Evidence Tricks/Essay & MBE Approach

Question 1

Issue checklist

Answer 1

1) form; 2) purpose; 3) presentation; 4) presentation; 5) hearsay; 6) privileges

Question 2

Form defined

Answer 2

In what form is the essay question, in what forum, in what sequence is evidence introduced, and is question of counsel quoted?

Question 3

Issues if question of counsel is quoted

Answer 3

Objections to form of question (leading, nonresponsive, calls for a narrative, assumes facts not in evidence, compound, speculation); objections to answers

Question 4

Purpose defined

Answer 4

What is the purpose of introducing the evidence?

Question 5

Issues under purpose

Answer 5

1) logical relevance; 2) legal relevance; 3) character; 4) criminal cases

Question 6

Logical relevancy defined

Answer 6

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

Question 7

Legal relevance defined

Answer 7

prejudicial impact v. probative value; policy exclusions (liability insurance, subsequent remedial conduct, settlement offers, payment or offer to pay medical expenses, guilty pleas)

Question 8

General rule about character evidence admissibility in civil cases

Answer 8

not admissible

Question 9

Exceptions to general rule of character evidence in civil cases

Answer 9

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

Question 10

Character evidence admissibility in criminal cases

Answer 10

admissible when: 1) door is opened; and 2) to prove MIMIC (something other than character)

Question 11

Opening the door

Answer 11

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

Question 12

Ways to open the door by criminal defendant

Answer 12

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

Question 13

Ways to open door by prosecutor without defendant doing it first

Answer 13

for violent sex crimes if defendant committed similar crime in past

Question 14

MIMIC

Answer 14

Motive, Intent, (absence of) Mistake, Identity, Common plan or scheme

Question 15

Presentation defined

Answer 15

How is evidence being presented?

Question 16

Elements under presentation

Answer 16

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

Question 17

4 ways of impeachment

Answer 17

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

Question 18

Types of evidence allowed for character impeachment

Answer 18

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)

Question 19

Hearsay defined

Answer 19

Statement offered for proof of the matter asserted…look for out of court statements introduced

Question 20

Hearsay checklist

Answer 20

1) definition; 2) statements not offered for their truth therefore not hearsay; 3) hearsay exemptions; 4) hearsay exceptions

Question 21

Not hearsay because not offered for truth

Answer 21

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

Question 22

Hearsay exemptions (also not hearsay)

Answer 22

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

Question 23

Hearsay exceptions (hearsay but allowed in)

Answer 23

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

Question 24

Privilege approach

Answer 24

1) Privileged relationship? 2) Confidential communication? 3) holder of privilege? Waived? 4) Exceptions

Question 25

Marital privilege v. spousal privilege

Answer 25

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