mock mbe Flashcards
judicial notice
when?
effect?
is appropriate when the fact is indisputable, and can’t be verified by scientific principle
criminal: judge tell the jury they may but are not required to accept the fact, prosecutor’s burden of producing evidence on the fact is satisfied, and jury not required to treat it as established
civil: the fact is conclusively established
objection to introduction of certain evidence without the judge’s first making a preliminary ruling on the admissibility of the evidence
Opinion testimony regarding the structural integrity of a building by an engineer called by the plaintiff, without a preliminary de- termination by the judge that the engineer is an expert.
Hospital records pertaining to the plaintiff offered by the plaintiff, without a prelimi- nary determination by the judge that they were made as a regular activity of the hospital staff.
A paramedic’s testimony that the plaintiff’s wife, before she died, said that the defendant’s car went through a red light before hitting her, without a preliminary determination by the judge that she made the state- ment under a sense of impending death
what kind be used refresh the witness’s recollection
vs.
past recollection
anything can be used
if u use a document to refresh, must make that document available to the other party, she can introduce it if she wants to and u can reject
PRR: can be read in, can’t introduce, the other side can introduce
Hearsay exception for past recollection recorded. Foundation for admissibility of contents of writing:
(1) showing writing to witness fails to jog memory
(2) witness had personal knowledge at former time
(3) writing was either made by witness, or adopted by witness
(4) making or adoption occurred when event was fresh in witness’s
memory
(5) witness can vouch for accuracy of writing when made or adopted.
character evidence
criminal
- Criminal Cases.
prosecutor: Evidence of the defendant’s character to prove conduct in conformity is NOT ADMISSIBLE DURING THE PROSECUTION’S CASE-IN-CHIEF.
However, DEFENDANT, during the defense, MAY INTRODUCE EVIDENCE OF A RELEVANT good CHARACTER TRAIT (**by reputation or opinion testimony of a character witness, ***no specific act) to prove conduct in conformity,
if D INTRODUCE EVIDENCE OF A RELEVANT good CHARACTER TRAIT, she OPENING THE DOOR TO REBUTTAL by the prosecution.
(b) Prosecution’s Rebuttal
IF defendant has “opened the door” by calling character witnesses, the prosecution may rebut:
(1) by cross-examining defendant’s character witnesses with “Have you heard” or “Did you know” questions about specific acts of the defendant that reflect adversely on the particular character trait that defendant has introduced (prosecution must have good faith basis for the question); purpose: to impeach character witness’s knowledge; and/or
(2) by calling its own reputation or opinion witnesses to contradict defendant’s witnesses.
General rule: Other crimes or specific bad acts of defendant are not admissible during the prosecution’s case-in-chief if the only purpose is to suggest that because of defendant’s bad character he is more likely to have committed the crime currently charged.
BUT, if defendant’s other crimes or bad acts show SOMETHING SPECIFIC ABOUT THE CRIME CHARGED—something more than mere bad character—such evidence may be ADMISSIBLE as evidence bearing on guilt.
Most common non-character purposes: “MIMIC”— MOTIVE
INTENT
MISTAKE OR ACCIDENT, ABSENCE OF IDENTITY
COMMON SCHEME OR PLAN
***but can be kept out, if the probative value is substantially out weight by the potential prejudice to the D.
if D. testify, then prosecutor can impeach his truthfulness with character evidence
character evidence
civil
- Civil Cases
(a) Character evidence generally INADMISSIBLE to prove CONDUCT IN CONFORMITY.
(b) Evidence of person’s character is ADMISSIBLE in civil action where such character is an ESSENTIAL ELEMENT OF A CLAIM OR DEFENSE (provable by reputation, opinion, and specific acts). Only 2 situations:
1, negligence entrustment and hiring
2, defamation cases where truth is a defense
if testify to the reputation then it is not ***habit
if D. testify, then prosecutor can impeach his truthfulness with character evidence
prior similar occurrence vs. habit
prior similar occurrence inadmissible to show party probably acted like that again
habit (repeated response to a particular setting) is ok to show D. acted in conformity
DEFENDANT, during the defense, MAY INTRODUCE EVIDENCE OF A RELEVANT good CHARACTER TRAIT (**by reputation or opinion testimony of a character witness, no specific act) to prove conduct in conformity,
must be on the relevant character trait as the crime charged
General rule: Other crimes or specific bad acts of defendant are not admissible during the prosecution’s case-in-chief
if the only purpose is to suggest that because of defendant’s bad character he is more likely to have committed the crime currently charged.
