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MBE: Final Review > Evidence > Flashcards

Flashcards in Evidence Deck (68):

Judicial Notice
• Rule
• Effect: Criminal v. Civil

A fact is appropriate for judicial notice when the fact is:
1. Indisputable (common knowledge) OR
• need not resort to reference materials
2. Can be verified by scientific principles

Criminal Case - jury may (but not required) to accept the fact judicially noticed

Civil Case - the fact judicially noticed is conclusively established


Preliminary Determinations: Judge is responsible for deciding which issues?

1. Whether a person qualifies as an expert (including interpreters)
2. Whether the offered evidence or out-of-court statement qualifies as a hearsay exception


Present Recollection Refreshed: Two Rules

1. Anything can be used to refresh the recollection of a witness (but can't read into evidence)

2. If you use a document, you must make the document available to the opposing party


Character Evidence: Definition + Forms

Evi describing the type of person someone is (nature)

1. Reputation
2. Opinion OR
3. Specific Conduct (prior stuff)


Character Evidence: Criminal: Five Rules

1. Prosecutor cannot intro evi that D had a propensity to commit the crime (that he probably acted in conformity w/ his bad character and committed the crime charged)

2. D may present evi of relevant good character traits to establish that he acted in conformity w/ his good character and didn't commit the crime (reputation or opinion)

3. If D presents evi of good character, he has opened the door, so the prosecutor may intro evi of D's bad character to show that he really is the sort of person who would commit the crime (prosecution - reputation or opinion)

4. Prosecution may intro evi of D's prior crime to prove MIMIC:
• Motive, Identity, Mistake (absence thereof), Intent, Common Scheme
• BUT judge could still keep out under Rule 403

5. If D testifies, he automatically puts his truthfulness in issue, so prosecutor can use character evidence to establish that D isn't a truthful person


Character Evidence: Civil

1. No character evi: Neither side may intro character trait of party to show that that party probably acted in conformity with that character trait DURING the event that gave rise to the litigation

2. But may intro character evi if character is directly in issue (reputation, opinion, or specific acts)
• Negligent entrustment
• Defamation case

3. If a party testifies, they automatically put their truthfulness in issue, so the other side may present character evi to establish that the witness isn't a truthful person


Habit Evidence: Definition + Rule

Habit: A repeated response to a particular set of circumstances

Rule: Evidence of a habit is admissible to show the person probably acted the same way again in the event that gave rise to the litigation


Special Type of Character Evidence: Prior Similar Occurrences

Rule: Evidence of prior similar occurrences is inadmissible to show the party probably acted the same way again at the time the event that gave rise to the litigation


What types of character evidence are relevant for violent crimes vs. non-violent crimes

Violent Crimes - peacefulness, non-violence, non-aggressive nature

Non-Violent Crimes - honesty, truthfulness


Policy-Based Exclusions: Subsequent Repairs
• Rule + Exceptions

Rule: If someone makes repairs after an accident, evidence of those repairs are inadmissible for purpose of establishing:
1. Negligence OR
2. Strict liability

Exception - admissible for these legit purposes:
1. Prove ownership or control over the condition that caused the damage OR
2. Possible to have a safer condition (if D says it wasn't possible to make it any safer)


Impeachment: Definition + Methods (6)

Evi offered to show that the witness who testified isn't credible:
1. Prior inconsistent statements
2. Bias or motive to misrepresent
3. Prior criminal convictions
4. Prior bad acts
5. Reputation for untruthfulness
6. Contradiction


Impeachment: Prior Inconsistent Statements

Witness gave prior statements that are inconsistent w/ their trial testimony

1. Cross examination

2. Extrinsic evidence (second witness testifies)
• Inadmissible if the inconsistency is on a minor, unimportant point
• Witness being impeached must be given an opportunity to comment on that prior inconsistent statement (before or after the extrinsic evi is intro)
-Exception: if prior inconsistent statement also qualifies as an admission by a party, no need to give an opportunity to comment

Note - a witness merely testifying that he doesn't remember something ≠ inconsistent statement


