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Common MBE Errors > Evidence > Flashcards

Evidence Flashcards

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1
Q

Character Evidence

A

Inadmissible unless (1) Character is an essential part of the claim, like in Custody or Defamation cases; or (2) Sexual assault case and we’re looking at D’s prior acts

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2
Q

For D letting in evidence of “good character,” can we let in evidence from Specific Instances? Not for D.

A

No, D can only use reputation and opinion testimony to testify as to their “pertinent trait at issue.” This can be their good character or their innocence. It can’t be their credibility or believability unless their credibility has already been attacked. Also, it’s not necessary that D testify before they “open the door.”

D should be careful about opening the door, because if they open the “good character” door, P CAN use evidence from Specific Instances to rebut their claim of good character.

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3
Q

Evidence of Defendant’s Prior Bad Acts is generally inadmissible, unless it’s being used to prove MIMIC

A 
Motive
Intent
Mistake or absence of it
Identity 
or Common Scheme
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4
Q

Can we ever use extrinsic evidence to impeach a witness?

A

Usually, no, since we don’t want a trial-within-a-trial. But we can admit extrinsic evidence to show that the witness is biased.

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5
Q

How to Impeach a Witness:

A
  1. Prior Inconsistent Statement of the Witness
  2. Witness’s Bias or Prior Misconduct
  3. W’s Reputation for Untruthfulness
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6
Q

Impeaching through Prior Inconsistent Statement

A

WHAT CAN WE USE:
- Something W said before that contradicts what he’s saying now, even if what he said before is hearsay

WHAT TYPE OF EVIDENCE:

  • Cross-exam testimony AND
  • Extrinsic evidence
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7
Q

Impeaching through Showing the Witness is Biased

A

WHAT TYPE OF EVIDENCE:

  • Cross-exam testimony AND
  • Extrinsic evidence
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8
Q

Impeaching through the Witness’s Past Misconduct

A

WHAT TYPE OF EVIDENCE:

- ONLY cross-exam testimony

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9
Q

Impeaching through Witness’s Past Untruthfulness

A

WHAT TYPE OF EVIDENCE:

- ONLY cross-exam testimony

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10
Q

When can we impeach a Witness using their Prior Conviction? Yes, usually if it’s a past conviction involving dishonesty and if it’s not over 10 years old.

A
  1. Does the past conviction involve dishonesty?
  2. Is it a felony or misdemeanor? Let it in

Crimes not involving dishonesty: 403 test (probative value must outweigh prejudicial effect)

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11
Q

Assessing the Competence of a Witness

A
  1. C - Communication: Witness should be able to communicate
  2. P - Personal Knowledge: Must have personal knowledge of what happened
  3. M - Memory: Must have the ability to remember
  4. S - Sincerity: Must affirm to tell the truth
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12
Q

Present Recollection Refreshed v. Recorded Recollection

A

PRESENT RECOLLECTION REFRESHED: can use anything to refresh that person’s memory and that item will not be read into evidence

RECORDED RECOLLECTION: can be read into evidence by the person who actually wrote it or adopted it, who had personal knowledge of what he wrote at the time, but has no memory of it now

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13
Q

Spousal Testimony Privilege

A
  • Applies in criminal cases
  • Spouse whose husband/wife is a Defendant in a criminal trial can refuse to testify against them
  • Defendant cannot invoke the privilege, the spouse has to
  • Encompasses events that took place before their marriage
  • Can’t use it if they are divorced now
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14
Q

What types of evidence are self-authenticating?

A
  1. Newspapers
  2. Product labels
  3. Books/pamphlets issued by public authority
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15
Q

Best Evidence Rule, or what type of evidence do we let in to prove the contents of a writing?

A
  1. Original writing
  2. Copies
  3. Testimony, but only if the original is lost or destroyed
  4. Summary of Voluminous Documents (if originals are available for inspection)
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16
Q

Prior ID of someone is not Hearsay.

A

It’s actually a Hearsay Exemption. Prior ID is admissible (like a police sketch) as long as that person is available to be cross-examined and they actually witnessed the identified subject; they do not need memory of it now.

