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71 Cards in this Set

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relevant evidence generally not admissible; irrelevant evidence not admissible
FRE 402 is seldom cited in the courtroom, but it is the key to understanding and organizing the law of evidence in preparation for the bar examination. Essentially, it provides taht all relevant evidence is admissible unless a specific rule keeps it out.
Relevance defined
401-relevant evidnce means evidenc having any tenddency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
To be relevaent under Rule 401, a piece of evidnce must meet a two party test. it must help to establish a fact or proposition. the fact or proposition the evidence helps establish must have something to do with the outcome of the case under teh controlling ruels of law.
exclusion of relevant evidence on grounds of prejudice and other considerations
403-although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or mileading the jury, or by considerations of undue delay, waste of time or needles presentation of cumulative evidence

In other words, any piece of relevant evidence can be excluded if the trial judg edetermines taht its probative value is substantially outweighed by teh counterweights listed in FRE 403. There will always be one or more MBE quesiotn on this rule, and it will often be applicable to essay issues.
Relevancy Rules of exclusion
The FRE contain a number of rules taht prohibit introduction of some specific pieces of evidence, if the evidene is offered to help prove a particular proposition. These rules are often classified as relevancy ruels of exclusion because they dictate taht certain evidence can neer be used to prove a particular properistion. This evidence can be used to estblish propsitions, assuming there is another propsition in teh case taht htis evidecne willl help prove. Wehn this particulr piece of evidenc is linked with this particular propositon, however, it is not admissible if it falls withon one of the relevancy rules of exclusion
8 Rules for Character evidence in criminal cases
1. the prosecutor may not present evidence of the bad character of teh defendant to prove that the defendant probably acted in confomity with that bad character, unless teh defendant presents evidence of good character.
2. The defendant is allowed to present evidnce of ood character if it will help establsih taht the defendant is not the sor tof person who would have comitted the crime charged
3. FRE 405 limits the type of evidence the defendant can introduce to prove character to reputation or opinion evidence-not past good acts
4. if the defendant presents reputation or opinion evidence to establish good character, the prosecutor can then introduce evidence of bad character to show the defendant is the sor of person who would commit the crime
5. prosecutor is allowsed to cross def's character witness as to if he heard of past bad acts
6. if D tetifies he puts is character trait of truthfulness at issue
7. under FRE 404(b) prior crimes are not admissible to prove that the defendant probably acted in conformit with D's bad character, but they may be admissible for some other purpose. motive, intetn, mistak, identity, common scheme
8. evidence of prior sex crims is always admissible if it is another sex case and D can introduce evidence that victim could have acted in conformity with that trait.
3 Rules for character evidence in civil cases
1. in a civil case, neither teh plaintiff nor the defendant can present character evidence through reputation, opinion, or specific acts if the purpose is to show someone probably acted in conformity with that character.
2. as soon as a party testifies, tehy put their truthfulness at issue
3. if
Prior Similar Occurences and Habit
Evidence of the habit of a person or of the routine practice of an organizaiton, is relevant to prve that the ocnduct of the person or organizaiton on a particular occasion was in conformity with the habit or routine pracite.
The habit must happen everyday.
Sexual History of the Victim in a Rape Case
1. no opinion or reputation evidence
2. evidence of specific acts might be admissible if consent is a defense or the other defense is that D might not be the source of the seamen
3. admission of this evidence is a special proceure--still discretionary with the trial judge
Witness Competency
Every person is competent to be a witness except as otherwise provided by these rules.
*the for major disqualifications under the rules are based on the witness' lack of appreciation for truthful testimony, lack of observation or perception, lack of recollection, and lack of ability to communicate.
The requirement of an oath
Fre 603 provides before testifing, every witness shall be reqired to declare taht the witness will testify truthfully, by oath or affirmation administered ina form calculated to awaken the witness' conscience and impress the witness' midn with the duty to do so.
the reqirement of observation
fre 603 provides- a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of teh matter.