BUT, if defendant’s other crimes or bad acts show SOMETHING SPECIFIC ABOUT THE CRIME CHARGED—something more than mere bad character—such evidence may be ADMISSIBLE as evidence bearing on guilt.
Most common non-character purposes: “MIMIC”— MOTIVE
INTENT
MISTAKE OR ACCIDENT, ABSENCE OF IDENTITY
COMMON SCHEME OR PLAN
***but can be kept out, if the probative value is substantially out weight by the potential prejudice to the D.
However, DEFENDANT, during the defense, MAY INTRODUCE EVIDENCE OF A RELEVANT good CHARACTER TRAIT to prove conduct in conformity, by what type?
**by reputation or opinion testimony of a character witness, ***no specific act
impeachment
types
H. Impeachment Methods
(1) Prior Inconsistent Statements
(2) Bias, Interest or Motive to Misrepresent
(3) Sensory Deficiencies
Bad Character for Truthfulness:
(4) Bad Reputation or Opinion about witness’s character for truthfulness
(5) Criminal Convictions
(6) Bad Acts (without conviction) that reflect adversely on witness’s
character for truthfulness
(7) Contradiction
Rule: EXTRINSIC EVIDENCE NOT ALLOWED for the purpose of contradiction IF the fact at issue is COLLATERAL.
impeachment
(1) Prior Inconsistent Statements
Any witness may be impeached by showing that on some prior occasion, she made a material statement (orally or in writing) that is inconsistent with her trial testimony.
extrinsic evidence ok (***not ok if its on minor issue), Confrontation timing is flexible
Exception: No confrontation required and no opportunity to explain need be given if Witness is opposing party
BUT certain prior inconsistent statements may be admitted both for impeachment and as substantive evidence—to prove the truth of the matter asserted in the prior inconsistent statement: prior inconsistent statement given orally under oath AND as part of a formal hearing, proceeding, trial or deposition.
(2) Bias, Interest or Motive to Misrepresent
(a) Must witness be confronted with alleged bias while on the stand?
Texas rule: Yes. Witness must be told of circumstances or statements that allegedly show bias and given immediate opportunity to explain or deny.
Federal rule: Court’s discretion.
(b) If confrontation prerequisite is met, may bias be proven by extrinsic evidence?
Texas rule: Yes, if witness denies bias or fails to admit bias unequivocally
Federal rule: Yes, court has discretion to permit extrinsic evidence even if witness admits the bias.
- Bad Reputation or Opinion About Witness’s Character for Truthfulness
(5) Criminal Convictions - Inquiry About Bad Acts (without conviction) if they reflect adversely on witness’s character for truthfulness
extrinsic ok, confrontation not required
(1) Conviction of any crime (felony or misdemeanor) involving dishonesty or false statement may be used to impeach any witness.
(2) If conviction does not involve dishonesty or false statement, it must be a felony, and court may exclude, in its discretion, if probative value on issue of witness credibility is outweighed by danger of unfair prejudice to a party (misuse as evidence of liability or guilt).
(3) Conviction, or release from prison, whichever is later, generally must be within 10 years of trial.
extrinsic ok
- Confrontation on cross-examination is the only permissible means. No extrinsic evidence is permitted. Cross-examiner must have good-faith basis, and ability to inquire lies in court’s discretion.
Bolstering Own Witness
IN GENERAL, not allowed until after witness’s credibility has been attacked.
but criminal case, with character evidence
DEFENDANT, during the defense, MAY INTRODUCE EVIDENCE OF A RELEVANT good CHARACTER TRAIT (**by reputation or opinion testimony of a character witness, ***no specific act) to prove conduct in conformity,
example: second witness to testify D. is honest in a embezzlement case
I. Rehabilitation
(a) When?
(b) How?
- Showing witness’s good character for truthfulness.
only when ur witness has been impeached by 456 about bad character above
(4) Bad Reputation or Opinion about witness’s character for truthfulness
(5) Criminal Convictions
(6) Bad Acts (without conviction) that reflect adversely on witness’s character for truthfulness
call another witness to give opinion/ reputation about the target witness
- Prior consistent statement to rebut a charge of recent fabrication.
