Evidence MBE - Exhaustive!

Direct v. Circumstantial

D: no inference is required "i saw the D shoot him" C: an inference is required to connect it to a conclusion of fact "I didn't see the D shoot the V, but I heard gunshot, and saw D running down the alley"

Specific Cases of actions in Civil Cases where character is an issue:

Defamation, Child Custody, Negligent Intrustment, Negligent Hiring, Fraud or Misrepresentation It is rare for character evidence to be relevant in criminal cases except perhaps in fraud cases

There are 3 substitutes for an original:

Duplicate Copy, Certified Copy of a Public Record, Summaries of Voluminous Records (handwritten copies will typically not be enough)

Relevant Evidence

EVIDENCE WHICH TENDS TO MAKE THE EXISTENCE OF ANY FACT MORE PROBABLE OR LESS PROBABLE THAN IT WOULD BE WITHOUT THE EVIDENCE

Residual Exception 807 CATCH-ALL NOTE: THIS IS GENERALLY A WRONG ANSWER CHOICE

"Catch-all" exception for statements not otherwise covered; May be invoked if the statement: i. Carries a guarantee of trustworthiness; ii. Is offered as evidence of a material fact and is more probative on the point for which it is offered than any other evidence on point; and iii. Will best serve justice and the rules by being admitted

Examples where a juror's affidavit will be admitted:

(1) A juror may be questioned re: whether or not someone brought in a newspaper article about the case. (2) A juror made unauthorized visit to the scene (3) A juror accepted a bribe (4) A juror conducted his own out-of-court research (5) Threats of harm against juror &/or juror's family (6) A juror brought in a bible to read passages suggesting guilt

SETTLEMENT OFFERS OR NEGOTIATIONS [3 points]

(1) A settlement offer & statements made during the course of a settlement offer are NOT admissible to prove liability for, invalidity of, or the amount of a disputed claim. (2) Neither party may disclose the statements. (3) Not admissible as a prior inconsistent statement to impeach.

General rule of competency 601

Every person is presumptively competent to be a witness. Special witnesses are: children, insane witness, an attorney, an alcoholic/addict But judge can't testify

Party Admissions vs. Statements Against Interest

(1) Admissions are by a party; statements against interest are by other people (i.e., potential witnesses) who are not "available" at trial (2) Admissions do NOT require personal knowledge; statements against interest DO require personal knowledge (3) Admissions do NOT need to be against the speaker's interest at the time they were made; statements against interest need be against speaker's interest when made (4) Only self-incriminatory statements are admissible; exculpatory statements are inadmissible

How might one Waive a Privilege?

(1) WAIVER CAN OCCUR EXPRESSLY WHENEVER THE HOLDER VOLUNTARILY DISCLOSES THE INFO (2) OR IT CAN OCCUR BY IMPLICATION BY FAILURE TO TIMELY OBJECT TO TESTIMONY

Excited Utterance 803(2)

(a) A statement relating to a STARTLING EVENT made while the declarant was UNDER THE STRESS OF EXCITMENT caused by the event or condition. The event must shock or excite the declarant, and the statement must relate to the event, but the declarant need not be a participant

Judgment of Previous Conviction FRE 803 (22)

(a) Final judgments of previous convictions for felonies are admissible. (b) A certified copy of the final judgment is needed. (c) The judgment cannot be used except as to the accused.

Prior Inconsistent Statement [Rule 613] When can it be offered substantively (i.e., not for impeachment)

(a) IF A PARTY MAKES THE INCONSISTENT STATEMENT (ADMISSION) (b) IF IT IS SWORN PRIOR INCONSISTENT STATEMENT (c) IF PIN IS CONTAINED IN AN HEARSAY EXCEPTION (SOMETHING ABOUT OFFERING IT AS A BUSINESS RECORD)

Limitations on Bad Act Impeachment:

(a) MUST BE PROBATIVE OF TRUTHFULNESS (b) ASKED IN GOOD FAITH (c) BAD ACTS CAN'T BE TOO REMOTE IN TIME (d) ONLY QUESTIONS OF FACT ARE ALLOWED (e) JUDGE HAS DISCRETION TO EXCLUDE

Expert Witness: Basic Requirements

-- The subject matter of the witness' testimony is scientific, technical, or of some other specialized knowledge (it is reliable); and -- The testimony will be helpful to the trier of fact (it is relevant). I.e., Experts must be HELPFUL, RELEVANT, AND RELIABLE

"Evidence of character may be admissible when offered for a purpose other than to show... (complete) What is MIAMI KOPPS?

...conduct in conformity with one's character" Circumstantial evidence of other crimes, wrongs or acts is generally inadmissible, but may be offered to prove: Motive, Intent, Absence of Mistake, Identity, Knowledge, Opportunity, Preparation, Plan or Scheme

Subsequent Remedial Measures (SRM) (Rule 407). What can't it be entered to show, and what can it be entered to show?

Evidence of SRM is inadmissible to prove NEGLIGENCE, CUPABLE CONDUCT, DESIGN DEFECT, or NEED FOR WARNING Exceptions: TO SHOW OWNERSHIP OR CONTROL, TO IMPEACH, TO SHOW FEASIBILTY OF PRECAUTION

THE 5 "UNAVAILABLE DECLARANT" EXCEPTIONS

1) Former Testimony 2) Dying Declarations 3) Statements Against Interest 4) Statement of Personal or Family History 5) Forfeiture by Wrongdoing

Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition (Rule 412) Rape Shield Law:

Evidence of a victim's past sexual behavior or claimed sexual predisposition is generally NOT admissible in any criminal case involving sexual assault

Payment of Medical and Similar Expenses (Rule 409): What is it, and is there severance?

Evidence of an offer to pay medical bills is inadmissible to prove liability of any injury ♦ Ex: "Redaction Rule" Car accident; D says, "I may have been driving a little fast (admission), but you went through the red light. Anyway, I'm willing to pay your medical bills (409)." Result: THERE IS SERVANCE UNDER RULE 409, SO ADMISSION WILL COME but offer to pay medical bills will not.