* the requirement of "personal knowledge" found in 602 disqualifies a witness from testifying to matter that the witness did not observe through sigh or perceive trhough one of his other senses.
the requirement of recollection
the requirement of "personal knowldeg" also disqualifies a witenss who, at the time of the testimony, has no independent recollection of the events about which the witness is to testify.
the requirement of communication
if a witness cannot communicate with the judg eor jury about facts perdeived and remembered, the witness will be disqualified. That result can bebased on personal knowledge requirement of602, or on the requirement of relevant evidence found in 402.
leading questions
leading questions are not permitted on direct examination unless:
1. the witenss is hostile or they are necessary to develp testimony.
2. leading questions usually will be allowed as necessary when the witness is having difficulty remembering the event or is a very young witness
3. can lead on background information
refreshing recollection
while the fre do not specifically address the point, it is universally recognized that anything can be used to refresh the recollection of a witness. the document must be made available to opposing party. she can inspect it, cross-examine on the basis of it, or offer the document into evidence.
present recolleciton refreshed
anyting can be used.

One may object to the admission of the document into evidence based on
1. best evidence rule
2. no authentication
3. hearsay
4. ?

However, these objections will be irrelevant if the document is not offered into evidence
past recollection recorded
If there is no acual recollection, then the witness is incompetent...However, the writing will come in if
1. there is insufficient recollection
2. the witenss once had full knowledge
3. writing was made when the witness had full knowledge
4. belied statement was true when recorded it
opinion testimony by lay witnesses
if the witness is not testifying as an exper, the witness testimony in the form of opinions or inferences is limited ot those opinions or inferences which are (a) rationally based on the perception of the witness (b) and helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.
* In other words, if the witness is not a testifying expert, his opinion is inadmissible unles it is based on percepton of the witness and helpful to a clear understanding of the tetimony.
expert opinions
the witness must have specialized knowledge that will assist the jury. This is an extermely liberal criterion that will allow testimony on all subjects.
qualifications of experts
provides taht a person can qualify as an experty by knoledge, skill, experience, training, or education.
basis for expert opinion
1. personal experimination
2. made known to the expert at trial (hypotheticals)
3. normally used by those type of experts even if inadmissible evidence.
cross examination rights
absolute right, if witness can't respond, then you have a mistrial

if 1/2 way through, then there is adquate opportunity for meaningful cross examination
cross examination scope
it is limited to matters covered on direct plus credibility, but anything if it is a better presentation of the evidence
credibility of witness
is always relevant
bolstering the credibility of a witness
on the mbe, there are four types of evidenc that might be offered to bolster the credibility of a witness who has testified
1. evidence that the witness has a good reputation for truthfulness
2. evidence in the form of an opinion from an expert taht the witness has testified truthfully
3. evidence of statements made by the witness before tiral taht were consistent with the trial testimony and
4. evidenc of specific acts of prior conduct on the part of the witness taht show character for truthfullness
when may a party bolster the credibility of a witness
under the fre, a party cannot bolster teh credibility of his own witness until the witness ahs been impeached.
Who may impeach a witness
impeachment is an attempt to case doubt on the truthfulness of the witness. There are fie traditional methods for impeachment:
1. prior inconsistent statements
2. bias
3. prior criminal convictions
4. prior bad acts
5. reuptation for untruthfulness
*it may be attacked by any party
prior inconsistent statements
a witness can be impeached with evidence showing that the witness made statement before testifying that were inconsistne with teh testimony given at trial. The priro statement could have been in writing or it could have been made verbally.