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17
Q

Admissible Statements Asserting Something Else (Not Hearsay)

A

Asserting:

  1. Statement was said in general, not that it was true
  2. Shows that the listener reacted in some way
  3. Shows what the speaker was told (his knowledge at the time)
  4. Shows speaker’s mental state, or lack thereof (insane)
18
Q

Party-Opponent Admission

A

Party’s out-of-court statement that is admissible against them to show that they admitted to something, even through an “Adopted Admission” of someone else (silence + acceptance/action).

19
Q

Statement Against Interest

A

Any statement made against the declarant’s interest, not necessarily a party.

20
Q

Present State of Mind (Hearsay Exception)

A

Admissible when a Declarant is UNAVAILABLE to show their emotion, sensation, physical condition, or intention to be somewhere or do something (e.g., letter stating their intention to be in Philadelphia on 7/4)

21
Q

Absence of a Business Record (Hearsay Exception)

A

Absence of a business record is admissible to prove the non-occurrence of a matter that would normally have been recorded had it actually occurred (absence of a hospital record, for instance)

22
Q

Business Records: YES to Hospital Records, NO to Employee Accident Reports

A

Employee Accident Reports are prepared “with an eye toward litigation”

Hospital Records are made during the regular course of business by an employee with personal knowledge of the facts or by someone informed by a person with personal knowledge (intern & doctor)

23
Q

Admission of a Party Opponent allowed if Defendant said it in private to the Plaintiff and Plaintiff secretly recorded it?

A

Yes, what the Defendant said to the Plaintiff, even in a private conversation, is an admission of a party that can be introduced against them as a hearsay exclusion, as long as the person has PERSONAL KNOWLEDGE about what was said and can testify about it. Since they got the knowledge PERSONALLY, not through the audiotape, then the Best Evidence Rule does not apply.

24
Q

What burden has to be proven in a criminal trial again, and how do the Judge’s instructions have to present this?

A

In a criminal trial, the burden is on the prosecution to prove EVERY ELEMENT of the crime beyond a REASONABLE DOUBT. This burden does not shift throughout trial. The burden of “GOING FORWARD” requires only that a party introduce enough evidence on an issue such that a reasonable jury could infer the fact alleged. A Defendant has the burden of producing enough evidence for a reasonable jury to infer this if they are presenting an Affirmative Defense (self-defense, provocation, etc.). Judge’s instructions to the jury are correct if they restate the Prosecution’s burden and that the Defendant has the burden of producing evidence on his affirmative defenses (more likely than not). No burden-shifting. Once the state meets its burden, D has to meet his of showing “more likely than not.”

25
Q

Character evidence is inadmissible, but D can “open the door” for his character evidence through reputation/opinion testimony about his reputation for: ______.

A

WHATEVER CHARACTER TRAIT IS PERTINENT TO THIS CHARGE. In the case of battery, reputation/opinion testimony about D’s character for PEACEFULNESS is appropriate, but testimony about his character for truthfulness is not (unless someone specifically attacked it and he has to rehabilitate it).

26
Q

Burden of Persuasion

A

On the Prosecution to prove every element of the crime beyond a reasonable doubt. This burden will not shift, and cannot be shifted by a rebuttable presumptions.

27
Q

Burden of Going Forward (“Production”)

A

The burden of production requires only that a party introduce enough evidence on an issue such that a reasonable jury could infer the fact alleged. If the Defendant meets this burden and introduces enough evidence to create a reasonable doubt about a presumed fact in the minds of the jury, then the state must prove the challenged fact beyond a reasonable doubt.

28
Q

Party-Opponent Admission

A

Opposing party’s statement offered against that same opposing party and made in an individual or representative capacity is a hearsay exception (Party-Opponent Admission).

