Evidence

Question 0

When does the court have discretion to exclude relevant evidence?

Answer 0

A court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, or waste of time.
**note-unfair surprise to a party or witness is not a valid ground for excluding relevant evidence.

Question 1

When is evidence relevant?

Answer 1

Evidence is relevant if it has any tendency to make the existence of any fact of consequence more or less probable than it would be without the evidence.
–Irrelevant evidence is inadmissible.

Question 2

When is relevant evidence excluded on public policy grounds?

Answer 2

Liability Ins.: evidence of liability insurance is not admissible to prove fault or a party’s ability to pay damages. But evidence of insurance is admissible to prove anything else [ownership, control].

SRM: evidence of safety measures or repairs made AFTER an injury is inadmissible to prove fault, defect, or inadequate warning. Remedial measures evidence is admissible to rebut a defense that there was no feasible precaution.

Settlements, offers to settle, and plea bargains:

• -civil: compromise, offers to settle, or related statements are inadmissible to prove liability or fault. This does not include statements made before the claim or threat of litigation was asserted.
• -criminal: pleas, offers to plea, and related statements are inadmissible to prove guilt.

Payment or offers to pay medical expenses: inadmissible when offered to prove liability for injuries. Related statements are admissible [distinguish this from settlement offers]. An offer to pay medical expenses in exchange for releasing liability is inadmissible – it is considered a settlement offer not an offer to pay medical expenses.

Question 3

Is habit evidence admissible?

Answer 3

Habit of a person to act in a certain way is relevant and admissible to show that the person acted in conformity with that habit on the occasion in question. Conduct must be highly specific and frequently repeated.

Question 4

Is evidence of similar occurrences admissible?

Answer 4

Evidence of similar occurrences is usually inadmissible, but can be relevant if the similar occurrences are used for non-propensity purposes.
–ie: causation; Prior accident demonstrating either a pattern of fraudulent claims or pre-existing condition; intent or absence of mistake; to rebut a defense of impossibility; value; and industry custom.

Question 5

Character evidence in a civil case

Answer 5

Evidence of a person’s character is generally inadmissible to prove that they acted in conformity with that character on a given occasion unless:

• -character at issue (defamation, child custody, neg entrustment): in such cases character and may be proved through opinion, reputation, or specific acts of conduct.
• -sexual assault or molestation cases: in cases arising from an act of sexual assault or child molestation, D’s prior acts of sexual assault or child molestation are admissible to prove D’s conduct in the present case.

Question 6

Defendants character in criminal cases

Answer 6

In criminal cases, D may introduce evidence of pertinent character, which the prosecution may rebut; with limited exceptions, P may not first introduce evidence of D’s character.

• -defense: may introduce evidence of pertinent good character. It must be pertinent to the charged crime [D’s reputation for peacefulness is irrelevant to a forgery charge].
• —method: D may call a W to testify to his good character based on reputation or opinion [no specific instances].
• —P’s rebuttal: once D “opens the door” P may rebut by;
• —–crossing D’s character W: including knowledge of specific instances of D’s misconduct or prior arrest.
• —–calling own W: limited to D’s character for the trait in question.
• -Prosecution: may not initiate introduction of character evidence about D, except;
• —sexual assault or molestation
• —if D first offers evidence of victims character, P can then offer evidence that D has the same character trait

Question 7

Evidence of victims character in criminal cases

Answer 7

Only D can “open the door” by introducing evidence of victim’s character to prove conduct.

• -once D offers evidence of victims character, the prosecution may then rebut.
• -Homicide cases: D can offer evidence of the victims character for violence to show that the victim attacked first. The prosecution may then rebut by offering evidence of victims character for peacefulness.
• • specific instances are not allowed on direct.

Question 8

Specific instances of defendant’s bad conduct [prior bad Acts]

Answer 8

In a civil or criminal case, specific instances of D’s bad conduct offered by either party is in admissible to prove character [action in conformity therewith], but admissible to prove anything else.
–prior acts evidence is admissible to prove motive, intent, mistake [absence of mistake, knowledge], identity, and common plan or scheme. However, prior acts evidence is always subject to balancing test.

