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Flashcards in Arkansas Evidence Deck (216):

Seven Areas in Evidence Law

1. Basic Concepts of Evidence
2. Relevancy Rules of Exclusion
3. Witnesses
4. Credibility of Witnesses
5. Hearsay
6. Real Proof
7. Priviliges





Function of Judge and Jury

The Court decides whether an offered item of evidence is admissible.

The Jury decides how much weight, if any, to give to the evidence that has been admitted.


Example on Page 2

Example on Page 2


Relevant Evidence Generally Admissible Irrelevant Evidence Not Admissible: FRE 402

Essentially, all relevant evidence is admissible unless a specific rule excludes the evidence or limits its admissibility.

Two Basic Questions to be asked:
1. Does the evidence meet the definition of relevance?
2. Is there a specific rule that will limit or exclude the evidence?

75% of questions (Golden Rule)


Relevance Defined: FRE 401

Evidence is relevant if it has ANY TENDENCY to make more or less probably the existence of a fact that is of a consequence to the action.


Test for Relevancy

1. Evidence must help in some minimum way to establish the point usually referred to as the proposition that the evidence is introduced to establish.

2. The proposition must under the controlling law must have something to do with the outcome of the case


Immaterial Evidence

Evidence that helps establish a point that has nothing to do with the outcome of the case under the law.


Basic Questions of Evidence

1. What is the Evidence?

2. What is the proposition the evidence is introduced to prove?


How to make a determination of the relevance of apiece of evidence?

1. Identifying both the evidence. E
2. The proposition the evidence is introduced to establish. P


The Evidence?

Given the appropriate lawsuit, almost anything can qualify as a piece of relevant evidence.


The proposition the evidence is introduced to prove?

Comes from the law.
Comes from the cause of action

If the evidence helps, it is relevant.


Exam Tip on Page 5

95% of the evidence you encounter on the bar examination will meet the definition of relevance.

Therefore the pick "inadmissible because it is irrelevant" or the sister pick "inadmissible because the evidence does not tend to prove one of the propositions in the case" is almost always the wrong answer.


Where "inadmissible because it is irrelevant" may be the correct pick?

1. The evidence is offered to prove a proposition that has nothing to do with the outcome of the case. The question will set out the pleading or the issues and then state, "These are the only issues in the case"

2. A criminal defendant is presenting evidence of a good character trait, but the trait does not relate to the crime charged. We will take up that point in our next segment.


Good Way to Think of Relevancy

You have piles of evidence

Buckets of propositions

Throwing shit into the buckets


Exclusion of Relevant Evident on Grounds of Prejudice and Other Considerations: FRE 403

The Court may exclude relevant evidence if its probative value is SUBSTANTIALLY OUTWEIGHTED 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;
6. Needless presentation of cumulative evidence.


Rule of 403

Any piece of relevant evidence can be excluded if the trial judge determines that, in the context of the case, the probative value of the evidence is SUBSTANTIALLY OUTWEIGHTED by:
1. Unfair prejudice;
2. Confusion;
3. Waste of time.


Exam Tip on Page 6

Since the exclusion of evidence under 403 is a judgment for the trial judge based on the circumstances of a particular case, it is difficult to draft a multiple choice question that has as the correct answer the exclusion of the evidence under 403.


Typical Exam Questions on 403

1. The question will simply test on your knowledge of the basic black letter rule with emphasis on the counterweights to probative value - prejudice, confusion and waste of time.

2. One of the picks will be a judgment under 403 and the other three picks will be 100% wrong.

3. The question will contain a fact pattern where all courts agree the evidence will be rejected under 403. These fact patterns, mostly in the area of impeachment, will be identified as we move through the rules.


Relevancy Rules of Exclusion Big Picture

First, the rule of exclusion only excludes the evidence stated in the rule when the evidence is offered to prove the proposition stated in the rule.
- no trial judge discretion

Second, if the evidence is offered to prove some other proposition in the case, that does not mean it is admissible. It means it will not be excluded by the relevancy rule of exclusion. Some other rule may exclude.


Specific Exclusion Rules Tested

1. Insurance
2. Subsequent remedial measures
3. Settlement offers
4. Payment of medical expenses
5. Character evidence in criminal cases
6. Character evidence in civil cases
7. Prior similar occurrences


Exam Tip on Page 7

If you are dealing with an item of evidence mentioned in one of the relevance rules of exclusion, and it is not excluded by the rule because it is offered for some other proposition, 90% of the time the evidence is admissible.

10% of the time the evidence will be excluded by some other rule of exclusion.


Rule of Exclusion Relating to Insurance

Rule 411

Evidence that a person did or did not have liability insurance is not admissible to prove that the person acted negligently or otherwise wrongfully.

