Evidence Foundation Kaplan Foundation Course MBE Questions Flashcards
Under Federal Rules of Evidence (F.R.E.) 401, relevant evidence
is that which tends to make the existence of a fact of consequence more (or less) probable than it would otherwise be.
Relevant evidence is generally admissible (F.R.E. 402), but it is inadmissible
where its probative value is substantially outweighed by the danger of unfair prejudice; confusion of the issues; misleading the jury; or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence (F.R.E. 403).
A videotape is not a
“statement” under F.R.E. 801(a).
The best evidence rule applies only when the proponent
is attempting to prove the contents or terms of a writing. Note that sometimes a writing recites or records a perceivable event or condition such as a marriage (marriage certificate), payment of money (receipt), or the utterance of certain words (transcript).
The Best Evidence Rule is NOT applicable when
When the proponent is not attempting to prove the terms of a writing, but merely is presenting evidence of an event perceived by a witness with firsthand knowledge, which is someone who is not relying on the writing or video to learn of the event or facts
The proponent wishing to prove the underlying event may offer testimony as an observer with first hand knowledge.
firsthand knowledge of the suspect’s confession is admissible when
The person testifying was present and overheard it.
In a criminal case, the prosecution bears the burden of
proving each and every element of a crime beyond a reasonable doubt
Exam Tip: Any time a question gives you a statute, pay particular attention as the examiners will rarely
define something that you are responsible for memorizing. Oftentimes they will insert subtle changes that differ from the common law rules.
According to F.R.E. 406, “evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses
is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
MBE Exam Tip: On the MBE, the key words denoting habit are
always,” “invariably,” “customarily” and “habitually.”
MBE Exam Tip: On the MBE, the key words that are NOT sufficient to constitute habit are
Conversely, if a person “generally” behaves or “often” acts in a particular situation, that is not sufficient to constitute habit.
F.R.E. 407 allows evidence of subsequent remedial measures
when offered to show ownership or control.
F.R.E. 408, which deals with settlement or compromise negotiations, but in order to EXCLUDE the statements there must be
Always remember that in order to exclude statements or admissions made during settlement negotiations, there must be an actual dispute between the parties.
Under F.R.E. 408, any statements made during the course of settlement negotiations
will be excluded, but there must be a dispute
It is important for students to distinguish between F.R.E. 408 and F.R.E. 409. Under F.R.E. 409, admissions made in connection with an offer to pay medical expenses
admissions are severed for the statement of offer to pay medical expenses, and the admissions are admitted in the trial
In order to exclude statements made in compromise negotiations, there must be an actual
dispute or, at least, an apparent difference of view between the parties as to the validity or amount of a claim.
On the MBE determine if the testmaker is concluding that no dispute existed at the moment, but a settlement was made
determine if the party is making a spontaneous statement immediately following the incident to settle knows that there is a dispute, and if at the there is no dispute at the time of accrual, then the statement is admissible
FRE 404 Character evidence in a criminal case, an accused may offer evidence of his good character by
In accordance with F.R.E. 404(a) (1), an accused may offer evidence of his good character by reputation and opinion,
FRE 404 Character evidence in a criminal case, an accused may NOT offer what type of evidence to prove his good character
may not use specific acts, to prove his innocence
A prosecution’s direct witness being called to testify about a person’s character is
NOT permitted until the defendant must first “open the door” by presenting such evidence of his good character before the prosecution is entitled to rebut the good character of the accused.
F.R.E. 404(a)(2) states that if the accused defendant offers evidence of a relevant character trait of the alleged victim (reputation and opinion), in a self defense murder case
the prosecution in rebuttal may offer evidence of the same character trait of the accused (reputation and opinion). Because the defendant attacked the victim’s character for violence on the issue of self-defense, the prosecution may offer rebuttal evidence that the defendant has a bad reputation for violence.
Generally, character evidence in a civil trial
not admissible in civil trials unless it is impeachment evidence in the form of reputation or opinion evidence about a witness’s truthfulness, or a question asked of the witness herself about prior bad acts relating to truthfulness.
