MBE Evidence Flashcards

Question 1

Q

Evidence - Big Picture

Question 2

Q

Buren of Proof

Civil

Criminal

Answer

A

Civil - Preponderance of the Evidence

Criminal - Each element must be prooved… beyond reasonable doubt

Question 3

Q

JUDICIAL NOTICE

Answer

A

^{A court may recognize a fact as true without formal presentation of evidence, either on its own or upon formal request of a party. Judicially noticeable facts include facts that are:}

^{Capable of verification by a source with unquestionable accuracy (e.g. calendar, alamanac)}
^{Generally known within the jurisdiction}

Mandatory Judicial Notice: Court MUST take judicial notice

Federal and state laws, official regulations.
Indisputable scientific facts (ballistic tests ok, but NOT lie detector)
If requested by Party + Party supplies Information

Discretionary Judicial Notice: Court has DISCRETION to take judicial notice

All other laws. (e.g. municipal ordinances, foreign laws, etc.)

Civil Cases: Jury MUST take judicially noticed facts as conclusive

Criminal Cases: Jury MAY (not required) to accept judicially noticed facts as conclusive

Question 4

Q

Logical Relevance

Direct and Circumstantial Evidence

Answer

A

Evidence is relevant if it tends to make the existence of any fact of consequence more or less probable than it would be without the evidence.

Relevance - makes it more or less probable than without the evidence
Materiality - must relate to the action itself

Direct and Circumstantial Evidence

Direct - does not depend on an inference
Circumstantial - depends on drawing an inference

Irrelevant evidence is inadmissible.

Relevancy is a yes or no question.

Question 5

Q

Relevance: Similar Occurrences

Answer

A

Evidence of Similar Occurrences is usually INADMISSIBLE, but can be relevant if used for non-propensity purposes.

Similar occurrences may be admissible to prove:

“VIP_AIRC”

Value $ _{^{(e.g. similar transactions can establish value)}}
Industry Custom _{^{(to prove standard of care in negligence case)}}
Prior_Accidents Demonstrating:
- Pattern of Fraudulent Claims, or
- Pre-Existing Conditions
Intent or Absence of Mistake
Rebut Impossibility Defenses_{^{* Any time D says something is impossible opens door to rebut defense*}}
Causation

Question 6

Q

Logical Relevance: Similar Accidents

Answer

A

Evidence of other similar accidents may be admissible by Plaintiff to prove a dangerous condition existed or that D was aware of dangerous circumstance.

Need to Show: “substantial identity of material circumstances.”

^{Ex. Other railroad accidents at a particular railroad crossing. P would need to show similar time of day, similar speed, weather conditions, etc. This needs to be particular - aka substantial identity of material circumstances.}

Absence of Similar Circumstances - Offered by P, offer similar accidents to establish Due Care.

Need to Show:
- Substantial identity of material circumstances
- If an accident would have occurred, it would have been observed

Question 7

Q

Logical Relevance:

Similar Lawsuits

Answer

A

Addmissible to show P has brought similar lawsuit (very similar) in the past, which had nearly identical fact pattern.

Ex. P has brought 3 prior suits involving rearend car accident where injury involved whiplash

Still need substantial identity of similar circumstances

Question 8

Q

Logical Relevance - Balancing Test

Answer

A

A court may exclude logically relevant evidence if its probative value is substantially outweighed by the danger of

U_nfair prejudice_, ^{(Can be focused on appeal)}
C_onfusion_ of issues, ^{(Can be focused on appeal)}
M_isleading_ the jury ^{(Can be focused on appeal)}
undue Delay, ^{(NOT appealable)}
Waste of Time ^{(NOT appealable)}
N_eedless presentation_ of C_umulative evidence_ ^{(NOT appealable)}

Probative value is a matter of degree and often arises with evidence that is

(1) emotionally disturbing,
(2) repetitive or disturbing,
(3) admissible for one purpose but inadmissible for another ^{(court excludes to avoid risk of jury using evidence for the improper purpose)}
* Note: Unfair surprise to a party or witness is NOT a valid ground for excluding evidence*

Question 9

Q

EXCLUSION OF RELEVANT EVIDENCE ON PUBLIC POLICY GROUNDS

Liability Insurance

Exceptions

Answer

A

Evidence of liability insurance is NOT admissible to prove fault (negligence) or a party’s ability to pay damages.

Exceptions

Agency
Ownership or Control ^{can use to show I own the truck}
Bias or Interest
Statements made in connection with insurance related to fault. However, must sever the insurance-related portion if possible. ^{gee, that was my fault, I have insurance… would sever insurance and admit guilty plea}

Question 10

Q

EXCLUSION OF RELEVANT EVIDENCE ON PUBLIC POLICY GROUNDS

Subsequent Remedial Measures or Repairs

Answer

A

Evidence of repairs or other remedial measures taken after an injury is

Admissible to Show:

Ownership or Control
Impeachment
Feasibility of Precautions Taken (if controverted) -^{ADMISSIBLE to REBUT a Defense that there was not feasible precaution. }

_________________________________________

GENERAL RULE = INADMISSIBLE For Everything Else:

to prove Negligence or Culpable Conduct (in connection with the event)

Courts wish to encourage Ds to take actions that would reduce the chance of additional injuries to others.

Question 11

Q

EXCLUSION OF RELEVANT EVIDENCE ON PUBLIC POLICY GROUNDS

Settlements, Offers to Settle, and Plea Bargaining

Answer

A

Civl Cases: compromises, offers to settle or related statements are INADMISSIBLE to prove LIABILITY or FAULT.

Statements made in connection with offers to settle are inadmissible. This is true even if statement comes right before offer to settle.
EXCEPTIONS
- bias of witness
- to controvert contention of undue delay by one of the parties
- prove party attempted to instruct a criminal investigation

Criminal Cases: In criminal cases, plea offer related statements are INADMISSIBLE to prove guilt.

This includes not just pleas of guilty but also nolo contendre.

