Evidence (MBE) Flashcards
Relevance
Evidence is relevant if it has any tendency to make the existence of any fact of consequence more or less probable
Court’s Discretion to Exclude Relevant Evidence
A trial judge may exclude relevant evidence if its probative value is SUBSTANTIALLY outweighed by: (i) the danger of unfair prejudice, (ii) confusion of the issues, (iii) undue delay, (iv) or misleading the jury
Unfair surprise is NOT A REASON to exclude relevant evidence.
Similar Occurrences Rule
If evidence involves some time, event or person other than that involved in the present case, it is INADMISSIBLE.
Similar Occurrences Exceptions
(i) Prior similar false claims or bodily injury (other than carelessness), (ii) similar accidents or injuries caused by the same event or condition, and (iii) habit
Habit and Business Routine Evidence
Evidence of a person’s habit is admissible to show that the person acted in accordance with the habit, so long as the following are elements are shown: (i) FREQUENCY of conduct, and (ii) PARTICULARITY of circumstances
Liability Insurance (Public Policy Exclusion)
Evidence of a party’s insurance against liability (or lack thereof) is NOT ADMISSIBLE to prove NEGLIGENCE.
However, it may be admissible to prove: (i) OWNERSHIP or control, (ii) to IMPEACH (usually for bias), or (iii) admission of LIABILITY.
Subsequent Remedial Measures (Public Policy Exclusion)
Evidence of repairs or other precautionary measures made following an injury is NOT ADMISSIBLE to prove: (i) negligence, (ii) culpable conduct, (iii) a defect, or (iv) need for a warning or instruction.
However, it may be admissible to prove: (i) ownership, (ii) rebut a claim that precaution was not feasible, or (iii) to prove that the opposing party has destroyed evidence.
Civil Settlements and Settlement Negotiations (Public Policy Exclusion)
Evidence of a settlement or offer to compromise a civil claim is NOT ADMISSIBLE in any case to prove: (i) the validity or amount of a disputed claim, or (ii) impeach a witness by prior inconsistent statement or contradiction.
This public policy exclusion only applies if there was an indication that a party was going to MAKE A CLAIM, and the claim must have been in dispute as to either: (i) LIABILITY, or (ii) AMOUNT.
Civil Dispute with Government Authority Exception (Public Policy Exclusion)
In CRIMINAL CASE, conduct or statements made during compromise negotiations about a civil dispute with a governmental regulatory authority are NOT EXCLUDED.
Plea Discussions (Public Policy Exclusion)
The following are generally INADMISSIBLE in any criminal or civil case against the defendant: (i) OFFERS to plead guilty, (ii) WITHDRAWN guilty pleas, (iii) actual pleas of NOLO CONTENDERE (no contest), and (iv) STATEMENTS of fact made during plea discussions.
Note: An actual guilty plea (not withdrawn) is generally ADMISSIBLE as a statement of an opposing party.
Offers to Pay Medical Expenses (Public Policy Exclusion)
Evidence that a party has paid or offered to pay an injured person’s medical, hospital, or similar expenses is INADMISSIBLE to prove liability for the injury.
However, unlike settlement negotiations, ADMISSIONS OF FACT accompanying such payments and offers are ADMISSIBLE.
Character Evidence: Methods of Proving Character
(i) Evidence of the person’s SPECIFIC ACTS, (ii) OPINION testimony of a witness who knows the person, or (iii) REPUTATION in the community.
Character Evidence: Defendant’s Character in a Criminal Case
The prosecution CANNOT initiate evidence of the defendant’s bad character to show conformity. However, the defendant is PERMITTED to introduce evidence of their own good character through reputation and opinion (NOT specific acts) to show their innocence. If done, then the prosecution can REBUT with evidence of defendant’s bad character.
Character Evidence: Prosecution’s Cross-Examination of Defendant’s Character Witness and Rebutal
Once the defendant opens the door by introducing character evidence, the prosecution may: (i) cross-examine the defendant’s witness asking about SPECIFIC ACTS to show witness’s lack of knowledge, NOT TO PROVE defendant’s bad character, or (ii) call its own witness to provide REPUTATION or OPINION testimony about the defendant’s bad character for the trait in question.