29
Q

Best Evidence Rule

A

BER is triggered when a party wants to prove the material terms of a writing, or a witness is testifying relying on the contents of a writing. If so, the original writing (or copy) must be produced, or oral testimony if the writing is unavailable, lost, or destroyed through no fault of the proponent. But if a witness is merely asked if he wrote a letter or a particular writing, this does not mean he is seeking to prove the contents of the letter. It will also not be a hearsay problem because the contents aren’t being offered to prove the truth of the matter asserted (that anything in the letter is true).

30
Q

Present Sense Impression (more broad than you think and can overlap with Past Recollection Recorded)

A

Present Sense Impression is a hearsay exception for a statement that (1) describes or explains an event; and (2) was made while the declarant observed the event or immediately thereafter. This includes dictating a number on a license plate to 9-1-1 or to a tape recorder as a car speeds away. It’s a “partial” description observed while the car is fleeing after a hit-and-run (meeting the observation requirement).

Past Recollection Recorded - can be proven by a tape recording; a record that (1) concerns a “matter the witness once knew about;” (2) as to which the witness “now cannot recall well enough to testify fully and accurately;” (3) which was made “when the matter was fresh in the witness’s memory,” and (4) which accurately reflects the witness’s knowledge.

31
Q

Offers to Negotiate arise only when

A

They were made to settle a pending dispute, or someone gave the indication that there would be a dispute, to effectuate a compromise. Without a dispute, a statement may be admissible as a Party-Opponent Admission to show fault (where the statement was offered against the party and it was that party’s own statement).

32
Q

Standard of Admissibility for Relevant Evidence

A

Judge can admit relevant evidence. Evidence is relevant if (1) it has any tendency to make a fact more or less probable than it would be without the evidence; and (2) the fact is of consequence in determining the action.

33
Q

Standard of Proof used by the Jury

A

Evidence the jury can rule on is sufficient if it makes it more likely than not that a certain event occurred.

34
Q

Fifth Amendment invoked against information that is:

A

(1) Compelled - Does not apply to voluntarily prepared documents (business records, diary, etc.)
(2) Incriminating
(3) Testimonial

Does not apply to corporations.

35
Q

Subsequent Remedial Measures Exceptions:

A

Can’t be admitted to prove negligence or culpable conduct, but can be admitted to prove:

(1) Ownership;
(2) Control;
(3) Rebut feasibility of a precaution or repair; or
(4) Impeachment purposes

36
Q

Impeaching a Witness for Bias or Interest or Improper Motive allows admission of Extrinsic Evidence

A

Extrinsic evidence allowed, also reputation or opinion testimony, provided a proper foundation is laid. Bias may exist because of a relationship between the witness and a party (hostile or not).

37
Q

Not Hearsay: Testimony Establishing Identity

A

Testimony establishing ID is not hearsay because it is not offered to prove the truth of the matter asserted. Used where Victim testifies one of her assailants was nicknamed “Speed.” Jail employee’s testimony that Defendant was called “Speed” by other inmates is not hearsay, but circumstantial evidence proving Identification.

38
Q

Impeaching a Witness for Prior Inconsistent Statement

A

Admissible with extrinsic evidence and specific acts. Inconsistent Statement includes any “omissions” made to law enforcement / under oath. Used to suggest a witness is lying and not credible.

39
Q

Attorney-Client Privilege for Joint Clients Cannot Be Used in Later Dispute Between Them

A

It does not apply to joint clients who later enter into a subsequent dispute. The lawyer can testify in that dispute. But the privilege will apply to outsiders who aren’t the joint clients.

40
Q

After Impeachment: How to Rehabilitate your Witness

A

Lot of options:

  1. Extrinsic Evidence
  2. Reputation testimony
  3. Opinion testimony

Can use specific acts. None of this will be considered collateral and it is an exception to the hearsay rule.

41
Q

Hearsay Exemptions

A 
Judicial Admissions
Party-Opponent statement against
Vicarious Admission
Prior Consistent Statement
Prior Inconsistent Statement
Identification
42
Q

Declarant Unavailable Hearsay Exceptions

A 
Former Testimony
Personal or Family History
Dying Declarations
Statements against Interest
Statements procuring D’s unavailability

Common MBE Errors (7 decks)

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