MBE Evidence Flashcards
Witness’ Personal Knowledge testimony
A non-expert witness must have personal knowledge of a matter in order to testify about it.
Personal knowledge can be established by the witness’s own testimony or other means.
Admissibility of Character Evidence
Evidence about a person’s character used to show they acted in conformity with that character trait, including evidence of specific bad acts used to show that person’s propensity to commit a crime, is generally inadmissible
(subject to exceptions)
who determines if evidence is admissible?
the court
> findings of law = judge
(includes prelim questions that involve some facts)
> findings of fact = jury
preliminary hearings
conducted outside presence of jury when:
> determining admissibility of a confession in a criminal trial
> D is also a witness in a criminal case and they request prelim hearing
> when justice requires (bc there’d be unfair prejudice w/out it)
who decides the weight and credibility of evidence?
the jury
when can a ruling of whether evidence is admissible/inadmissible be later reversed on appeal
(1) a party’s substantial right was affected (not harmless error)
(2) the judge was notified of the mistake and given a chance to correct it
*by IMMEDIATELY objecting to its admission
*by offer or proof of why to admit something if the court had refused
Plain Error Rule
appellate court can sometimes reverse a case if there is a plain error aka obvious on its face
EVEN IF there was no objection/offer of proof to preserve the appeal
when can a court give the jury a limited instruction?
> when the objecting party requests it
bc remember: evidence can be admissible for one purpose but not another
rule of completeness
> if a party introduces parts of written a statement, the opposing party can introduce other parts of that statement so that it makes sense/not taken out of context
can be done immediately
can still be introduced even if they’re otherwise considered inadmissible
but they have to be relevant
judicial notice
court instructs jury to accept an adjudicative fact (ones the jury decides) as true considering it’s not subject to reasonable dispute
> Civil case:
MUST be taken as true
> Criminal case:
MAY be taken as true
can you ask leading questions on direct examination (ur own witness)?
No, except when:
(1) to elicit prelim background info
(2) witness has hard time communicating bc of age/infirmity
(3) when you call a hostile witness
(one from the other side)
present recollection refreshed
witness cant remember so they’re giving a doc ONLY to refresh their memory
> they only read it to themselves
> doc doesn’t become evidence
> OC can see/inspect/give to jury
cross-examination
> limited to the scope of direct aka you can only cross someone on stuff their own attorney asked on direct
courts can allow broader inquiry
you can always use leading Qs
improper Qs that u can object to
> compound Qs
Qs asking about facts not in evidence
Argumentative Qs
Qs calling for a conclusion a witness isn’t qualified to make
repetitive Qs
when must a witness be excluded from the courtroom?
at the request of either party in order to avoid them hearing the testimony of others and piggybacking
witnesses that can never be excluded:
> essential witness to the case
> someone permitted by state rule to remain in the courtroom
> a party in the case
burden of production
vs.
burden of persuasion
> burden of production
coming up w enough evidence for the issue to go to a jury
> burden of persuasion
convincing the jury in ur favor
burden of proof for
- civil cases
- criminal cases
> Civil: preponderance of the evidence
> Criminal: beyond a reasonable doubt
Rebuttable presumption
when burden of proof shifts from one side to the other
(proof= burden of production shifts aka evidence)
if a party destroys evidence what will the court presume?
that the evidence they destroyed was adverse to them
relevance
makes a fact more likely than it would be without the evidence
> evidence is relevant if its material and probative
when can a court exclude relevant evidence?
when the the risk of prejudice substantially outweighs its probative value
(or risk of: confusion of the issues, misleading the jury, waste of time)
what will a judge do when they’re determining relevancy of evidence it its relevance hinges on a question of fact best for the jury?
court will admit the evidence for the jury to decide on that fact later themselves
what is character evidence and is it admissible
character evidence is about someone making an argument that a D acted in conformity w a character trait to prove they’re guilty
> Character evidence can’t be used to prove propensity.
> usually not admissible
(bc the risk of prejudice substantially outweighs the probative value)
has exceptions
when allowed, how you prove character evidence
(1) reputation
(2) opinion
*D cant bring specific acts about their own good character bc it creates mini trial
* can use others to open the door through rep or opinion
*Prosecution can then ask about specific acts by D on cross-examination of WITNESSES ONLY
> CANNOT ask the Defendant themselves on cross, about specific acts
can you use character evidence to make an argument for something other than propensity?
Yes
> Civil:
If character is at issue in the case
- Defamation
- Child custody
- Negligent entrustment
- Misrepresentation
> Criminal:
- MIMIC
can propensity arguments be made to impeach witness?
yes
can you make propensity arguments in civil cases?
almost never; exceptions usually just for crim cases
EXCEPT:
P can make a propensity argument about D in civil cases of child molestation/SA
Character evidence exception:
D’s good character
Prosecution can’t introduce bad character of the D
But after P rests, D can open the door with witnesses who can testify about their good character through:
(1) reputation
(2) opinion
BUT ONLY if it has to do with (1) truthfulness/honesty OR (2) peacefulness
Then prosecution can rebutt and can ask about specific acts but cant prove any incidents; must accept witnesses’ answer
can a D bring evidence of a victim’s character?
Yes, D can introduce evidence of a vic’s pertinent trait
> usually only happens in homicide/assault cases to argue vic started it and D was self-defending
this opens the door for prosecution
> to rebutt w/ reputation or opinion of vic’s character
> accuse D of the same trait D accused vic of
When can prior bad acts be shown?