But the Court may admit this evidence for another purpose, such as proving a witness' bias or prejudice or if disputed proving agency, ownership, or control.


Exception to Exclusion of Insurance Evidence

Offered to prove:
1. Ownership of property
2. Bias on the part of a witness


Rule of Exclusion Relating to Subsequent Remedial Measures

Rule 407

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct,
strict liability if the lawsuit is based on strict liability of a defect product.

**Based on public policy of safety.


Exception to Exclusion of Subsequent Remedial Measures

If offered for some other proposition, such as ownership or control, or the feasibility of precautions, safer condition, if claimed it was not.


Rule of Exclusion Relating to Settlement Offers

Rule 408

Settlement offers and factual statement made during settlements negotiations are inadmissible if offered to prove:
1. liability
2. invalidity of the claim
3. the amount of damages
4. to impeach with a prior inconsistent statement or contradiction.


Exam Tip on Page 11

In theory settlement evidence will not be excluded under Rule 408 if offered to prove a proposition other than "liable", "not liable", "damage" or "impeachment".

However, on the MBE, the settlement evidence is rarely offered for any other proposition.


Rule of Exclusion Relating to Payment of Medical Expenses

Rule 409

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from the injury is not admissible to prove liability for the injury.

**Public policy behind this.
**Factual statements made during this would be admissible against the party making them under the theory of an admission.


Exam Tip on Page 11

Since factual statement made during settlement negotiations are generally excluded by Rule 408, but factual statements made in conjunction with payment of medical bills are not excluded by Rule 409, the applicant must be clear on which rule controls.


Rule of Exclusion Relating to Character Evidence

Rules 404, 405

Evidence of someone's character or character trait is inadmissible if offered to prove the person acted in conformity with their character.

If the evidence is offered for some other purpose, Rule 404 will not exclude the character evidence.

Page 12


Types of Evidence Used to Establish Character

1. Reputation Evidence
2. Opinion Evidence
3. Evidence of specific acts engaged in by a person in the past.


Five Basic Points of Character Evidence

1. Character evidence is of the type of person someone is: truthful: dishonest; reckless; careful; aggressive; violent
2. Inadmissible if offered to prove the person actin in conformity with their character.
3. If offered for some other purpose, 404 will not exclude the character evidence.
4. What type of evidence is used to prove a character trait.
5. If you look at 404 and 405, they present the rules of character evidence with respect of criminal and civil together.


Criminal Prosecution Character Evidence of Bad Character

The prosecution may not present any evidence of the bad character of the defendant to help prove the defendant probably acted in conformity with his bad character and committed the crime charged.


Criminal Defense Character Evidence of Good Character

The defendant is allowed to present evidence of relevant good character if it will help establish that the defendant is not the sort of person who would have committed the crime charged.

Rule 405 limits the type of evidence the defendant cant introduce to prove character to:
1. reputation
2. opinion evidence.


Basis for Exception to General Rule that Character Evidence is Inadmissible

1. This is a criminal defendant. She should be given her fullest opportunity to establish her innocence, and evidence of good character traits will help a little.

2. The law is not concerned about the prejudicial impact of good character evidence.

MUST help show the defendant is not the kind of person who would commit the crime charged.


What can a defendant do?

1. Call a witness on reputation.
2. Call a witness to express opinion.

**NOT allowed to present evidence of specific acts of good behavior


Prosecutor's Rebuttal Evidence

If the defendant presents reputation or opinion evidence to establish good character, the prosecutor can then introduce reputation or opinion evidence of bad character to show the defendant is the sort of person who would commit the crime charged.

The prosecution may not present evidence of prior crimes or bad acts to establish bad character even after the defendant raises the issue.
-Use a reputation witness
-Use an opinion witness

**Opened the door


What about "have you heard" questions?

If the defendant presents evidence of good character, the prosecution is allowed to cross-examine the defendant's character witnesses on whether they have heard of specific acts of misconduct committed by the defendant.

The prosecution must have a good faith basis for asking these questions.


Why are "have you heard" questions permitted?

The evidence is used to test:
1. The witness' knowledge of the defendant's reputation,
2. The standard he used when he testified the defendant enjoyed a good reputation.

**Way to discredit the testimony


What about when the Defendant is a witness?

If the defendant testifies, he automatically places his character trait of "truthfulness" in issue.

The Prosecutor will be allowed to present evidence to help show the defendant is not a truthful person.


Exclusion Rules of Other Crimes, Wrongs, or Acts

Rule 404 (B)

Evidence of a crime or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.

This evidence may be admissible for another purpose such as:
1. Proving motive,
2. Proving intent
3. Proving intent
4. Proving preparation
5. Proving plan
6. Proving knowledge
7. Proving identity,
8. Proving absence of mistake
9. Lack of accident.

