Evidence - MBE Flashcards
Relevance:
Relevant evidence can still be excluded if its probative value is outweighed by PRAGMATIC CONSIDERATIONS. What are the pragmatic considerations?
- Unfair prejudice
- Confusion of the issues
- Misleading the jury
- Undue delay
- Waste of time*
- Cumulative
*NOT in TX
Relevance:
Habit evidence has two distinguishing characteristics:
1) REPETITIVE – the person does this a lot
2) REFLEXIVE – the person usually responds this way to these particular circumstances
Relevance:
The fact that D had insurance is generally excluded on public policy grounds.
Are there any exceptions to this rule?
- Show that D had ownership/control of something
- Show the location of something
- Impeachment
- For the first two:
- These things must be in dispute
- The party should request a limiting instruction
Relevance:
The fact that D took subsequent remedial measures is generally excluded on public policy grounds.
Are there any exceptions to this rule?
- Show that D had ownership/control of something
- Show that fixing the defect was feasible
- These things must be in dispute
- The party should request a limiting instruction
*IN TX: In products liability suit, written notice of a defect can be used as evidence that there was a defect.
Relevance:
Statements made during settlement negotiations are generally excluded on public policy grounds.
Are there any exceptions to this rule?
- Impeachment (BIAS)
Relevance:
Can any of the following (criminal pleas) be used against the defendant in a CRIMINAL or CIVIL trial?
- Offer to plead guilty
- Guilty plea
- Guilty plea (withdrawn)
- No contest
ONLY a guilty plea (NOT withdrawn) can be used against the defendant, and only in a subsequent CIVIL trial.
It comes in as a PARTY ADMISSION.
Relevance:
Evidence that D offered to pay P’s medical expenses is generally excluded on public policy grounds.
Are there any exceptions to this rule?
- Statements of FACT made in conjunction with the offer ARE ADMISSIBLE
Can statements of fact made during settlement negotiations or offers to pay medical expenses come in?
E.g.
“Yes, my light was red and yours was green. But how about I pay $$ in damages instead of $$$?”
“Sorry I ran that red light! Here, let me pay for your hospital bills.”
During settlement: NO
During offer to pay med: YES
Character evidence:
CRIMINAL CASE: D injured V but claims he was acting in self-defense. Offers character evidence that V is a violent person.
Can the other side offer:
- Evidence that V is peaceful
- Evidence that V is honest
- Evidence that D is violent?
FRE:
- Yes—D opened the door
- No—has to be the same ch trait
- Yes—D opened the door for the victim, and that opens the door all the way
TX:
- Yes
- No
- NO—D can only open the door halfway (not for himself also)
Character evidence:
What is the rape shield law and what does it keep out, let in?
Does it apply in civil AND criminal cases?
Where D is accused of sexual misconduct, evidence about the VICTIM’S past sexual behavior cannot come in.
EXCEPTIONS—V’s sexual history can come in to show:
- V actually had sex with someone else, not D
- V has consented with D before, so V consented here too
FRE—applies in civil AND criminal
TX—ONLY criminal
Character evidence:
D is sued for negligence. Can he offer evidence of his good character (open the door), and can the plaintiff respond with evidence of his bad character?
NO—character evidence is generally INADMISSIBLE in civil cases.
- Doesn’t mean that SPECIFIC bad acts can’t come in (MIMIC). You just can’t have opinion/reputation testimony about a person’s character in a federal civil trial.
- Doesn’t mean that you can’t IMPEACH a WITNESS with opinion/reputation evidence showing they are untruthful.
- TX does allow character evidence in a civil trial if D is accused of conduct involving MORAL TURPITUDE
Character evidence:
CIVIL CASE: D injured V but claims he was acting in self-defense. Offers character evidence that V is a violent person.
Can the other side offer:
- Evidence that V is peaceful
- Evidence that V is honest
- Evidence that D is violent?
NO—character evidence is generally INADMISSIBLE in civil cases.
*TX would allow this
Character evidence:
When can character evidence be offered in a civil trial (FRE)?
ONLY if character is IN ISSUE
e.g. negligent hiring and entrustment, defamation
Character evidence:
D wants to offer character evidence. Assuming it’s admissible, how is he supposed present the evidence?
- Reputation testimony
- Opinion testimony
Character evidence:
CIVIL or CRIMINAL CASE: For what purposes can one party introduce evidence of crimes the other party has committed?
Only to show something OTHER THAN CHARACTER:
MIMIC
- Motive
- Intent
- Mistake, or absence thereof
- Identity
- Common scheme or plan
*BUT these issues have to be in dispute first.
Witnesses:
What can an expert witness base his opinion on?
- Personal knowledge (duh, every witness can do this)
- Evidence in the record
- Outside the record—if reasonably relied upon by experts in that field
Impeachment:
What are the different grounds for impeachment?
- Prior inconsistent statement
- Bias
- Sensory deficiencies
- Bad character (untruthful)
- Contradiction
Impeachment:
Prior inconsistent statement:
- Can the statement be admitted as substantive evidence?
- Do you have to confront the witness with the statement before you can use it?
SUBSTANTIVE EV:
- Only if it meets a hearsay exception (under oath)
CONFRONT:
- Just have to let the witness respond at some point—doesn’t have to be BEFORE you bring in the statement
Impeachment:
Bias:
- Can you introduce extrinsic evidence to prove this?
- Do you have to confront the witness with the statement before you can use it?
EXTRINSIC EV:
- Judge has DISCRETION
CONFRONT:
- Judge has DISCRETION
Impeachment:
Sensory deficiencies:
- Can you introduce extrinsic evidence to prove this?
- Do you have to confront the witness with the statement before you can use it?
EXTRINSIC EV:
- Yes (have to bring in something to prove that someone has bad eyesight, etc.)
CONFRONT:
- Don’t have to
Impeachment:
There are three ways to impeach someone with evidence that they are untruthful. What are they?
- Opinion/reputation (W is an untruthful witness—people in the community all think he’s a liar)
- Criminal CONVICTIONS
- Bad acts (W is an untruthful witness—he did this bad thing one time)*
*CANNOT impeach with these in TX
Authentication:
Prosecution offers a tape recording that places D at the crime. To authenticate it, they use a witness familiar with the sound of D’s voice. The witness did not become familiar with D’s voice until after D was arrested. Is this permissible?
Yes
Impeachment:
D’s witness has been impeached by evidence that the witness has terrible eyesight. Can D rehabilitate the witness?
NO—can only rehabilitate if impeached for untruthfulness:
- Reputation/opinion
- Prior criminal convictions
- Prior bad acts
