Evidence Tricks/Essay & MBE Approach Flashcards
Issue checklist
1) form; 2) purpose; 3) presentation; 4) presentation; 5) hearsay; 6) privileges
Form defined
In what form is the essay question, in what forum, in what sequence is evidence introduced, and is question of counsel quoted?
Issues if question of counsel is quoted
Objections to form of question (leading, nonresponsive, calls for a narrative, assumes facts not in evidence, compound, speculation); objections to answers
Purpose defined
What is the purpose of introducing the evidence?
Issues under purpose
1) logical relevance; 2) legal relevance; 3) character; 4) criminal cases
Logical relevancy defined
Tendency to prove more or less probable than it would be without the evidence; special problems: similar happenings, experiments, prior suits or contracts, negative evidence
Legal relevance defined
prejudicial impact v. probative value; policy exclusions (liability insurance, subsequent remedial conduct, settlement offers, payment or offer to pay medical expenses, guilty pleas)
General rule about character evidence admissibility in civil cases
not admissible
Exceptions to general rule of character evidence in civil cases
usually not admissible unless character at issue or to prove acted in accordance to habit. Cases where character are at issue: 1) defamation; 2) civil fraud; 3) negligent entrustment; 4) child custody; 5) self-defense from tortious assault/battery (victim’s character for violence); 6) loss of consortium
Character evidence admissibility in criminal cases
admissible when: 1) door is opened; and 2) to prove MIMIC (something other than character)
Opening the door
Criminal defendant can open door to his god character (where relevant) w/ reputation or opinion evidence only. No specific acts. Prosecution can rebut with own character witness but rebuttal limited to reputation or opinion only. NO specific acts. But specific acts can be inquired into on cross of a defendant’s character witness
Ways to open the door by criminal defendant
1) criminal defendant introduces it to show own good character; 2) offered to prove bad character of victim (offered by defendant, reputation and opinion on direct, on cross - specific acts too); 3) in rape cases no reputation/opinion allowed, only specific acts to prove either past acts b/w defendant and victim for consent or with third parties for source of semen
Ways to open door by prosecutor without defendant doing it first
for violent sex crimes if defendant committed similar crime in past
MIMIC
Motive, Intent, (absence of) Mistake, Identity, Common plan or scheme
Presentation defined
How is evidence being presented?
Elements under presentation
1) witness (competency, personal knowledge, impeachment (character, bias/motive, defects in memory, perception or knowledge), inconsistent statements); 2) Document reliability (authentication, best evidence rule); 3) opinion testimony (expert and lay); 4) judicial notice; 5) burdens of proof; 6) presumptions
4 ways of impeachment
1) bias (best way); 2) sensory defect; 3) prior inconsistent statement (if it also qualifies under hearsay exception, then it comes in for truth, too, i.e., given under oath; otherwise then only for impeachment); 4) character impeachment
Types of evidence allowed for character impeachment
1) reputation for lying/opinion the other is a liar; 2) prior bad acts - only allowed to impeach a witness on cross of a prior unconvicted act relating to truthfulness; 3) Felony convictions not going to truthfulness - admitted but judge balances; 4) convictions involving dishonesty (felony or misdemeanor) - always allowed in w/o balancing unless 10+ years elapsed, and then let in to impeach if probative value substantially outweighs prejudice (reverse of normal)
Hearsay defined
Statement offered for proof of the matter asserted…look for out of court statements introduced
Hearsay checklist
1) definition; 2) statements not offered for their truth therefore not hearsay; 3) hearsay exemptions; 4) hearsay exceptions
Not hearsay because not offered for truth
1) verbal acts or legally operative facts (e.g., words of contract, defamation); 2) effect on hearer or reader (e.g., proving someone’s notice in a negligence case); 3) circumstantial evidence of declarant’s state of mind; 4) nonhuman declarants
Hearsay exemptions (also not hearsay)
1) Prior statement by witness when: a) prior inconsistent statement, b) prior consistent statement, c) prior identification; 2) Admissions by: a) party opponent, b) vicarious, c) adoptive (tacit), d) co-conspirator in furtherance of a conspiracy
Hearsay exceptions (hearsay but allowed in)
1) Unavailability exceptions: a) declaration against interest, b) dying declaration, c) former testimony; 2) Reliability exceptions: a) excited utterance, b) present sense impression, c) bodily condition, d) present state of mind; 3) Documentary exceptions: a) past recollection recorded, b) business records, c) official records; 4) Other: a) ancient docs, b) learned treatises, c) federal catch-all
Privilege approach
1) Privileged relationship? 2) Confidential communication? 3) holder of privilege? Waived? 4) Exceptions
Marital privilege v. spousal privilege
1) marital privilege applies to confidential communications made during marriage, survives divorce, civil or criminal, both spouses hold; 2) spousal privilege applies to everything both before during and before marriage, regardless of confidentiality, dies at divorce, only belongs to witness spouse
