MBE Evidence Flashcards
FRE do not apply to:
- Court determinations of a preliminary question of fact governing admissibility
- Grand jury proceedings
- Criminal proceedings for: issuance of a warrant/summons, preliminary exam of a case, extradition/rendition, bail, sentencing, things to do with probation/supervised release
How to challenge an evidence ruling
Objection - if evidence is admitted
Offer of Proof - if evidence is excluded
Judicial Notice
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
Improper Questions
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)
Witnesses that may not be excluded from the courtroom
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)
Burden of Proof
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
Rebuttable Presumption Impact on Burden of Proof
Shift burden of production, NOT persuasion, to the opposing party
Presumption from Destruction of Evidence
Rebuttable presumption that the evidence would be unfavorable to the destroying party if the other party establishes:
- Destruction was intentional
- Evidence is relevant
- Alleged victim acted with due diligence as to the destroyed evidence
Relevance
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)
When Character Evidence is Allowed
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)
When Specific Bad Acts can be used (MIMIC)
Motive Intent Absence of Mistake Identity Common Plan
Can also be used on cross when examining a character witness
Crimes that can be used to impeach
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
Present Recollection Refreshed
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
Past Recollection Recorded
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
Lay Witness Testimony
Usually must be regarding facts they have personal knowledge of
May offer opinions if:
- Rationally based on their perception
- Helpful to clear understanding of their testimony or determination of a fact at issue
- Not based on scientific, technical, or specialized knowledge
Expert Witness Testimony
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
Qualified Expert Requirements
- Knowledge, skill, experience, training, or education
- Testimony based on sufficient facts/data
- Testimony is the product of reliable principles and methods that were applied reliably to the facts of the case
- There’s a reasonable degree of certainty (i.e., “probably”)
Best Evidence Rule
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
Types of Privileges
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)
GovernmentPublic Policy Exclusions
Subsequent Remedial Measures Compromise Offers/Negotiations Payment of Medical Expenses Plea Negotiations Liability Insurance Sexual Conduct
Hearsay
An out-of-court statement offered to prove the truth of the matter asserted
Non-Hearsay
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
Common Non-Hearsay Uses
Verbal Acts/Legally Operative Facts
- Offered to prove the statement was made
Effect on the Listener
State of Mind
Hearsay Exceptions: Declarant Unavailable
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
Hearsay Exceptions: Declarant Availability Immaterial
- Present Sense Impression
- Excited Utterance
- Statement of Mental, Emotional, or Physical Condition
- Statement Made for Medical Diagnosis/Treatment
- Recorded Recollection
- Business Records
- Public Records
- Learned Treatises
- Judgment of Previous Conviction
- Final Judgment
- Punishable by death or > 1 year imprisonment
- Prove any fact essential to sustain judgment
- Don’t forget the residual exception
- Supported by sufficient guarantees of trustworthiness
- More probative than any other evidence the proponent can get through reasonable efforts