(1) When D opens the door through rep/opinion of truthfulness or peacefulness and the prosecution gets to cross examine D w prior bad acts
(2) MIMIC exception
MIMIC
exception to character evidence bc its bought for a reason other than to show Ds propensity/guilt
MIMIC:
- Motive
- Intent
- Mistake
- ID (connect D to crime with unique pattern of behavior (ie, criminal signature/MO)
- Common plan/scheme
Habit evidence
admissible to prove that someone’s action was in conformity with their habit
> something that’s routine. regular, automatic
can also show habit of an organization
competence to testify
> personal knowledge +
willing to make an oath to tell the truth
child competency to testify
> personal knowledge
mature enough to testify about obligation to tell the truth
can a juror testify as a witness regarding the validity of a verdict or indictment?
No, unless
> there was extraneous, prejudicial info brought to their attention (like being provided inadmissible evidence)
> there was an outside influence on a juror (bribe/threats)
clerical or technical error made in entering the verdict
juror made clear statement they relied on racial stereotypes when convicting
3 ways to impeach a witness
(1) show witness was dishonest; bad character for truthfulness/untruthfulness
(2) bias
(3) sensory competence
> witness is mistaken in some way bc she didn’t see/hear etc as well as thy thought
*any prior inconsistent statement also ok
3 ways of impeaching a witness through showing bad character for truth
(1) you use a character witness
> they’ll speak to target witnesses’ dishonesty through use of OPINION or REPUTATION ONLY!!
(2) ask abt specific bad acts
> can cross-examine a witness abt bad acts of dishonesty only bc impeachment
you can only ask; not prove. If they deny, drop it
(3) ask abt prior convictions
> felony Qs ok if crime abt truthfulness/dishonesty only.
Qs abt crimes w/ dishonesty/false statements
cant ask if it fails probative test
if witness is the criminal defendant then can only ask abt prior convictions if passes probative test
if conviction more than 10yrs old then (1) must give notice of Q (2) has to pass probative test
Prior Inconsistent Statements
> can be used to impeach a witness
can be proved through extrinsic evidence but only if the witness is then given a chance to explain/deny the evidence
Can a Hearsay Declarant be impeached?
Yes; if hearsay comes in through an exception then declarant it’s kinda acting like a witness and thus can be impeached
3 ways to
Rehabilitate a Witness
(1) give the witness a chance to explain
(2) Prior consistent statement
(3) evidence bolstering the witness’ character for truthfulness (by reputation or opinion) by bringing a witness to testify on that etc
Lay Witnesses
> generally we want facts not opinions
opinions of common sense impressions are admissible (speed, intoxication, appearance etc)
cant opinionate on specialized knowledge
to be admissible, lay witness opinion must be:
> based on their perception
> helpful to a clear understanding
Expert witness:
Daubert test
(1) must be qualified by knowledge, skill, experience, training, education
(2) base testimony on sufficient facts or data
(3) base testimony on reliable principles and methods
(4) apply the principles and methods reliably case facts
can experts express an opinion on ultimate issues?
yes
what CAN’T experts testify to?
> a defendant’s requisite mental state for any crime/defense
> courts generally reject opinions on witness credibility
how do you authenticate real evidence?
(1) personal knowledge (witness recognizes and identifies the item)
(2) distinctive features/markings
(3) chain of custody
how do you authenticate documentary evidence?
(1) By stipulation pf the parties
(2) Eyewitness testimony combined with distinctive features
* Ancient Documents
> at least 20 yrs old, condition unlikely to create suspicion, found in a place where likely authentic
how do you authenticate handwriting?
> expert/jury compares it to known sample
lay witness w personal knowledge of the handwriting
The Best Evidence Rule
(Original Document Rule)
when its contents are at issue we need the doc themselves
A WITNESS can’t describe documents instead of showing them, unless you really need to
so no witness testimony instead of producing the actual doc (duplicate is fine, testimony is not)
is a duplicate of a doc fine?
yes unless
> genuine Q about authenticity of the OG
> to be fair, the OG should be required
can a witness learn something from a recording and then testify about it?
sure but there is a best evidence problem bc instead of describing what they saw on the recording, its better to produce it
*whenever a witness is describing a doc, there’s a best evidence issue
Exceptions to the Best Evidence Rule
> unavailable bc lost/destroyed or OG cant be obtained
public record
admission by party
when will courts allow other evidence of the contents of a document?
when it’s about a collateral matter
how do you waive the attny/client privilege
> failure to assert the privilege
voluntary disclosure
express waiver
lawyer fails to take precaution bc they’re ur agent
when do you use state law privileges instead of federal
When deciding state law issues when sitting in diversity jurisdiction
attorney client privilege
> protects confidential info between client/attorney if communication was to secure legal advice
Doesn’t protect:
> underlying facts beyond the communication
> pre-existing docs
> comm. made in front of unnecessary 3rd parties
attorney client privilege:
if corp is the client, what communcation qualifies?
communication by an employee about matters within the scope of employment for purposes of seeking legal advice
Exceptions attorney client privilege
> future crime or fraud
disputes between lawyer/client
Work-Product Doctrine
docs prepared by lawyer in anticipation of litigation
*unless OC shows a substantial need for the info + and can’t get it w/out undue hardship
When doesn’t the Physician-Patient Privilege apply
> info wasnt for treatment reasons
comm was for some illegal purpose
dispute betwen Dr. and patient
patient agreed to waive the priv
Physician-Patient Privilege
Statements made by a patient to a doctor for the purpose of obtaining medical treatment
Psychotherapist-Patient Privilege
> Applies to communications for treatment purposes, between a patient and psychiatrist, psychologist, or licensed social worker
doesnt apply if:
> comm was bc of a court ordered exam
> taken was part of a commitment proceeding
