Bar Review Evidence

Front 1

Character Evidence

Back 1

Evidence regarding someone's general personality traits or propensities of a praiseworthy or blameworthy nature.
Character evidence may be offered as substantive evidence to:
1) Prove character when it is the ultimate issue, or
2) To serve as circumstantial evidence of how a person probably acted.

Habit evidence is admissible to show conduct is in accordance with habit.

Front 2

Character Evidence Exceptions

Back 2

MIMIC
M - Motive - commission of a prior crime may be evidence to show motive to the crime charged.
I - Intent - where it is the gravamen of the case
M - Mistake or Accident - where the defendant claims defense of accident or mistake, evidence of similar misconduct allowed.
I - Identity - evidence connecting defendant to the crime.
C - Common plan or scheme - evidence of preparation, etc.

Front 3

Leading Question

Back 3

A leading question suggests to the witness the fact which the examiner expects confirmed. Allowed on cross, preliminary matter, or hostile witness or adverse party.

Front 4

Impeachment

Back 4

Casting an adverse reflection on the veracity of a witness. Usually accomplished on cross examination.
5 types: CARBIC C
C - Prior felony Conviction (less than 10 years old) or crimen falsi
A - specific bad Acts
R - Reputation or opinion evidence
B - Bias - proof through cross-x or extrinsic evidence
I - Inconsistent prior statement
C - Competency - lack of memory or perception
C - Contradiction of W's testimony

Front 5

Hearsay

Back 5

An out of court assertion (written or oral) offered into evidence to prove the truth of the matter asserted.

Inadmissible in court unless it falls within a recognized exception.

Front 6

Business Records Exception

Back 6

Business records are an exception to the hearsay rule where the recorder is under a duty to make the record, it is made as part of a routine business practice, and someone can verify the record.

Front 7

Past Recollection Recorded

Back 7

If a witness has recorded a memory that is no longer available to him, then the record of the memory may be read into evidence, but the writing itself is not admissible by its proponent unless offered by the adverse party.

Front 8

Recollection Refreshed

Back 8

A witness may use any writing to refresh her present recollection, but it may not be admitted into evidence. The sworn testimony is only to reflect present recollection.

Front 9

Excited Utterance

Back 9

A hearsay exception. It is a statement made by a person who:
1) Suffered a stressful event, AND
2) Made the statement while still under the influence of the stressful event. There cannot be time for rational reflection.

Front 10

Declaration Against Interest

Back 10

Where the out of court declarant is unavailable, a statement made which is against the declarant's pecuniary, proprietary or penal interest, is admissible as an exception to the hearsay rule, provided it was against his interest when made.

Hint 10

PPP

Front 11

Learned Treatise Exception

Back 11

An authoritative writing may be read into evidence where it is properly authenticated by an expert witness, or judicial notice. The expert must be on the witness stand to help the jury interpret its meaning.

Front 12

Legal Relevance

Back 12

Otherwise relevant evidence is rendered legally inadmissible if its probative value is substantially outweighed by a danger of unfair prejudice, confusion of the issues, misleading the jury, or a waste of the court’s time.

Hint 12

prejudice, confusion, misleading, or waste of court's time

Front 13

Logical Relevance

Back 13

Evidence which is probative of a material fact at issue

Hint 13

material fact

Front 14

Relevance

Back 14

Evidence is logically relevant if it is probative of a material fact at issue.

Legally relevant evidence is logical evidence which is admissible unless its probative value is substantially outweighed by prejudice, confusion, waste of the court's time, or is misleading and therefore these factors substantially outweigh the evidence.

Hint 14

material fact

prejudice, confusion, waste of time, or misleading

Front 15

Judicial Notice

Back 15

Facts which are generally known, or facts that are capable of ready and accurate determination. In a civil case, judicial notice conclusively establishes a fact. In a criminal case, the prosecution's burden of production on that issue is satisfied.

Front 16

Residual Catch-All Exception to
Federal Rules on Hearsay

Back 16

Three requirements:
1) Circumstantial guarantees of trustworthiness
2) Necessary for the interests of justice in that it is more probative on a MATERIAL fact than any other evidence reasonably produced by the proponent
3) Proponent must give advance notice to the adverse party.

Front 17

Present Sense Impression

Back 17

Unavailability of the declarant is immaterial. A valid hearsay exception. Requires:
1) Declarant speaks while perceiving the event, AND
2) Statement must be contemporaneous with the event.
In CA, the declarant must be explaining what they are doing.
The exception is not recognized at common law.