**Could be offered for some other reason.


Exception to Other Crimes and Wrong acts

If there is another legitimate purpose, Rule 404 will not automatically excluded.

403 still might.


When prior crime not be excluded?


absence of Mistake
Common scheme

**Any other legitimate reason, but 403 still coverns.


Exclusion Rules of Sexual Assault and Child Molestation Cases

Rules 413, 414

In a criminal case involving sexual assault or child molestation, the court may admit evidence that the defendant committed other sexual assaults or other acts of child molestation.
- Includes propensity to the conduct

The evidence may be considered on any matter to which it is relevant.


His advice on criminal cases?

1. If they tell you defense and issues and then ask about the other crimes ALWAYS CHECK MIMIC.

2. If the question does not state the defense or the issues, prior crimes are inadmissible to show probable conduct.


Exclusion Rules of Character of Victim in Self Defense Cases

Rule 404

A defendant can offer evidence of a character trait of the victim to help establish the victim acted in conformity with his character and was the aggressor during the even that gave rise to the criminal charges.

1. Reputation
2. Opinion
**NOT specific acts

Prosecutor can rebut.


Exception related to fear of the Victim

if used to show fear, the evident can be reputation OR specific acts IF the defendant knew of them.


Exception for Homicide Cases

If the defense is self-defense the prosecution can offer evidence of the victim's character trait of peacefulness.


Exclusion Rules of Sex Offense Cases

Rule 412

Reputation or opinion evidence as to the past sexual behavior on the part of the victim is inadmissible.


Two Exceptions to Allowing Evidence of Specific Sexual Nature Acts

1. The defense of the criminal charge is consent and the evidence must be that of the relationship between the victim and defendant.
2. The evidence is used to show the defendant was not the cause of the injury.

**Discretionary to the Trial Judge


Basic Rule to Character Evidence in Civil Cases

In a civil case neither the Plaintiff nor the defendant can present character evidence if the purpose of the evidence is to show a party probably actin in conformity with that character trait during the event that gave rise to the litigation.


Character Evidence to Prove Another Proposition in the Civil Case Two Heavily Tested Areas

Offered to prove another proposition in a case, other than to show a party probably acted in conformity, Rule 404 will NOT keep evidence out.

1. Negligent Entrustment Case
2. Defamation Case


What happens when a party testifies?

As soon as a party becomes a witness, they automatically place their character trait of truthfulness in issue.


Basic Rule to Prior Similar Occurrences

Analysis under Rule 404: holds this type of evidence inadmissible character evidence if attempting to show that they probably acted this way one more time.

Analysis under Rule 403: holds this type of evidence doesn't show us a lot and is outweighed by waste of time and potential prejudice.

Analysis under Rule 401: Flawed analysis, relevancy is not a good way to look at it.

**Look for inadmissible character evidence, or inadmissible under 403.


Admissible Examples of Prior Torts Offered for Another Proposition

1. To show a dangerous condition,
2. Knowledge of a defect by the defendant
3. Cause of the harm
4. Rebut the defense of impossibility.

**Cannot used this to


Another Proposition: To show a dangerous condition

Trying to show that an object is dangerous.

Previous damages caused by the object


Another Proposition: Knowledge of a defect by the defendant

Okay to use prior occurrences to prove.


Another Proposition: Cause of the harm

If cause is an issues, these will be admissible


Another Proposition: Rebut the defense of impossibility

Evidence of prior or subsequent tort will be admissible to show that it was not impossible


Exclusion Rules of Habit, Routine Practice

Rule 406

Evidence of a person's habit or an organization's routine practice 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.


Basic Rule of Habit, Routine Practice

Are admissible to show a party acted in conformity with the habit or business routine during the event that gave rise to the litigation.



Repeated response to a particular set of circumstances.

1. Locking dog in back yard every morning
2. Always stops and stop sign at 3rd and Main.


Distinguish Habit from Prior Similar Occurrences

Depends on the number of responses to particular circumstances.

Every day for the last year is good typically but up to Trial Judge


Business Routine

Nothing more than the concept of habit applied to a business organization.

Evidence of the way the organization routinely acts.


Must knows about relevancy

1. When the rule excludes the evidence?
2. When the rules does not exclude the evidence?


Practically how is the evidence presented on the bar exam

1. Witness Testimony
2. Documentary Evidence
3. Objects (gun, cocaine, dining room table)


Witness Competence

Rule 601

Every person is competent to be a witness unless these rules provide otherwise.

But in civil case, state law governs the witness's competency regarding a claim or defense for which state law supplies the rule of decision


Four Major Qualifications for Witness

1. Ability to observe
2. Ability to recollect
3. Ability to communicate
4. Ability to appreciate the obligation of truthfulness.

