Evidence MBE Flashcards
Public records exception elements:
- factual findings (including opinions and conclusions)
- resulting from an investigation made pursuant to AUTHORITY GRANTED BY LAW
- unless the circumstances indicate a lack of trustworthiness
Attorney Client Privilege: when doesn’t it apply?
In suits between two parties who were once represented by the same attorney OR if a third party was present during the lawyer’s talk with the client
Rule 403 balancing: when is evidence excluded?
When the probative value is substantially outweighed by the prejudicial value
Character evidence, when can D have a witness present it about D?
When it relates to a trait involved in the case.
Confidential marital privilege:can it be asserted in an action between the spouses?
NO
When will a witness not be considered “unavailable?”
When no attempt was made to procure witness’s attendance.
Recorded recollection:
When witness cannot remember sufficiently even after consulting a writing, the writing may be READ INTO evidence (does not go back with jury)
- witness cannot testify fully and accurately based on memory alone
- witness had personal knowledge at an earlier time
- writing was either made by the witness or adopted by witness when memory was fresh
- writing is true and accurate
Refreshing recollection:
you can use any writing to refresh. The writing is not put into evidence unless the other side wants it in.
When is the confrontation clause triggered?
Only criminal cases when evidence is offered against D
Not admissible when:
Testimonial evidence and declarant is unavailable at trial AND D had no opportunity to cross examine
How is the confrontation clause satisfied?
(1) testifies on the stand OR (2) unavailable but D previously had an opportunity to cross examine
When is evidence relevant?
If has any tendency to make a material fact more or less probable than would be the case without the evidence.
Rule about relevant evidence
All relevant evidence is admissible UNLESS
- some specific exclusionary rule is applicable OR
- court determines that the probative value is substantially outweighed by its negative effects
What should be given when evidence is admitted for only one purpose, but not another?
Limiting instruction and balancing test if requested
When can evidence of subsequent remedial measures come in?
When ordered by a third party OR
when offered to prove feasibility or ownership (if in dispute)
What if you make statements to a government agency in a settlement talk, when can this be admitted?
In a subsequent criminal case regarding a related manner
gov’t agencies will share info
How can a guilty plea be later admitted?
Admission by a party opponent
MBE: offer to pay medical bills
Offer to pay bills is inadmissible, but any accompanying statement of fault IS ADMISSIBLE
General rule about character evidence
Inadmissible when offered to prove that a person acted in conformity w/ his character on a particular occasion
Exceptions: when is character evidence admissible
- character is an essential element of the crime
- accused can offer evidence of good character which opens the door for admission of D’s bad character in rebuttal
- pertinent character trait of victim
- character of a witness for untruthfulness, character for truthfulness in rebuttal
What is the rule of specific acts?
No specific acts are allowed on direct (except if character is an essential element of a claim or defense)
GA exception: criminal D can testify about his specific acts
Homicide case: D opening the door by suggesting self defense
If D offers evidence of any kind that victim was the first aggressor, prosecution may introduce evidence of the victim’s character for peacefulness
Rape victim shield law: what is generally inadmissible
- sexual propensity of the victim
- specific sexual behavior or attitudes of the victim
When are D’s other crimes, wrongs, or acts allowed in a civil or criminal case in the case in chief? (404b)
When they are used for non character purpose, subject to balancing test:
Motive Intent Knowledge Identity Plan or scheme Absence of mistake Opportunity
What must P do if it wants to offer “other crimes or acts”?
If D requests notice, P must give pretrial notice of intent to offer other crimes or acts. Judge must perform balancing test.
When is prior similar sexual misconduct admissible?
Admissible in case-in-chief for civil and criminal cases alleging sexual assault or child molestation
*allowed to show propensity
Are similar injuries or losses caused by a thing admissible?
Yes, if relevant. Relevance is determined by the substantial similarity test.
(if other incidents were substantially similar)
