MBE Evidence Flashcards
Who is the subject of impeachment?
Witness
What is impeachment about?
Trying to make sure the witness is telling the truth
What is another term for impeachment?
Credibility
Can you impeach your own witness?
Yes
How can you impeach a witness?
1) Contradict what witness says
2) Show bias
3) Prior bad acts
When can you impeach a witness based on bias?
Always. Can always try to show bias to attack credibility
Can you ask a witness about a prior felony conviction?
Only if the conviction occurred within the last 10 years and judge does balancing
Can you ask a witness about a prior conviction relating to honesty/truthfulness?
Yes, always. Regardless if misdemeanor or felony
Can you ask a witness about a prior bad act?
No, unless it relates to honesty/truthfulness
If witness denies something and leaves the stand, can you call another witness to show that the original witness was lying?
No
What is extrinsic evidence?
Outside evidence
What do character questions look like?
Using the witness to say that a party did something bad in the past
Who is the subject of character?
The defendant
Is character evidence usually admissible or inadmissible?
Inadmissible
What are the civil cases exception to general proscription of character evidence?
1) Defamation
2) Child custody
3) Negligent entrustment
4) Misrepresentation
When can you bring in character evidence in a criminal case?
Only when the defendant has opened the door with good character or MIMIC exception
When can defendant bring in evidence of his character?
After plaintiff rests
What kind of character evidence can the defendant bring in?
Evidence relating to his honesty/truthfulness or peacefulness
What happens if defendant brings in evidence of defendant’s good character?
Prosecution can admit evidence of defendant’s bad character
What is the mimic exception to character?
Can bring in evidence of character to show M- Motive I- Intent M- Mistake I- ID C- Common plan/scheme (MO)
What is common plan/scheme?
(MO). Must be personal/signature to the individual
What is habit?
Routine practice
Can prosecution bring in habit evidence?
Yes, to show defendant does something everyday
What is the definition of hearsay?
Out of court statement offered to prove the truth of the matter asserted
What are the hearsay exception?
1) Present sense impression
2) Excited utterance
3) Then existing state of mind
4) Business record
5) Dying declaration
6) Statement against interest
What is a present sense impression?
Hearsay exception re: statements made about what you’re observing while you are observing it
What is an excited utterance?
Hearsay exception re: statement made while excited
What is then existing state of mind?
Hearsay exception re: Emotion or intent
What is an example of then existing state of mind?
Any statement about future plans (“I was going to be in NY that day”) or emotion (“Of course I couldn’t kill her, I love her”
What is the business record hearsay exception?
Record kept in the ordinary or regular course of business. No matter what it is, we do it
What is double hearsay?
Document can come in but need another hearsay exception to admit the statements in the document
What are the elements of dying declaration hearsay exception?
1) Made in belief of impending death
2) about why person is dying
3) Only in homicide cases or civil
4) Now at trial, declarant is unavailable to testify
Is someone available if there is just silence as to their location?
Yes.
Do you presume that a witness is available or unavailable?
Available
What is a statement against interest?
Hearsay exception re: statement against their own interest and they are unavailable
Is an admission a hearsay exception?
No. Non-hearsay
What is the difference between an admission and statement against interest?
Statement against interest is unavailable, admission does not require unavailability
What is an adoptive admission?
Silence when a reasonable person would object
What is a prior inconsistent statement?
Not hearsay re: under oath and subject to cross examination
What is a prior inconsistent statement admissible for?
Impeach and substantive
What is a subsequent remedial measure?
After an accident, someone is trying to fix or repair what happened
What is subsequent remedial measure admissible for?
Ownership and control
What can subsequent remedial measure not be admitted for?
Cannot be admitted to prove negligence or liability
Is an offer to settle/compromise admissible?
No
What is required for an offer to settle/compromise be inadmissible?
Needs to first be a legal dispute
Are admission severable in context of settlement/compromise?
No. Whole thing is inadmissible
Is an offer to pay medical bills admissible?
Not admissible to prove liability
Is an admission severable in the context of offering to pay for medical bills?
Yes
How long does attorney/client relationship last?
Forever
Can you waive privilege of attorney/client communications?
Yes, but never infer waiver
What are the exceptions to attorney/client privilege?
1) Seeking advice to commit crimes
2) Any conflicts with the lawyer himself (ex: attorney’s fees)
When can either spouse stop the other from disclosing something?
Spousal communications privilege. Just about the communications they had.
What is testimonial privilege?
Between husband and wife and applies only in criminal cases, asking one spouse personal knowledge
Who holds the privilege in testimonial privilege?
Witness holds the privilege
What is doctor/patient privilege?
Communications about the actual medical treatment
Can other people be in the room to still have doctor/patient privilege?
