MBE Evidence Flashcards

Question

Introduction of Evidence Use of Documents by Witness During Testimony: Present Recollection Refreshed

Answer 1

Provides an adverse party certain options when a witness uses a writing to refresh memory: **(1) while testifying**; or **(2) before testifying**, if the court decides that justice requires the party to have those options. \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ A witness may not read aloud from a document, but can look at it briefly, then continue testimony unassisted **Opponent may inspect** and offer into evidence anything used to refresh a witness's memory

Answer 2

***Adverse Party’s Options.*** An adverse party is entitled to have the writing * produced at the hearing, to inspect it, * to cross-examine the witness about it, * and * to introduce in evidence any portion that relates to the witness’s testimony. ***Deleting Unrelated Matter*.** If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record

Answer 3

***Anything*** can be used to “jog” or “refresh” the witness’s memory because at times, witnesses forget. A witness may even look at hearsay to ***jog her memory***. Of course, the item the witness looked at will ***not be admitted into evidence***. It is simply being used to refresh the witness’s memory. *Compare*: The hearsay exception for “recorded recollection” requires that the witness made the writing while it was fresh in the witness’s mind. The writing then may be ***read into evidence***. In contrast, ***anything*** can be used to refresh or jog the witness’s memory, even a writing that the witness herself did not make. When a writing is used to “refresh” the witness’s memory, the party is not attempting to introduce the writing into evidence. **_MBE TIP_:** The best way to distinguish the two on the exam is simple. If the proponent is attempting to “introduce the writing” and then ***read it into evidence***, it must come under the “***recorded recollection***” exception to the hearsay rule. If the proponent is simply using the writing to ***refresh or jog*** the witness’s memory, then this rule (refreshing a witness’s memory) applies.

Answer 4

Rulings on Evidence *Preserving a Claim of Error*. A party may claim error in a ruling to admit or exclude evidence only if the error ***affects a substantial right*** of the party and: **If Objecting to _Admitted Evidence_,** a party, on the record: * *timely objects or moves to strike*; * and * *states the specific ground,* ^{unless it was apparent from the context;} OR **If Objecting to Ruling on _Excluded Evidence_**, _a party informs the court of its substance **by an offer of proof,**_ ^{unless the substance was apparent from the context.} _{The Importance of the Rule} _{It is only error if a ruling by the judge affects a “substantial right” of either party. The party opposing the error must call the error to the attention of the judge so that preventive measures can be taken.} _{When feasible, a judge should excuse a jury when ruling on the admissibility of evidence. A ruling which excludes evidence is likely to be a pointless procedure if the excluded evidence comes to the attention of the jury.}

Answer 5

**Calls for Narrative:** Open-ended question allowing witness to respond in any way; ^{attorney must ask specific questions} **Leading:** Question itself suggest the answer. * ^{Leading questions are improper on direct unless the witness is hostile or an adverse party.} * ^{Leading questions are acceptable on cross-exam as long as they stay within the scope of direct} **Assumes Facts Not in Evidence**: Q makes assumption that's not established in the record. **Argumentative**: Q is an argument^{and doesn't actually ask anything.} **Compound** - more than one Q at a time. * ^{Attorney must ask Qs individually.} **Beyond Scope of Direct** * ^{Attorney must confine Qs during cross to scope of direct (i.e., cannot ask Qs involving matters not discussed on direct)} \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ ^{Objections to form of question or testimony must be specific and made promptly; otherwise they are deemed waived.}

Answer 6

Unresponsive/Nonresponsive: A witness's testimony **_does not relate to_ or _directly answer_ the question asked.** ***_Move to strike the response._*** ^{Objections to form of question or testimony must be specific and made promptly; otherwise they are deemed waived.}

Answer 7

Generally INADMISSIBLE unless meeting exceptions below. **Lay opinion is admissible if:** * **_Rationally_ based on the _Witness's PERCEPTION_** * **_HELPFUL_ _to a clear understanding of her testimony_** (helpful to Trier of Fact_)_ * ^{Helping meaning it gives the jury more information regarding the witness's perception than the perception alone.} * ^{Legal conclusions are INADMISSIBLE because they are deemed unhelpful} * **_Not based on_ ^{(a) scientific, (b) technical, or (c) other} S_pecialized K_****_nowledge_** ^{(i.e. not in the realm of expert opinion)} _Examples of Admissible Lay Opinion Testimony include:_ * _{Speed of Car} * _{Identity of Person} * _{Sensory descriptioins (sound smell taste)} * _{Value of Property} * _{Familiarity with One's Handwriting} * _{Sanity - but not that person is mentally incompetent} * _{Physical Condition - "He appeared drunk." NOT - "he's an alcoholic" or "he's a schizophrenic"}

