Evidence - Pmbr/ Mbe

Front 1

Subsequent remedial measures or repair

rule, exceptions, policies

Back 1

inadmissible to prove evidence or culpable conduct in connection with event

exceptions: (fip)

1. feasibility of precautions if controverted
2. impeachment
3. prove ownership or control

public policy: to encourage to make safe without fear of retaliation later in court

Front 2

Offers to settle claim

rule, exceptions, policies

Back 2

inadmissible to prove liability for claim or for its amount

public policy: encourage out of court settlement

exceptions: (cab)
1. controvert contention of undue delay by one of the parties
2. attempt to obstruct crim investigation
3. bias or prej of witness

Front 3

Statements in connection with offers to settle

Back 3

inadmissible

E.g., "Gee I'm sorry it was my fault, I'll pay for ...."

No severance of statement, not admissible

Front 4

Offers to pay medical bills

& Statements made in connection

Back 4

inadmissible to prove liability for injury

can sever offers made in connection

vs. cannot sever (statements made in connection to offers to settle)

Front 5

Offers to plead guilty

Back 5

withdrawn guilty pleas / withdrawn plea/ no contest are inadmissible against the D that made the plea

Policy: encourage pleas

Exceptions:
1. perjury prosecution
2. impeachment

Compare - actual guilty plea:
admissible in civil trial

Front 6

Liability insurance

Back 6

evidence a person was/ was not ins. inadmissible to prove negligence

exceptions: (boa)
1. bias or prejudice
2. ownership or control
3. agency

Front 7

Statements made in connection with ownership of liability insurance

Back 7

inadmissible
no severance

e.g., "I ran the red light, don't worry my insurance will pay for it."

Front 8

Character evidence - general approach

Back 8

1. Form
(1) reputation (community)
(2) opinion (personal)
(3) specific acts

2. Type of case?

3. Determine purpose evidence is being offered

Front 9

Character evidence (civil)

Back 9

Form
(1) reputation (community)
(2) opinion (personal)
(3) specific acts

RULE: inadmissible to prove conduct in conformity on a particular occasion

Exceptions, admitted if:
(1) Where character is an essential element of a claim / defense/ or COA
e.g., defamation or child custody
(2) Knowledge of character of another is an issue
ex: self-defense, negligent entrustment (character of entrustee's (car borrower) negligence - not of the entrustor)

Front 10

Character evidence (criminal)

Back 10

RULE: criminal D may use circumstantial evidence in 3 ways

1. opening the door - may offer evidence of good character by reputation or opinion evidence to prove innocence, prosecution can rebut (limited to reputation or opinion evidence)

compare: prosecution can cross witness and ask about specific acts - which goes to credibility

2. bad character of victim: D can use all three forms of character evidence to prove bad character of victim and prosecution can rebut (ros - reputation, opinion, specific acts)

3. rape cases: reputation and opinion evidence is inadmissible, but specific acts of sexual behavior by victim are admissible in 2 instances
(1) behavior with other persons which would explain signs of rape
(2) past behavior with D which tend to show consent

Front 11

Character (evidence)

What can prosecutor introduce?

Back 11

if D produces evid of his good character, on rebuttal, the prosecutor is limited to:

1. cross examining D's witness as to witness's *knowledge of certain instances of D's prior conduct*; or by
2. (reputation or opinion) Calling prosecution witness to testify about his or her opinion of a D's character or about the witness' knowledge of D's rep in the comm.

Front 12

Character evidence - criminal - MIMIC rule

Back 12

Generally
1. circumstantial evidence may be offered by prosecution and offered in rebuttal case; and
2. specific trait to be proved must be in issue

Rule: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show that he acted in conformity therewith

however, may be admissible, purposes of MIMIC:
M- motive
I- intent
M- absence of mistake
I- identity
C - common plan or scheme

Note: **must always weigh and balance probative value against prejudicial effect

Never admissible to prove criminal disposition or propensity to commit a crime.

Ex: burglary case, prosecution offers testimony that D needed money to defend himself against 3 other recent chargers of burglary. admissible? no, highly prejudicial

Front 13

Character v. Habit evidence

Habit evidence rule

Back 13

C: generalized description of person's disposition

H: circumstantial evid of person's regular response to a repeated specific situation

rule:
evidence of habit of person or routine practice of org - whether corroborated or regardless of presence of eyewitnesses --> is relevant to prove conduct in conformity with the habit or routine practice

Form: opinion, specific acts

Key words: invariably, automatically, automatically, without fail (not enough: frequently or often)

Front 14

Privilege

determined by what type of case?
(modern common law vs. state law)

Back 14

Diversity cases or Cases arising under state law =
Priv of witness is determined by state law

alternatively: in criminal cases, federal question cases, cases arising under federal law - priv of witness determined by modern common law

MBE: wrong answer (no priv explicit by fed rule)

Front 15

4 kinds of privilege

Back 15

1. Confidentiality

2. Incompetency
*deadman's statute - tested

3. Constitutional (defamation, self incrimination)

4. Policy (ex: subsequent remedial measures)

Front 16

Defamation case

specific instances of conduct can be used as impeachment only or substantive, or both?

