Evidence Bar Exam

Front 1

Rule of Completeness

Back 1

When a party introduces part of a writing or recorded statement...

-Adverse party may compel introduction of omitted portion if, in fairness, it should be considered at the same time

-Can also present omitted evidence later

Front 2

Judicial Notice

Back 2

1. Not subject to reasonable dispute b/c

2. It's generally known within the jurisdiction, or

3. It can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

Civil: Jury accepts as conclusive

Crim: Jury may or may not accept as conclusive

Front 3

Cross-Examination

Back 3

-Limited to scope of direct, but always allowed to go beyond for credibility purposes.

-Unlimited use of leading questions

*Can lead on direct if necessary to develop testimony - when W is a child, has difficulty communicating due to age or a physical or mental problem, is hostile, is an adverse party, or is associated with an adverse party

OH:

-Unlimited scope on all relevant matters

Front 4

Exclusion of Witnesses

Back 4

Who may not be excluded:

1. A party or party's rep

2. Police officer in charge of investigation

3. Victim (unless clear & convincing that victim would materially alter testimony)

Front 5

Preserving the Right to Appeal

Back 5

Fed: If judge has made a definitive ruling, no need to renew an objection or make an offer of proof

OH: Party must renew objection at trial

Front 6

Relevance

Back 6

Evidence is relevant if:

1. Has any tendency to make a fact more or less probable than it would be w/out the evidence, and

2. The fact is of consequence in determining the action

Front 7

Exclusion of Relevant Evidence

Back 7

Fed: May be if probative value is substantially outweighed by danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence

OH: Must be for unfair prej, confusion of issues, or misleading jury. May be for undue delay or needless presentation of cumulative evidence

Front 8

Character Evidence - Civil

Back 8

1. Inadmissible to prove conforming conduct (unless D's sexual history in sexual misconduct case)

2. Admissible when character is essential element (defamation, negligent hiring, child-custody). R/O & specific instances.

3. Character witnesses, on cross, may be asked about person's specific acts. "He's so peaceful." "What about the time he..."

Front 9

Character Evidence - Crim

Back 9

1. D can open the door by introducing evidence of good character as inconsistent with type of crime or evidence of V's bad character

2. R/O

3. P can then attack D's character (same trait if attacking based on V)

4. P can also rebut with evidence of V's good character

5. Character witnesses, on cross, may be asked about person's specific acts

Front 10

Bad Acts

Back 10

1. Only admissible to show motive, intent, absence of mistake, identity, or common plan

2. R/O & specific instances

Front 11

Habit Evidence

Back 11

1. Person's habit or organization's routine admissible.

2. May be admitted w/out corroboration and w/out eyewitness

Front 12

Witness Competence

Back 12

Fed: Every person is presumed competent

OH: Except:

(i) unsound mind

(ii) under 10 who appear incapable of truth

(iii) spouse, unless she elects to testify

(iv) officer not using properly marked car

(v) expert witness in med mal case unless licensed or is a prof

Front 13

Dead Man's Statutes

Back 13

1. Civil cases only

2. Any person directly affected financially by outcome of case may be disqualified as witness

Front 14

Impeachment through Character for Truthfulness

Back 14

1. Any party may attack character for truthfulness

2. R/O

3. May not be bolstered until attacked (calling W biased is not an attack)

4. May be asked specific instances on cross if probative of truthfulness. If W denies, extrinsic evidence inadmissible.

*Simply being arrested is not probative of W's truthfulness (even if underlying act is)

Front 15

Impeachment through Convictions

Back 15

*Thru testimony or extrinsic evidence

1. Crimes involving dishonesty

(i) Any witness

(ii) Subject to 10 year rule

(iii) OH: crimes that involved dishonesty (not limited to crimes where element involves dishonesty)

2. Other crimes

(i) Only if punishable by death or more than 1 yr

(ii) Crim D: only if prob. value outweighs prej. effect

(iii) Others: generally admitted, can exclude if objecting party shows prej. effect substantially outweighs prob. value.

3. Over 10 years old

(i) only if prob. value substantially outweighs prej. effect AND

(ii) reasonable written notice of intent

4. Juvenile

(i) only non-D witnesses

(ii) only if, in crim case, would attack truthfulness or show bias.