Answer 8

Experts may provide opinions on facts or issues in the case. Expert opinion is admissible if: **HELPFUL to Trier Fact.** The expert's opinion must be helpful to the trier of fact (i.e. expert uses specialized knowledge to reach conclusions an average juror would not reach alone) **QUALIFIED.** Expert must possess special knowledge, skill, experience, training or education (specialized knowledge does not need to come from school) **REASONABLY CERTAIN.** Expert must believe in her opinion to a reasonable degree of certainty, can admit some doubt

Answer 9

Experts may provide opinions on facts or issues in the case. Proper basis for opinion * **Facts perceived or made known to her at or before trial** * Expert NOT Required to have Personal Knowledge * ^{ex. coroner as to findings of autopsy} * ^{ex. facts made known to her at trial - despite lack of personal knowledge} * **Facts reasonably relied upon by experts in the field**. This includes inadmissible hearsay * ***Direct Examination:*** NOT required to give basis for opinion * ***Cross Examination:*** Required to give basis for opinion if questioned * **_Opinions on ULTIMATE ISSUES_** - May testify and give opinion on ultimate opinion. * ^{ex. opinion whether testator had mental capacity to understand nature and extent of his property} * ^{ex. NOT VALID - opinion whether testator had mental capacity to form will. INVALID bc it takes question away from the jury} *Criminal Law -* **Expert Opinion on Mental State that's Elemental:** Expert MAY NOT give Opinion on Mental State that's an ELEMENT of the CRIME. ^{ex. Expert may NOT be asked whether she thought at the time of crime D was insane.}

Answer 10

**_Witness Competency in General_** * **_Federal Rules_** * Assume everyone is competent witness * ***Exception***: where STATE LAW determines the rule of decision * Example: Diversity Action where state law applies * Federal Rules Minimum Competency Test: * Personal knowledge * Oath to testify truthfully

Answer 11

^{Impeachment casts an adverse reflection on the veracity of a witness's testimony.} **Credibility of Witness may be Attacked by ANY WITNESS** * **Can impeach own witness.** * *Ex. when calling an adverse witness - one belonging to opposing party - may immediately impeach the witness. Rules of impeachment are reversed in this case* * **Intrinsic Impeachment** *- words coming from mouth of Witness herself* * **Extrinsic Impeachment** *- condtradictory evidence from other witnesses discrediting this witness* **_Methods of Impeachment:_** * ^{Contradiction} * ^{Prior Inconsistent Statement (PIS)} * ^{Sensory Deficiencies (e.g. W's senses were incapable of producing the perceptions testified to)} * ^{Reputation and/or Opinion for Untruthfulness. Admissible to impeach W's veracity by use of extrinsic evidence} * ^{Prior Acts of Misconduct} * ^{Prior Criminal Convictions Evidence} SUPPORTING a witness's credibility is INADMISSIBLE unless credibility has been attacked ^{(i.e. witness has been impeached)}

Answer 12

**Cannot attack credibility of Witness using irrelevant information or by referencing an irrelevant issue.** _{"Extrinsic evidence MAY NOT be used to impeach a witness on collateral matters."} * **Extrinsic Evidence** is any evidence other than the witness's testimony at the current proceeding. * This includes evidence of prior inconsistent statements made out of court. * **Collateral Matter** is a fact *NOT material to issues in the case*. * It says nothing about the witness's credibility, only used to contradict a witness. * ^{e.g. W1 testifies he was headed to store when he saw D commit murder, defense cannot call W2 to testify that W1 was really headed to see his mistress--this is collateral to the issue} **_Ask:_** Would it be material to the given issue if not for the witness's contrary assertion? ..... If not, it is likely collateral \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Extrinsic evidence is ADMISSIBLE on non collateral (i e material) matters Additionally extrinsic evidence

Answer 13

Foundation requirements - Prior questions related to sensory defect. * Intrinsically (questioning witness) * or * Extrinsically (questioning ability of witness to perceive, see, remember, etc.)

