MBE Evidence Flashcards
Impeachment
Impeachment: Attacking the WITNESSES’ credibility.
- about the WITNESS!!!!! Not the defendant (that’s character evidence)
You can use almost anything to impeach a witness as long as it goes to their CREDIBILITY!!! - However, if the Defendant takes the stand (idiot), they become a WITNESS, and thus–IMPEACHMENT (bad prior act) rules apply!
- You can also impeach your OWN witness…
2 WAYS TO IMPEACH
1) Regular Impeachment: Contradicting what the WITNESS testified (said, heard, saw, etc.) OR show their BIAS (motive to lie)
- if you see hypo about cross examining the witness to attack the credibility about what they said or testified using contradicting or incosistent evidence > impeachment
- Showing witnesses’ BIAS always is another way to impeach a witness
VS.
2) Asking a WITNESS about their own PRIOR CONDUCT: 2 Scenarios
A) IF Witness is asked about a prior CONVICTION
i. Conviction for ANY Crime of TRUTHFULLNESS/DISHONESTY - ADMISSIBLE
ii. Other Convictions Silent as to Truthfulness
- Misdemeanors – ADMISSIBLE
- Felony – NOT ADMISSIBLE, UNLESS conviction is within 10 yrs. and passes Balancing test
B) If Witness asked about prior BAD ACT / NON-CONVICTION
- If just a bad act committed by witness (beating someone) – NOT ADMISSIBLE
- If Bad act relates to DISHONESTY (lying, cheating,) MAY ASK WITNESS while on stand, BUT, once they deny it and leave stand, CANNOT BE PROVED via EXTRINSIC EVIDENCE!!!!!
- buzzwords: Impeach, attack CREDIBILITY
Character Evidence
Character Evidence: Evidence of bad things DEFENDANT did in the PAST. (or plaintiff in civil cases) - not witness-based (thats impeachment)
Rule: Generally, character evidence is NOT adminssable – (too prejudicial)
UNLESS:
CIVIL CASES – ONLY when character of Defendant is in issue - 4 Cases
- Defamation (slander, libel)
- Child Custody
- Negligent Entrustment
- Misrepresentation
CRIMINAL CASES – 2 scenarios
1) Only when Defendant “OPENS THE DOOR WITH EVIDENCE OF GOOD CHARACTER”
Rule: After Plaintiff rests, DEFENDANT MAY introduce evidence of their own GOOD character only in the form of REPUTATION or OPINION testimony, NOT specific acts of conduct. THEN the Prosecution can bring in evidence of their BAD character.
- Their evidence of GOOD charachter must be based on the crime they are charged with – evidence of either HONESTY/TRUTHFULLNESS (fraud) or PEACEFULLNESS (murder/battery)
2) MIMIC = To show Motive, Intent, Mistake, ID, Common Plan/Scheme
Rule: Prosecution may bring in circumstantial evidence to show that Defendent did something that meets one of the MIMIC exceptions. Can’t be used to show that they committed the crime or show guilt.
- Common Plan/Scheme: Dexter blood samples. It has to be very specific. Signature move, Particular way, M.O. The way they kinda do it. This is NOT evidence of committing same crime over and over or evidence of using the same weapon.
- Watch out for HABIT EVIDENCE– can be admissable only to show that someone has a “HABIT” of doing something. They do something “ALWAYS”, I.e., “every day”. Can’t be used to show they did the crime.
Ex: John on trial for robbery. Bank teller tesitifies robber had short sleeves on and she saw a NY Jets logo on robbers forearm. Can they make John roll up sleeve to show if he has a NY Jets logo? Yes. Admissable for purpose of showing ID. Not to show that he did the crime.
Look for MBE answer that specifies reason why evidence will be admitted!!
- i.e.,” admissible for purpose of showing “Motive”, “admissible to show habit,” etc.
When in doubt, always over pick the rule, not the exception
* Stick to the default rule, inadmmissable….Wait for them to make it 1000% clear it fits the exception and then pounce on it. BUT MAKE THEM TELL YOU.