Is there an exception to Rule 411 concerning insurance against liability?

Evidence of insurance against liability may be admitted for another purpose, such as: PROOF OF AGENCY, OWNERSHIP OR CONTROL, BIAS OR PREJUDICE OF A WITNESS

Habit - Routine Practice: In what forms is it admissible, and what key words to look for:

Evidence of the habit of a person, or routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove conduct in conformity of the habit. ♦ Admissible in the form of OPINION or SPECIFIC ACTS. ♦ Keys: ALWAYS, AUTOMATICALLY, REGULARLY, INSTINCTIVELY, WITHOUT FAIL, HABITUALLY

In civil cases, how might evidence offered to prove the sexual behavior or predisposition of any alleged victim be admissible?

Evidence of the victim's past sexual conduct & predisposition IS admissible if its probative value substantially outweighs the danger of harm to any victim or unfair prejudice to any party. Evidence of reputation is admissible only when placed at issue by the victim (i.e., unless victim opens the door)

Liability Insurance (Rule 411) What is it and is there severance?

Evidence that a person was not insured is inadmissible to prove negligence or fault ♦ Ex: Following an accident, D says, "I didn't hit the pedestrian! I don't have insurance so I have to be extra careful." This is inadmissible to prove/ disprove wrongdoing

Prior Inconsistent Statement [Rule 613] If the witness denies making the PINS:

Extrinsic evidence could come in

Prior Inconsistent Statement [Rule 613] If the PINS relates to a collateral matter

Extrinsic evidence is inadmissible and examiner is bound by answer

Prior Inconsistent Statement [Rule 613] If the witness admits making the PINS

Extrinsic evidence is inadmissible but the witness must explain the answer

What happens if the witness lies about the specific instance?

Extrinsic evidence is inadmissible to prove the prior dishonest act... the examiner is bound by the witnesses answer

Prior Inconsistent Statement [Rule 613] Foundation Requirement

Extrinsic evidence of a prior inconsistent statement by a witness may be admissible provided the witness is AFFORDED AN OPPORTUNITY TO EXPLAIN OR DENY THE EVIDENCE. THE FOUNDATION JUST NEEDS TO BE LAID AT SOME POINT. UNLESS THE INTEREST OF JUSTICE REQUIRES OTHERWISE

Collateral Matter Rule

Extrinsic evidence on collateral matters is inadmissible to impeach (waste of time) E.g., K testifies that before he saw the crime, he had pizza for lunch. You can't call a witness to impeach K b/c he really had a bagel.

Functions of the Jury 1008

Finder of fact (usually the jury) decides a. whether the asserted writing (the original) ever existed b. whether another writing produced at trial is the original c. the accuracy of the writing d. JURY HAS THE FINAL DECISION ON WHETHER THE ITEM IS GENUINE

Harmless Error Rule

Harmless error is based upon a finding that the error was not so significantly prejudicial to D so as to change the outcome of the case (i.e., there was an error, but it doesn't justify a reversal or modification of the judgment)

Hearsay

Hearsay is (1) an out-of-court statement, (2) intended as an assertion, (3) offered to prove the truth of the matter asserted. Hearsay is not admissible unless it falls under an exception to the hearsay rule.

Marital Communications Privilege (MCP) Key Points:

Held by both spouses (so long as the communications were kept confidential); i.e., you can prevent your spouse or former spouse from testifying about private things said during your marriage AND your spouse can refuse to testify in a criminal trial → Can be invoked in both civil and criminal cases → Can be invoked even after the marriage has terminated (as long as the communications were made during the marriage)

What if the D doesn't attack the victim's character, but merely states he acted in self-defense?

Homicide exception: Govt can present good character evidence about victim re: his peacefulness even if D has presented no character evidence (though D opt to show victim is violent

What are the 4 Confidential Communication Privileges recognized in federal court and all 50 states?

Husband/wife, Attorney/Client, Psychotherapist/Patient, Clergy/Penitent

Subsequent Remedial Measures: Feasibility of Precautions

If D claims "a different accelerator design was not feasible" to prevent such accidents, evidence that D did make subsequent changes to make the design of the accelerator safer is ADMISSIBLE to refute D's claim: WOULD APPLY IN NEGLIGENCE AND PRODUCT LIABILITY CASES

Forfeiture by Wrongdoing 804(b)(5)

If a party wrongfully renders a declarant unavailable for the purpose of preventing declarant from testifying, the door opens to anything the declarant ever said against the party ♦ Court must find by a preponderance of the evidence that: i. D engaged/ acquiesced in wrongdoing ii. Wrongdoing was specifically intended to render declarant unavailable as a witness

Recorded Recollection Rule 803 (5) - "Past Recollection Recorded"

If a witness has inadequate memory to testify about a matter for which a record exists, that record may be admitted & read to the jury if: i. Record concerns matter witness once had knowledge about; ii. Witness made record when matter was fresh in her mind; iii. Record accurately reflects the witness's knowledge ♦ party introducing record may NOT introduce it into evidence as exhibit itself; may only be read to jury by witness, or offered by opposing party

Business Records & Best Evidence Rule

If business records are available, Best Evidence Rule says actual records should be admitted to prove the existence of an event (e.g., that 10 deliveries were made); a custodian of the records (or other employee) testifying about the contents of records is not sufficient

Limited Admissibility 105

If evidence is admitted as to one party or FOR ONE PURPOSE but inadmissible for another purpose, court shall restrict evidence to its proper scope and instruct jury accordingly. Counsel must request a limiting instruction. ♦ Ex: When D is being impeached with former convictions, we allow jury to decide if it believes D. Prior convictions are admissible to challenge D's credibility, but not as substantive evidence of D's guilt. Jury is not allowed to use prior convictions to determine D's criminal disposition

To recall what constitutes unavailability, remember PRISM:

1) Privilege (e.g. assertion of 5th Amd), 2) Refusal to testify despite a court order, 3) Incapability - due to death, or physical, or mental illness, 4) Subpoena - absent despites a good faith attempt 5) Memory - lack of memory

A juror MAY testify as to:

1) extranious prejudicial info improperly brought to jurors' attention 2) whether any outside influence was improperly brought to bare on any juror 3) any clerical or secretarial error

Real Evidence may be authenticated by:

1) personal knowledge by showing familiarity with the object 2) Distinctive Characteristics 3) Chain of custody 4) Photograph: must be accurate portrayal of what it depicts

6th Amendment Confrontation Clause

In a criminal case where the declarant is unavailable, "testimonial" hearsay statements will be inadmissible unless the defendant is given an opportunity to cross-examine the declarant.

