Evidence Mbe Foundation

Front 1

Relevant Evidence

Back 1

Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.

Front 2

Admission (emission of the mouth)

Back 2

1. Statement of a party
a. oral or written

2. Used against them by their opponent

3. Can be anything (words, letters, documents)

Stronger answer choice as opposed to a hearsay exception

Front 3

FRE 102 Best Evidence Rule (original writing requirement)

Back 3

To prove the contents of a writing (recording, photograph, X ray), the original must be produced unless shown to be unavailable.

Rule applies where contents are in issue:

i.e. where the testimony is reliant on the writing, not personal knowledge.

Front 4

FRE 104 Preliminary Question of Admissibility

Back 4

Questions concerning qualification of a person to be a witness, existence of a privilege, or admissibility of evidence shall be determined by the court.

The Jury then assigns the weight to the evidence.

Front 5

FRE 201 Judicial Notice

Back 5

The effect of taking judicial notice in a CIVIL suit is that the judicially noticed fact is conclusively proven and must be accepted by the jury.

NN: Judicial notice in a criminal trial jury may accept notice.

Front 6

FRE 408 Settlement Offer

Back 6

Offers to settle claims in dispute are inadmissible.

Admissions are NOT Severed (inadmissible)

Dispute as to amount, fault, or liability.

Front 7

FRE 409 Offer to Pay Med

Back 7

Offers to pay medical expenses of another are inadmissible.

Admissions ARE Severed (admissible).

Front 8

Character Evidence in Criminal Cases - Character of Defendant

Character Evidence comes in for its truth

Character = Defendant

Impeachment = Witness

Back 8

D may open the door with reputation or opinion evidence (NOT SPECIFIC ACT) of his good character to prov his innocence and the prosecution may so rebut.

Once D opens the door, the Prosecution will attack D's character.

Front 9

Character Evidence in Criminal Cases-Character of Victim

Back 9

Where evidence of a pertinent trait of character of the alleged victim is offered by the accused, the prosecution may rebut the same way.

2nd way for Defendant to open the door for Prosecution to attack his character.

NN: Character not a big issue in civil, Unless:

1. Defamation
2. Child Custody
3. Negligent Hiring
4. Negligent Entrustment

If any of these in civil, reputation, opinion, and specific acts are admissible to attack Defendant's character.

Front 10

Direct v. Circumstantial Evidence

Back 10

Direct Evidence - No inference need be made. (witness, video). Witness has First Hand Knowledge. Every witness needs FHK.

Circumstantial Evidence - An inference needs to be created after looking at this evidence as a whole.

Front 11

Substantive Use v. Limited Use

Back 11

Substantive use is for the truth of the matter asserted. To prove a fact.

Limited comes in for a limited purpose (impeachment).

Front 12

How to Approach Evidence Prob.

Back 12

1. Underline the Cause of Action
Civil or Criminal

2. Situate the Proceeding
Direct or Redirect
Party or Witness

3. Purpose for Evidence
Substantive or Impeachment

Front 13

FRE 406 Habit Evidence

Back 13

Evidence of the habit of a person, or the routine practice of an organization is admissible to prove conduct.

Corroboration is not required

Front 14

FRE 407 Subsequent Remedial Measures

Back 14

Evidence of subsequent remedial measures is inadmissible to prove negligence

Exception it can come in to show:

1. Ownership and/or
2. Control

Front 15

4 Ways to Impeach (extrinsic evidence allowed)

Back 15

1. Bias/Prejudice - friend or informant (always material never collateral) (extrinsic evidence allowed i.e. follow up questions).

2. Sensory Defect - My cousin Vinny -

3. Prior Inconsistent Statement - when where you lying

4. Character to Impeach - FRE 608/609

Front 16

Prior Inconsistent Statement

(may come in substantively or for impeachment)

Back 16

Admissible substantively in 3 cases:

1. If "sworn" under FRE 801(d)(1)

2. As an admission under FRE 801 (d)(2), OR

3. If a Hearsay Exception applies

Ex: Wife has a black eye husband arrested she changes her story during trial. Prosecutor uses the signed statement to impeach her (liar), but can bring her statement from preliminary hearing in. The preliminary hearing is the extrinsic evidence that can come in.

Front 17

FRE 608 Prior Bad Act Impeachment

(Do it on the Stand)

Back 17

1. Reputation or opinion testimony about the witness involving truthfulness.

2. Questions regarding specific instances of conduct allowed on cross examination but (no extrinsic evidence i.e. no follow up written or oral).

Front 18

FRE 609 Convictions to Impeach

Back 18

1. Felony Conviction

2. Convictions involving dishonesty

3. W/N the last 10 years

NN: If you have a felony that does not go to honesty, must use the 403 balancing test. This felony can come in if it is more probative than prejudicial. If it is a felony or misdemeanor that involves dishonesty, it does not have to pass the balancing test. Misdemeanor must go to the character i.e., dishonesty.