**These can be used as a disqualification if they can't at the time of testifying.


Oath Requirement of a Witness

Rule 603

Before testifying, a witness must given an oath or affirmation to testify truthful.

It must be in a form disigned to impress that duty on the witness' conscience.


Oath or Affirmation

No magic formula.


What about a child witness?

No magic age but must appreciate the need to tell the truth.


Observation Requirement of a Witness

A witness may testify to a matter only if evidence is introduced sufficient support a finding that the witness has a personal knowledge of the matter.

Evidence to prove personal knowledge may consists of the witness' own testimony.

This rule does not apply to testimony by a expert witness under Rule 703

**Must observe


Exam Tip on Page 26

When a witness is disqualified for lack of observation, sometimes the correct pick will read "the witness is disqualified for lack of observation," and sometimes the correct pick will read "the witness is disqualified because she has no personal knowledge."


Recollection Requirement of a Witness

Lack of personal knowledge will disqualify a witness who, at the time of the testimony has no recollection of the events about which the witness is to testify.


Exam Tip on Recollection

Sometimes the correct will read "disqualified due to his lack of recollection" and "disqualified for lack of personal knowledge."


Communication Requirement of a Witness

If the witness cannot communicate in any manner, the witness cannot present relevant evidence and will be disqualified.

Any rational form.

Interpreter must also take an oath to testify truthfully.


Dead Man's Statute

Disqualifies a witness from testifying to a transaction with a person who is dead at the time of the testimony.


Federal Rule for Dead Man's Statute

Not contained in Fedearl Law. State law applied


State Law for Dead Man's Statute

Differs greatly but present in a number of states.


Exam Tip for Dead Man's State

The answer choice "inadmissible under the Dead Man's Statute" WILL NOT be the correct answer on the MBE.

**They would have to give you the State Law


Four Major Disqualifications

1. No Recollection - Incompetent R
2. No Observation - Incompetent O
3. No Truthfulness - Incompetent T
4. No Communication - Incompetent C


Leading Questions Rule

Rule 611

A question that suggests an answer to the witness.

Generally prohibited.


Exception to Leading Questions

1. Hostile Witness
2. Necessity


Exception to Leading Questions: Hostile Witness

Allowed on direct if the witness is a hostile.

On MBE, always the opposing party or someone closely connected with the opposing party.


Exception to Leading Questions: Necessity

Only if necessary;

The classic example is the young witness who can only testify with leading questions.


Exception to Leading Questions: Cross Examination

Allowed on cross-examination.


Exam Tip on Leading Questions

The MBE question usually will present a leading question on cross-examination.

Therefore the pick "Objectionable as a leading question" usually wrong.


Refreshing Recollection of a Witnes Rule

Anything may be used to refresh the recollection of witness.

On MBE, counsel will often show the witness a document to refresh recollection.

**Could be blank or with every detail.


Admissibility of Recollection Refreshing Document

As a general matter, the document cannot be introduced UNLESS it qualifies under an exception to the hearsay rule.

However, if counsel does use a document to refresh recollection, it must be made available to the opposing party.


Opinion Testiomy by Lay Witnesses

Rule 701

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
1. Rationally based on the witness's perception;
2. Helpful to clearly understanding the witness's testimony or to determining a fact in issue;
3. No based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

1. Based on the perception of the witness
2. Helpful to a clear understanding of the testimony.


Rationale of the Witness

Must be off perception and helpful


Perception of the Winess


A small amount is enough if still helpful.


Helpful of the witness testimony

Decided by the trial judge. Total discretion.


Exam Tip for Lay Opinion Testimony

On the MBE most lay opinion meets the requirement of Rule 701 and is admissible.

An answer choice "inadmissible because it is an opinion" will be incorrect because it is too broad a statement. Must be based on helpfulness/perception.

An answer choice "inadmissible IF the trial judge determines the opinion would not be helpful to the jury" would always be a correct answer.


Expert Opinion Issues

1. Subject Matter
2. Qualification
3. Basis for Expert Opinion
4. Reliable Principles


Expert Opinion Subject Matter

Allows expert testiomny when scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.


Expert Opinion Testimony Qualifications

A person can qualify as an expert by:
1. knowledge
2. skill
3. Training
4. Education
- no formal
5. Experience

The trial judge determines if the witness qualifies.


Expert Opinion Testimony Factual Basis for the Opinion

1. Personal observation of the facts that form the basis for the opinion.
2. The hypothetical question asked to expert.
3. Facts reasonably relied on by experts in the field.


Expert Opinion: Facts Reasonably Relied On by Experts

Facts or data based on information received from any source, provided it is the kind of information reasonably relied upon by experts in that field.