1. extrinsic evidence
under the rules, extrinsic evidence of prior inconsistent statements generally will be received. if howeer, the witness admitted during cross examination to make the prior statemetn or the inconsistency is on a very minor point, the court could reject under 403.
the foundation requirement for prior inconsistent statements
at common law, it was necessary to lay a foundation for the introduction of extrinsic evidence of the prior statemetn by first asking the witness being impeached about the statement on cross examination and giving the witness an opportunity to comment. FRE 613 still requires, in most instances, that the witness be given an opportunity to comment but it does not reqire the opportunity be given before teh extrinsic evidnece is introduced. Under the rule, the extrinsic evidnce could be introduced and then the witness could be recalled ot the witness stand and given an opportunity to comment on the prior statement.
evidentiary use of prior statements
a favoirte mbe question will deal with the evidentiary use of the prior statement. it can be used to impeach, but can it also be used as "substantive evidence" to prove the truth of the facts contained in the prior statement? most prior inconsistent statments will be excluded as hearsay, if they are offered to prove that the facts contained in the prior statement actually occurred. However, if the prior inconsistent statement ws given under oath, subject ot penalty at trial or other proceeding, it will not be cosidered hearsay, and can be introduced both to impeach and as substantive evidence.
if for any reaons, the witness has testified for a ide that the might favor, the jury is entitled to hear about that in order to better evaluate the testimony of the witness. The kind of evidence that might establish a bias is endless; for example, it may be evidence of a clos business or personal relationship, dislike of opposing party, the fee being paid the expert, a prosecution witness who has cut a deal or has pending criminal charges, or an expert who always testifies on teh same side of the issue.
*the FRE do not contain any specific provisions on "bias". However, the USC has held that evidence of bias is always relevant and therefore, it will be admissible unless it is kept out under FRE 403.
Impeachment-prior convictions
a witness can be impeached with evidence to sow that the witness has been convicted of certain crimes. under rule 609, ther are three categories of prior convictions, each with different test for admissibility:
1. any criminal conviction, felony or misdemeanor that involves dishonesty or a false statement can be used to impeach.
2. if the witness is the accused in a criminal case, any other felony can be used to impeach fi the court determines its' probabitve value outweighs its prejudicial effect of the defendant.
3. if the witness is not the accused in a criminal case, any other felongy can be used to impeach subject to 403.
*it also contain detailed provisions that reject prior convictions that are too remote in time. In general, the conviction is admissible if it occurred within the past 10 years, or if imprisonment followed teh conviction, it has been less than 10 years since the date of release from prison.
Impeachment-prior bad acts
prior bad acts are specific acts of previous misconduct on the part of the witness that did not result in a criminal conviction, but which refelct unfavorably on the truthfulness of the witness. Example of this type of evidence include questions as to whether a witness filed a false tax return, chated at cards or lied on an employment application.
*extrinsic evidence, the testimony of other witnesses concerning the alleged bad act, is not allowed. in addition, all court require that counsel have a good faith basis for a question concerning a prior bad act.
Impeachment- reputation for untruthfulness
a witness can be impeached through the testimony of others that a witness has a reputation in teh community for dishonesty or untruthfulness. Rule 608 also allows the impeaching witness to state an opinion on the truthfulness of the witness being impeached.
after teh witness has been impeached through one or more of the impeachment techniques, rehabilitation takes place. ON teh MBE, the type of eidnece offered to rehabilitate will be evidence of a reputation for truthfulness, evidenceof pror specific acts taht indicate truthfulness, and evindence of prior consistent statements made by the witness.
rehabilitation-reputation evidence
under 608, evidence of reputation for truthfulness can be used to rehabilitate a witness if the witness has been impeached with evidence of a reputation for untruthfulness, prior crimes or prior bad acts.
rehabilitation- specific acts
after a witness has been impeach, counsel might wihs to illicit from the impeached witness, or from others, evidence of specific previous acts that demonstrates truthful character. In most situations, FRE 608 excludes such evidence.