Answer 14

**May use intrinsic or extrinsic information to impeach** **Foundation Requirements** - need only raise a question about a fact which could be subject to bias/interest. **Four main types of Bias or Interest** * interest in outcome * economic or marital relationship * hostility or favoritism * fee paid to expert witness

Answer 15

Any evidence may be used to show a witness had made contradictory statements on material issues.

Answer 16

Witness's prior inconsistent statements may be used to impeach a witness's **_present testimony._** **_Foundation Requirement:_** A witness must have an ***opportunity to explain or deny the statement*** ^{(NOT required for PIS by hearsay declarant)} either Before or After impeachment. **_Establishing PIS_**: may be established through cross-examination or extrinsic evidence. * **PIS via Extrinsic Evidence:** is *inadmissible* if the PIS relates to a collateral matter. **_PIS via Hearsay:_** If PIS is hearsay, it is * ADMISSIBLE for impeachment purposes * INADMISSIBLE as substantive evidence (to prove TOMA) * i.e. Hearsay PIS may only be considered for its bearing on W's credibility. * **Non-Hearsay PIS:** If the PIS is NOT hearsay or if it falls under a hearsay exception, *it may be considered for any purpose.*

Answer 17

Four ways * reputation and opinion evidence * bad act impeachment * felony convictions * crimes bearing on untruthfulness

Answer 18

May Impeach witness by asserting **_reputation or opinion ... for untruthfulness._** ## Footnote ***Limited to the character trait of UNTRUTHFULNESS***

Answer 19

May question on CROSS-EXAM about any prior "Bad Acts" **_related to truthfulness._** * **UNCONVICTED Acts ONLY** * Questioning attorney **_must accept the witness's answer_**. * *Cannot bring additional evidence to contradict, because it would bring in extrinsic evidence on a collateral matter.* * **Questioning must be done in _good faith_** - must have a basis for asking the question in the first place

Answer 20

**Prior Conviction: _DISHONESTY or Untruthfulness_**^{(perjury, fraud, etc.)} * _Felony + Misdemeanor_ - Presumed Admissible**(Court Has no Discretion)** **Prior Conviction: (***Not Honesty-Related)* * _Felony_ - *Presumed Inadmissible* * W = D: Inadmissible, unless probative value \> prej effect * W = Non-D: Inadmissible, unless probative value **^{_{SUBSTANTIALLY}}**\> prej effect * _Misdemeanor_ - inadmissible, unless probative value \> prej effect. ***_{^{An open-ended question that would encompass convictions for offenses not related to honesty would not be allowed.}}*** **Prior Convictions/Release _Over 10 Years From Conviction_ (10 yrs +1 day)** * _Felony + Misdemeanor_ - Inadmissible, unless probative value \> prej effect * Note: Conviction under appeal can be brought forth. However, the court must allow disclosure of fact that it is under appeal.*

Answer 21

**_Competency in General_** * As long as the person testifying understands and ***appreciates the ability to tell the truth***, the person is competent to testify. Even children and insane persons are competent to testify. * Must take Oath **_Dead Man Statutes_** * Abolished at Federal Level * Federal Rules Require Federal Court to FOLLOW STATE'S DEADMAN STATUTE *IF ONE EXISTS.*

Answer 22

**Protected Relationship** - Does protected relationship exist? * ^{Test: Client is seeking professional advice or consultation} * ^{No compensation must be paid} * ^{Dr/Lawyer doesn't need to take on the case} **Communication** * ^{Actual communication is protected ... not the information} * ^{ex. if D reveals same info to a friend, it's not protected} **Confidentiality -** Only confidential information is protected * ^{Non-essential 3rd parties destroy confidentiality.} * ^{Is 3rd party furthering some purpose of the relationship? If so, it's confidential (ex. secretary)} * ^{Eavesdroppers - known or reasonably anticipated eavesdroppers destroy confidentiality. Unknown, unanticipated eavesdroppers do not destroy confidentiality.} * ^{Communications made in public are never confidential} **Holder -** Privilege may only be asserted or waived by the holder or authorized representative of the holder **Exceptions -** Usually based on public policy. 5 types * ^{dr patient} * ^{attny client} * ^{psycho social therapy} * ^{husband wife} * ^{priest penitent}

