Evidence MBE Flashcards
Relevance
Evidence is relevant if it is (1) Material (of consequence) and (2) Probative (any tendency to make proposition more or less likely)
General Rule of Admissibility
Relevant evidence is admissible UNLESS it is kept out by (1) Rule 403 (probative value is substantially outweighed by prejudicial effect) OR (2) other exclusionary rule (i.e. hearsay, privilege, public policy exclusion)
Rule 403
A trial judge has discretion to exclude relevant evidence if its PROBATIVE VALUE IS SUBSTANTIALLY OUTWEIGHTED by: danger of unfair prejudice, confusion of the issue, misleading the jury, undue delay, waste of time, needless presentation of repetitive evidence.
Similar Occurrences
Generally inadmissible because it fails the 403 Balancing Test if evidence involves some time, event or person other than that involved in the present case. However, admissible to show:
1. Previous similar false claims to show present claim is likely to be false;
2. Causation of P’s damage by prior injury and not by current accident;
3. Similar accidents to show existence of dangerous condition, causation, and P’s notice.
4. Intent
5. Habit: (1) frequency of conduct and (2) particularity of circumstances
6. Industry custom
Habit
Admissible as CIRCUMSTANCIAL EVIDENCE that person acted in accordance with habit as long as habit contained (1) frequency of conduct and (2) particularity of circumstances.
Public Policy Exclusions
- Liability Insurance
- Subsequent Remedial Measure
- Civil Settlements and Negotiations
- Plea discussions
- Offers to pay medical expenses
Public Policy Exclusions: Liability Insurance
NOT admissible to show negligence, but MAY be admissible to show (1) OWNERSHIP or CONTROL, (2) to show BIAS in impeaching a witness, OR (3) as part of an admission of liability (“don’t worry, my insurance will pay for it”).
Public Policy Exclusions: Subsequent Remedial Measures
May be admissible to prove (1) OWNERSHIP or CONTROL, (2) REBUT claim that a precaution was not feasible, or (3) prove that the opposing party has destroyed evidence. BUT NOT to show negligence, culpable conduct, defect or need for warning.
Public Policy Exclusions: Civil Settlements and Exception
NOT admissible to show (1) validity or amount, or (2) impeach a witness by prior inconsistent statement. BUT, a disputed claim is required (actual claim or imminent claim) and must be in dispute as to (1) liability or (2) amount.
EXCEPTION: for FRE settlement with Gov in Civil Dispute can be offered in criminal case (not applicable in FL).
Public Policy Exclusions: Plea Discussions
Inadmissible:
1. Offers to plead guilty;
2. Withdrawn guilty pleas;
3. Actual pleas of NOLO CONTENDERE;
4. Statements of facts made during plea discussions.
Public Policy Exclusions: Offer to pay medical expenses
Evidence that party has paid or offered to pay for medical expenses is inadmissible to prove liability BUT admission of fact accompanying offer to pay IS ADMISSIBLE.
Character Evidence
Person’s general PROPERNSITY OR DISPOSITION (honesty, fairness, peacefulness, violence).
May be offered to prove:
1. Character if directly at issue in case;
2. Circumstantial evidence of how person probably acted;
3. Evidence of bad character for truthfulness for impeachment purposes.
Methods of Showing Character
- Reputation
- Opinion (NOT in FLORIDA)
- Specific Acts (only in certain instances)
Defendant’s Character in Criminal Case
D can introduce evidence of their own good character to show their innocence. Prosecution can only introduce character evidence IF D “opens the door.”
A character Witness for D can testify as to good REPUTATION or personal OPINION for pertinent trait.
Prosecution can (1) cross-examine character witness about SPECIFIC ACTS of D or (2) call its own character witness to provide REPUTATION or OPINION testimony about D.
Victim’s Character in Criminal Case
D can introduce REPUTATION or OPINION testimony of bad character of Victim when relevant (usually to claim self-defense) (except in sexual assault cases)
Prosecution can rebut with REPUTATION or OPINION testimony of victim’s good character OR D’s bad character.
SPECIAL RULE: in HOMICIDE case, if D claims SELF-DEFENSE, evidence of ANY KIND that victim was first aggressor OPENS DOOR for evidence that victim had good character for PEACEFULNESS.