Front 19

FRE 404 (b) MIMICK RULE

(must pass the 403 balancing test and Defendant must get notice of Prosecutions intent to use this evidence)

Back 19

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes.

Motive

Intent


Mistake absence

Identity

Common Plan or Scheme - Wet
Bandits (home alone).

Knowledge

Front 20

Collateral Matter Rule

Back 20

Precludes evidence that is relevant as to a non issue.

Front 21

Effect of Listener FRE 803 (3)

NN: Admissions are not hearsay

Back 21

Non Hearsay - circumstantial evidence offered to show:

-knowledge
-intent
-attitude
-belief

of the declarant or of the listener

Hearsay Exception - statement of then existing state of mind or physical condition.

-intent
-design
-plan
-motive

Offered for its truth

Front 22

Approach to Hearsay

Back 22

1. Isolate Statement
2. Determine who is declarant
3. Purpose for which evidence is being offered.

a. for its truth - hearsay - find exception.

b. not for its truth - not hearsay

4. Apply the hearsay exceptions

Front 23

Prior Identification

Back 23

Cop testifies as to the prior identification that a person made about Defendant

Front 24

Presence Sense Exception

Back 24

Must be on site have first hand knowledge of the incident at issue.

Front 25

FRE 803 (6) Business Record

Back 25

1. Report or record concerning act or event

2. Made at or near the time

3. By a person with knowledge

4. Kept in the regular course of business

NN: Absence of an entry of a business record is an exception under this doctrine.

Front 26

Recorded Recollection

Back 26

Has to be a document that you made or had a substantial part in making.

Front 27

FRE 804 Dying Declaration

Back 27

1. Statement must contain cause or circumstances of death
2. Unavailable declarant
3. Criminal homicide or any civil case
4. Declaracnt's belief of immediate death.
5. Declarant must die.

Front 28

FRE 803 Excited Utterance

Back 28

Statement relating to a startling event made while declarant was under the stress of excitement caused by the event.

Front 29

Confrontation Clause

Back 29

Is applicable where

1. In a criminal case
2. Where the D is unavailable

Testimonial evidence is inadmissible UNLESS defendant is given a prior opportunity to cross examine the declarant.

Testimonial - primary purpose of the interrogation is to establish or prove past events relevant to later prosecution (Responding to Emergency (building a case against Defendant)).

Non-Testimonial - Primary purpose is to obtain police assistance to meet an ongoing emergency (Emergency Over) (no violation)).

Front 30

804 v. 803

Back 30

804 - Declarant must be unavailable

803 - the above is irrelevant

FSDS

Former Testimony
Statement Against Interest
Dying Declaration
Statement of Pedigree

Front 31

FRE 804 (b)(3) Declaration Against Interest

Back 31

Statement of an:

1. Unavailable
2. Non-party (generally)
3. Against Interest when made (penal, pecuniary or proprietary)

Unavailable - death, out of jurisdiction, plead the 5th Amend.

Front 32

FRE 804 (b)(1) Former Testimony

Back 32

1. Testimony from the same or different proceeding, or in a deposition.

2. Unavailable Declarant

3. Opportunity and similar motive to develop the testimony on direct, cross or redirect.

Front 33

FRE 804 (b)(4) Statement of Pedigree

Back 33

A statement concerning declarant's own relationship by blood, adoption, or marriage or other similar fact or personal or family history.

Front 34

FRE 803 (18) Learned Treatieses

Back 34

1. Statement made in treatises may be read into evidence once authoritativeness is established.

2. Authoritativeness
a. court can take judicial notice
b. expert testimony as to authority

3. Treatise itself does not come in

Front 35

FRE 612 Refreshing Recollection

Back 35

Rights of an adverse party after someone's recollection has been refreshed.

1. have writing produced
2. inspect it
3. cross examine the witness with it
4. introduce into evidence those portions which relate to the witnesses' testimony

Front 36

FRE 901 Authenticating Handwriting

Back 36

1. Layperson with familiarity
2. Comparison by an expert
3. Comparison by the trier of fact

Front 37

Spousal Privilege

Back 37

Protects communication before AND during the marriage (impressions and observations). Privilege lost at divorce.

Criminal Cases ONLY

Witness spouse holds the privilege

Front 38

Marital Privilege

Back 38

Protects communications only DURING marriage.

Privilege survives divorce

Both spouses hold

Front 39

FRE 704 Ultimate Issue

Back 39

No expert witness may testify with respect to whether the defendant had the required mental state or condition necessary to establish an element of the crime charged.

Front 40

Family Record

Back 40

Things that are written