Answer 23

Federal courts recognize several testimonial privileges. **_STATE LAW_** determines * ***Privileges of Witness*** * ***Diversity Cases in Fed Court*** **_MODERN COMMON LAW_** determines * ***Criminal*** * ***Federal Question*** * ***Cases Arising Under Federal Law*** **Types of Privilege:** * Confidential Communications (primary) * Incompetency * Constitutional Priveleges (such as defamation and right against self-incrimination) * Public Policy

Answer 24

Communications between an attorney and client^{or client's representatives}are privileged in all proceedings **unless waived. Communication** must be **[intended as confidential]** *and* **[intended to facilitate legal services].** **_Holder of Privilege_** - Client (but attny can assert it on her behalf) **_Exceptions_** - where there is no privilege * Suits between attny and client OR between joint clients * Disputes of client's will after client's death * Communications made in furtherance of FUTURE crime or fraud **_Attorney WORK PRODUCT_** - material prepared by attny for her own use IS NOT protected, but may be protected from discovery under the work product rule. **_Corporate Clients_:** the privilege applies to statements given by *_any employee_* authorized to speak to the attorney. * In state courts - the "Control Group" test only applies to a few high up official - those _ppl with Authority to Decide Corporate Policy_

Answer 25

The physician-patient privilege is a statutory privilege in most states, but not found in the FRE. * *applies to **observations ^{xray, scar, gunshot wound}**and **communications*** **Holder = Patient** **Protected communication or observations must be:** * ^{Made for purposes of obtaining diagnosis or treatment} * ^{Pertinent to a diagnosis or treatment;}^AND * ^{Intended by patient as confidential} **Exceptions: Where Privilege DOES NOT apply** * patient's *_physical condition is at issue_* * *_criminal proceedings_* * malpractice actions * competency or commitment proceedings

Answer 26

The psychotherapist/social worker-client privilege is a statutory privilege in most states, but not found in the FRE. The privilege prevents disclosure of material conveyed by patient in a civil and criminal cases if: * Client intends the communication to be confidential; AND * Communication is made to facilitate therapy or social work **Exception:** * Where _Mental Condition is at Issue_ * Therapist has _Duty to Warn of any immediate danger_ Note: MBE usually assumes the existence of this privilege, but an answer choice indicating privilege as an evidentiary rule will be incorrect

Answer 27

Marital communications are CONFIDENTIAL COMMUNICATIONS made DURING (not before or after) marriage. * **_Civil_ and _Criminal_ Cases** * **Holder**: *_Both spouses_* may prevent the other from testifying. * **Divorce** - Communications _*during* marriage remain privileged_ * **Exceptions**: * Crimes against each other or children * Statements in furtherance of future crime or fraud. ^{Modern trend - observations and impressions are included}

Answer 28

Protects **_*ALL\**_****Communications** , **impressions**,and **observations - *_regardless of confidentiality_* ..... *Before\**** *and* ***During* Marriage.** * **Criminal Cases** ONLY\* * **Holder @ Common Law:***_PARTY_* Spouse\* * **Holder @ Federal Law**: *_WITNESS_* Spouse\* * **Divorce** - *_Entire privilege_ is l_ost\*_* * **Exceptions:** * Crimes against each other or children * Statements in furtherance of future crime or fraud. **^{*Different from Marital Communication Privilege}**

Answer 29

Prohibits a witness from being compelled to testify against herself. This applies in civil and criminal cases (including sentencing). Courts will allow a witness to invoke the privilege if there is some reasonable possibility of self-incrimination \*Criminal Defendants cannot be punished for invoking privilege

Answer 30

Every piece of PHYSICAL evidence must be authenticated,^{i.e., the proponent must show that the evidence is what he claims it is} **Authentication** ***may be proved*** by any means ***^{this is a low burden -->}***must only be sufficient to sustain the findings. **Self-Authenticating Evidence**: Writings that contain identifying information are self-authenticating evidence, they do not need separate authentication. *^{Examples include: (1) deeds, (2) notarized documents, and (3) newspapers.}* **Ancient Documentments** _are automatically authenticated if:_ * 20 or more years old * No irregularities on its face * Found in place of natural custody