Yes, as long as they are there to assist either the doctor or the patient
What is the best evidence rule?
Someone is trying to submit a document, and the original is the best
If the original document is unavailable can you use a copy as the best evidence?
Yes, so long as the copy is authenticated
What does it mean for a document to be authenticated?
Not subject to any tampering
What is the presumption of tampering relating to document?
Presumption is that it is authentic, unless you see evidence to the contrary
When does best evidence rule apply/does it matter whether you have a copy and it’s authentic?
1) Trying to prove contents of the document itself
2) No other way to prove/corroborate a witness’s testimony but for the document itself
Who can be a witness?
Anyone
What can a witness testify about?
Anything that person has personal knowledge of or any common perceptions
How do you admit an expert witness?
Lay a foundation and provide evidence that they are an expert in that area (usually done by resume or CV)
Can an expert witness be impeached?
Yes
In a criminal case, can an expert witness testify as to the defendant’s mental state?
No
What is judicial notice?
Court is going to admit evidence without any proof
What kind of evidence is subject to judicial notice?
Evidence that is not subject to any dispute (accepted as basic information)
If court takes judicial notice of something, what does jury do with it in a criminal case?
Jury may accept it as fact
If court takes judicial notice of something, what does jury do with it in a civil case?
Jury must accept it as fact
What is the threshold question for evidence?
Whether the evidence is relevant
What makes evidence relevant?
1) Material
2) Probative
What makes evidence material?
The proposition is “of consequence: in the case
What makes evidence probative?
The evidence has any tendency to make the proposition more or less likely
What discretion standard does the judge use to determine whether to exclude?
If probative value is substantially outweighed by the danger
What dangers would a judge consider to determine admissibility?
1) Unfair prejudice
2) Confusion
3) Misleading
4) Undue delay
5) Waste of time
6) Cumulative
What is the general rule for similar occurrences?
Inadmissible
What recurring situations would be admissible?
1) Plaintiff’s accident history (prior false claims or same bodily injury)
2) Similar accidents or injuries caused by same event or condition
3) Previous similar acts to prove intent
4) sales of similar property (value)
5) Rebutting claim of impossibility
6) Causation
7) Habit
8) Industry custom
Is evidence that plaintiff filed previous similar tort claims admissible?
No, unless to previous claim was false or was about the same part of body that sustained injury
When is a similar accident or injury caused by the same event or condition admissible?
When it occurred under substantially similar circumstances and being used to prove:
1) existence of a dangerous condition;
2) Dangerous condition was the cause of the present injury; and
3) Defendant had notice of the dangerous condition (if before plaintiff’s accident)
What is absence of complaints admissible for?
Admissible to show defendant’s lack of knowledge of the danger
What are sales of similar properties admissible for?
To prove the property’s value
Example of similar occurrence to rebut claim of impossibility?
Defendant claims car won’t go above 50 mph can be rebutted by showing occasions when the car went above 50 mph
What is habit?
Describes a person’s regular response to a specific set of circumstances
What are the two defining characteristics of habit?
1) frequency of conduct (repeated)
2) particularity of circumstances
Is habit evidence admissible?
Yes, to show person (or organization) acted in accordance with the habit
What is industry practice admissible for?
To show appropriate standard of care
What is industry practice not conclusive of?
Appropriate standard of care (an entire industry may be acting negligently)
What is liability insurance inadmissible for?
To prove negligence or ability to pay
What is liability insurance admissible for?
To prove ownership or control, impeachment, or as part of an admission of liability (ex: “Don’t worry, my insurance will pay it off”)
What are subsequent remedial measures inadmissible for?
1) to prove negligence,
2) culpable conduct,
3) a defect in a product or design,
4) need for a warning or instruction
What are subsequent remedial measures admissible for?
1) to prove ownership or control
2) rebut a claim that precautions were impossible
3) prove destruction of evidence
What are settlement offers or negotiations inadmissible for?
1) to prove or disprove the validity or amount of a disputed claim
2) impeach by prior inconsistent statement
3) impeach by contradiction
What are offers to pay and payment of medical expenses inadmissible for?
To prove culpable conduct
Are admissions of fact accompanying an offer to pay medical expenses admissible?
Yes
What pleas are inadmissible in civil or criminal cases against the defendant who made the plea?
1) offers to plead guilty;
2) withdrawn guilty pleas
3) actual pleas of nolo contendere
4) statement of facts during any of the above plea discussions
Is actual guilty plea admissible?
Usually, as a statement of an opposing party
If offer to pay medical expenses is coupled with an admission of liability, what, if anything, is admissible?
The admission as a statement by an opposing party
What is required for business record exception to hearsay?
