MBE Evidence Must Know

Question 1

Impeachment evidence that can be used against a witness

Answer 1

1. Attacking credibility of testimony (reliability)
   - admissible: evidence of self-interest/bias, prior inconsistent statement, specific contradiction, or sensory defect
2. Attacking credibility of witness (trustworthiness):
   - reputation or opinion testimony is admissible
   - for specific instance or conduct….
   (a) a conviction for felony (no more than 10 years old) or crime of dishonesty is admissible through intrinsic or extrinsic evidence unless probative value is substantially outweighed by prejudicial effect [HOWEVER, inadmissible if it was the subject of a pardon, annulment, or certificate of rehabilitation based on (1) a finding of innocence or (2) a finding of rehabilitation with no subsequent felony convictions.]
   (b) other bad acts are admissible (but only intrinsically)
   -

Question 2

Hearsay exceptions for unavailable declarants (def of unavailable and exceptions)

Answer 2

Unavailable:
- Excepted from testifying by privilege
- Refuses to testify
- Lapse of memory
- Dead or ill
- Absent from trial/hearing & proponent could not obtain attendance or testimony by reasonable means

Hearsay exceptions:
- Dying declaration
- Former testimony
- Statement against interst
- Statement of personal/family history
- Statement offered against party that wrongfully, intentionally declarant’s unavailability (forfeiture against wrongdoing exception - exception to hearsay and confrontation clause)

Question 3

Nonhearsay statements

Answer 3

Statement by declarant-witness: Out-of-court statement admissible if witness subject to cross-examination & prior statement–
- is inconsistent with current testimony & was made under penalty of perjury
- is consistent with current testimony & offered to (1) rebut charge of fabrication/improper influence or (2) rehabilitate witness or
- identifies person witness perceived earlier

Statement by party-opponent: Out-of-court statement admissible if offered against opposing party & statement was–
- made or adopted by party
- made by person authorized by party
- made by party’s agent/employee on matter within scope of relationship or
- made by party’s coconspirator during & in furtherance of conspiracy

Question 4

Criminal D may present evidence of good character when:

Answer 4

If Essential Element:
- D may present rep/opinion/specific instance of conduct (SIC)
- Pros. may present or rebut with rep/opinion/SIC

If Pertinent Trait (ie circumstantial character evidence) [mercy rule]:
- D may present rep/opinion testimony
- Pros. may rebut by either (a) examining its own witness - rep/opinion; or (b) cross examining D’s witness about SIC

Question 5

When can a criminal defendant introduce character evidence of a victim? What can they intro? What does it open the door to? [revise for door opening]

Answer 5

criminal defendant may offer evidence of an alleged victim’s character, to show conformity therewith, if it is pertinent to the case (e.g. vic’s violence pertinent to D’s assertion of self defense). *

Can be introduced through reputation or opinion testimony.

Prosecution may show D’s bad character and victim’s good character

*evidence of a vic’s sex behavior or predisposition is generally inadmissible in crim/civ proceedings involving sexual misconduct (w some exceptions)

Question 6

Admissible evidence of victim’s prior sexual behavior

Answer 6

Criminal cases
- Specific instances of victim’s sexual behavior if offered to prove that someone other than defendant was source of semen, injury, or other physical evidence
- Specific instances of victim’s sexual behavior with respect to defendant if offered by defendant to prove consent or offered by prosecutor
- Evidence whose exclusion would violate defendant’s constitutional rights

Civil cases
- Evidence offered to prove victim’s sexual behavior or predisposition if its probative value substantially outweighs danger of harm to any victim & unfair prejudice to any party
- Evidence of victim’s reputation only if victim has placed it in controversy

Question 7

Impeaching with prior criminal conviction

Answer 7

Convicted or released more than 10 years ago
- Felony or crime of dishonesty is inadmissible unless PV substantially > PE
- Reasonable notice

Convicted or released NOT more than 10 years ago
- Conviction for crime involving dishonesty is automatically admissible to impeach any witness when the conviction—or the release from confinement—is not more than 10 years old [extrinsic evidence allowed]
- Conviction for felony (1) if witness is Crim D then INadmissible unless PV > PE; (2) if not Crim D, admissible unless PE substantially > PV