MBE One Sheets Flashcards
WHY IS THE STATEMENT
BEING OFFERED? To Prove It Was Said (Non-Hearsay)
(1) Verbal act/legally operative words (e.g., defamation, words that show K formation, etc.)
(2) State of mind (e.g., “I’m the Queen of England” to show declarant is crazy)
(3) Effect on listener/reader (Tip: usually to prove motive/intent.)
WHY IS THE STATEMENT
BEING OFFERED? To Prove it is True: Non-Hearsay- Prior Statements of Trial Witness
Prior statements of a trial witness: (Tip: declarant must be testifying at trial for these to apply.)
1) Prior statement of ID
2) Prior inconsistent statement (made under oath at formal trial, hearing, or deposition & declarant is at trial subject to cross concerning statement)
3) Prior consistent statement used to rebut charge of recent fabrication of improper motive/influence
WHY IS THE STATEMENT
BEING OFFERED? To Prove it is True: Non-Hearsay- Opposing Party’s Statement
Opposing party’s statement (Tip: Don’t make this harder than it is. If a party says something, it can be used against them w/o a hearsay issue.)
1) Any statement made by opposing party that is offered against that party
2) Adoptive admissions (statements a person adopts through silence)
3) Agent/employee statements made by agent /employee offered against principal during existence of the relationship & concerning a matter w/in scope of agency/employment
4) Statements by co-conspirators made during course of & in furtherance of the conspiracy
WHY IS THE STATEMENT
BEING OFFERED? To Prove it is True: Hearsay Exceptions - Declarant MUST Be Unavailable
Declarant must be unavailable (i.e., invokes a privilege, is absent from the jurisdiction, is ill or dead, lacks memory, or refuses to testify)
- Forfeiture by wrongdoing (witness tampering): a party engages in wrongdoing for purpose of making a witness unavailable for trial.
- Former testimony: declarant is unavailable & gave testimony at a former proceeding/deposition, & it is admitted against a party/someone in privity who had the motive & opportunity to develop the statement.
- Statement against interest: declarant is unavailable & made a statement he knew was against his interest at the time the statement was made.
- Dying declaration: Declarant is unavailable, statement was made while he believed death was impending, it concerns the cause/circumstances of death, & it is used in a homicide/civil case. Tip: memorize these elements!
- Statement of personal/family history (e.g., birthdate & marriage date)
- Is it a CRIMINAL CASE? If so, if statement is testimonial, declarant is unavailable, & D had no opportunity to cross-examine declarant, statement will generally not be admitted (pursuant to 6th Amen
Confrontation Clause).
WHY IS THE STATEMENT
BEING OFFERED? To Prove it is True: Hearsay Exceptions - Declarant May be Available or Unavailable
- Present sense impression: declarant describes/ explains event as it is happening/immediately after.
- Excited utterance: there is a startling event, declarant makes a statement while under stress of
excitement, & statement relates to event. - Then-existing mental, emotional, or physical condition: declarant states his then-existing feelings,
physical conditions, or intent. - Statement for medical treatment/diagnosis: declarant makes a statement about past/present
symptoms/cause(s) to get diagnosed/treated. - Recorded recollection: a witness has insufficient recollection of event, but he had personal knowledge
of event at a former time, made/adopted a statement while event was fresh in his memory, & can vouch for accuracy of statement when made/adopted. - Business records: record made in regular course of business at/about the time event occurred that contains info observed by employees of the business (or an independent hearsay exception exists).
- Public records (made by an agency, but not police reports in criminal cases)
- Learned treatises (read into evidence if an expert is on the stand)
- “Catchall” exception (for trustworthy statements)
- Others (reputation about character, familial relations, etc.
Presentation of Evidence: Introduction of Evidence - Refreshing Recollection
Refreshing recollection: if witness’s memory fails him, he may be shown a doc/record to jog his memory.
Presentation of Evidence: Introduction of Evidence - Competency of Witness
Competency of witnesses: every witness is generally presumed to be competent regardless of religious beliefs, bias, etc.