Rehabilitation-prior consistent statements
an attempt sometimes will be made to rehabilitate a witness with evidence of statements that the witness made before trial taht were consistent with trial testimony. Most courts reject teh PCS offered to rehabilitate under rule 403. While such evidence may tell a little about the truthfulness of the witness, the probabitive value usually is found to be outweighed by considerations of time consumption A different result will be reached if the witness has been impeached with evidence to show that a motive to falsify has occurredsince the event that gave rise to teh litigation. In that narrow situation, statements made before the alleged motive to falsify can be introduced to rehabilitate.
1. does the statement meet the core definition of hearsay set forth in 801(a),(b), and (c)?
2. If so, is the statement excluded from the definition of hearsay by 801(d), and
3. if the statement does not meet the definition of hearsay set out in 801, does it qualify as an exception under 803 or 804?
The core definition of hearsay
hearsay is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
What is a typical MBE fact pattern of hearsay and the core definiton
a witness will attempt to testify about an out of court statement. If the purpose of the evidence is to persuade teh trier of fact that teh facts contained in teh out of court statement actualy occurred, it is being offered to establish teh truth of the matter asserted and will meet the core definition of hearsay. If there is however, some other purose for introducitn of the oral or written out of court statement or condct, other than to prove that facts contained in teh statement actually occurred, teh statement is not offered for the truth of the matter asserted and does not meet the coure requirements of hearsay.
three purposes a hearsay statement may be admitted for a different reason
1. verbal acts- sometimes the making of a statement brings about legal consequences, regardless of whether the facts contained in the statement are true. The statement, "I accept your offer" will in many circumstances create a contract. The statement, "John Jones is a thief" might be defamatory. These types of statements are referred to as "verbal acts" or statements having independent legal effects. if the out of court statement qualifies as a verbal act and is offered to prove that point, it will not be considered hearsay.
2. statements offfered to show the effect on the listener
on the mbe an out of court statement woften will be shown as being offered to help prove a state of mind on the part of aperson who heard teh statement. If the state of mind of the listener is relevant, the out of court statement will not be classified as hearsay. The statement might be offered to help show such things as knowledge, motive, or fear on the part of the listener (if relevant).
3. impeachment
witnesses are often impeached through their prior inconsistent statements. Such statements, offered for the purpse of impeachment will not be classified as hearsay. Tehy are not being offered to prove teh "truth of the matter" but are offered to prove the witness is inconsistent and should not be believed.
Prior statements of witness
while a witness is on the witness stand, there will often be an effort to introduce statements made by the witenss before trial. if the prior statement of the witness is offered to prove the truth of the matter asserted, it will be inadmissible hearsay, unless teh statement is excluded from the definition by 801(d) or qualifies as an exceptiong to the hearsay rule.
prior inconsistent statements
FRE 801 (d) excludes from teh definition of hearsay prior inconsistent statements of a witness who has testified, if the prior statement ws given under oath subject to teh penalty of perjury at trial or other proceeding.
*as indicated, all PIS can be used to impeach a witness, and offered for that purpose, will not be classified as hearsay because the statements will not fall under the core def. of hearsay. if however, the PIS was given under oath subject to the penalty of perjury at trial or other proceeding, it is excluded from the hearsay definition. these prior inconsistent statements can be offered to impeach AND AS SUBSTANTIE EVIDENCE FOR THE TRUTH OF THE MATTER ASSERTED, as they are excluded from the definition of hearsay.
prior consistent statements
on the bar examination, practically all the prior consistent statements that appear will meet the basic definition of hearsay and will be excluded unless they fall within one of the hearsay exceptions. FRE 801(d) does remove from the definition of prior consistent statement of a witness, impeached with a charge that a motive to testify falsely has arisen since the event that gave rise to the litigation. in that narrow set of circumstances, a prior consistent statement given before the alleged motive to testify falsely will be excluded from the hearsy definiton. It will be admissible both to bolster the credibility of the witness and as substantive evidence to prove the truth of the matter asserted.
an admission is a statement made by a party at any time, relevant to the case, and offered into evidence by the opposing party. FRE 801(d) excludes admissions from the definition of hearsay.
