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MBE Evidence
| Question | Answer |
|---|---|
| Probative Value/prejudicial impact balancing test contained in FRE 403. | Relevant evidence is admissible unless its prejudicial impact substantially outweighs its probative value. |
| Even relevant evidence can be excluded if: | 1. Relevant evidence is admissible unless its prejudicial impact substantially outweighs its probative value. 2. Cumulative Evidence 3. Waste of time Confuse the issues |
| Judicial Notice Of Facts: | 1. Capable of accurate and ready determination 2. Common knowledge within the jurisdiction of the court - Ie: court records |
| Significance of Judicially Noticed Fact | Civil: that fact is conclusively established on a jury Criminal: the prosecution's burden of producing evidence on that point is satisfied. |
| Relevant evidence | evidence having any tendency to make the existence of a consequential fact more probable or less probable |
| Best Evidence Rule | Whenever you are trying to establish the contents of a writing the original must be produced unless it is shown to be unavailable. |
| Handwriting authentication can be done by: | 1. someone who is familiar with the person's handwriting. Familiarity must be gained BEFORE trial. 2. By an expert 3. By the trier of fact (jury) |
| Voice authentication can be done by | 1. Someone with familiarity, can be done by someone who is familiar with the voice before trial, as well as someone who becomes familiar for the purposes of trial. 2. Expert witness 3. Trier of fact |
| Character evidence Criminal 1 | 1. NO propensity evidence The prosecution cannot introduce any reputation evidence of the D's bad character if the purpose is to show that the defendant acted in conformity with that reputation |
| Character Evidence Criminal 2 | 2. The D is allowed to present evidence of RELEVANT good character traits to establish he acted in conformity there in. a. Limited to reputation only, not specific acts |
| Character Evidence Criminal 3 | 3. If D does present evidence of good character, D has opened door and now Prosecution may rebut with evidence of D's bad character a. Also limited to reputation only, not specific act |
| Character Evidence Criminal 4 | 4. Evidence of Prior Crimes/ Bad acts are never admissible to show that the D probably acted unlawfully again. i. But can be admitted for any other purpose Motive Intent M absence of Mistake Identity Common plan or scheme |
| Civil Character Evidence 5 | 5. If D testifies he automatically places his character for truth in issue |
| Civil Character Evidence 1 | 1. Character evidence in civil case is inadmissible unless it is directly in issue or an essential element of the P's claim or defense a. Comes up in: Defamation (p's character is at issue), child custody, fraud, negligent entrustment, self defense |
| Civil Character Evidence 2 | 2. You can if you are introducing it for some other purpose, other than saying this person must have acted in conformity with this character. |
| Civil Character Evidence 3 | 3. If a party testifies they put their character for truthfulness in issue. |
| Impeachment way 1 | 1. Prior inconsistent statement Statement only comes in to impeach, not substantively, for the truth of the matter asserted, UNLESS the statement was made under oath as part of a legal proceeding. |
| Impeachment way 2 | 2. Bias or motive to misrepresent a. Always admissible, and allow extrinsic evidence to come in. |
| Impeachment way 3 | 3. Prior conviction a. Prior crime involving dishonesty or false statement (doesn't matter if felony or misdemeanor) b. If not a prior conviction involving dishonesty or false statement, may only be used if serious crime (felony) punishable by more |
| Impeachment way 4 | 4. Specific acts of misconduct which bear on truthfulness a. May be inquired into on CROSS to impeach b. No extrinsic evidence |
| Impeachment way 5 | 5. Bad reputation for truthfulness a. Can be proven by extrinsic evidence |
| Jurors are incompetent to testify when: | 1. While empaneled on a jury In regard to post proceeding jury deliberations |
| Hearsay | An out of court statement offered to prove the truth of the matter asserted. |
| Non Hearsay | Statements which are allowed in for the truth of the matter asserted. Non Hearsay requires the declarant to be testifying at the trial or hearing and be subject to cross examination. EX: admissions, prior, sworn incons. stmt, prior consist. stmt, prior id |
| Dying Declaration | a. Belief that death is imminent b. Statement concerning the cause or circumstances surrounding death c. Declarant must be unavailable Only applies in any civil case, but only in homicide criminal cases |
| Excited Utterance | Statement relating to a startling event, made while the declarant was still under the stress of the excitement |
| Present Sense Impression | Statement describing or explaining an event made while the declarant was observing or perceiving the event, or immediately thereafter |