Extrinsic Evidence

Evidence offered to impeach (using of the main 6) that's not being developed during cross examination of the witness being impeached


Impeachment: Bias or Motive to Misrepresent

Evi shows that witness might be inclined to favor the side the witness has testified for

1. Cross Examination
2. Extrinsic Evidence


Impeachment: Prior Criminal Convictions

Any criminal conviction (M/F) involving dishonesty can always be used to impeach (no discretion for trial judge)

Any other felony can be used to impeach unless judge finds it's too prejudicial

But can't be too remote: if more than 10 yrs has elapsed since date of release of confinement, can't use to impeach

1. Cross Examination
2. Extrinsic Evidence (i.e., certificate of conviction)


Impeachment: Prior Bad Acts

Evidence of specific acts of misconduct that didn't result in conviction but which reflect unfavorably on the witness' truthfulness

Methods: Cross Examination ONLY


Impeachment: Reputation for Untruthfulness

Evidence to show that witness had bad reputation in community for truthfulness
• may use extrinsic evidence


Impeachment: Contradiction

Evidence that contradicts testimony given by the witness

1. Cross Examination (get witness to contradict himself on any point from direct examination)
2. Extrinsic Evidence (must contradict a major point)


Impeachment: Bolstering Your Own Witness's Credibility
• Rule + Exception

Rule - Cannot bolster your own witness's credibility unless the witness's credibility has been attacked

Exception - litigant has some other legit reason for presenting evidence of good reputation


Witness: Rehabilitation

After witness has been impeached with evidence of bad reputation for (i) truthfulness, (ii) prior crimes, or (iii) prior bad acts, counsel may rehab with evidence of good reputation for truthfulness


Hearsay: Core Definition + Non-Hearsay Statements (3)

A statement other than the one made by a witness while testifying offered into evidence to prove "the truth of the matter asserted"

Non-Hearsay Statements:
1. Admissions by a party
2. Prior inconsistent statement of a witness in this case given under oath at a legal proceeding
3. Prior identification made by a witness in this case
4. Verbal acts
5. Effect on Listener


Hearsay: Exceptions (9)

1. Present sense impression
2. Excited utterance
3. Current state of mind
4. Statements made for purposes of medical treatment or diagnosis
5. Past recorded recollection
6. Biz Records
7. Former testimony
8. Dying declaration
9. Statements against interest
10. Present physical sensation
11. Public Records

1-6: Doesn't matter whether declarant may testify
7-9: Declarant must be unavailable


Hearsay Exception: Present Sense Impression
• Declarant need to be unavailable?
• Witness Rule

A statement describing the event while the declarant was observing the event

• declarant doesn't need to be unavailable

• a witness must have heard the declarant make the statement AT THE TIME that the declarant is observing the event (need not observe the event himself)


Non-Hearsay Statement: Admission by a Party
• Elements (3)
• Types (3)

1. Out of court statement by party or employee of a party speaking w/in scope of employment
2. Opposing party offers that statement into evidence AND
3. It's relevant

1. Basic admission
2. Admission by employee OR
3. Admission by silence


Admission by a Party: Admission by Silence

If at previous anytime a party to the current lawsuit heard an accusation and failed to protest, and trial judge determines that a reasonable person would have protested if that wasn't true, then the out of court accusation and the resulting silence are admissible


In what two situations can a prior inconsistent statement be used to impeach and as substantive evidence

1. Prior inconsistent statement was given under oath at a trial in another legal proceeding (i.e., depo)


2. Prior inconsistent statement itself qualifies under an independent exception to the hearsay rule (i.e., excited utterance)


Hearsay Exception: Dying Declaration

Criminal Cases: only homicide (not even attempt crimes)

Any civil action


Hearsay Exception: Biz Records
• Req'ts to be Valid
• Admissible to prove what?