Character Evidence: Evidence of Victim’s Character
In a CRIMIINAL CASE (except for sexual assault), defendant may introduce REPUTATION or OPINION evidence of bad character trait to show the victim was likely to be the first aggressor.
The prosecution may REBUT with reputation or opinion evidence of: (i) victim’s GOOD CHARACTER, or (ii) defendant’s BAD CHARACTER for the SAME TRAIT.
Character Evidence: When Prosecution Can Initiate
In a HOMICIDE case in which the defendant pleads SELF-DEFENSE, the prosecution can offer evidence of a victim’s GOOD CHARACTER for peacefulness, regardless of whether the defendant has introduced character evidence of the victim’s violent propensity
Character Evidence: Civil Cases Generally
In civil cases, character evidence is generally INADMISSIBLE to prove conformity, unless character is an ESSENTIAL ELEMENT of a claim, such as: (i) defamation, (ii) negligent hiring or entrustment, and (iii) child custody cases, then ALL FORMS of character evidence are admissible.
Character Evidence: Other Misconduct for Non-Character Purposes
Character evidence can be used to show other necessary information for trial, other than propensity to commit the crime, such as (MIMIC): motive, intent, absence of mistake, identity, or common plan.
Authentication of Writing and Spoken Statements Rule
A writing must be authenticated by proof that shows the writing is what the proponent claims it is.
Methods of Authenticating Writing
The following are examples of proper authentication of writing: (i) opponent’s admission, (ii) eyewitness testimony, (iii) handwriting verifications (lay witness with familiarity or expert who has compared the writing)
Writings: Ancient Documents
A document can be authenticated by evidence if it: (i) is at least 20 YEARS OLD, (ii) is in a condition that creates no suspicion as to authenticity, and (iii) was found in a place where such writing would likely be kept.
Best Evidence Rule
To prove the content of a writing, the original must be produced if the terms of the writing are material. Oral testimony is only admissible if the proponent provides a satisfactory excuse for the original’s absence.
Applies where the writing is LEGALLY OPERATIVE/DISPOSITIVE or where the knowledge of a witness results from having read it in the writing.
Dead Man Act
In CIVIL cases, an interested person is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successor in interest of the deceased.
There is no Dead Man Act in Federal law, so any MBE question would need to assert the court is using the Dead Man Act from state law.
Using Documents to Aid Oral Testimony: Refreshing Recollection
A witness may use any writing or object for the purpose of refreshing their PRESENT RECOLLECTION. They usually may not read from the writing while testifying.
Using Documents to Aid Oral Testimony: Adverse Party’s Options after Refreshing Recollection
Whenever a witness has used a writing to refresh their memory while on the stand, an adverse party is entitled to: (i) have the writing produced at trial, (ii) cross-examine the witness about the writing, and (iii) introduce portions of the writing relating to the witness’s testimony into evidence.
Using Documents to Aid Oral Testimony: Past Recollection Recorded
A memorandum or another record may be READ INTO EVIDENCE if a proper foundation is laid where a witness states that they have insufficient recollection of an event, even after they have consulted the record. The foundation must include proof that: (i) the witness has INSUFFICIENT recollection, (ii) the witness had PERSONAL KNOWLEDGE of the facts when the record was made, (iii) the record was MADE BY THE WITNESS, (iv) the record was made WHEN THE MATTER WAS FRESH, and (v) witness VOUCHES FOR THE ACCURACY of the record.
Opinion Testimony by Lay Witness
Opinions by lay (nonexpert) witnesses are generally INADMISSIBLE, unless no better evidence can be obtained. Opinion testimony by lay witness is admissible when it is: (i) based on witness’s perception, (ii) helpful, and (iii) not based on specialized knowledge.
Admissible opinions of lay witnesses include: speed of moving object, general appearance of condition of a person, state of emotion, value of own services, and voice or handwriting identification.