Presentation of Evidence: Introduction of Evidence - Judicial Notice
Judicial notice: ct may judicially notice a fact that is not subject to reasonable dispute b/c it is generally known w/in the jurisdiction/it can be accurately & readily determined from sources whose accuracy cannot be questioned
Presentation of Evidence: Introduction of Evidence - Roles of Judge & Jury
Roles of judge & jury:
(1) Judge: decides if evidence is admissible.
(2) Jury: decides issues of authentication & credibility.
Presentation of Evidence: Introduction of Evidence - Limited Admissibility
Limited admissibility: Sometimes evidence is admissible for one purpose & not another. In such a case, a ct may give a limiting instruction to the jury.
Presumptions
- A “presumption” means that a certain fact is assumed to be true unless the other side provides evidence to the contrary.
- In a civil case, a presumption can shift the burden of proof to the party against whom presumption is directed.
- But burden of persuasion remains on party who had it originally
Mode & Order: Scope of examination: Cross-examination
Cross-examination (i.e., questioning of a witness by an opponent) should only cover matters w/in scope of direct examination & matters affecting credibility
Mode & Order: Leading Questions
- Leading questions (i.e., those that suggest an answer, like “isn’t it true that…”) are permitted on cross-examination.
- They are only allowed on direct examination
(a) to develop preliminary matters (e.g., name & address),
(b) for young/forgetful witnesses, or
(c) for hostile witnesses/adverse party. - The ct exercises reasonable control over mode & order of questioning witnesses
RELEVANCY AND WRITINGS, RECORDINGS, AND
PRESENTATION OF EVIDENCE PHOTOGRAPHS: Relevant Evidence
- Relevant evidence is admissible but may be excluded if probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
- Real, demonstrative, & experimental evidence are permissible in the judge’s discretion
RELEVANCY AND WRITINGS, RECORDINGS, AND
PRESENTATION OF EVIDENCE PHOTOGRAPHS: original writing, recording, or photograph
- An original writing, recording, or photograph is generally required, but a duplicate is admissible to same extent as an original unless it is unfair to admit it or there is a genuine question about authenticity.
RELEVANCY AND WRITINGS, RECORDINGS, AND
PRESENTATION OF EVIDENCE PHOTOGRAPHS: BER
- Best-evidence rule: One only needs to present documentary evidence when one wants to prove the contents of a writing.
- This means that the writing is
(1) a legally operative document (e.g., a will, contract, etc.), or
(2) witness learned about event solely from writing/ record & has no independent knowledge of event. - Tip: this is often the wrong answer choice on the MBE.
RELEVANCY AND WRITINGS, RECORDINGS, AND
PRESENTATION OF EVIDENCE PHOTOGRAPHS: Summaries
Summaries: A party may use a summary, chart, or calculation if records are voluminous. However, proponent must allow other parties to examine/copy originals/duplicates & the court may order them to be produced
RELEVANCY AND WRITINGS, RECORDINGS, AND
PRESENTATION OF EVIDENCE PHOTOGRAPHS: Completeness Rule
Completeness rule: When a party introduces part of a writing/transaction, the other party can ask that the rest of it be introduced as well if, in fairness, the rest ought to be considered at the same time with it. By introducing the writing/transaction, the party initially offering the evidence has waived any objections based on hearsay, competency, etc.
Impeachment: Prior Inconsistent Statements
- If a party makes a prior statement that is inconsistent w/ her testimony at trial, it may be used for impeachment.
- Tip: it may also be used as “substantive evidence”
(i.e., truth of the matter asserted) if it falls w/in a hearsay exception/exclusion (e.g., prior inconsistent statement/ opposing party’s statement). - Extrinsic evidence may be used only if witness is given opportunity to explain/deny statement at some point.
- This does not apply if witness is opposing party, not in ct at all, or if interests of justice require.
- IS CONFRONTATION (ASKING THE WITNESS
ABOUT IT) PERMITTED OR REQUIRED? Permitted
Impeachment: Bias
- If a witness is a family member, friend, enemy of a party, paid by the party, granted immunity, or if other circumstances show bias, then that can be used to suggest the witness has motive to lie.
- Extrinsic evidence may be used only if witness is asked about facts that suggest bias & witness denies those facts.
- IS CONFRONTATION (ASKING THE WITNESS
ABOUT IT) PERMITTED OR REQUIRED? Required
