Top MEE Rules Flashcards
When is evidence relevant? (27.6%)
Relevance. Evidence MUST be relevant in order to be admissible. Evidence is relevant if it is both:
(1) Probative, i.e. if it has any tendency to make a fact more or less probable than it would be without the evidence; AND
(2) Material, i.e. if it is a fact of consequence in determining the outcome of the action.
When may relevant evidence be excluded via a balancing test? (3.4%)
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:
(1) Unfair prejudice;
(2) Confusing the issues;
(3) Misleading the jury;
(4) Undue delay;
(5) Wasting time; OR
(6) Needlessly presenting cumulative evidence.
What types of relevant evidence may be excluded for public policy reasons? (6.9%)
(1) Subsequent remedial measures. When measures are taken by D after an accident that would have made an earlier injury or harm less likely to occur (e.g., repairing an area where a customer slipped), such measures are inadmisible to prove negligence, culpable conduct, a defective product or design, or the need for a warning or instruction
(2) Offers, conduct, or statements made during negotiations to settle or compromise. These are NOT admissible to (dis)prove a disputed claim or to impeach by prior inconsistent statement or contradiction, UNLESS they were made during negotiations in a civil dispute involving a government agency AND are offered in a subsequent criminal case.
(3) Offers to pay medical expenses. Evidence of the payment, offer to pay, or promise to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.
(4) Plea negotiations. Generally NOT admissible against the defendant who made the plea or participated in the plea discussions. This includes withdrawn guilty pleas; pleas of no contest (i.e., a nolo contendere plea); statements made while negotiating a plea with a prosecutor (e.g., an offer to plead guilty); and statements made during a plea proceeding (e.g., a Rule 11 proceeding under the Federal Rules of Criminal Procedure).
(5) Liability insurance is NOT admissible to prove whether the person acted negligently or otherwise wrongfully.
(6) Sexual behavior is generally inadmissible except under certain circumstances.
Victim’s conduct: In criminal cases, admissible to show consent to D or involvement of a person other than D; in civil cases, when probative value substantially outweighs harm to victim and prejudice to party
Accused: Admissible as similar acts in cases of sexual assault or child molestation
Character evidence to show propensity in civil cases (including types) (24.1%)
In civil cases, character evidence is NOT admissible for propensity purposes (i.e., evidence of someone’s character cannot be introduced to show that they have the propensity to act in accordance with the alleged character trait), UNLESS:
(1) Character is an essential element of a claim or defense (e.g., defamation, negligent hiring, negligent entrustment, child custody, etc.), in which case it may be shown by reputation, opinion testimony, or specific instances; OR
(2) The case is based on the defendant’s sexual misconduct (allowed to introduce evidence of a past sexual assault or child molestation by the defendant).
What types of evidence of a defendant’s character are permissible in a criminal case, and when? (24.1%)
In criminal cases, the prosecution CANNOT introduce evidence of a defendant’s bad character to prove that the defendant has the propensity to have committed the crime in question.
However, the defendant may “open the door” and present positive character evidence as long as it is:
(1) Pertinent to the crime charged (e.g., if the crime charged involves violence, the defendant may only put on character evidence of non-violence); AND
(2) Through reputation or opinion testimony (NOT specific instances of conduct).
If the defendant opens the door by presenting evidence of the defendant’s good character, the prosecution may then introduce negative character evidence (must relate to the same character trait in question) to rebut the defendant in two different ways:
(1) The prosecution can call its own character witness whose testimony is limited to reputation or opinion testimony (NOT specific instances of conduct); OR
(2) The prosecution can cross-examine the defendant’s character witness, which may include introducing evidence of specific instances as long as it relates to the character trait in question.
Note: Defendant can also “open the door” by introducing evidence of the victim’s bad character.
What types of evidence of a victim’s character are permissible in a criminal case, and when? (24.1%)
A criminal defendant may introduce reputation or opinion testimony of the victim’s character if it is relevant to one of the defenses asserted. If the defendant does so, the prosecution may rebut by presenting evidence that:
(1) The defendant possesses the same character trait; OR
(2) The victim possesses a relevant positive character trait.
If this is done on cross-examination, the prosecution may introduce specific instances of conduct to rebut.
Rape Cases. In cases involving rape, evidence offered to prove a victim’s sexual behavior or predisposition is NOT admissible. (Compare with civil cases involving sexual misconduct: evidence offered to prove a victim’s sexual behavior or misconduct may be admissible if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.)