Admissibility of Opinion Testimony by Expert Witness
For expert testimony to be admissible: (i) the subject matter must be one where SCIENTIFIC, TECHNICAL, or other specialized knowledge would assist the trier of fact, (ii) the opinion must be BASED ON SUFFICIENT FACTS, (iii) the opinion must be the product of RELIABLE PRINCIPLES and METHODS, and (iv) the expert must have RELIABLY APPLIED the principles and methods to the facts of the case.
Accrediting or Bolstering a Witness
Generally, a party is NOT PERMITTED to bolster or accredit the testimony of their witness UNITL the witness has been impeached.
However, a party may offer evidence that the witness made a TIMELY COMPLAINT or a PRIOR STATEMENT OF IDENTIFICATION even if this tends to bolster their in-court testimony.
Impeachment Methods
A witness may be impeached BY ANY PARTY with facts specific to the case, such as: (i) prior inconsistent statements, (ii) bias or interest, (iii) sensory deficiencies, (iv) contradictory facts,
Or with general bad character for untruthfulness, such as: (v) opinion or reputation evidence of untruthfulness, (vi) conviction of a crime or (vii) bad acts involving untruthfulness, by cross examination or extrinsic evidence using the following methods: (i) CROSS EXAMINATION, or (ii) EXTRINSIC EVIDENCE.
Impeachment: Prior Inconsistent Statements
A party may show a witness made prior inconsistent statements to impeach a witness, but if under oath, it may be entered into substantively.
Impeachment: Conviction of a Crime
A witness may be impeached by proof of a CONVICTION for the following crimes: (i) ANY CRIME involving dishonesty or false statement, (ii) FELONY not involving dishonesty or false statement and under 10 years since conviction or date of release (witnesses for criminal defendants - probative value must outweigh prejudicial effect/for all other witness - probative value must substantially outweigh prejudicial effect), and (iii) an older conviction if its probative value SUBSTANTIALLY OUTWEIGHS its prejudicial effect and the proponent gives the adverse party reasonable written notice.
Impeachment: Juvenile Convictions
Juvenile offenses are generally NOT ADMISSIBLE for impeachment purposes, unless in a CRIMINAL CASE where the judge has discretion.
Methods of Impeachment of a Hearsay Declarant
A hearsay declarant can be impeached by ANY METHOD, and need not be given an opportunity to explain or deny a prior inconsistent statement.
Impeachment: Rehabilitation
A witness who has been impeached may be rehabilitated on the same basis they were attacked by the following methods: (i) explanation on redirect, (ii) good character for truthfulness, and (iii) prior consistent statement ((1) motive to fabricate or (2) faulty memory).
Hearsay
An out of court statement offered to prove the truth of the matter asserted. Hearsay statements are inadmissible upon appropriate objection unless an exception applies.
Hearsay: Common Non-Truth Statements
The following statements are not hearsay because they are not being offered for the truth of the matter asserted: (i) verbal acts or LEGALLY OPERATIVE FACTS, (ii) statements offered to show their EFFECT ON THE LISTENER or reader, or (iii) statements offered as circumstantial evidence of declarant’s STATE OF MIND.
Hearsay: Hearsay Exemptions
(i) Prior inconsistent statement given by the declarant under penalty of perjury, (ii) prior CONSISTENT statement either offered to rebut a charge that the witness was lying because of MOTIVE or offered to rehabilitate, (iii) statement of IDENTIFICATION, or (iv) statement made or adopted by a party to the action (i.e., spokesperson authorized to speak on her behalf, agent within scope of agency, partner, co-conspirator, or privity in title).
Hearsay Exemptions: Prior Statements
Prior statements by a TESTIFYING WITNESS who is subject to CROSS-EXAMINATION is exempt if: (i) the statement is one of IDENTIFICATION of a person perceived earlier, (ii) is INCONSISTENT with the declarant’s in-court testimony and was given under oath, or (iii) the prior statement is CONSISTENT with the declarant’s in court testimony and is offered to rebut a charge that the witness is lying or exaggerating or offered to rehabilitate a witness who has been impeached on some other ground.