Question 12

Q

EXCLUSION OF RELEVANT EVIDENCE ON PUBLIC POLICY GROUNDS

Payment or Offers to Pay Medical Expenses

Answer

A

Payment or offers to pay medical expenses are INADMISSIBLE when offered to prove liability for injuries.

________________________________________

RELATED STATEMENTS in connection with offers to pay medical expenses are ADMISSIBLE (distinguish this from settlement offers).

^{Compare: Admissions of fact accompanying offers to compromise are not admissible. This difference in treatment arises from fundamental differences in nature.}
^{ex. “Gee, I’m sorry that was my fault. Let me pay your med bills.” This comes in…}

^{Communication is essential if “compromises” are to be effected. This is not so in cases of offers to pay medical expenses, where factual statements may be expected to be incidental in nature.}

_____________________________________________\_

Any offer to pay medical expenses in exchange for releasing liability is INADMISSIBLE, it is considered a settlement offer, not an offer to pay medical expenses

_{E.g. If you will sign a release, I will pay your hospital bill. I shouldn’t have dropped that banana peel on the stairs.}

Question 13

Q

EXCLUSION OF RELEVANT EVIDENCE ON PUBLIC POLICY GROUNDS

CRIMINAL CASES

Exceptions

Answer

A

Criminal Cases:

In criminal cases, offer to plea guilty, withdrawn guilty please, and nolo contendre = are INADMISSIBLE against the individual who made the plea

Public policy is to encourage pleas

Exceptions

Prosecutions for Perjury
Can use Pleast for purposes of Impeachment

Note: If actual guilty plea that’s not withdrawn, that would be admissible in a subsequent civil action.

Question 14

Q

Character Evidence - Generally

3 Forms

Answer

A

Character evidence describes a person’s disposition with respect to general traits. Character evidence is generally inadmissible to prove a person acted in conformity.

3 forms

Reputation - always community reputation
Opinion - personal opinion
Specific Acts- sometimes called specific acts

Question 15

Q

Character Evidence in CIVIL Cases - EXCEPTIONS

Answer

A

CIVIL Cases: Evidence of a person’s character is generally INADMISSIBLE to prove they acted in conformity with that character on a given occasion.

EXCEPTIONS: Character evidence is ADMISSIBLE

Essential Element of Claim: if character is an essential element of a claim or defense.
- Only in Negligent Entrustment, Defamation, Child Custody Disputes
Knowledge of Another’s Character is at Issue:Self-defense and Negligent Entrustment (negligent hiring).
- Make sure the character is at issue - meaning a Party’s character (usually)
Prior Acts of Sexual Assault or Child Molestation in cases for similar claims: In cases arising from sexual assault or child molestation, D’s prior acts of sexual assault or molestation are ADMISSIBLE to prove D’s conduct in the present case

Question 16

Q

Character Evidence in CIVIL Cases

Specific Acts Admissible when….

Answer

A

Specific Acts admissible when Character … of the Party… is AT ISSUE

DO NOT confused with impeachment of witnesses.

Question 17

Q

CRIMINAL Defendant. Availability of Circumstantial Character Evidence

3 permissible forms.

Answer

A

CRIMINAL DEFENDANT may introduce CIRCUMSTANTIAL evidence character.

Opening the Door Rule: D may offer evidence of his good character to prove his own innocence and Prosecution may rebut.

D’s Openning of Door: Must relate to the charge (can’t offer testimony of honesty for murder case)
Focus on trait being offered - it must go to proving innosence for the particular charge.

Bad Character of the Victim: D may use all 3 forms of character evidence to prove bad character of victim and Prosecution may rebut.

^{Ex. claiming self-defense, may introduce evidence of victim’s temper}

Rape Cases: Specific acts may be admitted in 2 cases

Behavior with other persons which would explain signs of rape
Past behavior with Defendant which tend to show Consent

Question 18

Q

Character Evidence of Defendant in CRIMINAL Cases

What Defendant can Introduce

Answer

A

In criminal cases, D may introduce evidence of her character, which the P may rebut; with limited exceptions. Prosecution may not first introduce evidence of defendant’s character.

The DEFENSE may introduce evidence of pertinent good character.

The character must be pertinent to the charged crime ^{_{(e.g. D’s reputation for peacefulness is irrelevant to a forgery charge).}}

D may call a witness to testify to defendant’s good character based on reputation or opinion _{(but not specific instances)}

Question 19

Q

Character Evidence of Defendant in CRIMINAL Cases

What Prosecution can do to REBUT

Answer

A

Once D opens the door the Prosecution may rebut by:

Cross examining defendant’s witness (including knowledge of specific instances of defendant’s misconduct or prior arrests)

OR

Calling Witnesses to testify to D’s bad character - this will be limited to D’s character for the trait at issue

Question 20

Q

Character Evidence of Defendant in CRIMINAL Cases

What Prosecution can INTRODUCE

Answer

A

Prosecution may generally not introduce character evidence about D, except in following:

Sexual Assault/Child molestation - P can offer evidence of D’s other acts of sexual assault or molestation

OR

Rebut D’s Evidence Relating to D’s Own Character - this will be limited to D’s character for the trait at issue

Question 21

Q

Evidence of Victim’s Character in Criminal Cases

Answer

A

D** can **open the door by introducing evidence of Victim’s character to prove conduct. Once D Opens the Door, Prosecution may then rebut

Methods for Introducing:

Direct:
- Admissible: Reputation and Opinion evidence ^{see rape case exception}
- INadmissible: Evidence of specific instances
Cross:
- Admissible: Reputation, opinon, and specific instances

________________

HOMICIDE cases

D can offer evidence of the Victim’s character for violence to show that the victim attacked first.
Prosecution may then rebut by offering evidence of Victim’s character for peacefulness

________________\_

EXCEPTION: SPECIFIC ACTS and Rape Cases: Specific acts may be admitted in 2 cases

Behavior with other persons which would explain signs of rape
Past behavior with Defendant which tend to show Consent

Question 22

Q

Prior sexual misconduct of a defendant

Similar Crimes in Sexual-Assault Cases

Answer

A

In a criminal case in which a D is accused of a sexual assault, the court MAY admit evidence that the D committed any other sexual assault.