Expert Opinion Testimony from Reliable Principles and Application

Frye: Before expert testimony was admissible, the scientific principles, on which the testimony is based, must have been generally accepted by the scientific community

Daubert: Held Frye to no longer to be followed by Federal Rules. Trial judge must make their own independent determination that the expert testimony:
1. Based on reliable principles
2. Applied Correctly
3. Helpful to the jury

Know this:
1. Criteria of Specialized knowledge
2. Criteria covers new areas and Trial judge has all the discretion to determine if criteria is met.
3. General acceptance is no longer a pre-requisite BUT a factor the court can consider.


Exam Tip for Expert Testimony

Under Daubert, the trial judge has broad discretion on the admissibility of expert opinions.

Not tested on abuse of discretion.


Calling and Interrogation of Witnesses by the Court

Rule 614

Court has the right to call witness and gives the court the right to question any witness whether call by the court or not.


Exclusion of Witnesses

Rule 615

Trial judge MUST, if requested by counsel, exclude witnesses from the courtroom so that they cannot hear the testimony of other witnesses.

Court can take its own action to exclude.


Exception of Excluding Witnesses

The parties to the lawsuit, they are not excluded.


Right of Cross Examination

A litigant has a right to an adequate opportunity for meaningful cross-examination of every witness.

If an eyewitness dies halfway through cross, the trial judge would determine whether there was an adequate opportunity for meaningful cross.


Scope of Cross-Examination

The FRE limit cross to matters covered on direct plus impeachment.

However, the judge has the discretion to allow cross outside the scope of direct if she determines it would lead to a more orderly presentation of the evidence in the case.


Exam Tip for Scope of Cross

The answer choice "The question is objectionable because it goes beyond the scope of direct examination" is usually the wrong answer.

It will be incorrect because the question will usually relate to the impeachment of a witness.


The Credibility of Witnesses

To show why a witness who has testified ought or ought not to be believed.

All credibility evidence will be relevant.

Admissible unless there is a rule that keeps it out.


Two Options of Credibility of Witness

1. Impeach
2. Bolster


Bolstering Credibitliy Own Witness Before Impeachement

Three types:
1. Reputation for Truthfulness
2. Prior Consistent Statements
3. Prior Specific Acts that Show a Truthful Nature.

Each piece of evidence is inadmissible to bolster the credibility of the witness prior to impeachment.



Excluded under 608.


Prior Consistent Statements

Excluded under 403


Prior Specific Acts that Show a Truthful Nature.

Excluded under 608



Six ways:
1. Prior Inconsistent Statement
2. Bias
3. Conviction of a crime
4. Prior bad acts
5. Reputation of untruthfulness
6. Contradiction, proof of false testimony


Impeachment by Prior Inconsistent Statements

A witness can be impeached with evidence that the witness made previous statements inconsistent with her trial testimony.

Rationale: Witness is a liar.
On Cross-Examination: You can ask about this, even if its a minor point.
Extrinsic Evidence: Every Court allows (major point), 403 decision but majority allow (minor point)


Issues on Exam

1. Is Extrinsic evidence allowed, or must they settle for answer on particular impeachment.
2. If extrinsic evidence is allowed, must they lay a foundation of admissibility


Impeachment by Prior Inconsistent Statements: Major Point

Always allowed.

Every single time


Impeachment by Prior Inconsistent Statements: Minor Point

Decision for Trial Judge under 403

Majority: ANSWER: it is allowed.


Impeachment by Prior Inconsistent Statements: Opportunity for Comment

Rule 613

Generally, the opportunity to comment must be given before or after the extrinsic evidence is presented.

Not required if the prior inconsistent statement is an admission.


Impeachment by Prior Inconsistent Statements: Use as Substantive Evidence (to prove the facts actually occurred)

Jury can use the statement as proof that the facts declared in the statement are in fact true.

Can be used to impeach the credibility of a witness but NOT as substantive Evidence


Exception to Use as Substantive Evidence

Only if the statement qualifies under an independent exception to the hearsay rule

Was given under oath at a trial or other legal proceeding.


Impeachment by Bias

A witness can be impeached with evidence that shows a reason that the witness might favor the side the witness has testified for.

IF they tend to favor the jury is allowed.Opportunity for Comment:


Impeachment by Bias Rationale:

They should be able to know why they are testifying.


Impeachment by Bias On Cross Examination

Of Course always allowed


Impeachment by Bias Extrinsic Evidence

Received subject only to 403.


Impeachment by Bias Opportunity for Comment:

Rules are silent on that point but some Courts require and some don't.

Majority is they are required.


Impeachment by Prior Convictions

1. Crimes involving dishonesty or false statement
2. Other Felonies

Can be through extrinsic evidence and on cross.

Need certified copy of where it took place.


Impeachment by Prior Convictions: Crimes involving dishonestiy or false statement

Can be always used to impeach.