Documents may be authenticated or identified by: (3)

1) someone who had first-hand knowledge of the document 2) Circumstantial evidence - doctrine can be used to authenticate the fact that a respondent's reply was written by him: I write you a letter, you (respondent) reply back to me by letter 3) Ancient Documents: A writing is sufficiently authenticated as an AD if the proponent shows the judge the writing is MORE THAN 20 YEARS AND FOUND IN ITS PROPER PLACE

Statements in Ancient Documents FRE 803 (16)

Includes statements in a document in existence 20 years or more whose authenticity is established.

Entering evidence to show consciousness of guilt: How is it relevant, and what examples have been seen on MBE?

It is relevant to show a guilty mind. ♦ Past examples: Fleeing the scene, threats by the D against a witness, hiding from the police, using an alias, failing to submit to a blood alcohol test

What is the Judge's and Jury's role with Sufficient Evidence

Judge admits it, Jury weighs it.

3 ways to authenticate handwriting:

Lay person with familiarity, Comparison by an expert, Comparison by the trier of fact (jury) caveat: FAMILIARITY WITH HAND-WRITING CANNOT BE ACQUIRED SOLELY FOR THE PURPOSES OF LITIGATION

Non-Hearsay: State of MInd

Looks like hearsay, but isn't used to prove truth of matter asserted. A statement offered as circumstantial evidence of declarant's mental state IS admissible; statements that are direct descriptions of mental state & are used to prove that mental state ARE hearsay ♦ Example: Someone says they can walk on water. It may be introduced to show that person's state of mind, not that they can really walk on water.

What's the remedy for violation of 615 (failure to exclude witnesses)?

MISTRIAL, OR TO HOLD THE WITNESS IN CONTEMPT, BUT THE COMPLAING PARTY MUST SHOW MORE THAN HARMLESS ERROR

HIGHLY TESTED: The effect of a jury instruction on judicial notice (civil and criminal)

1. A CIVIL jury MUST ACCEPT a judicially noticed fact as conclusive 2. A CRIMINAL jury MAY ACCEPT a judicially noticed fact as conclusive

Disclosure of Facts or Data Underlying Expert Opinion 705

1. An expert may testify and give reasons without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may, however, be required to disclose these facts on cross-examination. 2. This rule serves to avoid using an expert as a conduit for inadmissible evidence and helps to limit the use of hypothetical questions.

Methods of Impeachment

1. Bias (always admissible) 2. Sensory defects (can't observe, communicate, hear, remember, etc); this evidence is always material, never collateral 3. Prior inconsistent statements 613 4. Character (a. reputation/opinion, b. bad acts, c. felony convictions, d. convictions involving dishonesty

801(d) Statements which are not hearsay CA PPP Rule

1. C - co-conspirator's statements 2. A - Admissions 3. P- prior sworn inconsistent statements 4. P - PINS 5. P - PRIOR Identification

Type of Judicial Notice

1. Commonly Known Facts: Not subject to reasonable dispute, generally known within the jurisdiction (water boils at 212F, capital of Texas is Austin) 2. Facts that are readily ascertainable and cannot be disputed: fact which are capable of accurate and ready determination by resort to sources of unquestionable accuracy (Radar, blood test, interest rates)

What preliminary questions of admissibility must be determined by the court?

1. Competency - witness qualifications 2. Admissibility - whether or not hearsay exception applies 3. Privilege - attorney/client, husband/wife

3 types of 3rd Parties that don't negate confidentiality under the Lawyer/Client Privilege:

1. Essential 3rd Parties: SOMEONE WHO IS FURTHERING SOME PURPOSE OF THE RELATIONSHIP. 2. Atty Representatives: people hired by attorney to assist (accountant, investigator, doctor, etc) 3. Eavesdroppers: as long as they are unknown

3 levels to the Burden of Persuasion

1. Lowest - preponderance of the evidence 2. Intermediate - Clear and Convincing 3. High - Beyond a reasonable doubt

2 MBE TIPS CONCERNING RELEVANCY

1. Most 403 objections are properly overruled 2. 403 balancing test favors admission

Summaries 1006

1. The contents of voluminous writings, recordings or photographs that cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.

Rules for Character Evidence in Criminal Cases: 404(a)(1)

1. The prosecution may not initially introduce evidence of defendant's bad character: D HAS TO OPEN THE DOOR FIRST. 2. Testimony about a pertinent trait of the D (good character): THIS OPENS THE DOOR 3. Once door to character evidence has been opened (rebuttal), the State may rebut with reputation or opinion

615 Doesn't authorize exclusion of:

1. a party/party representative 2. a person whose presence is deemed essential (detective on case or victim) 3. Most Recent Exam: An attorney can't be excluded 4. or any person exempted by statute

2 main ways to shift burden of production:

1. affirmative defenses 2. presumptions

Exceptions to the Marital Communication Privilege:

1. crimes committed by 1 spouse against other or against kids 2. divorce proceedings 3. Joint participant exception: HUSBAND IS CHARGED WITH TAX FRAUD BUT THE WIFE ASSISTED HIM. SHE MAYBE COMPELLED TO TESTIFY AS TO ANY CONFIDENTIAL INFO ABOUT THIS