Homicide Cases. The prosecution may admit evidence of a victim’s character for non-violence only if the defendant claims the victim was the aggressor (i.e., self-defense claim).
MIMIC (24.1%)
Specific instances of conduct are generally NOT admissible to show propensity, BUT are admissible to show (M.I.M.I.C.):
(1) Motive or opportunity;
(2) Intent;
(3) Absence of Mistake;
(4) Identity; OR
(5) Common plan or preparation.
Specific instances of conduct are admissible for MIMIC purposes if:
(1) There is sufficient evidence to support a jury finding that the defendant committed the prior act (i.e., cannot “fish” for prior acts without proof); AND
(2) The probative value of the specific instances of conduct is NOT substantially outweighed by the danger of unfair prejudice to the jury.
Habit and routine practices (6.9%)
Evidence of a person’s habit (e.g., putting on a seatbelt) or an organization’s routine practice (e.g., filing certain paperwork) may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness. Habit and routine practices are more specific than character evidence (look for buzz words like “always” or “every time” to signal a habit or routine practice).
Because habit evidence can run afoul of the bans on character evidence and prior bad acts evidence, courts generally limit habit evidence to proof of relevant behaviors that are not just consistent but semi-automatic.
What types of evidence are admissible to attack a witness’s character for truthfulness, and when? (6.9%)
Reputation or opinion testimony. A witness’s credibility may be attacked by introducing character evidence of the witness’s untruthfulness through reputation or opinion testimony.
Specific instances of conduct. Generally, a specific instance of conduct (e.g., lying on a job application) is not admissible to attack or support the witness’s character for truthfulness. On cross-examination, a witness’s credibility may be attacked with specific instances of conduct, provided that:
(1) The specific instance regards the truthfulness of the witness;
(2) There is a good faith belief in the prior misconduct (can’t fish for specific acts without proof); AND
(3) The specific instance does NOT involve an arrest or a consequence of an arrest.
Note that in general, extrinsic evidence of specific instances of conduct is NOT admissible (e.g., a job application the witness lied on could be asked about on cross-examination, but the application itself could not be introduced as extrinsic evidence).
Prior Convictions [see other card].
NOTE: Witness’s Truthfulness. Evidence of the truthful character of the witness is admissible only after the witness’s character for truthfulness has been attacked. Evidence that impeaches the witness but does not specifically attack the witness’s character for truthfulness, such as testimony that the witness is biased, does not constitute an attack.
When may a prior conviction be used to attack a witness’s character for truthfulness (and thus credibility, i.e., impeach the witness)? (17.1%)
Prior Convictions. A prior conviction is admissible to attack credibility if: (a) the offense involved dishonesty, or (b) the offense was a felony and legally relevant.
(a) Offenses involving dishonesty. Evidence of a prior felony OR misdemeanor conviction involving dishonesty is usually always admissible to attack a witness’s credibility (subject to the 10-year restriction).
(b) Offenses not involving dishonesty. Evidence of a prior felony (crime is punishable by death or imprisonment for more than one year) that does NOT involve dishonesty is admissible IF it is legally relevant (i.e., probative value is not substantially outweighed by the danger of unfair prejudice).
(c) Exceptions.
(i) 10-year rule. If more than 10 years has elapsed since conviction or release (whichever is later) of ANY crime, the prior conviction is subject to a reverse legal relevance test. The party introducing the evidence must show that the probative value of the conviction substantially outweighs the danger of unfair prejudice.
(ii) Evidence of a prior conviction is NOT admissible if the conviction was: Pardoned; Annulled; OR Later found innocent.
Besides attacking a witness’s character for truthfulness, what are the other methods of impeaching a witness? (17.1%)
Prior Inconsistent Statements. A witness’s credibility may be attacked by introducing the witness’s prior inconsistent statements. Extrinsic evidence may only be introduced if the witness is given an opportunity to explain or deny the prior inconsistent statement. However, extrinsic evidence of a prior inconsistent statement CANNOT be used to attack the witness’s credibility regarding a collateral matter (i.e., an irrelevant matter).
When a hearsay statement has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. [i.e., if a declarant’s hearsay statement has been admitted, it’s as if the declarant had testified.] The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.
Sensory Competence. A witness’s credibility may be attacked by showing that the witness has a deficiency in her ability to perceive, recall, or relate information (e.g., memory loss) that is NOT collateral (i.e., must be a relevant matter).