Felony or misdemeanor

No discretion in trial judge


Impeachment by Prior Convictions: Other Felonies

1. If defendant in criminal, can be used if probative value outweighs the prejudice to the defendant.
- Difficult
2. For all other witnesses, can be used subject to 403.


Impeachment by Prior Convictions Time Limitations

No prison, 10 years of conviction

If prison, 10 years from release


Impeachment by Prior Bad Acts

Specifics acts of previous misconduct on the part of the witness that did not result in a criminal conviction but which reflect unfavorably on the truthfulness of the witness.


Limitations of Impeachment by Prior Bad ACts

1. Discretionary to the trial judge.
2. Must Relate to the truthfulness.
3. No extrinsic evidence.
4. Good faith basis (no fishing)


Impeachment by Reputation for Untruthfullness

You can by extrinsic evidence.

Impeaching witness can also give opinion.


Impeachment by Contradiction

Evidence that contradicts evidence presented by the witness you are trying to impeach.

Through cross examination, extrinsic allowed (major point), extrinsic rarely allowed (minor point)

MBE will always relates to contradictions on minor points.



What kind of evidence

The Categories of Evidence offered:
1. Evidence of Good Reputation (ONLY ONE ALLOWED)
- Untruthfulness
- prior crimes
- bad acts
2. Specific Acts that demonstrate truthfulness or honesty
3. Prior Consistent Statements.


What about rehabilitation after impeached with evidence of untruthfulness, prior crimes, or prior bad acts?

Evidence of reputation for truthfulness can be used.


What about rehabilitation by specific acts?

Specifically excludes such evidence.


What about rehabilitation by prior consistent statements?

As a general matter, statements that the witness made before testifying that are consistent with the trial testimony cannot be used.

Regardless of method of impeachment


Exception to the rehabilitation by prior consistent statements

If the witness was impeached with a claim the testimony is a recent fabrication or a motive to falsify has arisen since the event, then a prior consistent statement given


Can you impeach your own witness?



Hearsay Overview

Rule 802

Makes all hearsay inadmissible unless in an exception.

Must meet definition AND not covered by exception.


Hearsay Defined

Rule 801 (c)

A statement other than the one made by a witness while testifying at the trial, offered as evidence to prove the TRUTH OF THE MATTER ASSERTED.


The most highly tested 801 (d) non-hearsay items

1. A prior inconsistent statement of a witness that was given under oath at a trial or other legal proceeding.

2. An admission by a party.

3. A prior identification of someone, make by a witness in the current proceeding.


Breakdown of 801

(c) defines hearsay

(d) expresses non hearsay items.


Hearsay 803 Exceptions

Apply whether or not the person who made the out of court statement is available to testify or not.

Highly Tested


Hearsay 804 Exceptions

Can only be used when the person that made the out of court statement is unavailable.

Highly Tested:
1. Former Testimony
2. Statements against interest
3. Statements made in belief of impending death.


Three Considerations of Hearsay Analysis

1. Does the statement meet the core definition of hearsay set forth in Rule 801 (c)?

2. If so, is the statement excluded from the definition of hearsay by 801 (d); AND

3. If the statement does meet the definition of hearsay set in Rule 801, does it qualify as an exception under Rules 803 or 804?1


Hearsay "Statement"

It can be oral, written, implied through conduct.

MUST come from a person


Hearsay "Truth of the Matter Asserted"

If the purpose of the evidence is to persuade the trier of fact that the facts contained in the out of court statement actually occurred, it is being offered for the truth of the matter asserted.

If offered for any other purpose, then it is not hearsay.


Hearsay "Out of court Statements Not Offered for the Truth of the Matter Asserted and Therefore Not Hearsay Under 801(c)

1. Verbal Acts.
2. Statement offered to show knowledge on the part of the listener.
3. Prior inconsistent statements offered to impeach


Verbal Acts

The out of court statement all by itself changed legal rights.

Independent legal effect.


Statements to Show Knowledge of on the Part of the Listener

Allowed when this knowledge is relevant to the case.


Exam Tip on Page 51

On the MBE, 90% of the out of court statements will be offered for the truth of the matter asserted


Prior inconsistent statements to impeach

NOT hearsay


Hearsay Exceptions under 801 (d)

1. Prior Inconsistent Statements
2. Admissions
3. A prior identification made by a witness in the current case
4. A witness's prior consistent statement, if given before an alleged motive to give false testimony.
5. A statement of a co-conspirator made during and in furtherance of the conspiracy.


801 (d) Prior Inconsistent Statements

The rules excludes from the definition of hearsay the prior inconsistent statement of a witness who has testified, if the prior statement was given under oath subject to the penalty of perjury at a trial.