What the client/attorney privilege does NOT protect:

1. future crime or fraud, 2. suits b/t attorney and client, 3. Joint Client Exception: two clients hire the same attorney, their earlier communications are no longer privileged

5 circumstances where leading questions might be appropriate on direct

1. hostile or adverse witnesses 2. child witnesses 3. to gain preliminary background info 4. refresh recollection 5. on cross-examination

SETTLEMENT OFFERS OR NEGOTIATIONS: Exceptions

1. offers to settle can be admitted to show bias or prejudice 2. to negate a contention of undue delay, or 3. to show efforts to construct a criminal investigation

Under Rule 412 (Rape Shield) in a criminal case, in what 3 cases are specific acts admissible? (exceptions to 412)

1. past acts with D which tend to show consent 2. past acts with other men, to show D was not source of the semen, and 3. evidence is permitted if exclusion would violate any constitutional right of the D

Writing used to Refresh Memory [Rule 612] 4 key points

1. proponent may not introduce the writing as evidence 2) hearsay nor best evidence rule apply 3) authentication is not required 4) writing, photo, further questioning, or other form of evidence will suffice

Exceptions to the Psychologist/Patient Privilege:

1. statements made reguarding commitment proceedings 2. statements dealing with court ordered examinations 3. when medical condition is part of the claim 4. future crime or fraud

Exceptions to Spousal Privilege

1. suits between the spouses 2. suits involving a child of either spouse

What must a client do if he has inadvertently waived his privilege?

1. the client must not have intended to do so 2. take reasonable steps to protect info, and 3. take timely steps to remedy the waiver

Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time (Rule 403). 6 ways to exclude relevant evidence:

1. the danger of UNFAIR PREJUDICE 2. MISLEADING the jury. 3. considerations of UNDUE DELAY 4. WASTE OF TIME 5. needless presentation of CUMULATIVE EVIDENCE

6 Key Privilege Issues:

1. was there a protected relationship? 2. was there communication? 3. is it confidential? 4. who is the holder of the privilege? 5. has there been a waiver of the privilege? 6. exceptions

What are the appropriate subject matters for calling an expert?

1.scientific 2. technical 3. or other specialized knowledge

Inadmissibiliity of Pleas, Plea Discussions, and Related Statements (Rule 410): When does it apply?

A PLEA & ANY STATEMENT MADE DURING PLEA NEGOTIATIONS BY A D, IN A CIVIL OR CRIMINAL PROCEEDING, WILL BE INADMISSIBLE AGAINST D IN A LATER PROCEEDING ♦ Applies: 1. pleas of guilt later withdrawn 2. pleas of nolo contendere 3. offers to plead guilty ♦ Doesn't Apply: 1. statements made to police

Lack of Personal Knowledge 602

A WITNESS CAN ONLY TESTIFY TO MATTERS ABOUT WHICH HE HAS PERSONAL KNOWLEDGE lay witness: must have personal knowledge Expert witness doesn't need it

Oath or Affirmation 603

A WITNESS MUST DECLARE TO TESTIFY TRUTHFULLY EITHER ABOUT OATH OR AFFIRMATION IN A FORM A TO AWAKEN THE CONSCIOUS. if he doesn't, judge wont allow testimony

Hearsay within Hearsay 805

A hearsay statement is contained within a hearsay statement. Double hearsay IS admissible if each level of hearsay falls under an exception

Inquiry into the validity of a verdict or indictment [Rule 606(b)]

A juror may NOT testify as to the manner in which the jury reached its decision (can't speak to internal deliberations); can't testify about statements or matters made during deliberations, thought processes of jurors, votes taken ♦ Juror's testimony will be EXCLUDED: (1) We misunderstood the evidence & instructions (2) We reached our verdict improperly (3) We drank and got high; we fell asleep (4) One juror bullied everyone else

Opinion Testimony of a lay witness

A non-expert witness must have personal knowledge of a matter to testify. Other issues (e.g., the objectivity or perspective of the witness) just go to credibility

Trade Secrets

A person has a privilege to refuse to disclose any trade secret he owns or to prevent others from disclosing such information unless concealment will create fraud or injustice.

Excited Utterance vs. Present Sense Impression

A present sense impression must be a description of the event, whereas an excited utterance need only relate to the exciting event (many things can qualify as both: e.g., 911 tape)

Prior Identifications 801(d)(1)(c)

A prior statement of ID of a person made after perceiving him. Declarant: MUST TESTIFY AT TRIAL & be SUBJECT TO CROSS Beware of Qs re: prior out-of-court IDs by witness who is not testifying at current trial & thus is not subject to X-examination. This rule cannot apply, e.g., if witness is dead or otherwise unavailable to testify.

Vicarious Admissions

A statement by a party's agent or representative Lawyer for client, CEO for company, employee AGENCY CAN BE EXPRESSED OR IMPLIED.

Learned Treatises FRE 803 (18) "Expert Exception"

A statement contained in a published treatise or periodical is admissible if: i. The treatise is established as a reliable authority and ii. An expert witness relied on the document during direct examination ♦ Statements may be read into evidence for impeachment purposes AND as substantive evidence, but the treatise itself may NOT be admitted into evidence

Party Admissions:Co-conspirator's Statement

A statement made by 1 co-party is NOT admissible against other co-party based solely their status as co-parties, BUT a statement made by a co-conspirator during AND in furtherance of the conspiracy IS admissible as an opposing party's statement against other co-conspirators → the statements of your co-conspirators are considered your statements insofar as you are estopped from complaining that they're hearsay

Vicarious Admissions: Employee Admissions

A statement of a party's employee offered against the party by the opponent. The statement must be made 1) DURING THE EXISTENCE OF THE RELATIONSHIP & must concern a matter 2) WITHIN SCOPE OF EMPLOYMENT

Adoptive Admissions: Rule and Characteristics

A statement of another person that a party expressly or impliedly adopts as his own SILENCE can = adoptive admission if a reasonable person would have denied the statement **Caveat: MBE - ADMISSION BY SILENCE DOES NOT APPLY WHERE D HAS BEEN GIVEN MARANDA WARNINGS.

