Evidence MBE Flashcards
Lay Witness
Anyone can be a witness • Testify as to knowledge/perception • Must take oath/affirmation • Judge/juror may not be a witness • Child may be a witness, Lay witness cannot testify to legal conclusions
Expert Witness
1) Lay foundation/qualify the expert 2) Can use outside evidence 3) Can give opinion on conclusion 4) CANNOT give opinion on mental state of defendant if element of crime
Control of Witnesses
The Court can take steps to keep “Reasonable Control”
Leading Questions Not Allowed on Direct Exceptions
Cross-examination • Hostile witness • Adverse party • Shy witness/child • Jog memory • Lay foundation
Refreshing Memory/Recollection
1) May show anything to witness 2) But NOT read into evidence
Witnesses Must Not be Present in Courtroom Exceptions
If they are a party • Statute allows • Needed
Judge
Rules of Law + Admissibility
Jury
Questions of Fact + Weight
Objection to Admission
1) Timely 2) Grounds
Offer of Proof
1) Evidence was excluded 2) Preserves for appeal
Burden of Production
The plaintiff/prosecution must prove each element
Burden of Persuasion Civil
Preponderance of the evidence (51%+)
Burden of Persuasion Criminal
Beyond a reasonable doubt
Definition - Presumption
Conclusion the judge must come to once a party meets its burden
Rebuttable Presumption
If the presumption is rebutted with evidence - the jury MAY conclude • If the presumption is NOT rebutted - the jury MUST conclude
Conclusive Presumption
No rebuttal evidence may be offered
Impeachment
Attacking witness credibility • Generally admissible, Look for two statements in impeachment questions
Prior Felony Convictions
1) Felony within 10 years 2) Passes balancing test
Prior Convictions Regarding Honesty/ Truthfulness
1) Felony or Misdemeanor 2)Proved by reputation, opinion, or acts
Prior Bad Acts (Not Convictions)
In general - Not Admissible • Regarding honesty/truthfulness - Admissible • No extrinsic evidence
Collateral Matter
Not relevant to the case • Cannot be used to impeach
Relevant Evidence
Any tendency to make a fact more or less probable • Generally ADMISSIBLE
Relevant Evidence is EXCLUDED if
Unfairly Prejudicial • Misleads or Confuses the Jury • Causes Delay
Authentication
Must show “the evidence is what it purports to be”
How to Authenticate
Direct Testimony • Special Markings • Testimony with PERSONAL KNOWLEDGE
Self-Authenticating
Look for an Official/Notarized Document • Does NOT require additional testimony
Character Evidence
Bad things the DEFENDANT did in the past • NOT Admissible • Too prejudicial
Character ADMISSIBLE in CIVIL cases when at Issue
Defamation • Child Custody • Negligent Entrustment • Misrepresentation/Fraud
When Character is at Issue
Can be proven by reputation, opinion, and specific acts
Character ADMISSIBLE in CRIMINAL cases
Defendant OPENS THE DOOR • Defendant introduces evidence of pertinent trait • Prosecution can rebut evidence of same trait
Character to show MIMIC is ADMISSIBLE
Motive • Intent • Mistake (absence of) • Identification • Common Plan or Scheme
Self-Defense Claim
Defendant CAN show plaintiff was initial aggressor
Prior Acts of Child Molestation
Other instances of child molestation are ADMISSIBLE
Habit Evidence
Routine Practice • ADMISSIBLE if habit is done all the time
Attorney/Client Privilege
1) There must be a RELATIONSHIP 2) Applies to ANYONE who works for the attorney 3) Lasts FOREVER 4) Communication must be CONFIDENTIAL Privilege is Held by the CLIENT
Work Product
Generally protected by Attorney/Client Privilege
Exceptions to Attorney/Client Privilege
Getting advice on how to commit a crime • Dispute between Attorney & Client
DOCTOR/PATIENT PRIVILEGE
Statements about treatment or diagnosis • Others can be present to assist doctor/patient
Exceptions to doctor/patient privilege
1) Patient puts his condition at issue 2) Dispute between Doctor & Patient
Spousal Communication Privilege
Protects confidential information disclosed during marriage
Communication Privilege Applies
Civil or Criminal • Survives divorce • Either spouse may exert privilege • Both spouses must waive
Spousal Testimonial Privilege
Prevents a spouse from testifying
Testimonial Privilege Applies
CRIMINAL case only • Must be legally married at trial • Covers events before/during marriage • ENDS with divorce • Witness-spouse holds the privilege
Exceptions to spousal pivilege
1) Statements about future crimes 2) Statements about child or spousal abuse
JUDICIAL NOTICE
Any evidence not subject to dispute • No opinions
When to Take Judicial Notice
Judge MAY - whether requested or not • Judge MUST - if requested by a party
Judicial Notice of Law
MUST - federal or state law • MAY - foreign law or municipal ordinance