Front 18

Authentication

Back 18

All writings, recordings, photographs, etc. must be authenticated. This requires a person to testify as to the genuineness of the document, providing some evidence supporting that the item is what it is claimed to be. Not required for a certified public record.

Front 19

Best Evidence Rule

Back 19

Also known as the original document rule, the best evidence rule requires that the original writing be produced if it is material to an issue. If the original is unavailable, then secondary evidence is admissible.
In CA, it is called the secondary evidence rule and does not require the original even where it is available.

Front 20

Privilege

Back 20

Clergy/Penitent - only confidential communication
Attorney/Client - relating to professional relationship
Physician/Patient - related to treatment
Privilege against self-incrimination (Constitutional)
Marital Communications - confidential and survives divorce
Spousal Witness - belongs to testifying spouse during marriage

Front 21

Expert Opinion

Back 21

An expert may express an opinion or conclusion provided:
1) Subject matter appropriate for the expert
2) Assists the trier of fact
2) Relevant to the facts in the case, AND
3) Qualified expert by way of specialized knowledge, skill, experience, training or education. The opinion may be supported by facts out of court so long as they are the type reasonably relied upon by experts in the field.

Hint 21

SARQ

Front 22

Lay Opinion

Back 22

Generally inadmissible. However, when no better evidence can be obtained, lay persons can testify to their opinions:
1) Rationally based on their perceptions
2) Helpful to a clear understanding of testimony or fact issue
3) Not based on scientific or technical or other specialized knowledge.

Generally admissible:
1) General appearance of condition of a person
2) State of emotion of a person
3) Rational or irrational nature of another's conduct
4) Sense recognition
5) Voice or handwriting id

Front 23

Reliability of Evidence

Back 23

Witnesses must have personal knowledge of the evidence testified to in order for it to be considered reliable.
All documents, writings, voices and physical objects must be authenticated.

Front 24

Ancient Documents

Back 24

Documents over the age of 20 years, taken from a place of proper custody, are self-authenticating.

1) In proper custody
2) Over 20 years in age (or 30 in CA)

Front 25

Collateral Matter Rule

Back 25

A cross-examining attorney is generally limited to the answers of the witness to questions concerning collateral matters.
Unless impeachment goes to a material issue, a party cannot prove a statement untrue by extrinsic evidence or by a prior inconsistent statement.

Front 26

Prior Statements by a Witness

Back 26

Not hearsay under Federal Rules.
Certain statements by a person who testifies at the trial or hearing, and who is subject to cross-examination about the statements, are not hearsay.
Prior Inconsistent Statement
Prior Consistent Statement
Prior Statement of Identification

Front 27

Admissions by a Party-Opponent

Back 27

Non-hearsay.

An admission by a party opponent is a statement that now turns out to be inconsistent with the party's contention at trial, the law simply regards them as estopped from preventing its admission into evidence.

He said it. He is stuck with it. Let him explain it if he can.

Front 28

Hearsay Exceptions - Unavailability Required

Back 28

Former testimony - must have been against the current opposing party.
Declaration Against Interest - against a persons pecuniary, proprietary or penal interest.
Dying Declaration - must be relevant to the cause of action.
Declaration of Personal or Family History - statements concerning deaths, births, relationships, marriage, etc.

Front 29

Hearsay Exceptions - Declarant Availability Immaterial

Back 29

Present State of Mind - must be material and at issue.
Excited Utterances - must be made under stress of exciting event.
Present Sense Impression - a statement describing or explaining an event immediately after perceiving it. In CA, it must be explaining what the declarant is doing.
Declarations of Physical Condition - declaration of present bodily condition.
Business Records and Official Records - not police reports in criminal case.
Past Recollection Recorded - person makes a written record of an event shortly after it has occurred.

Front 30

Parol Evidence Rule

Back 30

The parol evidence rule states that an agreement reduced to a writing is considered the only admissible evidence of it. Prior or contemporaneous negotiations are merged into the agreement, and they are inadmissible to vary the terms of the writing.
Exceptions:
1) Incomplete or ambiguous terms
2) Reformation by right
3) Challenge to the contract's validity (void or voidable)

Front 31

Considered Non-Hearsay

Back 31

Non-hearsay purpose
Prior Statements by a Witness
- Prior Inconsistent
- Prior Consistent
- Prior Statement of I.D.
Admission by Party Opponent
- Adoptive Admissions
- Vicarious Admissions

Front 32

Privilege may be waived by ...

Back 32

1) Failure to claim it
2) Voluntary disclosure of privileged matter by privileged party
3) Contractual provision

Hint 32

F-V-C

Front 33

Competency to Testify

Back 33

1) Personal knowledge
2) Willingness to testify truthfully

Hint 33

PW