| Statement for medical diagnosis or treatment | Out of court statement about the nature of an injury or medical condition made to medical personnel is admissible- but only if relating to medical diagnosis or treatment. |
| Business Records Exception | a. Admits into evidence records that are kept in the ordinary course of business Record must be made by a person who has a duty to make the record as part of his employment |
| Business Records Exception Cont. | To be admissible declarant must have personal knowledge of the facts stated in the criminal record OR the declarant must have received the information from someone with personal knowledge who transmitted it in the ordinary course of their business |
| Vicarious admission | Statements by an agent concerning any matter within the scope of the agency are admissible against a principal. |
| Offer to pay medical expenses | that offer is inadmissible to prove liability but can sever any other statements made with that offer and can be admitted.EX: admission with offer is severed and introduced. |
| Offer to settle | any statement made in conjunction are inadmissible |
| State of mind HS Exception | Circumstantial evidence offered to show declarants then existing state of mind, emotion, or physical condition. |
| Attorney Client Privilege | Protects confidential communications between an attorney and a client, as well as an attorney and a prospective client as well as between a client and an attorney's representative. |
| Lay Witness can testify to | anything rationally based in that witness's perception, must have first hand knowledge. - Height, weight, speed - Can't give legal conclusions |
| Experts can testify to: | - Personal observation, does not have to have personal knowledge - Authoritative texts - Facts reasonably relied on by other experts in the field |
| Best Evidence Rule Arises: whenever the contents of a writing are at issue | G/R original document must be produced Exception: if it can be shown that the original has been lost or destroyed in good faith then any form of secondary evidence can be substituted for the original. |
| The best evidence rule does not require a party to use the MOST PERSUASIVE evidence to prove a point. | It merely requires the production of the original document WHEN ATTEMPTING TO PROVE THE CONTENTS OF THE DOCUMENT. |
| An offer to settle made while there is an actual dispute is inadmissible at trial: | Reason: we want people to settle their disputes out of court. Public Policy. |
| Impeachment on a collateral issue | Extrinsic evidence of a prior inconsistent statement may not be used to impeach a witness on a collateral matter. |
| The privilege against self incrimination is not only in criminal cases, this 5th amendment right applies in all settings. | If you assert the privilege against self incrimination on cross examination, your direct testimony that you gave on that issue you are refusing to answer on cross, will be stricken from the record. |
| Character evidence in a civil case G/R- inadmissible Exceptions: | 1. Negligent entrustment 2. Defamation 3. Civil Fraud (misrepresentation or deceit) 4. Child Custody cases 5. Tortious assault and battery cases where D claims self defense, (victim's character for violence at issue) |
| Prosecution is allowed to used specific acts not to prove conformity of conduct but to prove: | Motive, Intent, Absence of Mistake, Identity, Common Scheme (MIMIC) |
| Catch All Exception | Need circumstantial guarantees of trustworthiness present in the statement. Looking for someone who has NO REASON TO LIE! |
| Prior Identification admissibility | Need person who made the prior identification to be on the stand. MUST BE AVAILABLE TO TESTIFY AT TRIAL! |
| The silence is admissible nonhearsay as an admission by a party opponent. Under FRE, silence in response to an accusatory statement can be considered an implied admission if | the party heard and understood the statement, was capable of denying the statement, and a reasonable person would have denied the accusation such an accusation. |
| Nonassertive conduct | is not hearsay and is otherwise admissible |
| Present State of Mind Exception to HS: Hillman Case | Statement as an intent to do something in the future is an exception to HS. |
| Rights of opposing counsel after witness for other side has used something to refresh recollection | 1. Inspect document 2. Cross examine with document 3. Introduce all or parts of that document into evidence, usually for purposes of impeachment |
| How is refreshing a witness's recollection done? | 1. Leading Question 2. Use of a writing |
| G/R writing used to refresh memory is not placed into evidence. | FRE 612: if a writing is used to refresh the recollection of a witness the OPPOSING PARTY has a right to introduce the document into evidence. |
| Past recollection recorded: entirely dependent on present recollection refreshed failing!! | The difference between present recollection refreshed and past recollection recorded is a recurring exam favorite |
Created by:
staciaberry
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