MBE Evidence - Impeachment/Privileges/Misc. Flashcards
Standard of Proof for Admission of D’s Crimes/Bad Acts:
(1) must show prior misconduct by sufficient evidence to support a jury finding that D committed prior act; (MD - clear and convincing evidence)
(2) probative value for exception not substantially outweighed by danger of unfair prejudice
Prior Sexual Assault/Child Molestation
- Admissible in civil or criminal case where D is accused of sex assault/child molestation.
- Must disclose this evidence 15 days before trial.
- MD: D’s prior sex crimes only if they are independently relevant (MIMIC) OR it is the same victim.
Judicial Notice of Fact
- recognition of a fact as true without formal presentation of evidence; must not be subject to reasonable dispute. (1) Notorious Facts - common knowledge; (2) Manifest Facts (dates); (3) Scientific Principles
- conclusive in civil cases, but not criminal case (shown through jury instructions)
- MD: judicial notice is conclusive in criminal trials, unless fact is adverse to the accused
Real Evidence
- Addressed directly to trier of fact for inspection (visual or otherwise)
- Must be authenticated
Authentication of Real Evidence
object must be proved to be what proponent claims it is
(1) Recognition Testimony: if significant features identifiable upon inspection. May be used to establish similarity to actual object
(2) Chain of Custody: if evidence can be easily tampered with or is not easily recognized. Must be substantially unbroken chain. Proponent must show some adherence to system of ID and custody
(3) Condition: if condition is significant it must be in substantially the same condition at trial
- Potentially limiting policies: (1) physical inconvenience (2) indecency (3) undue prejudice
Authentication of Documentary Evidence
-Standard of Proof: sufficient to support a jury finding of genuineness
Methods of Authentication: (1) Personal Knowledge of witness; (2) Proof of Handwriting; (3) Ancient Document Rule; 4) Solicited Reply Doctrine; (5) Any other circumstantial evidence
- Also may be self authenticating.
Authentication by Proof of Handwriting
- Lay Person: based on familiarity as result of experience in normal course of affairs
- Comparison of Writings: Expert or Jury Comparison
- MD: authenticating comparison may only be by expert witness of the judge
Authentication - Ancient Document Rule
authenticity inferred if doc is
(a) at least 20 yrs old
(b) facially free of suspicion AND
(c) found in a place of natural custody
Authentication - Solicited Reply Doctrine
authenticated by evidence that it was written in response to a communication sent to the claimed author.
Self Authenticating Documents
(shift burden of proof)
(1) Official publications; (2) Certified copies of private or public records on file in public office; (3) Newspapers of periodicals; (4) Trade inscriptions and labels; (5) Acknowledged documents (notarized); (6) Commercial Paper; (7) MD - report by chemist or other analyst who tests blood for drugs
Authenticating Photographs
Witness may testify that it is fair and accurate representation. photographer need not authenticate
Authenticating X-Rays
must show (1) process is accurate, (2) machine was in working order and (3) operator was qualified.
Voice Authentication
by anyone who has heard the voice at any time (person may become familiar after litigation has begun).
Authentication of Telephone Conversations
one of parties may authenticate who testifies that…
(1) he recognizes other party’s voice;
(2) the speaker has knowledge of certain facts only that person would have;
(3) the phone answerer stated his name as intro; OR
(4) he called business and talked to someone about business related matters.
Authentication of Medical Records (MD)
- health care provider under subpoena can produce patient’s medical records.
- The custodian of the records can certify that they are complete and the certification is prima facie evidence of authenticity
Best Evidence Rule
-The original document must be produced where terms are material.
-Application: (1) Where writing is a legally operative instrument; (2) Where knowledge of a witness concerning a fact results from having read it in the document.
Inapplicable where: (1) facts to be proved exist independently of document; (2) writing is collateral; (3) it is summary of voluminous records; OR (4) it is public record and copy is certified
Best Evidence Originals and Duplicates
-“Original”: writing or recording itself or any copy intended by the person executing it to have same effect as original.
“Duplicate”: an exact copy of the original. Admissible the same as originals unless (1) challenged (2) where it would be unfair.
Secondary Evidence Admissible Under Best Evidence Rule
- where original cannot be procured and there is valid excuse such as: (1) Loss or destruction of original (without bad faith); (2) Original outside jurisdiction and unobtainable; (3) Original in possession of adversary who, after notice, fails to produce.
- Jury decides questions related to authenticity of particular documents
Competency of Witnesses
- must have personal knowledge and appreciate oath or affirmation
- MD - person previously convicted of perjury is DQed from testifying, unless criminal D.
- There is a presumption of competency of witnesses (even insane ones)
Dead Man’s Acts
- In CIVIL action, interested witness is incompetent to testify in support of her own interest against estate of decedent concerning communications between interested witness and decedent.
- Estate representatives may waive protection of statute by: (1) calling interested person to testify about transaction; (2) where testimony of deceased given at former trial or deposition is read into evidence; (3) where there is failure to make timely and proper objection; (4) testifying about the transaction or communication with interested party
- MD: Only applies to interested PARTIES.
Leading Questions
generally objectionable
- Exceptions: (1) on cross examination
(2) on direct examination for: (a) preliminary and introductory matters (b) youthful or forgetful witnesses; (c) hostile witnesses; (d) witnesses who are adverse or identified with adverse party
Writings in Aid of Oral Testimony
- Refreshing Recollection: W may not read from prepared memo; must testify on basis of current recollection
- -BUT, if W’s memory fails he may be anything to jog memory. (Cannot read unless authenticated & in evidence under hearsay exception)
- Adversary then has right to introduce it into evidence.
Past Recollection Recorded (Hearsay Exception)
- foundation required for reading past recollection into evidence:
(1) showing writing to witness fails to jog memory
(2) witness had personal knowledge at former time
(3) writing was made or adopted by witness
(4) when event was fresh in memory
(5) witness can vouch for accuracy of writing when made or adopted.
Lay Witness Opinion Testimony
Generally inadmissible, UNLESS (1) based on perception of witness, (2) helpful to clear understanding of testimony, and (3) not based on scientific or technical knowledge.
- -Allowable Situations: general appearance of person, state of emotion, matters involving sense recognition, voice or handwriting ID, speed, value of own services, sanity, intoxication.
- -Not Allowed: to give opinion about agency/authorization, whether there was contract or agreement when express contract exists.