^{The Importance of the Rule}

^{If a criminal defendant is accused of sexual assault, evidence of other sexual assaults is admissible and may be considered for any matter for which it is relevant.}

Question 23

Q

Specific Traits using Circumstantial Evidence

Introduced by Prosecution in Rebuttal

MIMIC

Answer

A

Circumstantial Evidence of Other Crimes or Wrongful Acts is NOT admissible to prove the character of person (to prove acted in conformity therewith) except in cases of MIMIC.

Never admissible to prove criminal disposition or propensity to commit a crime

____________________

Must ALWAYS balance probative value with prejudicial effect

________________

EXCEPTION: Prior acts evidence is admissible to prove: MIMIC

Motive
Intent
Mistake - absence of mistake ^{(i.e. absence of mistake, knowledge)}
Identity ^{(extremely similar or unique prior act)}
Common plan or scheme

_{Note: Prior acts evidence is always subject to FRE 403 balancing (probative value vs. unfair prejudice)}

Question 24

Q

Relevance: Habit

Answer

A

HABIT (routine habit of person or practice of organization) may be relevant and admissible to show the person acted in conformity with that habit on a given occasion.

Proved by 1) Opinion Testimony or 2) Specific Instances of Conduct

________________

The conduct must be highly specific and frequently repeated ^{_{(i.e. a person’s regular response to a specific set of circumstances)}}

Note: Anyone testifying to Habit does not need corroboration. Ex. Girl testifed she always placed the necklace in the same spot each evening

_______________________________________

_{MBE TIP: Habit refers to people. Routine practice refers to businesses. The key to these questions is to look for the trigger words, always, inevitably, invariably, impulsively, automatically, habitually. More likely than not, evidence of habit or routine practice will be admissible.}

Note: Look for regular, instinctive, habitual conduct ^{_{E.g. Evidence that a person habitually goes down a particular stairwell two steps at a time could be admissible as circumstantial evidence that she did so at the time in question}}

Question 25

Q

Introduction of Evidence

Use of Documents by Witness During Testimony: Present Recollection Refreshed

Answer

A

Provides an adverse party certain options when a witness uses a writing to refresh memory: (1) while testifying; or (2) before testifying, if the court decides that justice requires the party to have those options.

_____________________

A witness may not read aloud from a document, but can look at it briefly, then continue testimony unassisted

Opponent may inspect and offer into evidence anything used to refresh a witness’s memory

Question 26

Q

Use of Documents by Witness During Testimony: REFRESHED Recollection - Adverse Party’s Options

Answer

A

Adverse Party’s Options.

An adverse party is entitled to have the writing

produced at the hearing, to inspect it,
to cross-examine the witness about it,
and
to introduce in evidence any portion that relates to the witness’s testimony.

Deleting Unrelated Matter.

If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party.

Any portion deleted over objection must be preserved for the record

Question 27

Q

Use of Documents by Witness During Testimony: Comparison of

Recorded Recollection (Hearsay Exception)

and

Refresh of a Witness’s Memory

Answer

A

Anything can be used to “jog” or “refresh” the witness’s memory because at times, witnesses forget. A witness may even look at hearsay to jog her memory. Of course, the item the witness looked at will not be admitted into evidence. It is simply being used to refresh the witness’s memory.

Compare: The hearsay exception for “recorded recollection” requires that the witness made the writing while it was fresh in the witness’s mind. The writing then may be read into evidence. In contrast, anything can be used to refresh or jog the witness’s memory, even a writing that the witness herself did not make. When a writing is used to “refresh” the witness’s memory, the party is not attempting to introduce the writing into evidence.

MBE TIP: The best way to distinguish the two on the exam is simple. If the proponent is attempting to “introduce the writing” and then read it into evidence, it must come under the “recorded recollection” exception to the hearsay rule. If the proponent is simply using the writing to refresh or jog the witness’s memory, then this rule (refreshing a witness’s memory) applies.

Question 28

Q

Testimonial Evidence

Objections and offers of proof

Answer

A

Rulings on Evidence

Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

If Objecting to Admitted Evidence, a party, on the record:

timely objects or moves to strike;
and
states the specific ground, ^{unless it was apparent from the context;}

OR

If Objecting to Ruling on Excluded Evidence, a party informs the court of its substance by an offer of proof, ^{unless the substance was apparent from the context.}

_{The Importance of the Rule}

_{It is only error if a ruling by the judge affects a “substantial right” of either party. The party opposing the error must call the error to the attention of the judge so that preventive measures can be taken.}

_{When feasible, a judge should excuse a jury when ruling on the admissibility of evidence. A ruling which excludes evidence is likely to be a pointless procedure if the excluded evidence comes to the attention of the jury.}

Question 29

Q

Testimonial Evidence

Objections to Form of QUESTION

Answer

A

Calls for Narrative: Open-ended question allowing witness to respond in any way; ^{attorney must ask specific questions}

Leading: Question itself suggest the answer.

^{Leading questions are improper on direct unless the witness is hostile or an adverse party.}
^{Leading questions are acceptable on cross-exam as long as they stay within the scope of direct}

Assumes Facts Not in Evidence: Q makes assumption that’s not established in the record.

Argumentative: Q is an argument^{and doesn’t actually ask anything.}

Compound - more than one Q at a time.

^{Attorney must ask Qs individually.}

Beyond Scope of Direct

^{Attorney must confine Qs during cross to scope of direct (i.e., cannot ask Qs involving matters not discussed on direct)}

_____________________

^{Objections to form of question or testimony must be specific and made promptly; otherwise they are deemed waived. }

Question 30

Q

Testimonial Evidence

Objections to Form of RESPONSE/TESTIMONY Given

Answer

A

Unresponsive/Nonresponsive: A witness’s testimony does not relate to or directly answer the question asked.

Move to strike the response.

^{Objections to form of question or testimony must be specific and made promptly; otherwise they are deemed waived. }

Question 31

Q

Lay Opinion Testimony

Answer

A

Generally INADMISSIBLE unless meeting exceptions below.

