Evidence

Question 1

judicial notice

Answer 1

determine whether it is civil or criminal case.

criminal case:
the prosecutor is not required to present additional evidence on a fact of judicial notice

civil case:

whether the fact is an appropriate fact for judicial notice– when the fact is indisputable or it can be verified through scientific principles

Question 2

refreshing the recollection of a witness

Answer 2

1) anything can be used
2) if you use a document to refresh recollection, you must make this document available to the opposing party, and she can introduce it if she wants to and she can use it for any reason. she gets a free ride. you will not be able to object.

Question 3

character evidence

Answer 3

evidence of any character trait is classified as character evidence:

1) reputation evidence
2) opinion evidence
3) prior events in the past

5 rules to follow in criminal exam:

1) the prosecutor cannot present any evidence of the defendant’s bad character if the purpose is to show that he probably acted in conformity with that bad character, e.g. bad reputation, prior crimes or bad acts
2) the defendant is allowed to present evidence of relevant good character traits and did not commit the crime. no evidence of specific acts are allowed, only evidence of reputation and opinion
3) if D presents evidence of good character, she has opened the door on this issue and then P is allowed to present evidence of bad character, to show that she was the person who committed the crime. Now the P can do what she could’t do in #1. No specific crimes, but reputation and opinion testimony allowed
4) while evidence of prior crimes or prior bad acts are never admitted by the prosecutor to show D acted unlawfully again.

They may be admissible to prove:

MIMIC

motive
intent
mistake (absence of)
intent
common scheme

if the purpose of the prior crime is to prove evidence of MIMIC, then it is allowed UNLESS its probative value is outweighed by the potential prejudice by the defendnat

5)if the character testifies, he automatically puts his reputation of truthfulness at the center

3 rules to follow in the civil exam:

1) you cannot present any evidence of the defendant’s character if the purpose is to show that he probably acted in conformity with that character during the event that gave rise to the litigation, e.g. bad reputation, prior crimes or bad acts
2) if the litigant has some other purpose for introducing character evidence, the rule prohibiting character evidence will not keep it out. e.g.
1) Character evidence to show negligent entrustment
e. g. D lends car to X, reputation for drunk driving. P can introduce X’s character evidence to prove negligent entrustment
2) character evidence in a defamation case.
e. g.

3) if the D testifies, then P can introduce evidence to prove that person cannot be believed

2 additional rules
Evidence of prior similar occurrences are not admissible to show the party probably acted the same way again.
Evidence of a habit (repeated response to a particular set of circumstances), is allowed to establish that D acted in conformity with that habit.
– on the MBE, they will hit you over the head with the answer

on MBE, always take the position that honesty is not the relevant character trait for assault.

Question 4

rule of subsequent repairs

Answer 4

evidence of subsequent repairs cannot be used to show
D’s negligence
liability for strict liability

public policy rationale to encourage repairs.

however any other legitimate purpose, the evidence will not be rejected:

e. g.
1) to prove OWNERSHIP or CONTROL
2) to prove it was possible to have a safer condition.

Question 5

Impeachment evidence

Answer 5

1) prior inconsistent statements
2) bias
3) prior criminal convictions
4) prior bad acts
5) rep. for untruthfulness
6) evidence that contradicts evidence given by the witness

Question 6

1) prior inconsistent statements

Answer 6

a witness can be impeached for prior statements inconsistent with the trial testimony,
through cross or extrinsic evidence e.g. a witness

extrinsic evidence– evidence that is not being developed during the course of the hearing

TWO ADDITIONAL RULES of extrinsic evidence of a prior inconsistent statement

1) this not allowed if inconsistency is on a relatively minor point
2) if extrinsic evidence is being used to impeach, the witness being impeached must be given an opportunity to review a prior interested statement.