Judicial Notice Rule 201

A substitute for proof where the court excepts certain adjudicative facts as true without requiring formal presentation of evidence (science, geography, calendars, etc)

Impeachment - Bad character for truthfulness [Rule 608]

A witness' character for UNTRUTHFULNESS is always material and may be attacked by using REPUTATION OR OPINION evidence. (1) Either party may call a witness in both civil and criminal cases. (2) A witness' character for TRUTHFULNESS can be shown by REPUTATION OR OPINION evidence only if the witness' credibility for truthfulness has first been attacked.

Exclusion of Witnesses during other testimony: Rule?

AT THE REQUEST OF A PARTY THE COURT SHALL ORDER WITNESSES EXCLUDED SO THAT THEY CANNOT HEAR TESTIMONY OF OTHER WITNESSES. PURPOSE IS TO PREVENT FABRICATION, PROTECT CHILD WITNESS

Absence of Entry in Records FRE 803 (7) and (10)

Absence of an entry in a business record IS admissible to prove the act's nonoccurrence, unless the sources of info/ circumstances indicate lack of trustworthiness Ask: Is it the type of act that a business would normally record? Same applies to absence of Public Records

Direct Admission: Rule and Characteristics

Admissions (by You) in Prior Civil and Criminal Case As long as a party opponent made a statement and that statement can now be used against him in court, it's an admission Example: Peg says, "I robbed that bank! Yay!!" Admissible against Peg under Party Admissions

Admissions v. Hearsay Exceptions

Admissions are preferred. Always choose admissions if it's a close call.

Psychologist/Patient Privilege: How do the 50 states view this and who does it apply to, who doesn't it apply to?

All 50 states have a privilege (Jackie v. Redman) it extends to LCSW, psychologists, mental health specialist, psychiatrist, marriage counselors. IT DOES NOT APPLY TO EDUCATIONAL AND VOCATIONAL COUNSELORS

704 Opinion on Ultimate Issue and Experts:

An expert MAY opine on an ultimate issue. BUT an expert can't offer opinion on whether a criminal D had the requisite mental state of any element of a crime or defense→ this is exclusively for the jury to decide

Business Records Exception

Any record or writing of any act or event made during the course of regularly conducted business is admissible Must be authenticated prior to admission Documents prepared in anticipation of litigation are NOT ADMISSIBLE as business records

Public records and reports FRE 803 (8)

Applies to certain statements contained in records & reports of public officials or agencies → There are 3 types of things which may be admissible if set forth in a public record: i. Activities of the agency; ii. Observations of those under a duty to report; or iii. Conclusions/ factual findings of a legal investigation

Statements Against Interest

At time it was made, statement was so far against declarant's pecuniary, proprietary, civil, or penal interests, that reasonable person would NOT have said the statement unless it was true ** Ask: Does it expose the speaker? Does it go against his interest?

Duration of the Privilege:

Beyond client's death

Certain documents need no foundation witness to prove they are genuine. Rule 902 lists 12 areas, 6 of which are sometimes tested on the MBE. Mnemonic: CONTAC

C- Certified/ Notarized Documents, O- Official Publications, N- News Paper and Periodicals T- Trade Inscriptions A- Acknowledges Documents (notarized documents, accompanied by a certificate of acknowledgement executed in the manner provided by law. C- Commercial Paper (negotiable instruments, bills)

The 404b Exception can be simplified to MIMICK.

Motive, Intent, absence of Mistake, Identity, Common plan or scheme, or Knowledge

Are fee arrangements and client identity privileged?

NO

Can one contradict once fact has been judicially noticed?

NO CONTRADICTORY EVIDENCE IS PERMITED ON THAT ISSUE

Present Sense Impression 803(1)

NOT excluded as Hearsay: A statement describing or explaining an event or condition made while declarant was perceiving event or condition, or immediately after (which = 2 min max) Must be spontaneous, 'unexcited', and from personal knowledge

Bubble Bursting Theory (Thayer Theory):

ONCE THE OPPONENT PRESENTS SUFFICIENT EVIDENCE THAT THE PRESUMED FACT IS NOT TRUE, THEN THE PRESUMPTION DISAPPEARS FROM THE CASE AND THE BUBBLE BURSTS (SOMEONE MISSING FOR 6 YEARS, PERSON IS DEAD, BUT EVIDENCE CAN BE BROUGHT IN TO BURST THE BUBBLE)

Privilege Generally (Rule 501) - what law governs privileges and why?

ONLY C/L PRIVILEGES ARE RECOGNIZED & INTERPRETED BY FEDERAL COURTS. FRE does NOT CONTAIN A LIST OF RECOGNIZED PRIVILEGES DUE TO DISAGREEMENT IN CONGRESS. Governed by common law, subject to superseding state law.

Prior Consistent Statements 801(d)(1)(b)

Offered to rebut an express or implied charge of improper motive OR recent fabrication bAre admissible (1) to rehabilitate a witness AND (2) as substantive evidence (i.e., proof of what it asserts) → the prior statement is NOT HEARSAY, so it is ADMISSIBLE both to bolster credibility & to prove the truth of the matter asserted

What would be an improper scope of lay witness opinion?

Opinions stated in conclusory terms are not appropriate. EXAMPLE: THE PLAINTIFF WAS CONTRIBUTORIALY NEGLIGENT, A CONTRACT EXISTED, THE DEF ASSUALTED THE VICTIM (1) Legal conclusions must be avoided. CAN'T TESTIFY THAT SOMEONE IS AN ADDICT, ALCHOLIC, ETC

Prior Inconsistent Statement [Rule 613] What form can it take?

