MBE Evidence Flashcards

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1
Q

FRE do not apply to:

A
  1. Court determinations of a preliminary question of fact governing admissibility
  2. Grand jury proceedings
  3. Criminal proceedings for: issuance of a warrant/summons, preliminary exam of a case, extradition/rendition, bail, sentencing, things to do with probation/supervised release
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2
Q

How to challenge an evidence ruling

A

Objection - if evidence is admitted

Offer of Proof - if evidence is excluded

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3
Q

Judicial Notice

A

Court’s acceptance of a fact as true without requiring formal proof (like that the day was a Friday)

Adjudicative Facts (typically decided by jury): subject to judicial notice if not subject to reasonable dispute because either generally known or can be readily determined from reliable sources

Civil case: instruct jury they are conclusive
Criminal case: instruct jury that it may or may not accept as conclusive

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4
Q

Improper Questions

A

Leading: suggest the answer within the question (no on direct; yes on cross exam)

Compound: requires answers to multiple questions

Assumes Facts Not Yet in Evidence: assumes as true facts that haven’t been established yet

Argumentative: intended to present an argument not elicit a factual response

Calls for conclusion/opinion: requires witness to draw a conclusion or state an opinion they aren’t qualified to make

Repetitive: already asked and answered

Lack of Foundation: failure to establish necessary predicate (like authentication of tangible evidence)

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5
Q

Witnesses that may not be excluded from the courtroom

A

Natural person parties to the case

Individual designated as a representative of non-natural person parties

People essential to a party’s presentation of the case

People whose presence is permitted by statute (i.e., victim)

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6
Q

Burden of Proof

A

Production: legally sufficient evidence for each element of a claim such that a reasonable trier of fact could infer it has been proven

Persuasion

  • Civil: preponderance (clear and convincing sometimes)
  • Criminal: beyond a reasonable doubt
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7
Q

Rebuttable Presumption Impact on Burden of Proof

A

Shift burden of production, NOT persuasion, to the opposing party

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8
Q

Presumption from Destruction of Evidence

A

Rebuttable presumption that the evidence would be unfavorable to the destroying party if the other party establishes:

  1. Destruction was intentional
  2. Evidence is relevant
  3. Alleged victim acted with due diligence as to the destroyed evidence
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9
Q

Relevance

A

Makes the fact at issue more likely than it would be without the evidence

Must be material (related to an issue in the case) and probative (having a tendency to prove or disprove some fact)

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10
Q

When Character Evidence is Allowed

A

Civil: only when character is an essential element of a claim or defense (usually defamation, negligent hiring/entrustment, child custody, etc.)

Criminal: Defendant may introduce evidence of own good character or victim’s bad character (relevant to the charge)
- Once defendant does that, the door opens for prosecution to introduce evidence that victim’s character isn’t bad, AND that defendant’s character IS bad (same trait)

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11
Q

When Specific Bad Acts can be used (MIMIC)

A
Motive
Intent
Absence of Mistake
Identity
Common Plan

Can also be used on cross when examining a character witness

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12
Q

Crimes that can be used to impeach

A

Convictions NOT ARRESTS

Dishonesty/False Statement or Felonies >1 year

If > 10 years ago, must prove probative value outweighs prejudicial effect

Pardons etc. - No
Juvenile records - can’t use against defendant, can use against other witnesses for truthfulness in criminal cases if an adult’s conviction for the same offense would be admissible

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13
Q

Present Recollection Refreshed

A

Witness examines an item to refresh their present recollection, but testimony must be on recollection no the item

Adverse party may inspect the item and enter relevant portions into evidence

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14
Q

Past Recollection Recorded

A

Memo/record of a matter the witness once had knowledge of but can’t remember now

May be admissible under the recorded recollection hearsay exception and red into evidence ONLY if offered by an adverse party

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15
Q

Lay Witness Testimony

A

Usually must be regarding facts they have personal knowledge of

May offer opinions if:

  1. Rationally based on their perception
  2. Helpful to clear understanding of their testimony or determination of a fact at issue
  3. Not based on scientific, technical, or specialized knowledge
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16
Q

Expert Witness Testimony

A

Must be scientific, technical, or of specialized knowledge that helps the trier of fact understand evidence or determine a fact at issue

Most courts say it can’t go to the credibility of a witness (that’s for the jury to decide)

Can’t testify as to whether a defendant had the requisite mental state

17
Q

Qualified Expert Requirements

A
  1. Knowledge, skill, experience, training, or education
  2. Testimony based on sufficient facts/data
  3. Testimony is the product of reliable principles and methods that were applied reliably to the facts of the case
  4. There’s a reasonable degree of certainty (i.e., “probably”)
18
Q

Best Evidence Rule

A

Original (or reliable duplicate) must be produced to prove the contents when the contents are at issue or a witness is relying on the contents when testifying

Originals not required if destroyed in good faith, collateral, or the other party has it and didn’t produce it

Voluminous documents can be introduced as a summary or chart

19
Q

Types of Privileges

A
Attorney-Client
    Work Product
Spousal 
    Spousal Immunity
    Confidential Marital
Physician-Patient (state not federal)
Psychotherapist-Patient
Self-Incrimination 
Clergy-Penitent 
Accountant-Client
Professional Journalist (no federal)
Government
20
Q

Public Policy Exclusions

A
Subsequent Remedial Measures
Compromise Offers/Negotiations
Payment of Medical Expenses
Plea Negotiations
Liability Insurance
Sexual Conduct
21
Q

Hearsay

A

An out-of-court statement offered to prove the truth of the matter asserted

22
Q

Non-Hearsay

A

Witness Prior Statements
- Must be testifying and present at trial
Prior Inconsistent Statements
Prior Consistent Statements
Prior Statement of Identification

Opposing Party Statements

  • Own Words
  • Adoptive Admissions
  • Vicarious Admissions
  • Co-Conspirators
23
Q

Common Non-Hearsay Uses

A

Verbal Acts/Legally Operative Facts
- Offered to prove the statement was made

Effect on the Listener

State of Mind

24
Q

Hearsay Exceptions: Declarant Unavailable

A

Former testimony if opposing party had opportunity/similar motive to cross them then

Dying Declaration (for cause of OWN death)

Statement Against Interest

Statement of Personal/Family History

Statement Against Party that Caused Unavailability

25
Q

Hearsay Exceptions: Declarant Availability Immaterial

A
  1. Present Sense Impression
  2. Excited Utterance
  3. Statement of Mental, Emotional, or Physical Condition
  4. Statement Made for Medical Diagnosis/Treatment
  5. Recorded Recollection
  6. Business Records
  7. Public Records
  8. Learned Treatises
  9. Judgment of Previous Conviction
    • Final Judgment
    • Punishable by death or > 1 year imprisonment
    • Prove any fact essential to sustain judgment
  10. Don’t forget the residual exception
  11. Supported by sufficient guarantees of trustworthiness
  12. More probative than any other evidence the proponent can get through reasonable efforts