In a defamation action such as this one the issue of a person’s character is
An essential element of a charge, claim, or defense. Therefore, under F.R.E. 405(b) proof of character by using specific instances of conduct is permitted. Reputation or opinion evidence, though not offered here, would also be allowed to show that the plaintiff cheated on his taxes, because all three types of character evidence may be used to prove the essential character issue in this defamation case.
This is one of the instances where, in a civil case, evidence of specific bad acts may be used to prove a character trait.
Under F.R.E. 405, “in cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may be made
by specific instances of that person’s conduct.” Federal Rules of Evidence allow specific instances of misconduct as proof of character in cases in which character is in issue.
F.R.E. 608 states, “Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime, may not be proven by
may not be proved by extrinsic evidence
The exception to FRE 608, on the other hand, extrinsic evidence is permitted to impeach a witness by to prove
Bias. Courts generally permit the impeaching party to prove bias either on cross examination or by adducing extrinsic evidence, either from witnesses or documents.
One method of impeaching a witness is by
sensory defects
The purpose of such impeachment using sensor defects
is to show that the witness does not have knowledge of the fact or facts about which they are testifying. This can be done on cross-examination or by using extrinsic evidence.
Extrinsic evidence cannot be used to impeach on a
collateral matter.
MBE Tip: you must first determine if the question deals with the impeachment of a witness or whether a person’s character is in issue, so
If it is an impeachment question, you must apply Rules 608 and 609. Conversely, if you are confronted with a character evidence question, you should apply Rules 404 and 405. According to F.R.E. 608, “specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s credibility, may not be proved by extrinsic evidence
F.R.E. 609(a) provides:
For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment
F.R.E. 609(b) provides
Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction, unless the court determines in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
F.R.E. 404(a)(1) and (a)(2) require, in a criminal case, that the defendant open the door with either his good character or victim’s bad character before
Usually in a criminal case, on rebuttal, the prosecution may use otherwise inadmissible character evidence for some purpose other than to show the defendant acted in conformity therewith. This evidence will be admissible under F.R.E. 404(b)
Admissions are
Admissions are the words or acts of a party-opponent (or his predecessor or representative) that are offered against him.
Are “admissions” hearsay?
an admission is non- hearsay. A person’s statement related to civil or criminal wrong will be admissible as an admission, and not subject to hearsay
Hearsay is defined under F.R.E. 801(c)
As “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. The hearsay rule applies when the proponent offers the declarant’s assertion for a purpose that requires the trier to accept as true the facts it embodies.
If the particular statement is not being offered for its truth,
then the hearsay rule is inapplicable.
The following types of statements are offered for a purpose other than their truth and are classified as non-hearsay:
(1) verbal acts (e.g., proof of oral utterances by parties in a contract action constituting the offer and/or acceptance); (2) utterances and writings offered to show the effect on hearer or reader (e.g., patron sues a grocery store for injuries sustained from slipping on the contents of a broken ketchup bottle; the store calls a checkout clerk who will testify that he heard the manager call out to the patron: “Lady, please don’t step on the bottle of ketchup.”); and (3) statements disclosing declarant’s state of mind (e.g., witness testifies that several months before testator died, he said, “My nephew is an incorrigible spendthrift who is too lazy to hold a job.”) This declaration is admissible to show that testator intended to omit nephew from his will, not as proof that nephew possessed those traits
under F.R.E. 803(4), a statement made for purposes of medical diagnosis or treatment must
describe “medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”
Medical statements made by person pointing to persons responsible for the condition
are considered irrelevant to medical diagnosis or treatment and do not fall within the exception
F.R.E. 803(1), a present sense impression must
describe or explain an event or condition while the declarant was perceiving the event or condition or immediately thereafter. NOT when time has elapsed.
This difficult Evidence question deals with the evidentiary use of a statement incorporated in an item seized during a warrantless search, (a diary)
Even though the diary was lawfully seized under the “plain view” exception to the warrant requirement and would not be subject to the exclusionary rule, the diary, (i.e., the writing itself) is not what is being offered into evidence.
F.R.E. 803(6), commonly known as the “business records exception,”
excludes from the hearsay rule, even though the declarant is available, the following: “A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. The term ‘business’ as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.” For a business record to be admissible, a foundation must be laid to authenticate the writing.