Answer 31

If **evidence is offered to prove** the **CONTENTS of WRITING,** ***_an original document must be used_ unless it is unavailable***. A writing is any tangible collection of data ^{(e.g. videos, documents, photos, books, computer drives, x-rays)}. Evidence sufficient to prove a writing's contents includes: * **Originals** * **Duplicates:** Are admissible unless there is a genuine question as the authenticity of the original itself. Must be from machine or carbon copy * **Testimony regarding contents:** Is admissible if the original is lost or destroyed, unless done so in bad faith by the proponent of the testimony. **_Voluminous Doctrine Exception_**: A voluminous series of documents may be summarized in court. The originals relied upon must be available for inspection

Answer 32

Hearsay is an **_out-of-court_** ***Statement*** - *made by someone other than the testifying in-court witness* - to prove the truth of the matter asserted. * **_Statements_** = *_by HUMANS_* * ^{Oral or Written assertion} * ^{Nonverbal conduct intended as an assertion works} * *^{Non-human assertions are NOT statements}* ^{(e.g. test results, radar gun reading, dog barking)} * **_Declarant_** - Someone other than person testifying in court * **_Purpose of Evidence_** - Offered for its truth ***Hearsay Inadmissible*** - subject to certain exceptions or exemptions. Note: A witness's OWN previous out-of-court statement can be hearsay, thus an answer that a statement is not hearsay because it's W's own statement is incorrect

Answer 33

**Exceptions**: IS Hearsay, but still admissible. * Exceptions derive from theory that under appropriate circumstances a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify *nonproduction of the declarant* *in person at the trial* even though he may be available. The theory finds vast support in the many exceptions to the hearsay rule developed by the common law in which unavailability of the declarant is not a relevant factor. **Exemptions/Exclusions**: NOT Hearsay. * FRE 801(d) removes form hearsay certain statements that would be hearsay under CL definition

Answer 34

**Out-of-court statements are NOT hearsay** * **801-D Hearsay Exemptions** * Prior inconsistent statements - ^{Declarant must be available for cross examination} * Prior consistent statements - ^{Declarant must be available for cross examination} * Prior Identifications - ^{Declarant must be available for cross examination} * Admissions * **Prior Statements by Witness** - Statements by a person who testifies at trial or hearing and is subject to cross-examination re: statements is NOT hearsay * **Verbal Acts** * _{^{Non-Assertive Conduct (not tested)}}^{_{- noncommunicative statement that's intended as a statement}} * **State of Mind**

Answer 35

**Out-of-court statements are NOT hearsay ... 801-D Hearsay Exemptions** * **_Prior Inconsistent Statements_** - ^{Declarant must be available for cross examination} * ^Prior***Sworn*** *(@ PROCEEDING)* Inconsistent Statements - Admissible ⇒Substantively and to Impeach * ^Prior***Not Sworn** (@ PROCEEDING)* Inconsistent Statements - Admissible ⇒only to Impeach * **_Prior Consistent Statements_** - ^{Declarant must be available for cross examination.} * Prior consistent stmt, regardless of whether made under oath, is NOT hearsay if offered to rebut an express/implied charge that witness is lying or exaggerating b/c of some other motive * Note: consistent stmt offered for this purpose is admissible only when made *BEFORE* alleged motive to lie or exaggerate came into being * Admitted substantively

Answer 36

**Out-of-court statements are NOT hearsay ... 801-D Hearsay Exemptions** * **_Prior Identifications_** - ^{Declarant must be available for cross examination} * Prior ***statement of identification*** _of a person_ ***made after perceiving him***. * ^{Need statement of IDENTIFICATION (ask, was an identification made)} * Admissible substantively where the declarant eye witness is testifying at trial