1. Made during course of a regularly conducted biz activity

2. Customary to make this type of record

3. Record must concern matters w/in the personal knowledge of the entrant OR that of someone w/ personal knowledge who transmitted it in the ordinary course of biz

4. Entry must have been made at or near time of transaction

If document qualifies as biz record, it's admissible to prove what is:
• In the record AND
• Not in the record


Hearsay Exception: State of Mind

(1) Out-of-court statements of (2) intention (plans) for the future are admissible to help show the person might have carried out that intention


Authentication: Object/Item
• Rule
• High or Low Threshold?

Enough additional evidence sufficient to support a finding that the item is what the proponent claims (aka need enough evi so jury can legit conclude that it is)
• so no POE standard

Low threshold - testimony under oath from person w/ personal knowledge of the genuineness of the object (usually the party presenting the object to the jury)


Expert Testimony: Key Rules (4)

1. Info received from any source, provided it's the kind of info reasonably relied upon by experts in that field
• note - the info relied on can be completely inadmissible if the jury would only consider them as BASES for the opinion; otherwise, they must be admissible if the jury would consider them as substantive evidence

2. May give the opinion w/out prior disclosure of the underlying facts or data (but subject to cross exam)

3. May give an opinion in response to a hypo, provided the facts assumed in the hypo can be found by the trier of fact based upon admissible evidence

4. May testify a/b facts made during the hearing


Physician-Patient Privilege
• Rule
• Source of Law
• When doesn't it apply (3)?

Rule: Can't compel a doctor to disclose info obtained form a patient while treating the patient in a professional capacity if that info is related to the treatment

Statutory privilege (so not recognized under FRE)

Inapplicable if:
1. The patient has to put their condition in issue
2. An attorney has asked the doctor to examine a client OR
3. Federal question cases


Spousal Privilege: Testimonial vs. Communication

Testimony: Criminal Case - spouse can't be forced to testify against defendant-spouse

Communication: Any Case - spouse can refuse to disclose OR keep a spouse from disclosing confidential comm'n made b/t the spouses during the marriage
• this privilege survives divorce


The Golden Rule

All relevant evidence is admissible unless a specific rule keeps it out


Rule 403 Balancing: Prejudicial Factors (6)

1. Unfair Prejudice
2. Confusion of Issues
3. Misleading the jury
4. Undue Delay
5. Waste of Time
6. Cumulative Evidence


Non-Hearsay: Prior Identification

Witness must be:
1. Available to testify at trial AND
2. Subject to cross examination


What result if part of a statement is introduced into court and an adverse party wants to introduce another part?

The adverse party may introduce any other statement or part of the statement which ought, in fairness, be considered simultaneously
• applies even if both statements are inadmissible hearsay


Hearsay Exception: Excited Utterance

1. An unthinking response to an exciting event
2. Made while the declarant was under the stress of the excitement


Are statements made in connection with an offer to pay medical expenses admissible?



Preliminary Matters: Jury Decisions

1. Authenticity of a document


Authentication: Voices

Any person familiar with an alleged speaker's voice may authenticate a recording of the voice by giving an opinion as to its identity


Competent Witness: Elements (2)

1. Personal knowledge of the matter AND
• satisfied if observed the matter + present recollection

2. Willing and able to testify truthfully


Dead Man Act
• Rule
• Elements to Trigger the Rule (2)

An interested person in the event (or his predecessor in interest) is incompetent to testify to a transaction or communication with the deceased when that testimony is offered against the representative or successor in interest of the deceased (the protected party)

1. Interested Party
2. Protected Party


Motion to Strike (Unresponsive) vs. "Opening the Door"

A witness's unresponsive answer is subject to strike by examining counsel

"Opening the Door" - one lawyer introduces evidence on a subject, which asserts its relevance. So can't complain on relevance grounds if her adversary later offers evidence on the same subject


When is evidence of specific conduct admissible?

When character is directly in issue


Best Evidence Rule
• When does it apply?
• Rule
• Exception

Applies when the contents of a writing are in issue

Rule: Original writing must be produced when its contents are in issue

Exception: if the original writing is unavailable or lost/destroyed by no fault of the proponent, then secondary evidence is allowed
• photocopies, testimony, etc.