Jury Instructions for Judicial Notice
Civil Case - Jury MUST accept as conclusive vs. • Criminal Case - Jury MAY accept as conclusive
Subsequent Remedial Measures
Evidence that something was fixed after an accident • NOT ADMISSIBLE to show negligence • Public policy rule
Exception - Subsequent Remedial Measures
ADMISSIBLE to show ownership/control
Liability Insurance
NOT admissible to show negligence • MAY be admissible to show bias
Offer to Compromise/Settle
NOT admissible for public policy • Must be a dispute between parties
Offer to Compromise + Admission
The WHOLE statement is NOT admissible
Offer to Pay Medical Expenses
NOT admissible for public policy
Offer to Pay Medical Expenses + Admission
Only the ADMISSION is admissible
Plea Negotiations
NOT admissible • ADMISSIBLE with an admissible statement + FAIR
Past Sexual Conduct of Victim
NOT admissible to show other sexual behavior or sexual predisposition
Exception - Past Sexual Conduct of Victim
In a CRIMINAL Case: 1) Shows consent 2) Protects defendant’s constitutional rights 3) The source of any physical evidence In a CIVIL Case: ONLY if the probative value outweighs the prejudicial effect
BEST EVIDENCE General Rule
The Best Evidence is considered the original • The Best Evidence Rule does not apply to objects
Best Evidence Exception
If the original item is lost or destroyed, you may use a copy if it is authenticated
Definition - Authentic
Authentic means no evidence of tampering • Start with the premise the document is authentic
Best Evidence Rule Applies in Two Scenarios
1) To prove the contents of the document 2) To prove the testimony being given
COMPLETENESS RULE
When admitting a portion, the whole document may be admitted for fairness
HEARSAY
Generally Inadmissible
Definition - Hearsay
is an out-of-court statement offered to prove the truth of the matter asserted
Statements NOT Offered for Truth
Words of Offer & Acceptance • Libel or Slander • Verbal Acts to show motive/notice
Present Sense Impression
Statement made while observing fact • Non-emotional observation
Excited Utterance
Statement made while excited • Look for “!”
Then Existing Mental, Emotional, Physical State of Mind
Statements of intent, emotion, or physical state
Business Record
Record made in the ordinary course of the business
Statement for Medical Diagnosis or Treatment
Statement related to past or present symptoms • About the treatment or diagnosis
Recorded Recollection
1) Witness on the stand cannot remember 2) Document made/adopted by witness 3) CAN be read into evidence
Public Record
Record or statement of a public office/ agency • Observations by someone with a duty to report
Absence of Business Record or Public Record
Look for facts to indicate there was NO record
Learned Treatise
Admissible when an expert witness is relying on the treatise
Ancient Document
1) Authentication: document must be more than 20 years old 2) FRE hearsay exception: document must have been prepared before 1998
Catch-All Hearsay Exception
1) Material 2) Trustworthy 3) In the interest of justice
Definition - Unavailable
Unavailable witness means not currently at the trial Does not necessarily mean the witness is deceased
Dying Declaration
1) Unavailability 2) Belief of impending death 3) About cause of death 4) Homicide or civil case
Statement Against Interest
1) Unavailability 2) Makes declarant look liable/guilty 3) Generally made by non-party
Former Testimony
1) Unavailability 2) Opponent was a party to former case 3) Former case about same subject 4) Made under oath 5) Opportunity to cross-examine
Definition - Non-Hearsay
Not an exception • Admissible substantively
Admissions
Statement made by a party • Admissible as NON-HEARSAY
Vicarious Admissions
Statements made by employees about company
Adoptive Admissions
Party does not respond when a reasonable person would object
Prior Consistent Statement
1) Prior statement by declarant 2) The same as current testimony 3) To refute charge of fabrication or motive
Prior Sworn Inconsistent Statement
1) Prior statement by declarant 2) Made under oath 3) INCONSISTENT with current testimony
Prior Identification
Declarant testifying about an earlier identification
Right to Confrontation
Right to confront a witness concerning an out-of-court statement depends on if the statement is TESTIMONIAL
Definition - Non-Testimonial
Statement made to police during an emergency • Admissible
Definition - Testimonial
Statement not made during an emergency • Not Admissible
Physical & Demonstrative Evidence
Generally admissible
Double Hearsay
TWO different statements • NOT Admissible unless both meet an exception or exemption to the rule