Question 9

Who may impeach a W and by what method may they impeach?

Answer 9

Any party may impeach any W.

(1) Contradiction
(2) prior inconsistent statement
(3) bias or interest
(4) sensory deficiency
(5) reputation and or opinion for untruthfulness
(6) prior acts of misconduct (extrinsic evidence prohibited)
(7) prior criminal conviction
* * evidence supporting witnesses credibility is inadmissible unless credibility has been attacked [W has been impeached].
* *** w’s prior consistent statement is admissible if the statement was made before W have a motive to fabricate.

Question 10

What are the four requirements for competent witness?

Answer 10

Personal knowledge – W’s testimony must be based on her own perception [what W saw or heard].

Present recollection – W must testify from present memory, not from a record of matters the W once knew but has since forgotten.

Communication – W must be able to relay her perceptions either directly or through an interpreter.

Sincerity – W must take an oath or affirm to tell the truth.

Question 11

When is the use of documents by witness during testimony admissible?

Answer 11

Present recollection refreshed – use the documents to refresh W’s memory during testimony. Anything can be used to refresh W’s memory. W cannot read aloud from a document but can look at it briefly, then continue to testify unassisted.
–opponent may inspect and offer into evidence anything used to refresh W’s memory.

Recorded recollection – the contents of the document W previously wrote or adopted is read into evidence.
–recorded recollection is a hearsay exception and if all elements are satisfied the document comes in as both impeachment and substantive evidence.

Question 12

Lay opinion testimony

Answer 12

Testimony in the form of opinion is inadmissible unless W qualifies to give either lay or expert opinion.

• -Requirements of admissibility: opinion is rationally based on W’s perception, opinion is helpful to the trier fact, and the opinion is not based on scientific, technological, or specialized knowledge.
• • examples of admissible lay opinion testimony are speed of car, emotional state of an individual, voice or handwriting recognition, sense recognition, and intoxication.

Question 13

Attorney – client privilege

Answer 13

Communications between attorney and client or client representatives are privileged and all proceedings unless waived. Only a client may waive the privilege.

• -to be protected, the communication must be intended to be confidential and made to facilitate legal services.
• • remember that privilege does not apply in suits between two parties represented by the same attorney or where two or more parties consult the same attorney on a matter of common interest [divorce].

Question 14

Psychotherapist – patient privilege

Answer 14

Communication between a psychotherapist or social worker and her client is privileged in all civil or criminal cases if the client intends the communication to be confidential and the communication is made to facilitate therapy or social work.

Question 15

Doctor – patient privilege

Answer 15

There is no doctor – patient privilege under the FRE’s but it exists in almost all states. The MBE will assume the existence of the doctor-patient privilege, but an answer choice indicating the doctor-patient privilege is an evidentiary rule will be incorrect.
–generally a patient has a privilege to prevent disclosure of information that is confidentially conveyed to a physician. To be protected, the communication must be made for the purpose of obtaining a diagnosis or treatment, pertinent to the diagnosis or treatment, and intended by the patient to be confidential.

Question 16

What are the two spousal privileges?

Answer 16

Spousal testimonial privilege – criminal cases only.

• -W may refuse to testify against a spouse in any criminal proceeding. Only W may invoke the privilege [D cannot prevent a willing spouse from testifying against him.]
• -applies only while spouses are married

Marital communications privilege – both civil and criminal cases.

• -confidential communications made during a marriage are privileged in any latter proceeding. Applies even if the spouses divorce after the confidential communication was made.
• -either spouse may invoke the privilege.
• -A spouse can lose the privilege if he breaks confidentiality. However, the other spouse still retains the privilege.
• *note: the privilege does not apply to suits between spouses, suits in which one spouse is charged with a crime or tort against children, or suits in which spouses are co-defendants.

Question 17

What must be authenticated at trial?

