MBE Evidence Flashcards
Misses (9 cards)
Attacking witness’ character for truthfulness method
A party may attack a witness’s character for truthfulness through (1) reputation or opinion testimony or (2) specific instances of conduct (SICs). A SIC that involves a conviction for a felony or crime of dishonesty can be introduced extrinsically or intrinsically. But a SIC involving a bad act may only be introduced intrinsically.
Documentary evidence can be authenticated….
Documentary evidence can be authenticated by two methods of handwriting verification: (1) a lay witness with personal knowledge of the claimed author’s handwriting testifies about it or (2) an expert witness or the trier of fact compares the writing in question with another authenticated writing.
Telephone Authentification Methods
A telephone call can be authenticated by having a party to the conversation testify that (1) the party recognized the speaker’s voice, (2) the speaker knew facts only certain persons would know, (3) the party dialed a number believed to be the speaker’s and the speaker confirmed that identify upon answering, or (4) the party dialed a business and they spoke about business regularly conducted over the phone.
Character Evidence
Introducing evidence of a victim’s good character
The prosecution may offer evidence of a victim’s good character, but only after (1) the defendant introduces evidence of the victim’s pertinent character trait or (2) in a homicide case, evidence that the victim was the first aggressor has been introduced.
Prior Consistent Statement (when allowed)
A declarant-witness’s prior consistent statement is excluded from the rule against hearsay if (1) it is offered to rebut a charge of fabrication/improper influence and was made before a motive to fabricate arose or (2) it is offered to rehabilitate the witness’s credibility.
Hearsay
Statement involving interest in property
Statements in documents that purport to affect a property interest are excepted from hearsay if (1) the matter stated was relevant to the document’s purpose and (2) later dealings with the property do not contradict the truth of the statement or the purport of the document.
Hearsay - Dec Avail Immaterial
Two exceptions in emergency rooms
In the context of an emergency room visit, a declarant’s out-of-court statement may fall within the hearsay exception for:
excited utterances – statements related to a startling event or condition that are made while the declarant is still under the stress of the excitement caused by the event or condition or
statements for medical diagnosis or treatment – statements made for and reasonably pertinent to medical diagnosis or treatment that describe the declarant’s medical history, symptoms, or the inception or general cause of those symptoms.
Decl’s Avail. Immaterial
Dying Declaration
A dying declaration is a statement (1) made while the declarant believed his/her death was imminent (2) concerning the cause or circumstances of that impending death. These statements are only excepted from the hearsay rule in civil cases and prosecutions for criminal homicide—not aggravated assault. And though the declarant need not be dead for this exception to apply, he/she must be unavailable (not seen here).
Best Evidence Rule
The best evidence rule generally requires that an original or reliable duplicate of a recording, writing, or photograph (collectively referred to as “document”) be produced to prove its contents. As a result, this rule only applies when a document’s contents are at issue—i.e., when:
the document is used to prove the happening of an event (e.g., video of bank robbery)
the document has a legal effect (e.g., audiotape of oral contract) or
the witness is testifying based on facts learned from the document (e.g., x-ray image), as opposed to personal knowledge (i.e., knowledge based on firsthand observations or experience).