Such statements are not exceptions to the hearsay rule.


Evidentiary Use of Prior Inconsistent Statements

Always used to impeach.

If covered by 801(d) it can be used both to impeach and as non-hearsay substantive evidence.



A statement made at any previous time by a party to the action or by an employee of the party speaking in the scope of employment, offered into evidence by opposing party and is relevant.

Removed from the definition of hearsay.



Determining Admission Questions

1. Did a party or an employee speaking in the scope of employment make the statement?

2. Does the opponent offer the statement?

3. Is it relevant?

Opposing party can always offer that previous statement into evidence.


Two Types of Admissions

1. Adoptive Admissions

2. Admission by an Employee


Adoptive Admissions

By silence

Occurs when a party hears an accusation and fails to protest will be considered an admission by silence.

A reasonable person would protest standard.


Admissions by an Employee

A statement is admissible if it was authorized


Concerns any matter in the scope of employment made within the scope of employement.


Prior Identification Made by a Witness in the Current Case

Removed from definition of hearsay IF the person who identified is a witness in the case.

He doesn't have to testify about the point.


803 Exceptions

1. Present Sense Impression
2. Excited Utterance
3. Then existing mental, emotional, or physical condition
4. Statements for Medical Reasons


Present Sense Impression

A statement describing or explaining an event or condition made while or immediately after the declarant perceived it.

1. Something perceived
2. Made immediately after or contemporaneous.

**You don't have to see it, could be hearing.


Excited Utterance

A statement relating to a startling event or condition made wile the declarant was under the stress or excitement that it caused.


PSI v. Excited Utterance

Excited Utterance does not relate to perception, only needs to relate generally to the startling event.


Exam Tip on Page 56

The excited utterance will be easy to spot on the MBE.

The verb that describes the out of court statement will be a verb of excitement and there will always be exclamation point following the statement.


Hints on Excited Utterance

1. Look at the verb before the out of court statemetn.

2. Look for first few words of the statement, it will be excited "holy shit"

3. You look for an !!!!


Then Existing Mental, Emotional, or Physical Condition

A statement of the declarant' then-existing state of mind or emotional, sensory, or physical condition.

Physical: always allowed
Mental state: admissible mental state must be a relevant issue of the case.


Hillman Rule Towards Intention

At statement of intention for the future is admissible for what it is worth to help show that a person carried out that intention.

**There will be one question on this.
**If you see plans for the future, you think of this exception to the hearsay rule.


Statements for Medical Reasons

A statement that is made, and is reasonably pertinent to, medical diagnosis or treatment; describes medical history; past or present symptoms or sensations, their inception or their general cause.

**Judgment of the court


Recorded Recollection

To qualify, the witness who statement is recorded must:
1. Not remember the event
2. One time had full knowledge
3. Recorded statement was made or adopted by the witness when he had full knowledge at that time that the recording was true.


Exam Tip on Page 59

The requirements of recorded recollection often are presented as answer choices in a question where a document is being used to refresh recollection.

On that type of question these answer choices will be incorrect because the document is not being offered into evidence.


Business Records

Records regularly kept are admissible.


What is a business?

Almost anything


Regularly kept in ordinary course of business

Not once in awhile,

Not before being sued


Source of Information in the Records

Any person in that business with first hand knowledge of the facts can be a source of the information in the record.

If it came from an outside source, it will not qualify


Discretion of the Court to Exclude

Even if the records meet the requirements, the court can exclude if they indicate a lack of truthfulness.





Hearsay Exception that Require the Declarant to be Unavailable

FRE 804

1. Former Testimony
2. Statements Against Interest
3. Statements Under the Belief of Impending Death


Unavailable for Testimony

1. Dead
2. Can't be found
3. Outside jurisdiction of the Court
4. Any witness on the stand who refuses to answer a legitimate question will considered unavailable for purposes of this rule.


804 Former Testimony

Testimony that was given at a trial, hearing, or deposition that is offered against a party, who had an opportunity and a motive to examine the witness at the time of the testimony, is not excluded by the hearsay rule.

**No longer necessary to have identity of parties ONLY:
1. Was a party when testimony was made
2. had opportunity to examine the witness


What about former testimony of an available witness who testifies differently?

You cannot bring in the transcript as testimony.

You could use it to impeach and as substantive evidence.

No 804 if they are available.


804 Statement Against Interest

A statement so far against declarant's financial, or penal interest that a reasonable person would not have made it unless it was true is not excluded by the hearsay rule.

By Defendant in criminal case: the rule requires some additional evidence corroborating the truthfulness of the declarant.

By Government: it will never be a statement of the Defendant. All it has to do is show it is an admission.


804 Statements Under the Belief of Impending Death (Dying Declaration)

In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant's death to be imminent, made about the cause or circumstances is an exception to the hearsay rule.


