Evidence Flashcards
What are the 3 sources of evidence law?
1) State common law and miscellaneous state statutes, 2) Comprehensive state evidence codes, and 3) the Federal Rules of Evidence
What rules govern on the MBE
FEDERAL RULES not the common law
What is relevant evidence?
Evidence that tends to prove (probativeness) any fact or consequence to the action (materiality).
Relevance question approach
1) Determine whether the evidence is relevant; if so then 2) Determines whether the evidence should nonetheless be excluded bases on i) judicial discretion; or ii) public policy
When is evidence relevant?
When it tende to make the existence of any fact of consequence to the outcome of the action more proabable than it would be without the evidence.
General Rule of Relevance
Must relate to the time, event, or the person involved in the present litigation
Certain Similar occurrences that are relevant
1) Causation 2) Prior False Claims or Same Bodily Injury 3) Similar Accidents or Injuries cause by same event or condition 4) Previous similar acts admissible to prove intent 5) Sales of Similar property 6) Habit 7) Industrial or Business Routine 8) Industry Custom as Evidence of Standard of Care 9) Rebutting Claimof Impossibility
Prior False Claims of Same Bodily Injury
Relevant to prove that: 1) The present claim is likely to be false, or 2) the Plaintiff’s condition is attributable in whole or in party to the prior injury
Similar Accidents or Injuries Caused by Same Event or Condition
Admissible to Prove: 1) Existence of a dangerous condition; 2) The the Defendant had knowledge of the dangerous condition; and 3) The dangerous condition was the cause of the present injury.
Relevant eveidence excluded for public policy reasons
1) Liability insurance (to show negligence or ability to pay) 2)Subsequent remedial measures (to show neg culpable conduct, defect in product or design, need for warning or instruction) 3) Settlement Offers and Withdrawn Guilty Pleas 4) Offers to Pay Medical Expenses
When can Character Evidence be offered as substantive, rather than impeachment?
1) Prove character when it is the ultimate issue in the case; or 2) serve as circumstantial evidence of how a person probably acted (most heavily tested).
Means of proving character
1) Evidence of specific acts; 2) Opinion testimony of a witnedd who knows the person; and 3) Testimony as to the person’s general reputation in the community
Is character evidence usually admissible in civil cases?
NO - unless character is directly in issue (defamation)
Criminal case - Who can initiate character evidence?
Accused! Prosecution cannot initiate evidence of bad character of the Defendant merely to show that she is more likely to have committed the crime.
How does Defendant Prove Character
A witness for the defendant may testify as to the defendant’s good reputation for the trait in question and may give his personal opinion on that trait
How prosecution rebuts D’s character evidence?
ONLY ONCE THE D OPENS THE DOOR! 1) Cross-x the character witness (have you heard about the time john hit matt?) 2) Calling qualified witnesses Important to know: CANNOT INTRODUCE EXTRINSIC EVIDENCE OF MISCONDUCT during cross
When Can D introduce repuation or opinion evidenc of a bad character trait of a victim?
When it is relevant to show the D’s innocence NOT IN RAPE CASES
Is evidence of other crimes or misconduct by the defendant admissible to establish a crimainl disposition or bad character?
NO - unless the evidence of the other crimes or misconduct are relevant to some issue other than the D’s character or dispositon And MIMIC
What are the issues for which evidence of prior acts of misconduct is admissible?
Motive, Intent, Mistake (absence of), Identity, Common plan or scheme MIMIC
Requirments for the admissibility of the prior acts of misconduct
1) Must be sufficient evidence to support a jury finding that the D committed the prior act, and 2) its probative value must not be substantially outweighed by the danger of unfair prejudice
Facts appropriate for judicial notice
Indisputable facts that are common knowledge in the community or capable of verification
Procedural aspects of Judicial notice
If court doesn’t take judicial notice, a party must formally request that notice be taken of that fact. Judicial notice may be taken for the first time on appeal. Federal rules provide that judicially noticed fact is conclusive in a civil case but not in a criminal case.
Must Courts take judicial notice of federal and state law and the official regulation of the forum state and the federal government?
Yes
What legal Requirements in addition to being relevant must real evidence meet?