Needs to at least be related to the nature of the business
If post bail, and then try to leave the country under an alias, can that evidence be brought in?
Yes because it goes to that person’s consciousness of guilt
What must an expert opinion be based on?
Sufficient facts and date + expert must employ a reliable methodology
What two situations does the best evidence rule apply?
1) Writing is a legally operative or dispositive instrument
2) Knowledge of a witness concerning a fact results from having read it in the writing
When does the best evidence rule not apply?
When the witness has personal knowledge of the fact to be proved
Do you need to authenticate a photograph for it to be admissible?
Generally, photographs and videos are admissible only if identified by a witness as a portrayal of certain facts relevant tot he issue and the witness verifies that it is a fair and accurate representation of those facts
How do you forfeit a hearsay or confrontation clause objection?
By engaging in wrongful conduct FOR THE PURPOSE OF preventing the declarant from testifying (prevent trial testimony)
When should the court instruct the jury on a lesser offense?
Upon motion (can be by D), the jury may rationally acquit the defendant of the charged offense but convict on the lesser offense based on the evidence
Can you make an objection about a witness’ testimony after they have left the stand?
No, that’s untimely
What is the effect of not providing a specific basis for objection?
Failed to preserve the objection for appeal
What is the limitation to statement against penal interest?
Needs to be corroborated
What makes a statement non-testimonial?
If it was not made for the primary purpose of assisting with a criminal investigation
Does Sixth Amendment apply to testimonial statements?
Yes, 6th Amendment Confrontation Clause
What is a statement against interest?
A statement of a person (now unavailable) made against that person’s pecuniary, proprietary, or penal interest when made, such that a reasonable person in the declarant’s position would have made it only if they believed it to be true
What is the effect of a judge giving the jury an inapplicable instruction?
Plain error if affecting the person’s substantive rights
When can’t you bring in extrinsic evidence?
Can’t bring in extrinsic evidence only for prior bad acts?
Can you bring in extrinsic evidence of prior inconsistent statement to impeach?
Prior inconsistent statement if witness given a chance to explain or deny the prior consistent statement?
Is the identity of a client privileged?
No
Can a treatise be introduced as substantive evidence?
Yes, if expert is on the stand and it’s called to his attention and it is established as reliable authority
Can the contents of voluminous files be admissible as a chart?
Yes, as long as the original documents are available to the other party for examination and copying
Do you need to pose a hypothetical question to an expert to elicit their opinion?
No
Who can testify as to someone’s handwriting or inspect the handwriting?
expert, trier of fact, someone who saw the handwriting BEFORE trial
What is needed to exclude a statement on the basis of a settlement negotiation?
There must be a dispute between the parties
What is a family record and is it admissible?
Statement of fact concerning personal or family history contained in family bibles, genealogies, tombstones, are admissible hearsay
Once a defendant has raised an entrapment defense, what may the prosecution do in rebuttal?
Introduce prior related convictions as substantive evidence to disprove the entrapment defense by showing the defendant’s willingness to commit the crime as relevant prior misconduct`
Can you use the statement of an employee as an exclusion from hearsay?
Yes, if it is within the scope of their duties
Who can place a person’s mental state into controversy so that a medical exam may be required?
Anyone
Can the court admit ireelevant evidence?
A court may–but does not have to–admit irrelevant evidence if the evidence is curative and rebuts previously admitted irrelevant evidence and the curative evidence is not prejudicial (doesn’t matter if didn’t object)
Can Defendant bring in evidence of victim’s character even if not on murder?
Yes, in self- defense cases
Can you challenge an experts qualifications even after the court has said the expert can testify?
Yes because challenging the witness’ qualifications is relevant to the weight given to the witness’ opinion
For a lay witness to properly authenticate handwriting, when would it not be okay for the witness to testify as to the handwriting/signature?
When the witness’ familiarity with the handwriting was acquired solely for the purpose of litigation
What is the recorded recollection exception to hearsay?
If a witness’ memory cannot be revived and properly authenticated, can bring in that memorandum/note that they made before when they did have knowledge of it
What documents are self-authenticating?
1) Newspapers/periodicals
2) trade inspections, signs, tags, labels
3) official publications
Can the records of an illegal activity come in under the business records exception?
Yes, when all the foundational requirements are met
Can a judge order a defendant to testify first in his own defense?
Yes, the court has broad authority to control the mode and order of examining witnesses and presenting evidence
Can you use statements, even those of fact, made during a civil settlement negotiation in a criminal trial?
No
Can routine practice of an organization come in?
Yes, this is like habit but for a company
Do the rules of evidence apply in probation revocation proceedings?
No
What is the standard for authentication?
Whether there is sufficient evidence to support a finding that the evidence is what the proponent claims it to be