Lay opinion is admissible if:

Rationally based on the Witness’s PERCEPTION
HELPFUL to a clear understanding of her testimony (helpful to Trier of Fact_)_
- ^{Helping meaning it gives the jury more information regarding the witness’s perception than the perception alone.}
- ^{Legal conclusions are INADMISSIBLE because they are deemed unhelpful}
Not based on ^{(a) scientific, (b) technical, or (c) other} S_pecialized K_nowledge ^{(i.e. not in the realm of expert opinion)}

Examples of Admissible Lay Opinion Testimony include:

_{Speed of Car}
_{Identity of Person}
_{Sensory descriptioins (sound smell taste)}
_{Value of Property}
_{Familiarity with One’s Handwriting}
_{Sanity - but not that person is mentally incompetent}
_{Physical Condition - “He appeared drunk.” NOT - “he’s an alcoholic” or “he’s a schizophrenic”}

Question 32

Q

Expert Opinion Testimony - Who may be expert witness

Answer

A

Experts may provide opinions on facts or issues in the case. Expert opinion is admissible if:

HELPFUL to Trier Fact. The expert’s opinion must be helpful to the trier of fact (i.e. expert uses specialized knowledge to reach conclusions an average juror would not reach alone)

QUALIFIED. Expert must possess special knowledge, skill, experience, training or education (specialized knowledge does not need to come from school)

REASONABLY CERTAIN. Expert must believe in her opinion to a reasonable degree of certainty, can admit some doubt

Question 33

Q

Expert Opinion Testimony - What Expert may base opinion on

Answer

A

Experts may provide opinions on facts or issues in the case. Proper basis for opinion

Facts perceived or made known to her at or before trial
- Expert NOT Required to have Personal Knowledge
  - ^{ex. coroner as to findings of autopsy}
  - ^{ex. facts made known to her at trial - despite lack of personal knowledge}
Facts reasonably relied upon by experts in the field. This includes inadmissible hearsay
Direct Examination: NOT required to give basis for opinion
Cross Examination: Required to give basis for opinion if questioned
Opinions on ULTIMATE ISSUES - May testify and give opinion on ultimate opinion.
- ^{ex. opinion whether testator had mental capacity to understand nature and extent of his property}
- ^{ex. NOT VALID - opinion whether testator had mental capacity to form will. INVALID bc it takes question away from the jury}

Criminal Law - Expert Opinion on Mental State that’s Elemental: Expert MAY NOT give Opinion on Mental State that’s an ELEMENT of the CRIME.

^{ex. Expert may NOT be asked whether she thought at the time of crime D was insane.}

Question 34

Q

Witnesses - Competency

Answer

A

Witness Competency in General

Federal Rules
- Assume everyone is competent witness
  - Exception: where STATE LAW determines the rule of decision
    - Example: Diversity Action where state law applies
- Federal Rules Minimum Competency Test:
  - Personal knowledge
  - Oath to testify truthfully

Question 35

Q

IMPEACHMENT

Impeachment Approach and Overview

Answer

A

^{Impeachment casts an adverse reflection on the veracity of a witness’s testimony.}

Credibility of Witness may be Attacked by ANY WITNESS

Can impeach own witness.
- Ex. when calling an adverse witness - one belonging to opposing party - may immediately impeach the witness. Rules of impeachment are reversed in this case
Intrinsic Impeachment - words coming from mouth of Witness herself
Extrinsic Impeachment - condtradictory evidence from other witnesses discrediting this witness

Methods of Impeachment:

^{Contradiction}
^{Prior Inconsistent Statement (PIS)}
^{Sensory Deficiencies (e.g. W’s senses were incapable of producing the perceptions testified to)}
^{Reputation and/or Opinion for Untruthfulness. Admissible to impeach W’s veracity by use of extrinsic evidence}
^{Prior Acts of Misconduct}
^{Prior Criminal Convictions Evidence}

SUPPORTING a witness’s credibility is INADMISSIBLE unless credibility has been attacked ^{(i.e. witness has been impeached)}

Question 36

Q

Impeachment

Collateral Matters and Extrinsic Evidence

Answer

A

Cannot attack credibility of Witness using irrelevant information or by referencing an irrelevant issue.

_{“Extrinsic evidence MAY NOT be used to impeach a witness on collateral matters.”}

Extrinsic Evidence is any evidence other than the witness’s testimony at the current proceeding.
- This includes evidence of prior inconsistent statements made out of court.
Collateral Matter is a fact NOT material to issues in the case.
- It says nothing about the witness’s credibility, only used to contradict a witness.
- ^{e.g. W1 testifies he was headed to store when he saw D commit murder, defense cannot call W2 to testify that W1 was really headed to see his mistress–this is collateral to the issue}

Ask: Would it be material to the given issue if not for the witness’s contrary assertion? ….. If not, it is likely collateral

___________________________

Extrinsic evidence is ADMISSIBLE on non collateral (i e material) matters Additionally extrinsic evidence

Question 37

Q

Impeachment - Sensory Defects

Answer

A

Foundation requirements - Prior questions related to sensory defect.

Intrinsically (questioning witness)
or
Extrinsically (questioning ability of witness to perceive, see, remember, etc.)

Question 38

Q

Impeachment by Bias or Interest

Answer

A

May use intrinsic or extrinsic information to impeach

Foundation Requirements - need only raise a question about a fact which could be subject to bias/interest.

Four main types of Bias or Interest

interest in outcome
economic or marital relationship
hostility or favoritism
fee paid to expert witness

Question 39

Q

Impeachment by Contradiction

Answer

A

Any evidence may be used to show a witness had made contradictory statements on material issues.

Question 40

Q

Impeachment by Prior Inconsistent Statement (PIS)

and PIS via Extrinsic Evidence or PIS Hearsay

Answer

A

Witness’s prior inconsistent statements may be used to impeach a witness’s present testimony.

Foundation Requirement: A witness must have an opportunity to explain or deny the statement ^{(NOT required for PIS by hearsay declarant)} either Before or After impeachment.

