Evidence Bar Exam

Front 1

Relevance

Back 1

Any tendency to make existence of any fact of consequence to determination of action more or less probable than w/o the ev.

Front 2

Discretionary Exclusion

Back 2

Assuming logical relevance, ct has discretion to exclude if probative value substantially outweighed by unfair prejudice/confusion/waste of time (OR- UP and confusion).

Front 3

Settlements/Medical Expenses

Back 3

Civil: inadmissible to prove liability/fault.
Criminal: inadmissible to prove guilt.
Exceptions:
1) Settlement offer admissible if claim not yet asserted or if undisputed. (inadmissible if claim disputed)
2) Offer to Pay Medical Expenses: inadmissible when offered to prove liability for injuries in question.

Front 4

Similar Occurrences

Back 4

Ev about persons/evevents other than those directly at issue, sometimes admissible to prove causation, depending on similarity.

Front 5

Habit

Back 5

Habit admissible to show person acted in accordance w/habit on occasion in question.
Habit describes specific conduct (always)+ no moral judgment, unlike character (general + moral).

Front 6

Character Ev

Back 6

Inadmissible to prove conduct, but Exceptions.

Front 7

Character- Civil

Back 7

1) Character at issue in case (defamation, child custody, etc.)
2) Fed: sexual assalut/child molestation to prove conduct.
3) OR: assault/battery where SD pleaded, ev of D or P's violent character admissible.

Front 8

Character- Criminal

Back 8

1) P offers 1st if sexaul assault/child molestation or ct admitted ev of V's character offered by accused (to show D has same character trait).
2) D offer rep/opinion, but P cross rep/opinion/specific acts.
3) V's character: D, then P.
-Consent in rape: only specific instances of prior consensual intercourse or 3P source of semen.
a) Fed: P rebut to show D had same character.
b) OR: P only rebut V's character (D opens separately). If D claims SD, P can offer ev of V's non-violent character.

Front 9

MIMIC

Back 9

Specific Instances of D's bad conduct admissible to prove MIMIC other than character:
-Motive
-Intent
-Mistake (absence of mistake)
-Identity: similar/uniqueness
-Common Plan or Scheme

Front 10

Competency of Testimonial Ev

Back 10

4 Req's:
1) PK: 5 senses
2) Present Recollection
3) Communication (no drooling)
4) Sincerity: oath/affirmation (in camera for kids)

Front 11

Objections to form of testimony/questions

Back 11

Timely & Specific
1) Narrative
2) Non-responsive answers
3) Leading (...didn't they?)
4) Assumes fact not in ev
5) Argumentative
6) Compound (2 questions in 1)

Front 12

Doc's during Testimony

Back 12

Ok when:
1) Refreshing recollection
2) Recorded recollection: read doc but doc not admitted into ev. Requires: W had PK, Doc made by Wit/direction/adopted, made when fresh facts, Accurate, now insufficient recollection.
3) Opponent may inspect and offer it into ev.

Front 13

Lay Opinion

Back 13

Admissible if rationally based, on Witness's perceptions, and helpful to trier of fact. Fed restriction (can't be based on specialized knowledge); OR no restriction.

Front 14

Expert Opinion

Back 14

5 REQ's
1) Helpful to jury (avg juror couldn't figure it out)
2) Qualified on education/experience
3) Reas degree of certainty
4) Opinion supported by proper factual basis: PK, admitted ev, or inadmissible ev reas relied on.
5) Reliable principles reliably applied (peer reviewed, testable, reas level of acceptance)

Front 15

Impeaching Witness credibility

Back 15

1) Support credibility: inadmissible unless credibility attacked- PCS
2) Extrinsic ev: any ev besides testimony given at proceeding by Witness.
3) Contradiction: extrinsic inadmissible to impeach on collateral matter (fact not material to issue in case)
4) PIS: inadmissible HS if offered to prove truth or collateral, UNLESS given under oath at trial/deposition. Foundation: extrinsic admissible if Wit given opportunity to deny/explain.
5) Bias/Interest/Motive: Foundation- extrinsic ev admissible if Wit given opportunity to deny/explain. OR- inadmissible if Wit admits bias.
6) Conviction for Crimes w/False Statement: all admissible, unless old (balancing)
7) Confictions for Crimes not w/false statements: Felonies admissible to impeach (Fed- UP, OR-no UP); misdemeanors inadmissible. Fed- any extrinsic ev, OR- certified copy. OLD: Fed weighs if >10 yrs, OR excludes if >15.
8) Non-conviction conduct re: truthfulness: Fed- admissible if misconduct involved lying but no extrinsic, OR- NO.
9) Rep/Opinion re: truthfulness: extrinsic ev admissible.

Front 16

Hearsay

Back 16

Out of (this) Court statement (verbal/written/conduct if assertive) offered to prove truth of matter asserted in that statement.
-NOT HS: independent legal significance, effect on listener, circum ev of mind)

Front 17

HS Exemptions

Back 17

1) Admission by Party-Opponent
2) PIS under oath
3) PCS offered to rebut charge of improper influence/motive
4) Statement of ID made after perceiving the person

Front 18

HS Exceptions: HS, but admissible

Back 18

1) Former Testimony
2) Declaration against Interest
3) Dying Declarations
4) Excited Utterance
5) PSI
6) Declaration of then existing phys/mental condition
7) Statement of past phys/mental condition for medical diagnosis/treatment
8) Business Records
9) Public Records
10) Previous Conviction
11) Catch-all
12) OR ONLY

Front 19

Confrontation Clause

Back 19

Criminal Case, CC prohibits out-of-ct statemetn if declarant doesn't testify at trial, now unavailable, statement is testimonial and D had no chance to cross declarant at time statement made

Front 20

Authentication

Back 20

Every item of non-testimonial ev (writing/photo/gun) must be authenticated (proving it's what proponent claims it to be). 4 ways:
1) Signature
2) Self-authenticating writings, including trade inscription
3) Photos: PK problem
4) Non-Unique items: chain of custody

Front 21

Best Evidence Rule

Back 21

Where ev offered to prove the CONTENTS of a writing, BER requires the original unless exceptions.
-Exceptions: voluminous doc's or original lost

Front 22

Atty-Client Privilege

Back 22

any communication b/w atty-client-rep, intended to be confidential, made to facilitate legal services is privileged, Unless waived by client.
a) Corp: communications from employees/agents privileged if atuthorized by Corp to make communication to atty (OR- even if not authorized).
2) Exceptions: service sought to further crime/fraud or 2 or more parties consult on matter of common interest and communication offered by 1 party against the other.

Front 23

Doctor/psychotherapist-patient privilege

Back 23

patient has privilege to prevent disclosure of info, confidentially conveyed to dr/psych, for purpose of obtaining diagnosis/treatment.
OR-
applies to other people participating in patient's treatment.
OR- psych: unless disclose intent to inj child/reveal child was V. Social workers. Nurses in civil.

Front 24

Judicial Notice

Back 24

establishing facts w/o ev.
1) fact not subject to reas dispute b/c either generally known w/in territorial jxn or capable of accurate + ready determinatin by sources w/accuracy beyond question.
2) Procedures: ct discretion
a) Civil: ct instructs jury MUST accept JN fact as conclusive
b) Criminal: jury MAY accept
c) When: any time even appeal