Hearsay Exemption: Statements by an Opposing Party
To qualify, the statement need not have been against the declarant’s interest when made, and may be in the form of an opinion.
Hearsay Exemption: Statements by an Opposing Party - Adoptive Statements (and Silence)
Where a party expressly or impliedly adopts or acquiesces in the statement of another, it may be admissible against them.
Silence may be considered an implied acquiescence to the truth of that statement if the following requirements are met: (i) the party HEARD and UNDERSTOOD the statement, (ii) the party was physically and mentally CAPABLE OF DENYING the statement, and (iii) a reasonable person WOULD HAVE DENIED the accusation.
Hearsay Exemption: Statements by an Opposing Party - Vicarious Statements
Certain statements by another person are admissible against a party because of the relationship between them, such as authorized spokesperson, agents and employees (if (i) within the scope of employment, and (ii) during the existence of the relationship), partners, and co-conspirators.
Similar Occurrences Exceptions - Similar Accidents or Injuries Caused by Same Event or Condition
Evidence of prior accidents or injuries caused by the same event or condition and occurring under substantially similar circumstances is admissible to prove: (i) the EXISTENCE of a dangerous condition, (ii) that the dangerous condition was the CAUSE of the present injury, and (iii) that the defendant had NOTICE of the dangerous condition.
Writings: Main Issues Associated with Writings
1) Authentication, 2) Best Evidence Rule, and 3) Hearsay
Writings: Examples of Authentication
1) Opponent Admission, 2) Eyewitness testimony, 3) lay opinion on handwriting (who has familiarity with writing, not for purposes of litigation), 4) expert opinion, or 5) jury comparison of handwriting.
Opinion Testimony by Expert Witness - Reliability of Testimony
There are four principal Daubert factors courts use to determine the reliability of experts’ principles and methods (TRAP): 1) testing of principle methodology, 2) rate of error, 3) acceptance by experts in the same discipline, and 4) peer review and publication.
Hearsay Exceptions: When Declarant is Unavailable
1) Former Testimony, 2) Statements Against Interest, 3) Dying Declarations, 4) Statements of Personal or Family History, and 5) Statements Offered Against Party Procuring Defendant’s Availability
Hearsay Exceptions: Grounds for Unavailability
1) Privilege, 2) Refusal to Testify, 3) Incapacity due to physical or mental illness, 4) Does not remember, and 5) Absent (beyond reach of subpoena).
Hearsay Exceptions (Unavailability): Former Testimony + Grand Jury Testimony
The testimony of an unavailable witness is admissible if: (i) the testimony was given UNDER OATH, (ii) against whom the testimony is NOW BEING OFFERED (or in a civil case, the party’s predecessor in interest), and (iii) the other party had an OPPORTUNITY and SIMILAR MOTIVE to direct, cross-examine and re-direct.
REMEMBE: Grand jury testimonies are NOT ADMISSIBLE since there is no opportunity to cross-examine declarants.
Hearsay Exceptions (Unavailability): Statements Against Interest
A statement of a person, now unavailable as a witness, may be admissible if it was against that person’s pecuniary, proprietary, or penal interest when made, such that a reasonable person in the declarant’s position would have made it only if they believed it to be true.
The declarant must have had PERSONAL KNOWLEDGE of the facts, and must have been aware that the statement was against their interest AT THE TIME it was made.
Hearsay Exceptions (Unavailability): Statements Against Interest - Criminal Cases
In criminal cases, statements against penal (criminal) interest must be corroborated.
Hearsay Exceptions (Unavailability): Dying Declaration
In HOMICIDE prosecutions or ANY CIVIL CASE, a statement by an unavailable declarant is admissible if: (i) the declarant believed their death was imminent, and (ii) the statement concerned the cause or circumstance.
Hearsay Exceptions (Unavailability): Statements of Personal or Family History
Statements by an unavailable declarant concerning births, marriages, divorces, relationship, genealogical status, etc., are admissible provided that: (i) the declarant is a member of the family or immediately associated with it, and (ii) the statements are based on the declarant’s personal knowledge.