Rape Victim’s Past Behavior
Sexual behavior of victim generally inadmissible UNLESS to show source of semen, injury or other physical evidence, or to prove consent.
For CIVIL CASES, sexual behavior of victim ONLY admissible if passes REVERSE 403 test (probative value substantially outweighs danger of harm - favors excluding the evidence). To be admissible, it needs to be placed in controversy by victim.
Character in Civil Cases
Generally inadmissible to prove conduct in conformity UNLESS character is directly at issue (defamation, negligent hiring or entrustment, child custody cases).
Other misconduct for NON-CHARACTER purpose
Other misconduct (crimes, wrongs or acts) generally inadmissible to prove conduct in conformity/propensity UNLESS:
(1) Independently relevant for non-propensity purpose (MIMIC: motive, intent, mistake, identity, common plan or scheme); AND
(2) IF there is sufficient evidence for a jury finding that D committed the other misconduct; AND
(3) subject to 403 Balancing Test; AND
(4) IN CRIMINAL CASES ONLY, prosecution provides reasonable notice of evidence of this type in writing.
Defendant’s Similar Misconduct in Sex-Crime Cases
Evidence of a D’s other acts of SEXUAL ASSAULT OR CHILD MOLESTATION is ADMISSIBLE in CRIMINAL OR CIVIL CASE where the D is accused of committing an act of SEXUAL ASSAULT OR CHILD MOLESTATION. Party that intends to disclose must present evidence to D 15 days before trial.
A writing or secondary evidence will not be received in evidence
UNLESS the writing is AUTHENTICATED by proof that shows that the writing is what the proponent claims and the proof is sufficient to support a jury finding of genuineness.
Methods of Writing Authentication
opponent’s admission, eyewitness testimony, handwriting verifications, ancient documents (at least 20 years old), reply letter doctrine (response to communication authenticating writing), self-authenticating documents…
Best Evidence Rule
To prove the content of a writing, recording or photograph, the ORIGINAL WRITING must be produced if the terms of the writing are MATERIAL, UNLESS a satisfactory excuse for the original’s absence is provided.
When does the Best Evidence Rule Apply?
- Where the writing is a legally operative or dispositive instrument (i.e., creates rights and obligations);
- Where the knowledge of a W concerning a fact results from having read it in writing.
Rule DOES NOT APPLY when W has PERSONAL KNOWLEDGE of facts.
Competency of Witnesses
(1) There must be evidence to support a finding that the W has personal knowledge of the matter about which they are to testify; AND
(2) the W must give an oath or affirmation to testify truthfully.
Witness Questioning: Leading Questions
Generally ONLY allowed on cross-examination UNLESS in direct to (1) elicit preliminary or introductory manner; (2) when W needs help responding due to loss of memory, immaturity or physical or mental weakness; OR (3) when the W is hostile, an adverse party, or a W affiliated with an adverse party.
Witness Questioning: Cross-Examination
- Scope of direct examination and reasonable inferences, AND
- Matters that test the CREDIBILITY OF THE W (under impeachment)
Refreshing Recollection vs. Past Recollection Recorded
Refreshing Recollection: W may use any writing for the purpose of refreshing their present recollection BUT may not read from the writing while testifying and will not be authenticated or introduced in evidence.
Recorded Recollection (hearsay within an exception): where W has insufficient recollection a lawyer may read a writing into evidence if PROPER FOUNDATION is laid: (1) insufficient recollection, (2) personal knowledge, (3) writing made by W or at direction of W, (4) when matter was fresh, (5) W vouches for the accuracy of the report.
Opinion Testimony by Lay Witness
Generally inadmissible UNLESS (1) based on W’s perception; (2) helpful to a clear understanding of the W’s testimony or determination of a fact in issue; AND (3) NOT based on scientific, technical or other specialized knowledge.
In FL: (1) W cannot readily and with equal accuracy and adequacy communicate what they have perceived without testifying in the form of inferences and opinions; (2) W’s use of inferences or opinions do not mislead the jury; (3) opinion does not require specialized knowledge or training.