PINS may be ORAL OR WRITTEN, ITS CONTENTS NEED NOT BE SHOWN TO THE WITNESS AT THE TIME, BUT ON REQUEST CONTENTS MUST BE SHOWN TO OPPOSING COUNSEL.

Husband/Wife Privilege

PROTECTS ALL COMMUNICATIONS REGUARDLESS OF CONFIDENTIALITY BOTH DURING AND BEFORE MARRIAGE. INCLUDES TESTIMONY, IMPRESSIONS, AND OBSERVATIONS

Religious Privilege:

PROTECTS CONFIDENTIAL COMMUNICATIONS FROM PENITENT TO CLERGYMAN IN HIS CAPACITY AS SPIRITUAL ADVISOR. Either might assert the privilege b/c both are holders

Distinguish Past Recollection Recorded from Present Recollection Refreshed:

PRRefreshed: A witness' memory can be refreshed and the witness CAN testify from present memory (witness may look at a document and then recall enough about the event to testify.) PRRecorded: Even with help, witness can't remember, so must rely on record

Burden of Persuasion

Party must persuade the trier of fact that it has met each element of the case. ♦ Ex: Prosecution has the burden of production and persuasion to prove every element of murder beyond a reasonable doubt that defendant committed the murder.

When can issues of judicial notice be raised?

Pre-trial, during trial, or on appeal

How do presumptions function as a shortcut to evidence:

Presumption arises where one set of facts, once established, give rise to another set of facts (which are called presumed facts)

5th Amd Privilege Against Self-Incrimination

Prevents a witness in any proceeding from being compelled to make incriminating statements about himself It does NOT apply to physical characteristics or mannerisms (e.g., blood samples) ♦ Exception: A witness may be compelled to provide incriminating testimony if the government grants him immunity

Prior Inconsistent Statements

Prior inconsistent statements are those that were made under oath at a trial, hearing, or other proceeding (including a deposition) Are admissible (1) to impeach D's credibility AND (2) as substantive evidence (i.e., proof of what it asserts) → the prior statement is NOT HEARSAY, so it is ADMISSIBLE both to impeach & to prove the truth of the matter asserted

Spousal Immunity: Timing - What time period does the privilege cover?

Privilege applies to testimony about events that took place at any time, including before marriage (BUT privilege expires upon divorce) SO -- you CAN be compelled to testify against your ex-husband (though not about something that happened while you were married under the confidential communications privilege)

Interpreters 604

QUALIFIED THE SAME WAY AS AN EXPERT WITNESS, MUST TAKE AN OATH OR AFFIRMATION

Records of Vital Statistics FRE 803 (9)

Records or data compilations of BIRTHS, DEATHS, MARRIAGES are admissible if THE REPORT WAS MADE TO A PUBLIC OFFICE PURSUANT TO REQUIREMENTS OF LAW

"Dying Declaration"

Requirements for admitting dying declarations: -- Individual believes she is dying (subjective belief) -- Individual believes death is imminent and -- Statement pertains to the cause or circumstances of death. ** The declarant does NOT actually have to die, but must still be unavailable in some way

702 Expert Testimony: what are the requirements? whats the acronym? and how are these qualifications determined?

SKEET Special Skills, Knowledge, Education, Experience, Training. The judge determines qualifications by POTE (Rule 104).

Rule 413-415 How are specific acts treated in criminal and civil child molestation cases? What are the two limitations?

SPECIFIC ACTS BY D ARE ADMISSIBLE and THEY MAYBE CONSIDERED AS THEY BARE ON ANY RELEVANT MATTER. A prior conviction is not required. Merely needs to meet the preponderance of the evidence Limitation: 1. subject to judges discretion, and 2. D gets notice

Impeachment - Bad character for truthfulness When can you ask about specific acts?

Specific instances of the conduct of any testifying witness that are probative for their truthfulness are admissible for attacking or supporting the witness' credibility. 1. Must be a question 2. On cross and 3. Inquires into prior unconvicted acts that bare untruthfulness or truthfulness ♦ Those bad acts may NOT be proved by extrinsic evidence. You must take the answer as it is given from that witness

Spousal Immunity

Spouse of a criminal D may NOT be compelled to testify against his/her spouse. ♦ In some states, criminal D spouse holds privilege and may prevent his/ her spouse from testifying against him/her even if witness spouse wants to. ♦ In federal courts (& most states & MD), the would-be-witness spouse holds the privilege & may choose to testify, but cannot be compelled to.

Statements of Mind

Statement of declarant's then-existing state of mind, emotion, or physical condition may be used to prove the existence of that condition → Statements can NOT be about someone else's feelings/ actions; they must be about your state of mind (Remember RULE 602—1st hand knowledge) → Be aware of temporal issues—it must be THEN-existing!

Statements for Purposes of Medical Diagnosis or Treatment Rule 803 (4)

Statement that describes declarant's medical Hx or past or present symptoms (or even cause of injury) is admissible if it was made to a physician/ medical personnel for purpose of medical Dx or Tx ♦ Statements about the general CAUSE or source of an injury/illness are admissible; statements about WHO caused the injury are inadmissible

Statement of Personal or Family History, 804(b)(4) "Pedigree Exception"

Statements concerning the unavailable declarant's own birth, adoption, marriage, familial relationship, etc. are admissible under this exception. ♦ MBE EXAMPLE: A woman finally tracks down her biological dad after years of searching. Dad says, "I've been waiting 30 years for this day. Here's my girl." Dad dies. The Estate refuses to recognize the woman as an heir. Result: COMES IN UNDER 804B

Physician-Patient Privilege

Statements made by a patient to a doctor for the purpose of obtaining medical treatment. Held by patient, not the doctor NOT recognized under FEDERAL LAW (nor MD)

Mode and Order of Interrogation and Prosecution (Rule 611a)

THE JUDGE SHALL CONTROL THE EXAMINATION OF WITNESSES AND PRESENATION OF EVIDENCE TO AFFECTIVELY ASCERTAIN THE TRUTH AND PREVENT THE HARRASSMENT OF WITNESSES

Real Evidence

Tangible

Former Testimony Rule 804(b)(1)

Testimony given under oath at prior hearing/ deposition is ADMISSIBLE in subsequent trial if party against whom testimony is being offered had opportunity & similar motive to develop the testimony by direct, redirect, or X-exam. at the prior trial or hearing (affidavits do NOT qualify as testimony) ♦ Note: The former action must involve the SAME SUBJECT MATTER BUT, not necessarily SAME C/A

Public Records (Rule 1005)

The contents of an official record may be proved by copy, certified as correct in accordance with Rule 902 or by witness testimony upon comparison with the original.