Answer 37

^{Out-of-court statements are NOT hearsay ... 801-D Hearsay Exemptions} **Types of Admissions** * ***_Direct Admission_*** - statement of a Party offered against him by his Opponent * Remember must be of a PARTY (inadmissible if non-party) * ***Admission by _Conduct or Silence_*** - ^{circumstances such that}a *reasonable person would have denied the statement*. * ^{Post-arrest silence of accused is not adoptive admission} * ***_Authorized Admission_ -*** statement of any person authorized to speak * ***_Vicarious_ Admission -*** statement of _agent_ or _employee_ made * *_during existence of relationship_* * concerning matter *_within scope of employment_* * ***_Co-Conspirator_ Admission*** - made *_during course_* and *_in furtherance of_* the conspiracy * Existence of the underlying Conspiracy must be established by proponderance of evidence

Answer 38

Out-of-court statements are NOT hearsay if they are offered to prove anything other than the truth of the matter they assert. **_Common NON-HEARSAY Out-of-Court Statements:_** * **Independent legal significance:** Statements containing LEGALLY operative words, such that the statement itself is a legal factor in the case. *^{Common with defamation, K , adverse possession cases}* * ^{E.g. In a K dispute, A testifies that B told him it was a done deal} * **Show their effect on the listener** * ^{E.g. Comparative negligence claim--Statement by third party wanting P of the injury-causing condition} * **Show Speaker's Knowledge** * ^{E.g. D charged with conspiracy claims he didn't know about the crime; an out-of-court statement indicating D had been}

Answer 39

**Out-of-court statements are NOT hearsay ... Verbal Acts** **_Verbal Acts_** - Statements with relevance that's independently significant of their truth. 2 types: * **Transactional Words** - Ex. words of a will or contract * **Tortious Words** - Actual words of Libel or Slander in Defamation Action * Actual defamatory words have independent legal significance and can be admitted as non-hearsay

Answer 40

**Out-of-court statements are NOT hearsay ... STATE OF MIND** **_State of Mind_** - ***Independently relevant*** circumstantial evidence may used as nonhearsay to prove the following 4 things of **EITHER** the **Declarant** or the **Listener**: * **Knowledge -** * **Intent -** * **Attitude -** * **Belief** - Always look to the purpose for which the evidence is being offered.

Answer 41

MAY be UNAVAILABLE for these exceptions to apply: * **Present Sense Impression** * **Excited Utterance** * **Statement of Present Mental or Physical Condition** * **Past Physical Condition** * **Business Records** * **Public Records** * **Ancient Documents** * **Learned Treatise** * **Prior Judgments and Convictions**

Answer 42

**Present Sense Impression** **describes/explains** an **_event_** or **_condition_** ^{doesn't need to be startling - an unexcited utterance} and made {**_while perceiving the event}_ or {i_mmediately thereafter}_**^{10 minutes after is too long; must be very close in time} \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ \*TIMING IS KEY\*

Answer 43

**Excited Utterance** relates to a **_startling**_ or _**exciting_** ***event or condition*** ***and*** made **_while**_ the declarant was [_**under the stress of excitement]_ caused by _event_** * **Utterance** need only **relate to the event itself** * **Timing** - declarant need only make statement while under the stress of excitement. Not as strict as present sense impression. Just need to be under the stress. **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **\*DECLARANT'S EMOTIONAL DISTRESS IS KEY: Declarant must be under such excitement or stress that one would not normally have an opportunity to fabricate the statement\***

Answer 44

Statements concerning the declarant's ***PRESENT*** ⇒{ **_State of Mind_** ^{intent, emotion, sensation} } or {**_Physical Condition_**^{bodily health, pain}} existing **_at the time_** the **statement was made.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** * _A statement of then-existing STATE OF MIND_ is usually offered *to show a declarant's **_intent_** or as circumstantial evidence than an event was carried out.* * _A statement of then-existing CONDITION_ is *usually offered to establish some physical condition, symptom, or sensation that declarant experienced at the time of the statement*. ^{Note: Statements of memory or belief are INADMISSIBLE because they do not reflect on a then-existing condition Statements of INTENT may be ADMISSIBLE as circumstantial evidence that an act was committed at a later time.}

Answer 45

Hearsay statements made to ***medical personnel*** for the purpose of diagnosis or treatment may be admissible. ^{Typically, statement pain health} **_The STATEMENT must_** * be made to a **medical personnel** ^{(anyone involved in treatment or diagnosis, not necessarily a doctor)} * *and* * **pertinent to assisting** in the **diagnosis or treatment of condition**. * ^{Includes statements of past conditions if statement is made for the purpose of diagnosis or treatment.} **Note: Related statements about an injury-causing event are usually INADMISSIBLE**^{(e.g. statement by declarant to emergency room doctor that she was shot will be admissible, but the identity of the short will not, as it is not pertinent to treatment)}