Front 16

Impeachment through Prior Inconsistent Statements

Back 16

1. Prior statement must be shown to adverse party upon request

2. Extrinsic evidence only on material matter, W given opportunity to explain or deny, and opposing party given opportunity to examine W

(i) Exception to explain/deny: impeachment of hearsay declarant or opposing party's statement

Front 17

Impeachment through Bias

Back 17

1. Always relevant to credibility

2. OH: no foundation needs to be laid

Front 18

Impeachment through Sensory Competence

Back 18

1. Demonstrating deficiency in W's capacity to perceive, recall, or relate

Front 19

Impeachment through Religious Beliefs

Back 19

1. Only admissible to show bias

Front 20

Impeachment by Contradictory Evidence

Back 20

1. Via extrinsic evidence & cross examination

Front 21

Present Recollection Refreshed

Back 21

1. W may examine any item to refresh present recollection

2. Testimony must be based on refreshed recollection, not on item

3. When item is a writing, adverse party entitled to have it produced, to inspect, to cross examine, and to introduce into evidence

4. Crim: If P fails to produce writing, court must strike W's testimony and may declare mistrial

Front 22

Past Recollection Recorded

Back 22

1. Memorandum about matter W once had knowledge of but can no longer recall to testify

2. May be admissible under hearsay exception

3. May be read into evidence, only adverse party can offer as an exhibit

Front 23

Lay Opinions

Back 23

1. Admissible for common-sense impressions

2. Rationally based on perception, and

3. Helpful to a clear understanding

4. Cannot be based on scientific, technical, or specialized knowledge

Front 24

Expert Opinions

Back 24

Ct must first determine that subject matter is:

1. scientific/technical/specialized knowledge (reliability of testimony) and

2. will help trier of fact (relevance of testimony)

Then:

1. W must be qualified as an expert;

2. Testimony based on sufficient facts/data (even those made known during trial!);

3. Product of reliable principles/methods; and

4. Principles/methods applied reliably to the facts

OH: Expert can testify on whether a crim D possessed requisite mens rea!

Expert may base opinion on facts perceived by him or admitted into evidence.

Front 25

Authentication - Physical Objects

Back 25

1. All tangible evidence must be authenticated (sufficient evidence to support a finding that thing is what it's claimed to be)

2. X-rays images, etc.:

(i) Accurate process was used

(ii) Machine used was working properly

(iii) Operator was qualified

(iv) Chain of custody

Front 26

Authentication - Documents

Back 26

1. Ancient docs/data compilations. Authentic if:

(i) At least 20 years old

(ii) in a condition unlikely to create suspicion

(iii) found in a place where it'd likely be if authentic

2. Self-authenticating:

-Public docs w/ govt seal & signature or certified

-Certified copies of public records

-Official publications, newspapers, etc.

-Trade inscriptions

-Notarized docs

-Commercial paper

-Records of regularly conducted activity certified by custodian of records (OH: custodian must testify as to its identity, mode of prep, etc.)

Front 27

Best Evidence Rule

Back 27

Original doc must be produced to prove contents of a writing, recording, or photograph

1. Applies only when contents of the doc are at issue

2. At issue when doc is used as proof an event happened, doc has a legal effect, or W is testifying based on facts learned from the writing (instead of personal knowledge)

Front 28

Exceptions to BER

Back 28

1. Duplicates, unless genuine question as to authenticity, or unfair to admit duplicate (maybe only part of original is duplicated)

2. Original is lost or destroyed, not by proponent acting in bad faith

3. Original can't be obtained by judicial process

4. Party against whom original would be offered had control of it, was put on notice that it'd be needed, and failed to produce it