Who needs to testify about a business record under the hearsay exception
However, note that the declarant of the entry need not testify. The business record may be introduced by either the custodian or a reliable qualified witness with personal knowledge.
F.R.E. 803(8) provides a hearsay exception for records of public office or agencies, setting forth
(a) the activities of the office or (b) a matter observed pursuant to duty imposed by law as to which there is a duty to report. This is equivalent to the business records exception of F.R.E. 803(6)
F.R.E. 803(7) provides
that evidence that a matter is not included in records which qualify under F.R.E. 803(6) is admissible to prove the non-occurrence or nonexistence of the matter (unless the source of information or other circumstances indicate lack of trustworthiness)
F.R.E. 803(10) provides
a similar “non-occurrence” rule for public records. F.R.E. 803(10) permits use of absence of an entry or record to prove the non-occurrence of the matter which would otherwise have caused an entry to be present
The absence of any entry is the equivalent of an out-of-court declaration that the relevant event (registration as a sex offender) never occurred, and thus is being offered “for the truth of the matter asserted, so which FRE 803 exception applies
F.R.E. 803(10) provides an exception that obviates the hearsay rule.
The foundational elements of the public record (or business record) exception may be established by the custodian of the records or any “qualified witness”; a similarly qualified witness may testify that a diligent search failed to disclose any such record.
An excited utterance, under F.R.E. 803(2), is defined as
a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. The neighbor’s testimony as to the victim’s statement moments after he was stabbed will be admissible as an excited utterance.
In Crawford v. Washington [541 U.S. 36 (2004)], the U.S. Supreme Court ruled that the Confrontation Clause
applies to hearsay statements that are testimonial in nature where the hearsay declarant does not testify at trial and the accused did not have any prior opportunity to cross-examine the declarant. In two cases following Crawford, the Court made a distinction between statements made to police to explain what is happening versus statements made to police telling what had happened.
Davis v. Washington and Hammon v. Indiana [547 U.S. 813 (2006)].
Because the primary purpose of the officer’s interrogation was to establish or prove past events potentially relevant to later criminal prosecution, the woman’s statement is testimonial in nature under Crawford, and not admissible
Hearsay exceptions under F.R.E. 804, the declarant
must be unavailable. it is important to point out that a witness is rendered unavailable if he or she simply refuses to testify, despite all appropriate judicial pressure to do so.
Former testimony is defined under F.R.E. 804(b)
as “testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or in civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination”…if the declarant is unavailable as a witness, and is admissible, therefore, not treated as hearsay
F.R.E. 804(b)(4) is commonly known as the pedigree hearsay exception,
and it applies to the following statements of personal or family history made by an unavailable declarant: “ A statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though the declarant had not means of acquiring personal knowledge of the matter stated; or
F.R.E. 803(13), applies to the statements (or written records) made in family
Bibles, inscriptions on family portraits, and engravings on tombstones. A statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other’s family as to be likely to have accurate information concerning the matter declared.”
F.R.E. 611 (c) states: Leading questions
should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. Note that the entire matter of whether or not to allow leading questions is discretionary and the judge’s action will not be reviewed, unless it is charged that it contributed to the denial of a fair trial.
Necessary to differentiate between the spousal communication privilege, and the spousal testimony privilege,
The spousal communication privilege protects confidential communications between the spouses made during the marriage. The spousal testimony privilege, on the other hand, prevents one spouse from testifying against the other in a criminal case. The spousal testimony privilege or incapacity blocks adverse testimony based on knowledge gained in any way, at any time, as long as the accused and the proposed witness are married at the time of trial.
As such, the spousal testimony privilege applies to “pre-marital” acts.
F.R.E. 701, if the witness is not testifying as an expert, the witness’ testimony in the form of opinions or references
is limited to those opinions or inferences that are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.
It is the essence of the attorney-client privilege that it is limited to
those communications which the client either expressly made confidential or which she could reasonably assume under the circumstances would be understood by the attorney as so intended. The witness’ presence in the hallway breaks the privilege. Although the statement was made out-of-court, it is the statement of the defendant and therefore not hearsay, but rather an admission.