Answer 46

**_MUST FIRST ATTEMPT TO REFRESH THE WITNESS'S MEMORY_** *THEN* **Contents of a document (a witness previously wrote or adopted)** **_is read into evidence._** This requires that Witness: * *Once **had personal knowledge*** of the document ***contents*** * Document was ***written*** *or* ***adopted by the witness*** * W *created document* when ^***contents were fresh in* the witness's memory^** * **Current memory is insufficient** to testify at trial as to document contents ^{(i.e. present recollection refreshed was ineffective);} AND * **Document** *was* ***accurate* *when created*** * ***^{Prefer Original Document >>> Best evidence rule applies when using this exception.}***

Answer 47

Hearsay statements in the form of business records are admissible if they are: * A **record** or **transaction** by a **business** (^{e.g. transactions, reports, patient records)} * Made in the **regular course of business** * Made **at or near** the **time of** the **event** * Prepared by someone w/ **personal knowledge** of the **facts** recorded * Prepared by someone w/ a ***Duty to Record***^{at common law only a custodian could prepare the record} * **Authenticated** **in writing** * **Trustworthy:** Court may exclude an otherwise qualifying business record if the source of the information or other circumstances _indicate a lack of trustworthiness_. ^{ex. if the document prepared or circumstances make it likely prepared in prep for litigation} \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Absence of records may be admitted as hearsay **Police Reports**: In CRIMINAL cases, police reports or other criminal investigative reports are INADMISSIBLE as business records or public records

Answer 48

^{Public Records Exception} * Describes **_activities**_ of a _**public office or agency_** * Describes either**:** * Matters o_bserved **pursuant to a duty imposed by law**_**,** * _**Factual** findings resulting from an **investigation**_ made **pursuant to authority granted by law** * Created ***within*** *public employee-author's* ***scope of duties*** * Created ***at or near the time*** *of* ***observed event*** * ***Trustworthy*** - Court may exclude an otherwise qualifying business record if the source of the information or other circumstances indicate a lack of trustworthiness. ^{ex. if the document prepared or circumstances make it likely prepared in prep for litigation} \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Absence of records may be admitted as hearsay **_CRIMINAL cases_ police records or other criminal investigative reports are INADMISSIBLE**

Answer 49

^{Judgments & Prior Convictions} **_Final Judgements -_** * Evidence of *_final judgment_* ***after trial or upon plea*** * **Felony** - *must be a felony* * can offer *_Certified Copies_* of Judgements * to **prove any fact** **essential** to the **judgment** \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Prior convictions are INADMISSIBLE in criminal cases against non-defendant's, unless used for impeachment

Answer 50

Family Records **_Statements_ of _fact_** **found _in family keepsakes_**, ^{e.g. jewelry engravings, genealogy charts, engravings on tombstones, writings within bibles} are admissible.

Answer 51

^{Ancient Documents} ## Footnote **MORE THAN 20 years old** **No irregularities *on its face*** **Found in a place of *natural custody***

Answer 52

Learned Treatises are **_accepted authority_** in a **_given field_**. ***_Arise with_*** * **Expert Witness Testimony** or * **Judicial Notice** ***_Must have been:_*** * expert relied upon on learned treatises on direct exam * called to witness's attention on cross Read into evidence ... only if introduced by Adverse Party

Answer 53

MUST BE UNAVAILABLE for these exceptions to apply: **Former Testimony** **Dying Declarations** **Against Interest** **Personal or Family History** **Offered against party procuring declarant's unavailability** \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **_A declarant is unavailable if:_** * **Privilege**--Exempt from testifying due to a privilege * **Death** or Physical/Mental **Sickness** * **Refusal** to **Testify Despite a** **Court Order** * **Lack** of **Memory** * **Absent--Beyond reach of the court's subpoena power**

