Evidence - MBE Flashcards

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1
Q

Relevance:

Relevant evidence can still be excluded if its probative value is outweighed by PRAGMATIC CONSIDERATIONS. What are the pragmatic considerations?

A
  • Unfair prejudice
  • Confusion of the issues
  • Misleading the jury
  • Undue delay
  • Waste of time*
  • Cumulative

*NOT in TX

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2
Q

Relevance:

Habit evidence has two distinguishing characteristics:

A

1) REPETITIVE – the person does this a lot

2) REFLEXIVE – the person usually responds this way to these particular circumstances

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3
Q

Relevance:

The fact that D had insurance is generally excluded on public policy grounds.

Are there any exceptions to this rule?

A
  • 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
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4
Q

Relevance:

The fact that D took subsequent remedial measures is generally excluded on public policy grounds.

Are there any exceptions to this rule?

A
  • 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.

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5
Q

Relevance:

Statements made during settlement negotiations are generally excluded on public policy grounds.

Are there any exceptions to this rule?

A
  • Impeachment (BIAS)
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6
Q

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  • Guilty plea (withdrawn)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
A

ONLY a guilty plea (NOT withdrawn) can be used against the defendant, and only in a subsequent CIVIL trial.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.

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7
Q

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?

A
  • Statements of FACT made in conjunction with the offer ARE ADMISSIBLE
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8
Q

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.”

A

During settlement: NO

During offer to pay med: YES

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9
Q

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?
A

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)
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10
Q

Character evidence:

What is the rape shield law and what does it keep out, let in?

Does it apply in civil AND criminal cases?

A

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

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11
Q

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?

A

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
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12
Q

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?
A

NO—character evidence is generally INADMISSIBLE in civil cases.

*TX would allow this

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13
Q

Character evidence:

When can character evidence be offered in a civil trial (FRE)?

A

ONLY if character is IN ISSUE

e.g. negligent hiring and entrustment, defamation

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14
Q

Character evidence:

D wants to offer character evidence. Assuming it’s admissible, how is he supposed present the evidence?

A
  • Reputation testimony

- Opinion testimony

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15
Q

Character evidence:

CIVIL or CRIMINAL CASE: For what purposes can one party introduce evidence of crimes the other party has committed?

A

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.

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16
Q

Witnesses:

What can an expert witness base his opinion on?

A
  • Personal knowledge (duh, every witness can do this)
  • Evidence in the record
  • Outside the record—if reasonably relied upon by experts in that field
17
Q

Impeachment:

What are the different grounds for impeachment?

A
  • Prior inconsistent statement
  • Bias
  • Sensory deficiencies
  • Bad character (untruthful)
  • Contradiction
18
Q

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?
A

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

19
Q

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?
A

EXTRINSIC EV:
- Judge has DISCRETION

CONFRONT:
- Judge has DISCRETION

20
Q

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?
A

EXTRINSIC EV:
- Yes (have to bring in something to prove that someone has bad eyesight, etc.)

CONFRONT:
- Don’t have to

21
Q

Impeachment:

There are three ways to impeach someone with evidence that they are untruthful. What are they?

A
  • 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

22
Q

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?

A

Yes

23
Q

Impeachment:

D’s witness has been impeached by evidence that the witness has terrible eyesight. Can D rehabilitate the witness?

A

NO—can only rehabilitate if impeached for untruthfulness:

  • Reputation/opinion
  • Prior criminal convictions
  • Prior bad acts