admissible out-of-court statements

Answer 22

-Out-of-court statements are not hearsay if offered to prove anything other than the truth of the matter asserted
-Common non-hearsay out-of-court statements:
1. Statements of independent legal significance - statemetn contains legally operative words; nt hearsay becuase offered to show that the statement was said, not whether it was true
2. Statements offered to show their effect on the listener or reader
3. Statements offered to show speaker’s knowledge
4. Statements offered to show state of mind

Question 23

Non-hearsay exemptions

Answer 23

-Statement of party-oponent - out-of-court statemtns by a party are admissible if offered against that party
-Declarants-W’s prior statement - a prior statement by a declarant who testifies and is subject to cross-examination is admissible where the statement is either (a) inconsistent with declarant’s testimony and given under oath, (b) prior consistent statement (admissible to rebut charge of fabrication, improper motive or influence, or rehabilitate credibility), or (c) proior statement of identification after perception

Question 24

List of hearsay exceptions

Answer 24

Declarant unavailability required:
1. Former testimony exception
2. Statemetns against interest
3. Dying declarations
4. Statements of personal or family history
5. Statements offered against party procuring declarant’s unavailability

Declarant unavailability is immaterial:
1. Present state of mind
2. Excited utterances
3. Present sense impressions
4. Physical condition (for medical diagnosis or treatment)
5. Past recollection recorded
6. Business records
7. Public records or reports
8. Judgments and prior convictions
9. Ancient documents
10. Documents affecting property interests
11. Learned treatises
12. Family records
13. Market reports

Question 25

“Unavailability” of declarant

Answer 25

Declarant is unavailable if either:
-Privilege
-Death of physical/mental sickness
-Refusal to testify despite a court order
-Lack of memory
-Absent - beyond the reach of court’s subpoena power and the statement’s proponent has not been able to procure attendance or testimony

Question 26

Hearsay Exceptions: Former Testiomony

Answer 26

Admissible if:
(1) Declarant is currently unavailable;
(2) Declarant’s prior testimony was given under oath; and
(3) Party against whom testimony is now offered was either: (a) a party in the previous action and had an opportunity to cross-examine the declarant, or (b) a predecessor in interest of a party in the previous action, in which there was an opportunity to cross-examine declarant and a similar motive for doing so

Question 27

Hearsay Exceptions: Statements Against Interest

Answer 27

A hearsay statement is admissible if, at the time it was made, it was against the pecuniary or legal interests of the declarant

Requirements:
(1) Declarant is current unavailable;
(2) Statementwas contrary to declarant’s pecuniary, proprietary, or penal interest when made; and
(3) A reasonable person would not have made the statemetn unless he believed it to be tru

Question 28

Hearsay Exeptions: Dying Declarations

Answer 28

A hearsay statement is admissible if the declarant made the statement under the belief of impending death and the statement describes the cause or circumstances of the impending death.

Requirements
(1) Declarant is currently unavailable
(2) The out-of-court statement was made under the belief of impending death
(3) The statement was made regarding the cause or circumstances surrounding the belief of impending death

Only available in:
Civil cases
Homicide cases

Question 29

Hearsay Exceptions: Statement concerning present state of mind or condition

Answer 29

Hearsay statements are admissible if they concern a declarant’s state of mind, emotion, sensation, or physical condition existing at the time the statement was made.

Statements of memory of belief are inadmisible becuase they do not reflect on a then-existing condition.

Question 30

Confrontation Clause

Answer 30

An otherwise admissible out-of-court statement offered against D in a criminal case may be excluded under the 6th Amend. Confrontation Clause

Will be excluded if:
(1) The declarant is currently unavailable;
(2) D had no prior opportunity to cross-examine the declarant about the statement at the time it was made; and
(3) The statement is testimonial

Exception: An out-of-court statement will not be excluded if the declarant is unavailable as a result of D’s wrongdoing

Question 31

Confrontation Clause: Co-Defendant Statements

Answer 31

The Confrontation Clause bars admission of an out-of-court statement by a non-testifying co-D if the statement expressly implicates another D.

Exceptions: a co-D’s out-of-court statement is admissible if either:
(a) Declarant co-D testifies;
(b) Redaction - portions of the co-D’s testimony referring to the non-declarant D are redacted
(c) Coerced confession - the statement used to rebut a charge of a coerced confession