*at CL, admissions were classified as an exception to the hearsay rule, and were therefore admissible even though the statemetn met the definition of hearsay. The FR reach the same result, but under a different theory. Under rule 801(d) an admission by a party is not considered hearsay, adn therefore the hears rule keep it out.
admissions through conduct
an admission can be made through words or conduct. thus testimony that the criminal defendant fled the scene, or attempted to bribe a witness, would be admissible as evidence of admission.
adoptive admissions
there acan be an admission trhough selence, also referred to as an adoptive admission. This occurs when a party hears an accusation and fails to protet, when a reasonable person would have protested if the accusations were untrue. under those circumstances, evidence of both the accusation and the resulting silence can be introduced under the theory of adoptive admission
admission by an agent or employee
under fre 801(d) a statement by an agent or employee can qualify as an admission by the principal or employer if the statement was authorized or conerns a matter within the scopr of the agency or employment, made during the existence of the realationship.
hearsay exception
1. present sense impression
2. excited utterances
3. then existing metnal emotional or physical condition
4. statements for the purpose of medical diagnosis or treatment
5. recorded recollection
6. records of regularly conducted activity
present sense impression
803(1) defines one as "a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.
*for example, a witness can testify that the declarant said, "look at how fast that car is going"
excited utterance
fre 803(2) defines one as "a statement relating to a startling event or condition made while the declarant was undner the stress or excitement calused by the event or condiditon.
*under this exception, the statement does not have to be made while the startling event was occurring. It is only necessary that the declarant was still under the stress or excitement of the startling event.
then existing metnal, emotional, or physical condition
a statement of the celarant's then existing state of mind, emotions, sensation, or physical condition such as intent, plan, motive, design, mental feeling, pain and bodily health
*for example, the witness can testify that the declarant said such things as "I intend to return the car," "I'm depressed" or "My back hurts". Under this exception, statements of an intention to engage in future conduct are admissible to help establish that the declarant actually engaged in teh conduct. from teh famous hilman case, an out of court statement, "i intend to go to crooked creeek" would be admissible to show the declarant went to crooked creek.
statements for the purpose of medical diagnosis or treatment
statement made for the purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms pain or senations or the inceptiong or general character of the cause or external source thereof inso far as reasonably pertinent to diagnosis or treatment.
*in order to qualify under this exception, the out of court statement must be made for the purposes of medical diagnosis or treatment and it will usually be a statement to a doctor. However, statements to nurse or intake personell at teh hospital could also qualify.
recorded recollection
a memorandum or record concerning a matter about which a witness once had knowledge butnow has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in teh witness' memory and to reflect that knowledge correctly.
records of reularly conduct activity
a record of acts, events, conditions, opinions, or diagnoses made at or near the iem by, or from information transmitted by, a person having knowledge, f kept in the course of regularly conducted business activity, and if was teh regular practice of that business activity to make the record...unless teh sources of information or the method or curcumstances of preparation indicate lack of trustworthiness
*the business records exception to the hearsay rule is self explanatory and extremly broad. Most document regularly kept by an organizaiton would potentially qualify.
hearsay exception: declarant unavailable
fre 804 ssets out a series of hearsayexception that only apply when the person that made the out of court statemetn is unavailable to testify. for the bar exam, rememer that the following persons are unavailable under the rule:
1. the proponent of the evidene is unable to obtain attendnat or testimony of the declarant by reasonable means
2. the declarant is excused on the ground of privilege
3. the declarant refuses to testify despite court order
4. the declarant testifies that he cannot remember or
5. the declarant is dead or unable to testify
former testimony
testimony given as a witness at another hearing of the same or a differnt proceeding, or in a deposition taken in compliance with law in teh course of the same or another proceeding, if the party against whom the testimony is now offered, or in a ciil action or proceeding, a predecessor in interest had an opportunity and similar motive to develp the testimony by direct, cross or redirect examination
* teh common law requirement of idential parties and identical issues have been rejected by the federal rules. It is only necessary that the party against whom the evidence is offere had an opportunity andmotive to develop the testimony in a previous proceeding
statement under belief of impending death
in a prosecution for homicie or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be his impending death
*to meet the requirements of the dying declaratin rule,the statement must have been made at the time the declarant believed that death was imminen, and must describe the cause or circumstnces of the impending deth. If hte staement meets those requiremetns, it can be used in any civil case and in criminal homicides.