Self-Interest/Bias. Because a witness may be influenced by his relationship to a party, his interest in testifying, or his interest in the outcome of the case, a witness’s bias or interest is always relevant to the credibility of his testimony. Although the Federal Rules do not expressly require that a party ask the witness about an alleged bias before introducing extrinsic evidence of that bias, many courts require that such a foundation be laid before extrinsic evidence of bias can be introduced.
How is tangible evidence authenticated? (6.9%)
All tangible evidence must be authenticated. Tangible evidence is any evidence not presented as oral or verbal testimony (e.g., letters, contracts, weapons, drug paraphernalia, videos, photographs, etc.). Authentication requires that a party show that the item being introduced as evidence is what the party claims it to be.
Physical evidence (e.g., weapons, clothing, videotapes, etc.) may be authenticated through:
(1) Witness testimony (i.e., personal knowledge of the witness who has familiarity with the object); OR
(2) Chain of custody (i.e., witness can verify the whereabouts of the evidence from collection to trial).
Documentary evidence (e.g., letters, contracts, etc.) may be authenticated through:
(1) Stipulation (both parties agree);
(2) Witness testimony; OR
(3) Handwriting verification.
(a) An expert witness or trier of fact can verify handwriting by comparing the writing in question with another writing that has been proven to be genuine.
(b) A non-expert witness with personal knowledge of the handwriting in question can verify the handwriting (e.g., a father may be able verify his son’s handwriting). A non-expert cannot become familiar with the handwriting in order to prepare for litigation.
Self-authenticating documents do NOT require extrinsic proof of authenticity. These include [Only Clearly Real Documents Can Authenticate Themselves No Sweat]:
(1) Official publications issued by a public authority;
(2) Certified copies of public records;
(3) Records of regularly conducted business activity certified by a custodian of the records;
(4) Declared by federal statute to be authentic;
(5) Commercial paper;
(6) Acknowledged/Notarized documents;
(7) Trade inscriptions (i.e., affixed signs, tags, or labels indicating origin, ownership, or control – e.g., clothing tags);
(8) Newspapers and periodicals; AND
(9) Signed public documents that are either sealed or certified.
What is hearsay? (34.5%)
Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted. Hearsay is NOT admissible UNLESS it falls under a valid exception.
A “statement” includes a person’s oral assertions, written assertions, or nonverbal conduct if the person intended it as an assertion (e.g., head nod, thumbs up, etc.).
Which types of statements, which otherwise would qualify as hearsay, are expressly defined as nonhearsay under the Federal Rules? For what purposes are they admissible? (34.5%)
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Declarant-witness’s prior statements, made by a declarant who testifies and is subject to cross-examination.
(a) Prior inconsistent statements can be admissible for impeachment purposes. If previously made under penalty of perjury, can also be admissible for substantive purposes.
(b) Prior consistent statements are admissible as substantive evidence. They are also admissible to rebut a claim that the declarant is fabricating or has a recent motive to fabricate the statement in court if the prior consistent statement was made before the declarant had a motive to fabricate the statement.
(c) Prior statements of identification (e.g., prior out-of-court identifications in lineups, photo arrays, etc.) are admissible for substantive purposes. A previous out-of-court identification of a person after perceiving that person is not hearsay and may be admissible as substantive evidence by the testimony of the declarant-witness. Even if the witness has no memory of the prior identification, it will be admissible because the witness is subject to cross-examination about the prior identification. -
Statements by or attributed to party-opponent. These include the party-opponent’s own statements, as well as:
(a) Adoptive Admissions. Silence is considered an adoptive admission if the party heard and understood the statement and remained silent where a reasonable person would have denied the statement.
(b) Vicarious Admissions. Statements made by an authorized spokesperson, an agent within the scope of and during the agency relationship, or co-conspirators during and in furtherance of the conspiracy are considered vicarious admissions and are imputed on the party opponent.
There are five exceptions to the hearsay rule that apply only if the declarant is unavailable as a witness. What are they? (10.3%)
That Wandering Declarant Isn’t Here.
- former testimony given at a trial hearing or deposition: The opposing party must have had an opportunity and similar motive to develop the testimony through cross or direct examination.
- statement offered against a party that wrongfully caused the declarant’s unavailability. W
Note: A declarant is not deemed unavailable if the unavailability is due to the procurement or wrongdoing of the proponent of the statement in order to prevent the declarant from testifying at or attending the trial.
- dying declaration, D
- statement against interest: The statement is against the declarant’s self-interest; AND a reasonable person would NOT have made the statement unless he believed it to be true.
- statement of personal or family history, H.
