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PRE Evidence

MBE Preview

Guidelines 1. Determine if criminal case or civil case, 2. Situate proceeding (where is case procedurally), 3. What is the purpose evidence is being offered (impeach, truth of matter asserted, etc.), 4. Is the evidence relevant
Relevancy- Prejudicial impact v. Probative value Even relevant evidence excluded if substantially outweighed by the danger of unfair prejudice Unfair surprise is not a reason to exclude evidence
Relevancy- R 403 A trial judge has discretion to exclude relevant evidence if 1. Probative value is substantially outweighed by danger of unfair prejudice, 2. Cumulative evidence, 3. Waste of time, and 4. Confusion of the issues
Judicial notice of facts 1. Which are capable of accurate or ready determination, and 2. Which are common knowledge within the jurisdiction of the court (ct. records)
Judicial notice of facts- Significance Civil case v. criminal case Civil case- fact is conclusively established on a jury Criminal case- prosecution burden of producing evidence on that point is satisfied
Best evidence rule Whenever trying to establish the contents of a writing the original must be produced, unless it is shown to be unavailable
Handwriting authentication Hand= authentication done by- 1. Someone who is familiar with the persons handwriting (familiarity had to be gained before trial), 2. By an expert, or 3. By trier of fact
Voice authentication 1. By someone with familiarity (familiarity before trial or for purposes of trial), 2. By an expert, 3. By an trier of fact
Character evidence- Rule 1 in a criminal case 1. Prosecution cannot introduce reputation evidence of D's bad character if purpose is to show D acted in conformity of reputation (no propensity evidence),
Character evidence- Rule 2 in a criminal case 2. D is allowed to present evidence of relevant good character traits to establish acted in conformity with good character (not specific facts),
Character evidence- Rule 3 in a criminal case 3. If D does present evidence of good character then D opened door and prosecution can rebut with evidence of D's bad character (repuration evidence, not specific acts)
Character evidence- Rule 4 in a criminal case 4. Evidence of prior crimes or bad acts are NEVER admissible to show D probably acted unlawfully again, but can be admitted for any other purpose (MIMIC) Admissible if MIMIC= Motive, Intent, Absence of Mistake, Identify, Common plan or scheme
Character evidence- Rule 5 in a criminal case 5. If D testifies automatically places character for truth in issue
Character evidence- Rule 1 in civil cases 1. Inadmissible unless directly in issue or an essential element of D's claim or defense, Most common cases for character evidence- 1. Defamation, 2. Child custody, 3. Fraud, 4. Negligent entrustment, 5. Self-defense
Character evidence- Rule 2 & 3 in civil cases 2. If litigant has some other purpose for introduction of evidence then prohibition won't keep it out if showing D acted in conformity of their character, 3. If D testifies automatically places character for truth in issue
Impeachment- Ways to impeach 1. Prior inconsistent statement, 2. Bias or motive to misrepresent, 3. Prior conviction, 4. Specific acts of misconduct(never convicted) that bear on truthfulness, and 5. Bad reputation for truthfulness
Impeachment- Ways to impeach Prior inconsistent statement Only to impeach NOT for the truth of the matter inserted Exception: Statement made under oath as part of legal proceeding then allowed for truth and impeachment
Impeachment- Ways to impeach Bias or motive to misrepresent Always admissible Extrinsic evidence can be admitted to prove
Impeachment- Ways to impeach Prior conviction Prior crime involving dishonesty or false statement (e.g. perjury)= then can use to impeach (felony or misdemeanor does not matter) Serious crime such as felony punishable by more than one year= allowed, but trial judge has discretion to exclude
Impeachment- Ways to impeach Prior conviction If too remote (more than 10 years have elapsed since release of confinement) then cannot use to impeach
Impeachment- Ways to impeach Specific acts of misconduct (never convicted) that bear on truthfulness Inquired into on cross-examination to impeach, but ct can use discretion to prevent No extrinsic evidence allowed if witness denies
Impeachment- Ways to impeach Bad reputation for truthfulness Can be proven by extrinsic evidence
Hearsay Out of court statement offered to prove the truth of the matter asserted Analysis- 1. Isolate statement, 2. Determine declarant of statement, 3. Purpose evidence is offered
Hearsay exceptions 1. Present sense impression (most common tested), 2. Excited utterance, 3. Statement concerning mental or physical condition, 4. Statement made for purpose of medical diagnosis or treatment, 5. Recorded recollection, 6. Business records,
Hearsay exceptions continued... 7. Former testimony (witness unavailable at time of trial), 8. Dying declaration (witness unavailable at time of trial), 9. Statement against interst (witness unavailable at time of trial)
Non-hearsay Statements allowed in for the truth of the matter asserted Requires the declarant be testifying at trial or hearing, and be subject to cross-examination
Types of non-hearsay 1. Admissions, 2. Prior sworn inconsistent statements, 3. Prior consistent statements, 4. Prior identifications
Hearsay exception- Dying declaration 1. Belief that death is imminent, 2. Statement concerning cause or circumstances surrounding death, 3. Declarant must be unavailable, 4. Only applies in ALL civil cases and homicide cases
Hearsay exception- Excited utterance Statement related to startling event made while declarant was still under the stress of the excitement
Hearsay exception- Present sense impression Statement describing or explaining an event, made while the declarant was observing or perceiving the event or immediately thereafter
Hearsay exception- Statements made for medical diagnosis or treatment An out of ct. statement about nature of injury or medical condition made to medical personel is admissible ONLY if it relates to medical diagnosis or treatment
Hearsay exception- Business record Admits into evidence records that are kept in the ordinary course of business Record has to be made by person who has duty to make record as part of his employment
Statement or partial statement admitted as part of prior statement or partial statement admitted When a statement or part of a statement is introduced an adverse party can introduce another or the other part of the statement on fairness grounds
Hearsay exception- Business record The declarant must have personal knowledge of the fact stated in the record, or must have received info. from someone who had personal knowledge due to recording during their ordinary course of business
Employee statements Statements by an agent concerning any matter within the scope of the agency is admissible against a principal
REMEMBER- 1. An admission answer is favored over an hearsay exception answer,
Admissions 1. Said by party, 2. Present in court, 3. Subject to cross-examination, 4. Not hearsay
Offer to settle Any statement made in conjunction are inadmissible
Offer to pay medical expenses Inadmissible to prove liability But, can severe any other statements made in conjunction are admissible
Hearsay exception- State of mind Circumstantial evidence offered to show the declarant's then existing state of mind, emotion, or physical condition
Attorney-client privilege Protects confidential communication between an attorney and a client Covers confidential communication between attorney and prospective client Protects communication between client and an attorney representative
Marital privilege Only applies when husband and wife is ALONE with a confidential communication
Experts testimony Base testimony on personal observation, authoritative texts, and facts that are reasonably relied on by other experts in the field Do NOT have to have personal knowledge of facts
Lay witness testimony Anything that is rationally based in that witnesses perception Must have first hand knowledge of NO legal conclusions
Created by: dmoore147
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