Establishing PIS: may be established through cross-examination or extrinsic evidence.

PIS via Extrinsic Evidence: is inadmissible if the PIS relates to a collateral matter.

PIS via Hearsay: If PIS is hearsay, it is

ADMISSIBLE for impeachment purposes
INADMISSIBLE as substantive evidence (to prove TOMA)
- i.e. Hearsay PIS may only be considered for its bearing on W’s credibility.
Non-Hearsay PIS: If the PIS is NOT hearsay or if it falls under a hearsay exception, it may be considered for any purpose.

Question 41

Q

Impeachment by Character Evidence - Generally

Answer

A

Four ways

reputation and opinion evidence
bad act impeachment
felony convictions
crimes bearing on untruthfulness

Question 42

Q

Impeachment by Character Evidence - Impeachment by Reputation or Opinion Evidence

Answer

A

May Impeach witness by asserting reputation or opinion … for untruthfulness.

Limited to the character trait of UNTRUTHFULNESS

Question 43

Q

Impeachment by Character Evidence - Impeachment by Prior “Bad Acts” Misconduct

Answer

A

May question on CROSS-EXAM about any prior “Bad Acts” related to truthfulness.

UNCONVICTED Acts ONLY
Questioning attorney must accept the witness’s answer.
- Cannot bring additional evidence to contradict, because it would bring in extrinsic evidence on a collateral matter.
Questioning must be done in good faith - must have a basis for asking the question in the first place

Question 44

Q

Impeachment by Prior Conviction

Answer

A

Prior Conviction: DISHONESTY or Untruthfulness^{(perjury, fraud, etc.)}

Felony + Misdemeanor - Presumed Admissible(Court Has no Discretion)

Prior Conviction: (Not Honesty-Related)

Felony - Presumed Inadmissible
- W = D: Inadmissible, unless probative value > prej effect
- W = Non-D: Inadmissible, unless probative value ^{_{SUBSTANTIALLY}}> prej effect
Misdemeanor - inadmissible, unless probative value > prej effect. _{^{An open-ended question that would encompass convictions for offenses not related to honesty would not be allowed.}}

Prior Convictions/Release Over 10 Years From Conviction (10 yrs +1 day)

Felony + Misdemeanor - Inadmissible, unless probative value > prej effect
Note: Conviction under appeal can be brought forth. However, the court must allow disclosure of fact that it is under appeal.*

Question 45

Q

Competency to Testify in General

Deadman Statute

Answer

A

Competency in General

As long as the person testifying understands and appreciates the ability to tell the truth, the person is competent to testify. Even children and insane persons are competent to testify.
Must take Oath

Dead Man Statutes

Abolished at Federal Level
Federal Rules Require Federal Court to FOLLOW STATE’S DEADMAN STATUTE IF ONE EXISTS.

Question 46

Q

Privileged Communications - General Aspects of Priveleges

Protected Relationship
Communication
Confidentiality
Holder
Exceptions

Answer

A

Protected Relationship - Does protected relationship exist?

^{Test: Client is seeking professional advice or consultation}
^{No compensation must be paid}
^{Dr/Lawyer doesn’t need to take on the case}

Communication

^{Actual communication is protected … not the information}
^{ex. if D reveals same info to a friend, it’s not protected}

Confidentiality - Only confidential information is protected

^{Non-essential 3rd parties destroy confidentiality.}
- ^{Is 3rd party furthering some purpose of the relationship? If so, it’s confidential (ex. secretary)}
- ^{Eavesdroppers - known or reasonably anticipated eavesdroppers destroy confidentiality. Unknown, unanticipated eavesdroppers do not destroy confidentiality.}
^{Communications made in public are never confidential}

Holder - Privilege may only be asserted or waived by the holder or authorized representative of the holder

Exceptions - Usually based on public policy. 5 types

^{dr patient}
^{attny client}
^{psycho social therapy}
^{husband wife}
^{priest penitent}

Question 47

Q

Testimonial Privileges - Which law applies

Answer

A

Federal courts recognize several testimonial privileges.

STATE LAW determines

Privileges of Witness
Diversity Cases in Fed Court

MODERN COMMON LAW determines

Criminal
Federal Question
Cases Arising Under Federal Law

Types of Privilege:

Confidential Communications (primary)
Incompetency
Constitutional Priveleges (such as defamation and right against self-incrimination)
Public Policy

Question 48

Q

Privileged COMMUNICATION

Attorney-Client Privilege

Answer

A

Communications between an attorney and client^{or client’s representatives}are privileged in all proceedings unless waived. Communication must be [intended as confidential] and [intended to facilitate legal services].

Holder of Privilege - Client (but attny can assert it on her behalf)

Exceptions - where there is no privilege

Suits between attny and client OR between joint clients
Disputes of client’s will after client’s death
Communications made in furtherance of FUTURE crime or fraud

Attorney WORK PRODUCT - material prepared by attny for her own use IS NOT protected, but may be protected from discovery under the work product rule.

Corporate Clients: the privilege applies to statements given by any employee authorized to speak to the attorney.

In state courts - the “Control Group” test only applies to a few high up official - those ppl with Authority to Decide Corporate Policy

Question 49

Q

Privileged COMMUNICATION

Physician-Patient Privilege

Answer

A

The physician-patient privilege is a statutory privilege in most states, but not found in the FRE.

applies to observations ^{xray, scar, gunshot wound}and communications

Holder = Patient

Protected communication or observations must be:

^{Made for purposes of obtaining diagnosis or treatment}
^{Pertinent to a diagnosis or treatment;}^AND
^{Intended by patient as confidential }

Exceptions: Where Privilege DOES NOT apply

patient’s physical condition is at issue
criminal proceedings
malpractice actions
competency or commitment proceedings

Question 50

Q

Psychotherapist/Social Worker-Client Privilege

Answer

A

The psychotherapist/social worker-client privilege is a statutory privilege in most states, but not found in the FRE. The privilege prevents disclosure of material conveyed by patient in a civil and criminal cases if:

Client intends the communication to be confidential; AND
Communication is made to facilitate therapy or social work

Exception:

Where Mental Condition is at Issue
Therapist has Duty to Warn of any immediate danger

Note: MBE usually assumes the existence of this privilege, but an answer choice indicating privilege as an evidentiary rule will be incorrect

Question 51

Q

Marital Communication Privilege

Answer

A

Marital communications are CONFIDENTIAL COMMUNICATIONS made DURING (not before or after) marriage.