Legal Effect of Presumptions: Rebuttable vs. Conclusive:

RP - no force or effect when sufficient contrary evidence is introduced

CP - rule of substantive law; can't be rebutted by contrary evidence


Polygraph Evidence

Generally inadmissible b/c its probative value is slight given its significant rate of error


Authentication: Photograph

Testimony that the photo is an accurate/faithful representation of the object or scene depicted


Chain of Custody
• Function
• Definition
• Standard

Function: Trying to demonstrate how something was handled

Arises where the evidence is of the type that is likely to be confused or easily tampered with
• ex: blood alcohol test (but not guns)

Proponent must show that the object has been held in a substantially unbroken chain of possession


Burden of Persuasion

A party's burden to persuade the jury to decide an issue in its favor
• if, after all evi in, the issue is equally balanced, the party with the burden of persuasion loses
• burden doesn't shift throughout the trial


Hearsay Exception: Former Testimony
• Rule
• Inapplicable to what kind of testimony?
• Civil Proceeding

Rule: The testimony of a now unavailable witness given at another hearing is admissible in a later trial if there was sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examine was meaningful at the prior hearing

Grand jury testimony is NEVER admissible under this exception b/c such proceedings don't provide opportunities for cross examination

Civil Proceeding - parties don't need to be identical, but the party in the original action MUST be a predecessor in interest to the party against whom the testimony is being offered (privity relationship), so that a similar motive existed to develop or cross-examine the declarant's testimony


Clergy-Penitent Privilege

Person has a privilege to refuse to disclose, and to prevent others from disclosing, a confidential communication by that person to a clergy member in the clergy member's CAPACITY AS A SPIRITUAL ADVISOR


Hearsay Exception: Public Records:
• Purpose for Exception
• Convictions

Purpose: Prevent public agents from leaving their jobs to testify to acts done in their official capacity
• instead it's ok to offer a report

Misdemeanor --> inadmissible hearsay (no exceptions)

Felony --> admissible hearsay, if falls under an exception
• but a witness's transcript is inadmissible for that purpose



1. Meet qualifications of an expert witness
2. Take an oath/affirmation that he will make a true translation


Hearsay Exception: Statement Against Interest

Statements of a person, now unavailable, against that person's interest are admissible
• Pecuniary
• Proprietary OR
• Penal


Vicarious Admission of a Co-Conspirator: Key Req't

The admission must have been in FURTHERANCE of the conspiracy by a participant in it


Hearsay Within Hearsay: Admissibility Rule

Admissible only if each layer of hearsay falls w/in a hearsay exception


Relevance: Evidence of Liability Insurance
• Rule
• Inapplicable to what?

Inadmissible to prove that the person acted negligently or wrongfully
• trier of fact might improperly infer that a person acted more carelessly b/c he knew he was insured

But this rule doesn't apply to CASUALTY insurance


Hearsay Exception: Present Physical Sensation

Statements of symptoms being experienced are admissible, even if not made to a doctor or other medical personnel


Lay Witness: Elements

Admissible if:
1. Rationally based on the witness's perception AND
2. Helpful to a clear understanding or the determination of an issue

Classic Example: matters involving sense recognition


Hearsay Exception: Past Recorded Recollection

Contents of the writing may be read into evidence, provided the proper foundation is laid


Non-Hearsay: Verbal Acts

Words with independent legal significance


Non-Hearsay: Effect on the Listener

Effect that a statement had on the person who heard or read it
• BUT only works if the listener's beliefs are relevant


When is a juror incompetent as a witness?

1. As to the case in which they are currently sitting OR
2. At a later time to impeach their verdict


When does the marital communication privilege not apply?

Actions b/t the spouses


When does the attorney-client privilege not apply?

Suits b/t two parties represented by the same attorney


Confrontation Clause
• Rule
• Effect on Hearsay

Criminal D has the const'l right to confront and cross examine witnesses against him
• so testimonial evidence can't be offered against the D unless:
1. The preparer is unavailable AND
2. D had an opportunity to cross examine

Example: affidavits summarizing the findings of forensic analysis are testimonial in nature

Effect: Can bar a statement even if it falls w/in a hearsay exception