1) Authentication ((i) Testimony of a witness that recognizes the object as what the proponent claims it is (ii) Evidence that the object has been held ina substantially unbroken chain of possession)) 2) Condition of Object 3) Balancing test
Authentication of Documentary evidence
Must be authenticated by proof that shows that the writing is what the proponent claims it is. Proof must be sufficient to support a jury finding of genuineness
Authentication of Handwriting Verifications
May be done by; 1)The opinion of a nonexpert with personal knowledge of the alleged writer’s handwriting; or 2) The opinion of an expert who has compared the writing sampled of the maker’s handwriting. 3) By the trier of fact through comparison of samples
Authentication of Ancient Documents
1) At least 20 years old; 2) In such condition as to be free from suspicion as to authenticity; and 3) Was found in a place where such a writing would likely be kept
Authentication of Photographs
Generally - admissible only if ID’d by witnedd as a portrayal of certain facts relevant to the issue and verified by witness as correct rep of those facts
Unattended camera - authentication
May be admissible upon showing that the camera was properly operating at the relevant time and photo was developed from film obtained from that camera
Self-Authenticating Documents
1) Certified copies of public records; 2) Official publication; 3) Newspapers and periodicals; 4) Trade inscriptions; 5) Acnowledged documents; 6) Commercial paper and related docs; 7) Certified business records
Best Evidence Rule
To prove the terms of a writing the original writing must be produces if the terms of the writing are material. Secondary evidence of the writing is admissible only if the original is unavailable
Applicability of the Best Evidence Rule
1) The writing is a legally operative or dispositive instrument; of 2) The knowledge of a witness concerning a fact results from having read it in the document.
Nonapplicability of the Best Evidence Rule
1) Fact to be proved exists independtly of writing; 2) Writing is collateral (minor) to litigated issue; 3) Summaries of voluminous records; 4) Public Records
Definition of Writings, Original, and Duplicate
Original - Writing itself or any copy that is intended by the person executing it to have the same effect as an original. Duplicate - An exact copy of an original, made by mechanical means. Duplicates are admissible in federal courts unless the authenticity of the original is challeneged or 403.
Photocopies vs Copies made by hand
Photocopies are treated same as originals. Copies made by hand are considered secondary evidence.
Admissibility of Secondary Evidence of Contents
May offer if original cannot be produces along with a satisfactory explanation for the nonproduction of the original (can also use alternative modes; deposition; written admission; testimony)
Satisfactory Foundation for admissibility of secondary evidence
1) Loss or destruction of original; 2) Original is in possession of a 3rd party outside the jurisdiction and it unobtainable; 3) Original is in the possession of an adversary who, after due notice, fails to produce the original
Jury’s role in admissibility of secondary evidence
1) Did the original ever exist? 2) Is the writing, recording, or photograph produces at trial an original; and 3) Whether the evidence offered correctly reflects the contents of the original.
When does the Parole Evidence Rule NOT apply?
1) Incomplete or Ambiguous K; 2) Reformation of K; 3) Challenge to Validity of K
When does the Parole Evidence Rule apply?
To show that the K is VOID or VOIDABLE
Federal Rules of Competency of Witnesses
1) Witness must have personal knowledge of the matter about which he is to testify; and 2) The witness must declare that he will testify truthfully
Competency of Infant and Insane
Infant - depends on the capacity and intelligence of the particular child as determined by the JUDGE Insane - Must understand the obligation to speak truthfully and has the capacity to testify accurately
Can Judge and Jurors testify as witnesses?
NO - as to the case they are sitting on
Dead Man Acts
A party or person interested in the event is incompetent to testify to a personal transaction fo comunication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased.
When is a person “interested” in Dead Man Act?
If he stands to gain or lose by the judgment or the judgment may be used for or against him ina subsequent action. A predecessor in interest of the interested party is also disqualified.
When are leading questions permitted?
1) On cross-x 2) To elicit preliminary or introductory matter; 3) When the witnedd needs aid to respond because of loss of memory, immaturity, or physical or mental weakness; or 4) When the witness is hostile
Improper Questions to ask a witness
Misleading, Compound, argumentative, conclusionary, cumulative, unduly harassing or embarrsing, call for a narrative answer or speculation, or assume facts not in evidence
When may answers to improper questions be stricken?
Answers that lack foundation; and answers that are nonresponsive
Use of Memoranda by Witness
1) Present Recollection Revived - Refreshing Recollection; 2) Past Recollection Recorded - Recorded Recollection; 3) Inspection and Use on Cross-x
Present Recollection Revived - Refreshing Recollection
A witnedd may use any writing or thing for the purpose of refreshing her present recollection. Usually cannot read from the writing (not authenticated)
Past Recollection Recorded - Recorded Recollection
After refresh doesn’t work, writing may be read into evidence.
Recorded Recollection Foundation
1) Personal Knowledge; 2) Made by the witness or adopted by the witnedd; 3) Timely Made (fresh in witness’ mind); 4) Accurate; and 5) Witness has insufficient recollection to testify fully and acurately