Civil and Criminal Cases
Holder: Both spouses may prevent the other from testifying.
Divorce - Communications during marriage remain privileged
Exceptions:
- Crimes against each other or children
- Statements in furtherance of future crime or fraud.

^{Modern trend - observations and impressions are included}

Question 52

Q

Spousal Testimonial Privilege

Answer

A

Protects _ALL*_Communications , impressions,and observations - regardless of confidentiality ….. Before* and During Marriage.

Criminal Cases ONLY*
Holder @ Common Law:PARTY Spouse*
Holder @ Federal Law: WITNESS Spouse*
Divorce - Entire privilege is l_ost*_
Exceptions:
- Crimes against each other or children
- Statements in furtherance of future crime or fraud.

^{*Different from Marital Communication Privilege}

Question 53

Q

5th Amendment Privilege Against Self- Incrimination

Answer

A

Prohibits a witness from being compelled to testify against herself.

This applies in civil and criminal cases (including sentencing).

Courts will allow a witness to invoke the privilege if there is some reasonable possibility of self-incrimination

*Criminal Defendants cannot be punished for invoking privilege

Question 54

Q

WRITINGS & PHYSICAL EVIDENCE

Rule for Authentication and Physical Evidence, General

Authentication may be proved by….

Self-Authenticating Evidence

Ancient Documents

Answer

A

Every piece of PHYSICAL evidence must be authenticated,^{i.e., the proponent must show that the evidence is what he claims it is}

Authentication may be proved by any means ^{this is a low burden –>}must only be sufficient to sustain the findings.

Self-Authenticating Evidence: Writings that contain identifying information are self-authenticating evidence, they do not need separate authentication. ^{Examples include: (1) deeds, (2) notarized documents, and (3) newspapers.}

Ancient Documentments are automatically authenticated if:

20 or more years old
No irregularities on its face
Found in place of natural custody

Question 55

Q

Best Evidence Rule

Voluminous Doctrine Exception

Answer

A

If evidence is offered to prove the CONTENTS of WRITING, an original document must be used unless it is unavailable. A writing is any tangible collection of data ^{(e.g. videos, documents, photos, books, computer drives, x-rays)}.

Evidence sufficient to prove a writing’s contents includes:

Originals
Duplicates: Are admissible unless there is a genuine question as the authenticity of the original itself. Must be from machine or carbon copy
Testimony regarding contents: Is admissible if the original is lost or destroyed, unless done so in bad faith by the proponent of the testimony.

Voluminous Doctrine Exception: A voluminous series of documents may be summarized in court. The originals relied upon must be available for inspection

Question 56

Q

Hearsay - Generally

Answer

A

Hearsay is an out-of-court Statement - made by someone other than the testifying in-court witness - to prove the truth of the matter asserted.

Statements = by HUMANS
- ^{Oral or Written assertion}
- ^{Nonverbal conduct intended as an assertion works}
- ^{Non-human assertions are NOT statements} ^{(e.g. test results, radar gun reading, dog barking)}
Declarant - Someone other than person testifying in court
Purpose of Evidence - Offered for its truth

Hearsay Inadmissible - subject to certain exceptions or exemptions.

Note: A witness’s OWN previous out-of-court statement can be hearsay, thus an answer that a statement is not hearsay because it’s W’s own statement is incorrect

Question 57

Q

Hearsay

Exceptions vs Exemptions/Exclusions

Answer

A

Exceptions: IS Hearsay, but still admissible.

Exceptions derive from theory that under appropriate circumstances a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant in person at the trial even though he may be available. The theory finds vast support in the many exceptions to the hearsay rule developed by the common law in which unavailability of the declarant is not a relevant factor.

Exemptions/Exclusions: NOT Hearsay.

FRE 801(d) removes form hearsay certain statements that would be hearsay under CL definition

Question 58

Q

Hearsay Exemptions/Exclusions - List

Answer

A

Out-of-court statements are NOT hearsay

801-D Hearsay Exemptions
- Prior inconsistent statements - ^{Declarant must be available for cross examination}
- Prior consistent statements - ^{Declarant must be available for cross examination}
- Prior Identifications - ^{Declarant must be available for cross examination}
- Admissions
Prior Statements by Witness - Statements by a person who testifies at trial or hearing and is subject to cross-examination re: statements is NOT hearsay
Verbal Acts
_{^{Non-Assertive Conduct (not tested)}}^{_{- noncommunicative statement that’s intended as a statement}}
State of Mind

Question 59

Q

801-D Hearsay Exemptions

Prior Inconsistent Statements and Prior Consistent Statements

Answer

A

Out-of-court statements are NOT hearsay … 801-D Hearsay Exemptions

Prior Inconsistent Statements - ^{Declarant must be available for cross examination}
- ^PriorSworn (@ PROCEEDING) Inconsistent Statements - Admissible ⇒Substantively and to Impeach
- ^PriorNot Sworn (@ PROCEEDING) Inconsistent Statements - Admissible ⇒only to Impeach
Prior Consistent Statements - ^{Declarant must be available for cross examination.}
- Prior consistent stmt, regardless of whether made under oath, is NOT hearsay if offered to rebut an express/implied charge that witness is lying or exaggerating b/c of some other motive
  - Note: consistent stmt offered for this purpose is admissible only when made BEFORE alleged motive to lie or exaggerate came into being
- Admitted substantively

Question 60

Q

801-D Hearsay Exemptions

Prior Identification

Answer

A

Out-of-court statements are NOT hearsay … 801-D Hearsay Exemptions

Prior Identifications - ^{Declarant must be available for cross examination}
- Prior statement of identification of a person made after perceiving him.
  - ^{Need statement of IDENTIFICATION (ask, was an identification made)}
- Admissible substantively where the declarant eye witness is testifying at trial