Always start with general rule, MAKE THEM tell you facts that make it fall under the exception. dont infer, dont argue.
buzzwords: character, prejudicial, FRE 403 language i.e., “benefits outweigh prejudicial effect”
Hearsay (+Exceptions)
BPET—DS
HEARSAY is an Out of court statement offered to prove the truth of the matter asserted and is NOT ADMISSABLE, * UNLESS Statement fits one of the EXCEPTIONS:
1) Present Sense Impression
- Observations, like a reporter.
- Declarant is talking about something they are witnessing while they are witnessing it. If observations relayed after the fact, it is no longer present sense impression.
2) Excited Utterances
- Statement made while excited!
- Exclamation points !!! show excited utterances.
3) Then Existing State of Mind
- Emotion or Intent State of Mind - Intent of future plans, activity / love, hate
- Intent state of mind - Anything about future plans, activity - I was planning on going to be in New York. I was going to spend the next week living there.
- Emotion state of mind - I couldn’t have killed her, I loved her. I didn’t want to help him, I hated him
4) Business Record
- Record kept in “regular/ordinary course of business” = ALL the TIME…not for a certain projects/clients, or once in a while, must be done all the time!!
- Document itself (are business records, hearsay exception) vs. Entries into the document (statements - non-admissable hearsay)
5) Dying Declaration – HOMICIDE + CIVIL cases ONLY!!! AND Declarant MUST be UNAVAILABLE!
- declarant believes they are dying,
- declarant makes statement about WHY they think they are dying, and
- declarant must be legally UNAVAILABLE to testify. (dead, coma, plead the 5th, lost) DONT INFER!
6) Statement against Interest - Declarant MUST be UNAVAILABLE!
- A (Party or NON-Party’s) statement against their own interest tends to make them liable or guilty of something, a reasonable person would not say it, and they are UNAVAILABLE
- if declarant is a PARTY, the DEFAULT answer is that it is an ADMISSION under Non-Hearsay, (because availability is irrelevant with Admissions) unless they explicitly TELL YOU that the party is LEGALLY UNAVAILABLE, then it becomes a statement against interest hearsay exception.
presumption is that everything a witness says about one statement made in the past is hearsay, i.e., dont get into “truth of the matter asserted” stuff and what they are trying to prove.
know the full definition of exceptions, know all the elements. may make it look like dying declaration but missing 1 element.
Stick to the default rule, inadmissible….ONLY Pick the exception when you are 1000% sure that is what they are talking about. MAKE THEM TELL YOU.
Non-Hearsay
1) ADMISSIONS (by PARTY to the case): One PARTY makes a statement against their own interest tends to make them look liable or guilty. This is the DEFAULT answer choice unless they explicitly TELL YOU that the party is LEGALLY UNAVAILABLE, then it becomes a statement against interest hearsay exception.
- Adoptive admissions – Admission by silence. Silence, when a reasonable person would object to the accusation, is an admission. Reasonable (make them tell you, serious surrounding facts, accusations)
- Vicarious Admissions - Admission by employee making employer vicariously liable. Bus driver saying, “yeah i drink a couple brews before my trips these kids are too annoying”
2) Prior SWORN Inconsistent statement – statement made under oath, subject to cross exam, deposition, affadavit.
Impeachment Q’s – Usually, correct answer is “admissible only to impeach”
- BUT when statement was made UNDER OATH, correct answer will be: “Admissible to impeach, AND as Substantive evidence”
3) Prior Consistent Statement
Admission / Admission by party opponent / Non-Hearsay - all mean the same thing
1) Witnesses vs. 2) Expert Witnesses
Who can they be?
What can they testify?
1) Who can be a WITNESS?
- generally ANYONE = 4 yr. old, and 99 yr. old,
- look for whether the witness knows the difference between a lie and the truth, and understands what’s going on and
- they have PERSONAL KNOWLEDGE, based on their common perception.