Dying Declarations at Common Law

1. Declarant had to die
2. Declarant had to be certain death was imminent (settled and hopeless expectation)
3. Statement had to relate to the cause of death


State Under the Believe of Impending Death Requirements under Federal Rules

1. Declarant must be unavailable
2. Declarant must be certain death was imminent
3. Statement must relate to cause of death or impending death
4. Used in all civil cases and criminal cases of homicide.



Double Hearsay: if both statements qualify under an exception then admissible. If either one doesn't qualify the whole thing goes down.

The Catch All Exception: The evidence is admissible is never a correct answer.

Impeaching the Hearsay Declarant: if out of court declarant does not testify, you can impeach as if they had testified.


Real Proof (Other than Documents)

A physical thing other than a document exhibited to one of the senses of the jury.

Generally refers to physical things exhibited directly to one of the senses of the jury.

All evidence other than the testimony of a witness.


Applicable Exclusionary Rules of Real Proof

1. Relevance
2. Rule 403
3. Relevancy rules of exclusion
4. Authentication.


Authentication of an Item

The proponent MUST produce evidence sufficient to support a finding that the item is what the proponent claims it is.


How to Authenticate an item?

1. Testimony of a witness who has personal knowledge of the genuineness of the object.
- If unique and marked for later identification, AND testified under oath

2. Chain of custody
- tracing real world event to courtroom

**Low threshold


Real Proof Using Documents

Asking the jury to read this document.


Applicable Exclusionary Rules of Documents

1. Relevance
2. Relevancy Rules of Exclusion
3. Hearsay
4. Authentication (MUST BE)


How do you authenticate a document?

To authenticate or identify an item of evidence is order to have it admitted, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

**Low threshold


Acceptable Authentication Methods

1. Admission
2. Eye Witness
3. Proof of Handwriting
4. Comparison by jury
5. Reply letter doctrine


Admission Authentication

1. Witness stand, you put letter in front of person and they say the signature is his.
2. Defendant has previously admitted the letter.


Eye Witness Authentication

Anyone who say them sign, even Plaintiff, can testify.


Proof of Handwriting Authentication

Any person familiar with the handwiring can testify.

Can testify that they have seen the handwriting in the past and it could be from opinion.
-only a few times
-years ago


Comparison by Jury Authentication

Compare an authentic signature on the record.
Courts gives jury to decided.


Reply Letter Doctrine Authentication

Plaintiff said they mailed the offer and this letter came by return mail signed by the Defendant.

Highly unlikely they would sign and send back.


Anything Else that Will help to Establish Authentication

1. Claiming it it is authentic


Self-Authenticating Documents

1. Commercial Paper,
- for the names on the paper
2. Acknowledged Documents
- a document notarized
3. Trade labels
4. Newspapers and periodicals



Best Evidence Rule

Rule 1002

An original writing, recording, or photograph is required in order to prove its contents unless these rules or a federal statute provides otherwise.

**95% it is a wrong answer.


Best Evidence Rule Three Issues

1. To what situations does the "best evidence rule" apply?
2. What are the exceptions?
3. Are duplicate copies admissible?


What situations does the "best evidence rule" apply?

When proving the content of the writing


Proving the Content of a Writing

1. The witness attempts to testify to facts the witness learned from a document.

2. The witness attempts to testify about rights that are controlled under the substantive law by a written document.

**Not attempting to prove the contents of a writing IF the witness is testifying on the basis of first hand knowledge about a fact even if an existing document would be better proof of fact.


Best Evidence Rule Exception

1. Reasonable Excuse for Not Producing
- Listed in 1004
2. Collateral Document
- minor, unimportant, background
3. Voluminous Writings
- summary but must have available for view


Are duplicate copies admissible?

A duplicate is admissible to the same extent as the original UNLESS a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.


Exam Tip on Best Evidence Rule

The answer choice "inadmissible under the best evidence rule" will be incorrect 95% of the time.



1. Spousal
2. Attorney-Client Privilege
3. Physician-Patient Privilege


Spousal Privilege

1. In federal case in a criminal case, a spouse cannot be forced to testify against the spouse.
-They can if they want to
-It doesn't what the evidence is or when they learned about it.

2. In federal court in any case, civil or criminal, a spouse can refuse to disclose or to keep the other spouse from disclosing confidential communications between the spouses during the marriage.
- Confidential communications during marriage


Attorney-Client Privilege

Applicability: When a person is seeking legal advice even if a contract with a lawyer has not been entered.

Confidential: Must be confidential communications. No-one heard it.

Exceptions: Does not apply to advice for committed a crime or fraud.


Physician-Patient Privilege

Federal courts do not recognize the physician-patient privilege.