Where privileged material is used to refresh, what will the court rule?

The court will rule a waiver has occured and allow the adverse party to inspect.

Who may impeach a witness?

The credibility of a witness may be attacked by any party, including the party calling him. e.g., where the witness' testimony SURPRISES and DAMAGES the examining party.

Original Document Rule/Best Evidence (Rule 1002) is

The original document (or a copy), if available, must be used to prove the contents of a document when the contents of the writing are in issue. This includes electronic documents, x-rays, photographs, recordings, and videos. ♦ Objective of the Rule: limits the ability of having witnesses describe the contents of docs instead of just introducing the docs themselves

A declarant is:

The person making the out of court statement

How to determine the reliability of scientific tests?

The trial court acts as a "gatekeeper". The MBE follows Daubert v. Merrill Dow (1993). Mnemonic TAPE Daubert factors include: -- T TESTING -- A ACCEPTANCE -- P PEER REVIEW -- E ERROR - THEY LOOK AT THE DEGREE OF ERROR

801(d) Admissions .. 4 types

There are 4 other types of admissions. (a) Direct admission (b) Adoptive admission - either by conduct or silence (c) Authorized admission (d) Vicarious admission

408 Offer to Settle: Severance (COMMON ON MBE)

There is no severance. Ex: X & Y have a car accident. Assume the facts state there's a dispute as to fault between the 2 parties. X says to Y, "I may have been driving a little too fast (admission), but you went through the red light. Anyway, I'm willing to settle this matter with you." ♦ Result: NEITHER THE ADMISSION OR SETTLEMENT OFFER WILL BE ADMITTED

Prior Inconsistent Statement [Rule 613] General

Used to impeach a testifying witness by showing that the witness had previously made a statement which is inconsistent with the testimony he has given on the stand -- the Prior Inconsistent Statement (PINS) is being offered to impeach not for the truth of the matter asserted, so it is not hearsay

Authenticating Telephone Calls:

Ways to authenticate a telephone conversation: i. Caller can recognize speaker's voice / familiarity with voice; ii. Evidence that the speaker knew facts that only a particular person would know; iii. Evidence that caller dialed the number believed to be the speaker's & speaker ID'ed himself upon answering phone; OR iv. Caller phoned a business and spoke with a person who answered questions about business regularly conducted over the phone.

Remainder of or Related Writings or Recorded Statements (Rule 106)

Where a party introduces part of a writing or recording, the adverse party may immediately introduce any other part of the writing which in fairness ought to be considered- put it in context (need not wait for their case-in-chief to introduce)

Requirements for an Appellate Court to reverse a trial court's decision:

Where a ruling ADMITS evidence, a TIMELY and SPECIFIC objection must be made to preserve the issue for appeal. If there is a general objection (i.e., "I object") the issue is not preserved for appeal

Conditional Relevancy 104(b)

Where the admissibility of one item of evidence is conditioned on the relevancy of another item of evidence. Once that condition is met, the judge shall admit the evidence. EX: one letter says girl is cool, but a photocopy says she's a fool. The relevance of the copy is conditioned on the relevance of the letter, so the judge will admit it and let the jury decide

Impeachment through Prior Convictions [Rule 609] Felony Convictions

Witness: court must decide if value of hearing about prior conviction is substantially outweighed by its prejudicial effect. D: the conviction will be admitted if govt shows the probative value outweighs the prejudicial effect

Verbal Acts which are NON-HEARSAY

Words themselves can give rise to C/A . Words with INDEPENDENT LEGAL SIGNIFICANCE, e.g.: ♦ Transactional words words of a CONTRACT, words of OFFER or ACCEPTANCE, words of a DEED, WILL, WORDS OF DONATIVE INTENT ♦ Tortious words ACTUAL DEFAMATORY words themselves in a LIBEL or SLANDER ACTION ♦ Other examples of VERBAL ACTS NON-HEARSAY: social greetings, signs (keep off grass), license plates, police badge, luggage tag

Can an admission be offered in the form of a question?

Yes, "Do you really expect me to believe that?" is an admission that I don't believe that.

Religious Beliefs or Opinions:

a witness's religious beliefs are inadmissible to impair or enhance credibility

Authentication - what is it

as a condition precedent to admissibility, it requires evidence sufficient to support a finding that the matter in question is what its proponent claims it to be.

When might the MIMIC evidence (other acts) have occurred and still be admissible under this rule?

before, during, or after the date of the offense

How might the prosecution cross the D's witness concerning the D's character?

did you know the D committed 3 robberies in the past year? (proper question) Specific acts maybe inquired into on cross of the D's witness

What may adverse party do with writing to refresh?

inspect it, cross with it, can show writing to jury for comparison, introduce relevant portions into evidence

Prior Inconsistent Statement [Rule 613] If the PIN was not given under oath

it may only be used for impeachment

Experts

may testify to describe how a scientific or technical method produces a specific result and may show how such a process is accurate. AN EXPERT MAY AUTHENTICATE UNDER DALBERT OR FRY

What constitutes confidential communications?

oral and written Communications are privileged, observations are not Pre-existing document not privileged, work product is

State Secrets and Other Official Info

prevents the government from being compelled to present certain information (not a very well-defined standard)

MIMIC character evidence never comes in to . . . (complete)

show criminal disposition or propensity of the evidence

Dead Man's Statute

there is no federal dead man statute, but it disables any witness from testifying about a transaction involving a decedent (you can still be tested on it. b/c if state has such a statute Fed. Court will apply it when sitting in diversity Jx)

Impeachment through Prior Convictions [Rule 609] Juvenile Adjudications

to be allowed in, it must be in a criminal case, it can't be the D who has the convictions, and if it's necessary to attack credibility of an adult

Is a conviction under appeal admissible?

yes, but the fact that its under appeal is also admissible

Where do the Fed. Rules apply, and where don't they apply?