Question 61

Q

801-D Hearsay Exemptions

Admissions - Types of Admissions

Answer

A

^{Out-of-court statements are NOT hearsay … 801-D Hearsay Exemptions}

Types of Admissions

Direct Admission - statement of a Party offered against him by his Opponent
- Remember must be of a PARTY (inadmissible if non-party)
Admission by Conduct or Silence - ^{circumstances such that}a reasonable person would have denied the statement.
- ^{Post-arrest silence of accused is not adoptive admission}
Authorized Admission - statement of any person authorized to speak
Vicarious Admission - statement of agent or employee made
- during existence of relationship
- concerning matter within scope of employment
Co-Conspirator Admission - made during course and in furtherance of the conspiracy
- Existence of the underlying Conspiracy must be established by proponderance of evidence

Question 62

Q

Common Non-Hearsay Uses of Out-of-Court Statements

Answer

A

Out-of-court statements are NOT hearsay if they are offered to prove anything other than the truth of the matter they assert.

Common NON-HEARSAY Out-of-Court Statements:

Independent legal significance: Statements containing LEGALLY operative words, such that the statement itself is a legal factor in the case. ^{Common with defamation, K , adverse possession cases}
- ^{E.g. In a K dispute, A testifies that B told him it was a done deal}
Show their effect on the listener
- ^{E.g. Comparative negligence claim–Statement by third party wanting P of the injury-causing condition}
Show Speaker’s Knowledge
- ^{E.g. D charged with conspiracy claims he didn’t know about the crime; an out-of-court statement indicating D had been}

Question 63

Q

Hearsay Exemptions

Verbal Acts

Answer

A

Out-of-court statements are NOT hearsay … Verbal Acts

Verbal Acts - Statements with relevance that’s independently significant of their truth. 2 types:

Transactional Words - Ex. words of a will or contract
Tortious Words - Actual words of Libel or Slander in Defamation Action
- Actual defamatory words have independent legal significance and can be admitted as non-hearsay

Question 64

Q

Hearsay Exemptions

STATE OF MIND

Answer

A

Out-of-court statements are NOT hearsay … STATE OF MIND

State of Mind - Independently relevant circumstantial evidence may used as nonhearsay to prove the following 4 things of EITHER the Declarant or the Listener:

Knowledge -
Intent -
Attitude -
Belief -

Always look to the purpose for which the evidence is being offered.

Answer 64

A

MAY be UNAVAILABLE for these exceptions to apply:

Present Sense Impression
Excited Utterance
Statement of Present Mental or Physical Condition
Past Physical Condition
Business Records
Public Records
Ancient Documents
Learned Treatise
Prior Judgments and Convictions

Answer 65

A

Present Sense Impression

describes/explains an event or condition ^{doesn’t need to be startling - an unexcited utterance}

and

made {while perceiving the event} or {i_mmediately thereafter}_^{10 minutes after is too long; must be very close in time}

___________________

*TIMING IS KEY*

Answer 66

A

Excited Utterance

relates to a startling** or **exciting event or condition

and

made while** the declarant was [**under the stress of excitement] caused by event

Utterance need only relate to the event itself
Timing - declarant need only make statement while under the stress of excitement. Not as strict as present sense impression. Just need to be under the stress.

__________________________

*DECLARANT’S EMOTIONAL DISTRESS IS KEY: Declarant must be under such excitement or stress that one would not normally have an opportunity to fabricate the statement*

Answer 67

A

Statements concerning the declarant’s PRESENT ⇒{ State of Mind ^{intent, emotion, sensation} } or {Physical Condition^{bodily health, pain}} existing at the time the statement was made.

_________________

A statement of then-existing STATE OF MIND is usually offered to show a declarant’s _intent_ or as circumstantial evidence than an event was carried out.
A statement of then-existing CONDITION is usually offered to establish some physical condition, symptom, or sensation that declarant experienced at the time of the statement.

^{Note: Statements of memory or belief are INADMISSIBLE because they do not reflect on a then-existing condition Statements of INTENT may be ADMISSIBLE as circumstantial evidence that an act was committed at a later time.}

Answer 68

A

Hearsay statements made to medical personnel for the purpose of diagnosis or treatment may be admissible. ^{Typically, statement pain health}

The STATEMENT must

be made to a medical personnel ^{(anyone involved in treatment or diagnosis, not necessarily a doctor)}
and
pertinent to assisting in the diagnosis or treatment of condition.
- ^{Includes statements of past conditions if statement is made for the purpose of diagnosis or treatment.}

Note: Related statements about an injury-causing event are usually INADMISSIBLE^{(e.g. statement by declarant to emergency room doctor that she was shot will be admissible, but the identity of the short will not, as it is not pertinent to treatment)}

Answer 69

A

MUST FIRST ATTEMPT TO REFRESH THE WITNESS’S MEMORY

THEN

Contents of a document (a witness previously wrote or adopted) is read into evidence.

This requires that Witness:

Once had personal knowledge of the document contents
Document was written or adopted by the witness
W created document when ^contents were fresh in the witness’s memory^
Current memory is insufficient to testify at trial as to document contents ^{(i.e. present recollection refreshed was ineffective);} AND
Document was accurate when created
- ^{Prefer Original Document >>> Best evidence rule applies when using this exception.}

Answer 70

A

Hearsay statements in the form of business records are admissible if they are:

A record or transaction by a business (^{e.g. transactions, reports, patient records)}
Made in the regular course of business
Made at or near the time of the event
Prepared by someone w/ personal knowledge of the facts recorded
Prepared by someone w/ a Duty to Record^{at common law only a custodian could prepare the record}
Authenticated in writing
Trustworthy: Court may exclude an otherwise qualifying business record if the source of the information or other circumstances indicate a lack of trustworthiness. ^{ex. if the document prepared or circumstances make it likely prepared in prep for litigation}