Answer 54

Testimony given by a person in an earlier proceeding or deposition may be admissible if: ***The declarant is unavailable*** **Former Testimony** **was given UNDER OATH** AND **_Party targeted_ by Former Testimony** was either: * A _party in prior action_^and had _opportunity to cross-examine declarant_ **^{>> Motive for cross-examining declarant in former hearing must be similar to the current motive}** * ***^{CIVIL CASES ONLY}***_A predecessor in interest of a party in prior action,_ opportunity to cross examine declaration ^{and a similar motive for doing so >> Applicable in CIVIL actions only >> Predecessor in interest is one who has a close privity-type relationship with the party in the earlier proceeding}

Answer 55

**CUBA** * **C**oncern: Statement must concern the cause or circumstances of death * **U**navailable: Declarant must be unavailable * **B**elief: Declarant must believe death was imminent. Need not actually die. * **A**ny Civil/Criminal Homicide: Can arise only in civil/criminal homicide cases. \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ \*\*Death of declarant NOT required. Declarant must only have believed he was dying when the statement was made . * - CIVIL or HOMICIDE cases Only* * - Declarant Unavailable* ***\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_***

Answer 56

hearsay exception for statements concerning the declarant's **own** **^{or of another person, if the declarant is related to that person}** **relationship by blood** or **similar fact of personal /family history** ***and declarant is unavailable.***

Answer 57

Admissible if, at the time it was made, was against the pecuniary or legal interests of the declarant. ^{The declarant is currently unavailable} Statement contrary to declarant's **pecuniary, propriety, or penal** interest when made AND Reasonable person would not have made the statement unless he believed it to be true In CRIMINAL cases, there MUST be corroborating circumstances indicating the trustworthiness of the statement

Answer 58

**In CRIMINAL cases**, an otherwise admissible hearsay statement offered against a D may be excluded under 6th Amendment Confrontation Clause. \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ The **declarant is currently UNAVAILABLE** **D had No OPPORTUNITY to CROSS-EXAMINE** the declarant _about the statement when it was made_; AND S_tatement is ***TESTIMONIAL***_ * *Testimonial Statement = GOVERNMENTAL INVOLVEMENT and the FORMALITY /SOLEMNITY of TESTIMONY AT TRIAL.* * *Test for Testimonial Statements: Reasonable person believes statement would be used at trial then the statement is testimonial.*

Answer 59

The Confrontation Clause bars admission of a hearsay statement by a non-testifying co-Defendant if the statement expressly implicates another Defendant. EXCEPTIONS: A co-Defendant's hearsay statement is admissible if: * Co-Defendant **testifies** *and* is **subject** to **CROSS**-**EXAM**; OR * (2) Portions of Co-Defendant's testimony ***referring to the _non_-_declarant_ Defendant*** are REDACTED^{Redaction is not effective unless it clearly makes the non declarant co-Defendant's identity anonymous} OR * Statement **used to REBUT** a charge of a **COERCED confession**

Answer 60

**CRIMINAL CASES:** where D is accused of _child molestation_, the court may admit evidence that the defendant committed ***any other child molestation***. **CIVIL CASES:** based on a party’s alleged _sexual assault or child molestation_, the court may admit evidence that the party committed ***any other sexual assault or child molestation***. ^{The Importance of the Rule} ^{If a criminal defendant is accused of child molestation, evidence of other offenses of child molestation are admissible and may be considered for any matter for which it is relevant. “Child” means a person below the age of fourteen.}

Answer 61

If the presumed fact **established guilt** *_or_* is an **element of the offense,** the court ***_must instruct the jury that its existence must be proved beyond a reasonable doubt_***. Ex. D is charged with DUI. Blows .14. Judge instructs the jury that anyone blowing .1 is presumed intoxication under the law. This instruction would be proper only if further instruction is given that the presumed fact (intoxication) must be proved beyond a reasonable doubt.

Answer 62

Admissions of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or a civil wrong, at a time when the Decla was participating in the conspiracy, are admissible against all co-conspirators. **Elements:** * 1.Made by co-conspirator of the party against whom they are introduced; * 2.Made during the course of the conspiracy * 3.Made in furtherance of the conspiracy

Answer 63

*After a showing that a partnership exists,* an admission of one partner, relating to matters w/in the scope of the partnership business, is binding upon co-partners.

MBE Evidence Flashcards

(87 cards)