statement against interest
this rule cover out of court statements against the financial interest of the declarant or which would have subjected the declarant ot criminal liability at the time the statement was made. to avoid criminal liability, a crimnal defendant will somtimes attempt to introduce an out of court statemetn by a third party in which the other party confesse to the crim with which the defendant is charged. the out of court statemetn qualifies as a declaration against interest. in this situation, the rule also requires corroborating circumstances taht show trustworthiness of the statement
real proof (other than documents)
every piece of evidence, including real proof, must be relevant and can be excluded if the trial judge determines that the probative value is outwi. a piece of real proof could be excluded if the evidence was inadmissible under one of the relevancy rules of exclusion. that would be extremely rar because those rules or exclsuion are seldom violated by objects introduced into evidence. All items of real proof share on common characteristic regarding their admissibility as evidence. Before an item of real proof may be admitted, the the proponent of the evidence must authenticate it.
how may authentication be accompished
1. have someone give it a distinguishing identification
2. establish a chain of custody
The introduction of any document raises a potential hearsay issue.
Tested areas of authenticating a document
1. testimony of a witness who has personal knowledge of its authenticity can be presented. "I saw X sign the document" or "I signed the document"
2. any person familiar with the handwriting or signature of the person who allwgedly wrote teh document can testify
3. an expert can give an opinion as to the genuiness of the signature on teh document after comparing it with others
4. the jury can compare the signature on the offered document with an authentic signature on another document
5. under the reply letter doctrine, a writng can be authenticate by testimony that it was received in respons to a communicatio with the alleged author.
6. special knowledge of the author
7. a writing can be authenticate by any other info giving rise to inference of authentication
What are the self authenticating document?
1. Commercial paper (neg. inst.)
2. notarized
3. trade inscription or trade label
best evidence rule
requires taht a party seeking to prove the contents of a writing produce the original document or account satisfactorily for it.
proving the contents of a writing
there are two slightly different fact situations that appear in which the litigant will be attempting to prove the contents of a writing
1. if a witness is attemtpting to testify about what was read in a document, that is an effort to prove the contents of the document. Thus the questions are such as "What did the letter say?" or "What were the conditions set out in the written contract? would be objectionable under this rule
2. a party is seeking to prove the contents of a writing is when the witness attempts to testify about rights taht are controlled by a document. for example, testimony about a transfer of real property or a cotract covered by the statute of frauds would be an attempt to prove the contents of a writing. under the substantive prop law and contracts, these matters are controlled by written instruments
exceptions to the best evidence rule
1. if the original has been lost or destroyed without bad faith on the part of the proponent
2. if the origianl cannot be obtained by judicial process
3. if th eoriginal is in the original is in the possession of the party opponent and that party has been notified that the contents are to be proved
4. for collateral matters, if the original is not closely related to the controlling issue
5. if the original is a public record
6. for voluminous writings, charts and summaries may be substituted, if ariginals are made available to the party opponent
admissibility of duplicates
allos introduction of copies to satisfy ber unless a genuine issue is rased to the authenticity of the origial or in the circumstances it would be unfair to admit the duplicate
spousal privilege
1. in federal court, in a criminal case, one spouse may nto be forced to testify against the other spouse
2. in a federal court in any case, one spous can refuse to testify or keep the other spouse from testifying to any confidential communications made between the spouses during marriage
attorney client privilege
a client can refuse to testify or keep another from testifying to any confidential communicaitons between client and attorney made for the purpose of legal advice or assistance.