___________________

Absence of records may be admitted as hearsay

Police Reports: In CRIMINAL cases, police reports or other criminal investigative reports are INADMISSIBLE as business records or public records

Answer 71

A

^{Public Records Exception}

Describes activities** of a **public office or agency
Describes either:
- Matters o_bserved pursuant to a duty imposed by law_,
- Factual findings resulting from an investigation made pursuant to authority granted by law
Created within public employee-author’s scope of duties
Created at or near the time of observed event
Trustworthy - Court may exclude an otherwise qualifying business record if the source of the information or other circumstances indicate a lack of trustworthiness. ^{ex. if the document prepared or circumstances make it likely prepared in prep for litigation}

_______________________________

Absence of records may be admitted as hearsay

CRIMINAL cases police records or other criminal investigative reports are INADMISSIBLE

Answer 72

A

^{Judgments & Prior Convictions}

Final Judgements -

Evidence of final judgment after trial or upon plea
Felony - must be a felony
can offer Certified Copies of Judgements
to prove any fact essential to the judgment

_______________________

Prior convictions are INADMISSIBLE in criminal cases against non-defendant’s, unless used for impeachment

Answer 73

A

Family Records

Statements of fact

found in family keepsakes, ^{e.g. jewelry engravings, genealogy charts, engravings on tombstones, writings within bibles}

are admissible.

Answer 74

A

^{Ancient Documents}

MORE THAN 20 years old

No irregularities on its face

Found in a place of natural custody

Answer 75

A

Learned Treatises are accepted authority in a given field.

Arise with

Expert Witness Testimony or
Judicial Notice

Must have been:

expert relied upon on learned treatises on direct exam
called to witness’s attention on cross

Read into evidence … only if introduced by Adverse Party

Answer 76

A

MUST BE UNAVAILABLE for these exceptions to apply:

Former Testimony

Dying Declarations

Against Interest

Personal or Family History

Offered against party procuring declarant’s unavailability

_______________________

A declarant is unavailable if:

Privilege–Exempt from testifying due to a privilege
Death or Physical/Mental Sickness
Refusal to Testify Despite a Court Order
Lack of Memory
Absent–Beyond reach of the court’s subpoena power

Answer 77

A

Testimony given by a person in an earlier proceeding or deposition may be admissible if:

The declarant is unavailable

Former Testimony was given UNDER OATH

AND

Party targeted by Former Testimony was either:

A party in prior action^{and} had opportunity to cross-examine declarant ^{>> Motive for cross-examining declarant in former hearing must be similar to the current motive}
^{CIVIL CASES ONLY}A predecessor in interest of a party in prior action, opportunity to cross examine declaration ^{and a similar motive for doing so >> Applicable in CIVIL actions only >> Predecessor in interest is one who has a close privity-type relationship with the party in the earlier proceeding}

Answer 78

A

CUBA

Concern: Statement must concern the cause or circumstances of death
Unavailable: Declarant must be unavailable
Belief: Declarant must believe death was imminent. Need not actually die.
Any Civil/Criminal Homicide: Can arise only in civil/criminal homicide cases.

____________________________

**Death of declarant NOT required. Declarant must only have believed he was dying when the statement was made .

- CIVIL or HOMICIDE cases Only*
- Declarant Unavailable*

_________________________

Answer 79

A

hearsay exception for statements

concerning the declarant’s own ^{or of another person, if the declarant is related to that person}

relationship by blood or similar fact of personal /family history

and declarant is unavailable.

Answer 80

A

Admissible if, at the time it was made, was against the pecuniary or legal interests of the declarant.

^{The declarant is currently unavailable }

Statement contrary to declarant’s pecuniary, propriety, or penal interest when made

AND

Reasonable person would not have made the statement unless he believed it to be true

In CRIMINAL cases, there MUST be corroborating circumstances indicating the trustworthiness of the statement

Answer 81

A

In CRIMINAL cases, an otherwise admissible hearsay statement offered against a D may be excluded under 6th Amendment Confrontation Clause.

_______________________________________

The declarant is currently UNAVAILABLE

D had No OPPORTUNITY to CROSS-EXAMINE the declarant about the statement when it was made;

AND

S_tatement is TESTIMONIAL_

Testimonial Statement = GOVERNMENTAL INVOLVEMENT and the FORMALITY /SOLEMNITY of TESTIMONY AT TRIAL.
Test for Testimonial Statements: Reasonable person believes statement would be used at trial then the statement is testimonial.

Answer 82

A

The Confrontation Clause bars admission of a hearsay statement by a non-testifying co-Defendant if the statement expressly implicates another Defendant.

EXCEPTIONS: A co-Defendant’s hearsay statement is admissible if:

Co-Defendant testifies and is subject to CROSS-EXAM;

OR

(2) Portions of Co-Defendant’s testimony referring to the non-declarant Defendant are REDACTED^{Redaction is not effective unless it clearly makes the non declarant co-Defendant’s identity anonymous}

OR

Statement used to REBUT a charge of a COERCED confession

Answer 83

A

CRIMINAL CASES: where D is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation.

CIVIL CASES: based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation.

^{The Importance of the Rule}

^{If a criminal defendant is accused of child molestation, evidence of other offenses of child molestation are admissible and may be considered for any matter for which it is relevant. “Child” means a person below the age of fourteen.}

Answer 84

A

If the presumed fact established guilt or is an element of the offense, the court must instruct the jury that its existence must be proved beyond a reasonable doubt.

Ex. D is charged with DUI. Blows .14. Judge instructs the jury that anyone blowing .1 is presumed intoxication under the law. This instruction would be proper only if further instruction is given that the presumed fact (intoxication) must be proved beyond a reasonable doubt.

Answer 85

A

Admissions of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or a civil wrong, at a time when the Decla was participating in the conspiracy, are admissible against all co-conspirators.

Elements:

1.Made by co-conspirator of the party against whom they are introduced;
2.Made during the course of the conspiracy
3.Made in furtherance of the conspiracy

Answer 86

A

After a showing that a partnership exists, an admission of one partner, relating to matters w/in the scope of the partnership business, is binding upon co-partners.

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