2) Who can be an Expert Witness? Judge has to admit expert witnesses to court, how?
- “Lay foundation”, Prove youre an expert (Education, background)
Experts can only testify as to what they have expert knowledge about
- That Expert OPINION May always be cross examined
- In a CRIMINAL CASE, an expert witness may NOT state an opinion on the MENTAL STATE of the DEFENDANT
Subsequent Remedial Measures
CANNOT offer evidence that party fixed something after an injury to prove Negligence or Liability BUT may be offered to show OWNERSHIP or CONTROL.
Against public policy (sometimes buzzword)
Offers to Settle/Compromise
Any statement made as offer to settle a case NOT ADMISSIBLE to show liability!!
- There must a be a LEGAL DISPUTE first, otherwise rule does not apply. (Lawsuit, Complaint, Demand Letter, Lawyers)
Admission coupled with offer to settle
- Admissions are NOT severable, and thus admission is not admissible!!!!! Both are thrown out
Against public policy (sometimes buzzword)
Offers to Pay Medical Expenses
Statement made to offer to pay medical bills also NOT ADMISSIBLE
Admissions coupled with offer to pay medical bills CAN be severed and admissions are ADMISSIBLE
- Admission is admissable, not the medical expenses.
why difference from offers to settle? settling is in favor of public policy, not payment of someones medical bills
Best Evidence Rule
Generally, the ORIGINAL document must be admitted, but BEST EVIDENCE RULE applies only when DOCUMENT IS MATERIAL to the case and trying to prove contents of writing!!
Rule: If the document is material, a copy will be allowed if all effort to find original has been made, and no evidence of tampering, i.e., Must be Authenticated
- Presumption is copy is authentic, i.e., they would have to tell you there was tampering going on, not authentic and cant use copy.
When does it apply? 2 hypo’s they will ask
- Trying to prove contents of the document itself (what’s inside)
- No other way to verify/back up testimony of a witness but for the document
Trying to admit some sort of document and the original of the document is not available (a copy)
Attorney-Client Privilege
Elements:
1) Some sort of relationship with Lawyer - doesn’t mean lawyer needs to be hired, but some sort of consultation, interview.
2) Speaking to Lawyer or anyone working with the lawyer on your case (law clerk, paralegal, researcher, investigator)
- You don’t have to be speaking to the lawyer themself for the privilege to apply
3) Statements must be confidential
- Reasonable expectation of privacy, somewhere there is confidentiality/privacy.
4) Privilege lasts forever unless it is waived
Exceptions:
- Crime/Fraud: no privilege if info is about commiting future fraud/crime! Past crimes is privileged.
- Dispute with attorney - those communcations are not privileged
Husband/Wife Privilege
Spousal Communication - Applies to any type of case. 1 spouse is being asked to disclose confidential communication (conversations) between spouses made while they were married.
- EITHER SPOUSE can refuse to talk and prevent other spouse from disclosing
- survives divorce
Spousal Testimonial - Only applies in criminal cases. 1 spouse testifying against other spouse about what they know.
- The witness spouse holds privilege and can refuse to testify against other spouse
- They have to be married at trial.
Doctor-Patient Privilege
1) Covers communications made for purpose of CURRENT medical treatment!! Past treatments not privileged.
2) Other people can be around and still privilege only if they are there for interest of patient or helping with treatment, i.e., nurses, mommy
Judicial Notice
Judicial Notice (admit evidence as fact with no additional proof or evidence needed)
Rule: Court may take judicial notice if fact is one NOT SUBJECT TO DISPUTE, or opinion (it’s a given, a fact)
* (2+2=4, day of the week, statutes)
* why do they do this? to save time
Rule: Once Court takes Judicial notice of a fact
- CRIMINAL case – Jury is instructed it MAY accept as conclusive that fact.
- CIVIL Case – Jury is instructed it MUST accept as conclusive that fact.
