evidence Flashcards
evidence
<p>Evidence MBE tips</p>
<p>1. Focus on hearsay and the hearsay exceptions. 2. Always ask yourself: For what purpose is the party trying to introduce this evidence? 3. Know when and how you can introduce evidence of character (defendant and third-party witness). 4. Evidence questions are short but tricky. Take your time. 5. Almost all Evidence questions are based on the FRE; the ones that aren’t are mostly on privileges.</p>
evidence
<p>statements made in plea negotiations</p>
<p>Not admissible substantively or for impeachment.Neither statements made during plea negotiations nor withdrawn guilty pleas are admissible under Rule 410.</p>
evidence
<p>adoptive admission</p>
<p>An adoptive admission is a statement of another person that a party expressly or impliedly adopts as his own. Silence in response to a statement is considered an adoptive admission if: (i) The person was present and heard and understood the statement; (ii) the person had the ability and opportunity to deny the statement; and (iii) a reasonable person similarly situated would have denied the statement.</p>
evidence
<p>dying declarations</p>
<p>A statement qualifies as a “dying declaration” if (i) the declarant believes that her death is imminent, and (ii) the statement pertains to the cause or circumstances of the death she believes to be imminent. Although the declarant must be unavailable, the declarant need not have actually died in order for the statement to avoid exclusion as hearsay. However, the dying-declaration exception applies only in homicide prosecutions and civil cases. </p>
evidence
<p>past recollection recorded</p>
<p>If a witness is unable to testify about a matter for which a record exists, that record is not excluded as hearsay if (i) the record is on a matter that the witness once knew about, (ii) the record was made or adopted by the witness when the matter was fresh in the witness’s memory, (iii) the record accurately reflects the witness’s knowledge, and (iv) the witness states that she cannot recall the event well enough to testify fully and accurately, even after consulting the record on the stand. If a record is admitted under this exception, it may be read into evidence, but it may be received as an exhibit only if offered by an adverse party</p>
evidence
<p>present sense impression</p>
<p>A statement describing or explaining an event or condition that is made while or immediately after being perceived is not excluded as hearsay.</p>
evidence
<p>Excited utterance</p>
<p>a statement made about a startling event while the declarant is under the excitement of the event.</p>
evidence
<p>MIMIC rule</p>
<p>A defendant's past crimes or other wrongful acts are not admissible to show his criminal propensity, but they are admissible as circumstantial evidence of motive, intent, absence of mistake, identity, or common plan or scheme (the “MIMIC” rule).</p>
evidence
<p>residual hearsay exception</p>
<p>(i) the statement has equivalent circumstantial guarantees of trustworthiness, (ii) it is offered as evidence of a material fact, (iii) it is more probative on the point for which it is offered than any other evidence that the proponent can reasonably obtain, and (iv) admission will best serve the purposes of the Federal Rules and the interests of justice</p>
evidence
<p>ACP crime/fraud exception</p>
<p>A confidential communication between a client and an attorney for the purpose of seeking legal advice or representation is privileged. However, the attorney-client privilege does not protect communications made to enable or aid in the commission of what the client knew or should have known was a crime or fraud. The attorney’s knowledge of the client’s criminal purpose is not necessary to make the communication admissible. It is the client’s awareness of the criminal nature of his actions that defeats the privilege.</p>
evidence
judicial notice
Under FRE 201(b)(2), a judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. The court must take judicial notice of an adjudicative fact if a party so requests and provides the court with the necessary information to do so.
evidence
logical relevance
Evidence must be relevant to be admissible. Evidence is relevant if it has a tendency to make a fact more or less probable than it would be without the evidence (i.e., probative) and the fact is of consequence in determining the action (i.e., material).
evidence
FRE 609
Convictions for felony crimes not involving fraud or dishonesty that are less than 10 years old are admissible to impeach a witness. For a witness other than a criminal defendant, the court may exclude such evidence when the party objecting to the impeachment shows that the probative value is substantially outweighed by the prejudicial effect (i.e., the Rule 403 standard).
evidence
authentication: business records
The court will consider a number of items of evidence to be self-authenticating, meaning that they do not require extrinsic evidence of authenticity in order to be admitted. These include certified copies of public records, trade inscriptions (e.g., labels affixed in the course of business that indicate ownership), and business records. Generally, the proponent of a self-authenticating document is not required to give an adverse party advance notice of the intent to introduce the document. The proponent of a business record must, however, give an adverse party reasonable written notice prior to the trial or hearing of the intent to offer the record and must make the record available for inspection so that the party has a fair opportunity to challenge it.
evidence
BER
A written contract, as a document with legal effect, is subject to the best evidence rule. Under this rule, the original must be introduced to prove the terms of the contract unless the unavailability of the original is appropriately explained.