♦ Apply: All civil and criminal trials and proceedings in Fed. court. Also, bankruptcy and admiralty ♦ Don't apply: Preliminary Question of Fact, Grand Jury Proceedings, Preliminary Hearings, Sentencing and Probation Hearings, Obtaining A Warrant, Bail Proceedings

Types of Business Records: -- Medical Records -- Police Reports -- Accident Reports

♦ Medical Records: are business records to extent that they relate to Dx & Tx (Statements relating to fault are inadmissible.) ♦ Police Reports: can qualify as business records, but statement made by witness that is in the report does not generally qualify ♦ Accident Reports: These are NOT Business records

When is the taking of Judicial Notice mandatory, and when is it permissible?

♦ Permissible: The judge may NOT take judicial notice of a fact merely because it is within her knowledge ♦ Mandatory: When requested by a party, and supplied with the necessary info.

Public Records Exception -- Police Reports -- Accident Reports

♦ Police Reports: Only activities may be introduced under this exception;the only way to get the police report admitted is to call the police officer as a witness ♦ Accident Reports: these are covered under this exception; these reports include findings of fact from an investigation, and this can encompass opinions logically inferred from facts

Lawyer/Client: who is the holder of the privilege and what does it mean?

CLIENT IS THE HOLDER, AND MAY REFUSE TO DISCLOSE CONFIDENTIAL COMMUNICATIONS MADE FOR THE PURPOSE FOR SEEKING PROFESSIONAL LEGAL ADVICE OR SERVICES. THE CLIENT MAY PREVENT OTHERS FROM DISCLOSING THAT INFORMATION ALSO

Impeachment through Prior Convictions [Rule 609] Convictions after 10 years

CONVICTIONS MORE THAN 10 YRS OLD ARE INDAMISSIBLE TO IMPEACH UNLESS THE PROBATIVE VALUE SUBSTANTIALLY OUTWEIGHS THE PREJUDICIAL AFFECT, AND NOTICE MUST BE GIVEN TO OPPOSING PARTY 10 year limit is either based on the conviction date, or release from confinement date

Calling and Interrogation of Witness by the Court [Rule 614]: How may the court call a witness and whats the outcome?

COURT/JUDGE ON ITS OWN MOTION MAY CALL WITNESSES AND ALL PARTIES MAY EXAMINE ALL WITNESSES CALLED BY THEY COURT. Court may also interrogate any witness called by a party.

Authenticating Voice ID

Can be authenticated by any person who has heard the voice at any time (incl. solely for purposes of litigation)

What are the 3 main Substantive Areas tested on the MBE?

Character evidence (5 ques) Impeachment (5 ques) Hearsay (12 ques)

Character Evidence in CIVIL CASES 404: when can you use it, and what 3 forms can you use?

Character evidence is inadmissible to prove conduct in conformity therewith. Exception WHERE CHARACTER IS IN ISSUE. All 3 forms of character may be admitted: 1) REPUTATION , 2) OPINION and 3) SPECIFIC ACTS

How are privileges handled differently in civil cases, compared to federal question cases and criminal cases?

Civil: federal courts use C/L or state privileges when applying state law in diversity Jx In Federal Question cases and criminal cases: the privilege of a witness is determined by C/L

Functions of Court (Rule 1008)

Compare: The judge determines preliminary facts - Rule 104(b) a. whether the BER applies to a writing b. whether a writing is an original or a duplicate c. whether "good cause" exists for nonproduction of the original d. whether summaries are admissible e. IT IS A JUDGE DECISION WHENEVER ADMISSIABLEITY DEPENDS ON THE FULFILLMENT ON THE CONDITION OF FACT

The "Best Evidence Rule" - Contents are "at issue" when

Contents of a document, video, recording, etc. are "at issue" when: a. The document is used as proof of an event happening (e.g., video of robbery, photo taken at crime scene) b. The document has a legal effect (e.g., contract or will) c. The witness is testifying based on facts learned from the document (e.g., witness testifies about who robbed the bank but the only reason she knows is because she saw a video)

Testimony or Written Admission of Party (Rule 1007)

Contents of a writing may be proved by the testimony, deposition, or admission of the opposing party without accounting for the nonproduction of the original writing.

Expert Witness: Daubert Test:

Courts require that the expert: a. Be QUALIFIED: One who is qualified by knowledge, skill, experience, training, or education (need not be formal education or training); b. Base his opinion on sufficient FACTS AND DATA; and c. Apply the principles and METHODS reliably to the facts of the case.

Impeachment through Prior Convictions [Rule 609] Crimes of Dishonesty

Crimes involving dishonesty or false statement can typically be used to impeach Within 10 years of the conviction (felony or misdemeanor), it may be used to cast doubt on the witness's credibility MD: may be used within 15 years of conviction

Can the opposing party comment on one choosing to take the 5th?

Criminal: No, Govt may not draw attn to D's failure to testify Civil: yes... ex: In a custody case, if an attorney asked a parent whether she sold heroin, parent could assert 5th Amd privilege. BUT, the opposing party could then draw attention to the fact that the privilege had been asserted with regard to the question of heroin selling.

Testimony about a pertinent trait or character of a VICTIM (bad character): How can D get it in?

D may present bad character evidence about the victim, but he opens another door; if D presents bad evidence about victim, Govt can present bad character evidence about D concerning the same character trait AND good character evidence of victim re: same trait