5. Writing, recording, or photo is a collateral matter

6. Voluminous materials

Front 29

Privileges

Back 29

1. Must have confidential communication

2. No 3rd party overheard (unless 3P is unknown eavesdropper or translator)

3. Privilege may be waived if holder fails to timely assert, voluntarily discloses, or contractually waives in advance

Front 30

Spousal Immunity

Back 30

1. Spouse of crim D may not be called as W

2. Married person may not be compelled to testify against spouse, even if not D

3. W spouse may choose to testify

4. Applies to testimony about events before and during marriage

5. Right to assert privilege expires upon divorce

Front 31

Confidential Marital Communications

Back 31

1. Communication made during marriage and in reliance on sancitity of marriage

2. Both spouses hold privilege

3. Applies only to communications made during marriage

4. Both civil and crim cases

5. Extends beyond marriage's termination

Front 32

Attorney-Client Privilege

Back 32

1. Confidential

2. Communicaiton for purpose of seeking legal advice or representation

3. Client holds

4. Except for communications made to enable commission of crime/fraud, malpractice, etc.

Front 33

Physician-Patient Privilege

Back 33

1. Communications made for purpose of obtaining medical treatment

2. OH: also applies to dentists and chiropractors

3. Doesn't exist if:

(i) patient's physical condition is at issue

(ii) communication made in committing crime/tort

Front 34

Psychotherapist-Patient Privilege

Back 34

1. More widely recognized than physician-patient privilege

2. Patient holds, but psychotherapist must assert in patient's absence

3. Doesn't exist if:

(i) patient's mental condition is at isue

(ii) communication result of court-ordered exam

(iii) case is commitment proceeding against patient

Front 35

Clergy-Penitent Privilege

Back 35

OH: Made for a religious counseling purpose and may be waived by penitent's express consent or in accordance w/ obligation to report child abuse

Front 36

Journalist Privilege

Back 36

OH: Journalist's source of information is protected

Front 37

Subsequent Remedial Measures

Back 37

Not admissible to prove negligence, culpable conduct, defective product or design, or need for warning

-May be admissible for impeachment, ownership/control of cause of harm, or feasibility of precautionary measures

OH: Can be admitted in strict products liability actions

Front 38

Compromise Offers

Back 38

Offers and conduct/statements during negotiations not admissible to prove/disprove validity or amount of disputed claim, or for impeachment by prior inconsistent statement

-may be admissible to prove bias, negate a claim of undue delay, or obstruction of crim investigation

-compromise negotiations w/ govt agency may be introduced in subsequent crim case

Front 39

Offers to Pay Med Expenses

Back 39

Not admissible to prove liability. Conduct/statements during are admissible.

Front 40

Plea Negotiations

Back 40

Withdrawn guilty pleas, pleas of no contest, statements made while negotiating pleas, and statements made during plea proceedings not admissible.

Front 41

Victim's Sexual Conduct

Back 41

1. Crim: Specific instances to prove someone other than D was source of injury, or to prove consent

2. Civil: Admissible if prob. value substantially outweighs danger of harm to V, only in cases involving sexual misconduct (i.e. Title VII).

Both: Motion must be filed describing evidence and its purpose

OH: Inadmissible unless it involves source of injury or past sexual activity w/ D, material to disputed fact, and inflammatory nature cannot outweigh prob. value.

Front 42

Hearsay

Back 42

Out of court statement offered to prove the truth of the matter asserted

Front 43

Not Hearsay

Back 43

1. Prior inconsistent statement made under penalty of perjury may be admissible for impeachment AND as substantive evidence

(i) OH: must have been subject to cross

2. Prior consistent statement to rebut fabrication/improper influence/motive charge. Must be made before declarant had reason to fabricate or improper influence/motive arose.

3. Prior ID of person admissible as substantive evidence

(i) OH: musthave been made soon after declarant perceived

4. Opposing party's statement (not necessarily against party's interest)

5. Judicial admission

6. Adoptive admission (reasonable person would have denied statement)

7. Vicarious statements

Front 44

Hearsay Exceptions - Declarant Unavailable

Back 44

1. Former testimony if opportunity and similar motive to develop, as they'd have here (NOT grand jury testimony)

2. Dying Declaration (imminent death, and statement pertains to cause/circumstances of death, only homicide and civil cases)

3. Statement against interest (any party)

4. Statement of personal/family history

5. Statement against party that caused declarant's unavailability

Front 45

Hearsay Exceptions - Declarant's Availability Immaterial

Back 45

1. Present sense impression - description of event while or immediately after perception

2. Excited utterance - relates to event, while under stress of excitement

3. Statement of then-existing state of mind or physical condition to prove conduct in conformity or existence of condition

4. Statement made for medical diagnosis or treatment

5. Recorded recollection

6. Business records (but not in antic. of litig.)

7. Public records

8. Learned treatises

9. Judgment of prior conviction

Front 46

Recorded Recollection Hearsay Exception

Back 46

Record not excluded if foundation is established:

1. On a matter W once knew about

2. Made by W when matter was fresh in memory

3. Accurately reflects W's knowledge; and

4. W states that she cannot recall event well enough to testify, even after consulting record on stand

*May be read into evidence, and received as exhibit only if offered by adverse party