Evidence Bar Exam 2011

Front 1

Character Evidence in Civil Cases

Back 1

Inadmissible unless:
1. sexual assault or child molestation
2. character is at issue (i.e., defamation, negligent entrustment, child custody, loss of consortium
All methods are admissible including specific conduct, opinion, and reputation

Front 2

Character Evidence: Four question approach

Back 2

1. what purpose is the character evidence being offered?
2. what method or technique is used to prove character?
3. is it a civil or criminal case?
4. does the evidence prove a pertinent character trait?

Front 3

Character Evidence in Criminal cases: D's character

Back 3

Character evidence of the D comes in when:

(1) D introduces Charater evidence of V-P can now bring in evidence of same trait of D

(2) Sexual assault or child molestation

(3) D enters his own character evidence- P can rebut

Direct: opinion & reputation
Cross: specific acts

Note: must be a pertinent character trait (e.g., no dishonesty for assault charge)

Front 4

Character Evidence in Criminal Cases: V's character

Back 4

There are two ways D can open the door:
(i) if D offeres evidence of V's character, P may rebut; or
(ii) in a homicide case, if D offeres evidence V attacked 1st, P may offer evidence of V's peacefullness.

Front 5

Rape shield statute

Back 5

Criminal: reputation and opinion evidence inadmissible. Specific acts only to prove (i) 3rd party source of semen; or (ii) prior acts of consensual intercourse between D and V.

Civil: Reputation, opinion, and specific instances evidence is admissible if probative value substantially outweighs unfair prejudice.

Front 6

Specific acts are admissible to prove:

Back 6

MIMIC
M: motice
I: intent
M: mistake (absense of)
I: Identity
C: Common plan or scheme

Front 7

Impeachment: Three step approach

Back 7

1. is it extrinsic evidence or testimonial evidence
2. if it is extrinsic, is it admissible given the technique
3. any other foundation requirements

Front 8

Collateral matter

Back 8

a fact not material to the issues in the case that says nothing about witness' credibility other than to contradict the witness

Front 9

Methods of impeachment

Back 9

1. Contradiction
2. Prior Inconsistent Statement
3. Bias, Interest, motive
4. Convictions for crimes of false statement (i.e., perjury, forgery, fraud)
5. Conviction of Felony

Front 10

3 step approach to hearsay

Back 10

1. find the statement
2. what is it being offered to prove?
3. will the jury be misled if the speaker was lying?

Front 11

Not Hearsay-exempt

Back 11

1. admission of party opponent
2. Prior inconsistent statements
3. prior consistent statement
4. statement of identification

Front 12

Hearsay exceptions: Declarant unavailable

Back 12

1. Former testimony
2. Declaration against interest
3. Dying Declaration

Front 13

Hearsay exceptions: Avaliability Immaterial

only Jeb can talk about maps w/ 3 p's whether he's there or not

Back 13

1. EXCITED UTTERANCE

2. PRESENT SENSE IMPRESSION

3. STATE OF MIND: declaration of then existing physical or mental condition

4. MEDICAL DIAGNOSIS OR TREATMENT- statement of past/present mental or physical condition made for medical diagnosis or treatment

5. BUSINESS RECORDS (regular course of business, personal knowlege, business duty)

6. PUBLIC RECORDS (not admissible in criminal)

7. JUDGMENTS of previous felony conviction

8. ANCIENT DOCUMENTS-more than 20 years old

9. PAST RECOLLECTION RECORDED-writing by witness who cannot now remember, made while fresh in her mind

Front 14

Confrontation Clause

Back 14

The Constitution excludes an out-of-court statement if declarant does not testify at trial, is now unavailable, the statement is 'testimonial', and D had no chance to cross-examine when statement was made.

Front 15

Impeachment by specific instances of misconduct-Bad Acts on cross examination-witness

Back 15

A witness may be impeached on cross with any act of misconduct that is probabtive of truthfulness (is an act of deceipt or lying)

The cross examiner must act in good faith with some reasonable basis for believing the witness committed the bad act inquired about

extrinsic evidence of "bad acts" to prove misconduct is not permitted

Front 16

In a diversity case, which law applies

Back 16

the substantive law of the state in which the court sits, but federal law to procedural issues

Front 17

The foundation for receipt of the writing into evidence must include proof that:

Back 17

(i) the witness had personal knowledge of the facts in the writing;
(ii) the writing was made by the witness or under her direction, or adopted by the witness;
(iii) the writing was timely made when the matter was fresh in the mind of the witness;
(iv) the writing is accurate (the witness must vouch for); and
(v) the witness has insufficient recollection to testify fully and accurately.
Note: the writing may be READ but not received as an exhibit unless offered by the adverse party.

Front 18

Statements against interest

Back 18

statements of a person, now unavailable, against that person's pecuniary, proprietary, or penal interest when made are admissible as an exception to the hearsay rule.

Front 19

Business Records Exception

Back 19

any writing or record,
made as a memorandum or record of any act or event,
is admissible in evidence as proof of that act or event
if made in the regular course of a business,
as long as it was the regular course of such business to make it at the time.
However, courts generally exclude reports made primarily in preparation for litigation

Front 20

Authentication of non-unique items

Back 20

every item of non testimonial evidence must be authenticated.
to authenticate, proponent must lay chain of custody demonstrating that this is the specific item proponent claims it to be.

Front 21

Spousal privilege
confidential communication

Back 21

protects confidential spousal communications during marriage. The marriage must be legally valid. Either spouse has a privilege to refuse to disclose, and prevent another from disclosing, a confidential communication while they were husband and wife.

Front 22

spousal testimonial privilege

Back 22

permits witness to refuse to testify against his/her spouse as to anything-applies only in criminal cases

Front 23

impeachment with evidence of bias, interest, motive

Back 23

evidence may be testimonial or extrinsic. If extrinsic evidence is admitted, witness must be given the opportunity to explain or deny (ex. plea agreement)

Front 24

extrinsic evidence of prior crimes or misconduct

Back 24

inadmissible if offered soley to show criminal disposition

Front 25

A misdemeanor conviction

Back 25

may be used to impeach if it is a crime of dishonesty--but is otherwise inadmissible