The opportunity to comment may be given before or after the extrinsic evidence is produced

—if the prior inconsistent statement also qualifies as a confession, if so no comment is necessary

Question 7

2) bias

Answer 7

this impeachment can take place in cross examination, e.g. isn’t it true that x
or through extrinsic evidence

Question 8

3)prior conviction

Answer 8

any prior conviction, felony or misdemeanor can be used to impeach

any other felony can be used to impeach, unless the judge finds it too prejudicial

Question 9

prior bad acts

Answer 9

specific acts of bad conduct that indicate a lack of truthfulness but did not result in convictions, these will not be allowed

Question 10

rep. for truthfulness

Answer 10

evidence that D is not truthful can be admittted

Question 11

contradiction

Answer 11

you can always introduce evidence of contradiction, major points…

Question 12

rehabilitation of witness

Answer 12

if witness has been impeached with bad reputation for truthfulness, prior crimes, or prior bad acts, then counsel can attempt to rehabilitate the witness with good reputation for truthfulness.

Question 13

Hearsay

Answer 13

structure of rules
basic rules
strategy

Question 14

heasay exceptions

Answer 14

all relevant evidence is admissible, unless excluded by the hearsay rule:

if a statement is offered for any other purpose other than to prove the matter asserted, IT IS NOT HEARSAY

Hearsay exceptions 803:

1) a verbal act– i heard madonna say, “i accept your offer”– this changes legal rights, it is a verbal act on the part of the declarant

2) statements to show knowledge on the part of a listener is a relevant issue in the case (someone who heard the out of court statement)
e. g. A witness heard the words from Madonna, “your breaks were defective”

3) a prior inconsistent statement of a witness offered to impeach, the court will always say this was a non-hearsay violation

Question 15

non- hearsay items

hearsay exceptions do not apply , 801 d

Answer 15

1) an admission

2) a prior inconsistent statement of a witness if given under oath at a hearing
given under oath, at a trial or other proceeding
if it qualifies to another inadmissible statement, it might be a prior inconsistent utterance

3) a prior identification by a current witness

Question 16

9 exceptions (804, use when person who made the statement is unavailable

Answer 16

1) present sense impression
2) excited utterance
3) statement showing the state of mind of physical of the
4) speaker
5) medical records diagnosis
6) recorded recollection
7) business recs.
8) former testimony
9) dying declarations
10) statements against interest

1) Is this statement offered for the truth of the matter asserted.
2) Is the statement removed under 801 d
3) does it qualify as an exception to the hearsay rule.

Question 17

admission

Answer 17

a statement by a party to the action, the P or D, offered into evidence by the opposing party and relevant in this case.

1) admissible as an admission
2) admissible non hearsay
3) admissible as a party opponent.

admission analysis:

1) was that out of court statement made by a party to the action or an employee in the scope of employment?
2) is that evidence of the out of court statement made by an opposing party?
3) is it relevant?

if the answer to all three is yes, then you have an admission and this will never be kept out.

Question 18

dying declaration (a major exception)

Answer 18

can only use in homicide cases

Question 19

business records are a major exception

Answer 19

2 fine pts that have been tested
the person making the record does not have to have first hand knowledge of the facts recorded. that can come from other business personnel
if it qualifies as a business record it qualifies to prove what is in the record and what is not in the record

Question 20

Hilman doctrine

Answer 20

out of court statements of intention for the future is admissible for what its worth under the state of mind exception to hearsay rule to establish that the person might have.

it’s going to appear like:
the out of court statement is going to be something like, “ i’m going to paint the garage later today”

Question 21

authentication

Answer 21

enough evidence sufficient to support a finding that the item is what the proponent claims it is.

Question 22

spousal privilege

Answer 22

two privileges in federal court in a criminal court
1) a spouse cannot be forced to testify against a spouse

2) the spouse can testify if he or she wants to testify, they just can’t testify, it can be evidenced she learned twenty years before she married the spouse

in a criminal or civil court in federal case

1) confidential communication between spouses during their marriage– a spouse can object to the other spouse testifying

Question 23

major points:

Answer 23

all relevant evidence is admissible

character evidence
impeachment of a witness
hearsay