Answer 17

Every item of physical evidence must be authenticated, i.e., the point must show that the evidence is what he claims it is.

Question 18

What is self authenticating evidence?

Answer 18

Deeds, notarized documents, newspapers. These are writings that contain identifying information that do not need separate authentication.

Question 19

What are ancient documents?

Answer 19

20 or more year old documents that do not present any irregularities on their face, and found in place of natural custody.
** such documents are automatically authenticated

Question 20

What is the best evidence rule?

Answer 20

It evidences offered to prove the contents of a writing, in original document must be used unless it is unavailable.

• -writing=any tangible collection of data , documents, photos, books computer drives, x-rays].
• • testimony regarding contents – admissible if the original is lost or destroyed, unless done so in bad faith by the proponent of testimony.

Question 21

When can courts take judicial notice?

Answer 21

Courts can recognize a fact as true without formal presentation of evidence. Any court can take judicial notice on it’s own or upon formal request of a party. Facts that are capable of verification by a source with unquestionable accuracy and generally known within the jurisdiction are judicially noticeable. Courts must take judicial notice of Federal and state laws. A court has discretional ability to take judicial notice of all other laws.

Question 22

What is the effect of judicially noticed facts/laws?

Answer 22

Civil cases – the jury must take judicially noticed facts as conclusive. Criminal cases – the jury may take judicial notice facts as conclusive, but not required to.
***Note judicially notice facts may not be used to direct any portion of a verdict in a criminal case.

Question 23

What is hearsay?

Answer 23

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.
–statements: an oral or written assertion, or nonverbal conduct intended as an assertion. Non-– human assertions are not statements [test results, radar gun readings, dog barking].

Question 24

What are the four common non-– hearsay uses of out of court statements?

Answer 24

Statement of independent legal significant – statements containing legally operative words or phrases, such that the statement itself is a legal factor in the case. [Offer, acceptance, words of the donative intent – gifts].

Statements offered to show their effect on the listener – E.G. comparative negligence claims – statement by third-party warning P of the injury causing condition.

Statements offered to show speakers knowledge – E.G. D charged with conspiracy, claims he did not know about the crime; an out-of-court statement indicating D had been told the specifics of the crime will be admissible, indicating he knew it was being planned.

Statements offered show state of mind – E.G. statement by D before committing a crime indicating he might have been insane.

Question 25

What are the four hearsay exemptions?

Answer 25

Admissions – out-of-court statements by a party are admissible if offered against that party.

• -judicial admissions – made in pleading or testimony.
• -adoptive admissions – acquiescence in another’s statement.
• —silence can be an admission if: party heard, understood, and was capable of responding to a statement and a reasonable person in the parties position would have responded.
• -vicarious admissions – made by an agent or employee.
• -Co-conspirator admissions – statements by D’s co-conspirators are admissible against D if made in furtherance of the conspiracy.

Prior inconsistent statements given under oath.

Prior consistent statements – if offer to rebut a charge of fabrication, improper bias, or improper motive.

Prior statements of identification after perception.

Question 26

What is the main difference between 803 exceptions and 804 exceptions?

Answer 26

803 exceptions do not require the declarant to be unavailable; however, 804 exceptions do require the declarant unavailable.

Question 27

What are the thirteen 803 exceptions?

Answer 27

Present state of mind, 
excited utterance, 
present sense impression, 
physical conditions [for medical diagnosis or treatment], 
past recollection recorded, 
business records, 
public records or reports, 
judgments and prior convictions,
ancient documents, 
documents affecting property interest, 
learned treaties, 
family reports, 
market reports.

Question 28

What are the five 804 exceptions?

Answer 28

Former testimony exception,
statement against interest,
dying declarations,
statement of personal or family history,
Statements offered against party procuring declarant’s availability.

Question 29

What are the five reasons a declarant is unavailable?

Answer 29

Privilege,
death or physical/mental illness,
refusal to testify despite a court order,
lack of memory,
absence – beyond the reach of court subpoena power.