Back 16

in cases in which character or a trait of character of a person is an essential element of a charge, claim or defense, proof may be made by specific instances of that person's conduct

person's character may be a material fact that under substantive law determines rts and liabilities of parties

answer: admissible substantively AND as impeachment

Front 17

Admissibility of a note as a dying declaration

Back 17

rule: re admissibility of hearsay evidence. FRE allows judges to determine preliminary questions of fact that determine the admissibility of evidence objectionable under the exclusionary rule

answer: prelim fact question for judge, and judge may properly consider the note falls within the dying dec exception to hearsay

here, prosecution offered affidavit from attending physician victim knew she would die (victim wrote a note: Doris did it)

not: a question of weight and cred for jury

Front 18

Dr. Testimony

proposes to testify that "X-Rays showed distension"

admissible testimony?

Back 18

answer: excluded b/c the x-rays are the best evidence to show the distension of P's lungs

vs. a doctor giving an expert opinion and basing his testimony on examination of the patient's x-rays

Front 19

A-C priv. - what type of communications are within either the a-c priv or the 5th amendment privilege against self-incrimination

Back 19

rule: words, spoken or written, and acts intending to convey a message

comm. protected by a-c priv if they were prepared specifically from the client to the atty (or vice versa)

however, pre-existing written documents (contracts, leases, memos) do not become privileged by simply being handed over to the attorney

Front 20

Hearsay rules to (employees of) party opponents

Back 20

admissions made by party opponents are not hearsay; and statements made by employees of party opponents within the existence and scope of the employment relationship are admissible

Front 21

Best evidence rule

Back 21

requires that an original writing, recording, or photo be produced to prove the contents therein

*applies only when evidence offered to PROVE CONTENTS of writing

RULE: Testimony of written agreement, to prove its terms, witness required to product written agreement or explain its absence

Front 22

Presumptions in civil actions

Back 22

if a party establishes a foundation for a presumption and no contrary evidence is introduced, a trial judge will instruct a jury on the presumption.

however, if the opposing party produces credible evid in opposition to the presumption, the judge will not instruct the jury about the presumption and the jury may determine a contested proposition based on the jury's evaluation of both parties' evidence

Front 23

Business records

Back 23

admissible hearsay if
1. (at or around same time) they were made at/around the same time when an at, condition, or event that the records concern occurred;
2. (made by or based on info from someone with personal knowledge of occurrence); and
3. made and maintained in the normal course of regularly conducted business activity.

Front 24

Present sense impression

Back 24

(hearsay exception)

statement made by declarant that describes an event

---> as it occurs or immediately after

Front 25

Excited utterance

Back 25

1. exciting event
2. made under stress of excitement (CL: statement spontaneous and made immediately after event)
3. relating to event
4. declarant has personal knowledge

Front 26

Admissibility of h/s evidence:

1. multiple levels of hearsay
2. Statement by alleged co-conspirator, that is unavailable

Back 26

1. must analyze each statement to see if statements are admissible

2. when declarant unavailable at trial, statements made by declarant that are contrary to her financial or penal interest (when they were made) are admissible.

Front 27

Statement against penal interest
(Declaration against financial/penal interest)

Back 27

statement by
1. unavailable declarant *
2. against financial or penal interest
3. against declarant's interest when statement made
4. reasonable person would not have said if untrue

Front 28

Admissions

a. employee/agent
b. co-conspirator

Back 28

employee/agent:
1. statement offered against party;
2. made by party's employee/ agent;
3. during relationship concerning matter within scope of employment

co-conspirator:
1. made by co-conspirator of party;
2. made in furtherance of conspiracy; and
3. independent evid of conspiracy exists

Front 29

Relevancy

403 balancing! *don't forget!

Back 29

tends to prove or disprove fact of consequence

403: admissible unless probative value substantially outweighed by danger of unfair prejudice, confusion, waste of time

Front 30

(mental state)
Present mental or physical state

Back 30

mental : admissible to show existence of mental state if at issue, or to prove conduct of 3d party

physical: to prove existence of condition

Front 31

(mental state)
Past mental or physical state

Back 31

mental: only admissible to prove facts re: declarant's will

physical: statement of med history, past symptoms if made for purposes of diagnosis or treatment and if pertinent to treatment

Front 32

A-C privilege (D's crime or fraud)

Back 32

D sought legal counsel for purpose of committing a crime or fraud
regardless of whether A knew or not about the illegal purpose in seeking advice, priv does not apply

Front 33

Hearsay

(def)

(not offered for TOMA)

Back 33

def: out of court statement to prove the truth of the matter asserted (toma)

not offered for "TOMA":
- 1. independent legal significance (will, K, defamation, adverse possession, etc.)
- 2. effect on listener
- 3. knowledge of facts stated
- 4. state of mind

Front 34

Not hearsay (FRE exemptions)

Back 34

1. admission by party opponent:
- d/n have to be against interest;
- vicarious: employment, agents, adoptive, co-conspirators statement in furtherance

2. out of court statements - declarant is testifying:
- prior inconsistent statement (under oath) & declarant is testifying
- "", where not testifying - only to impeach
- identification: prior statement of ID, ID made after perceiving person/ witness must testify as to prior ID and confirm opinion when made

Front 35

Consistent statement

Back 35

1. prior statement of witness/declarant
2. consistent with testimony
3. offered to rebut a charge of recent fabrication or improper motive or influence

Front 36

Expert cross exam

Back 36

1. during expert's exam
2. writings established as reliable treatises, periodicals, or pamphlets through W's testimony, testimony, or judicial notice
3. may be read into evidence (not adm. as exhibit)

Front 37

Dying declaration

Back 37

rule:
-statement made by now-unavailable declarant
-while believing her death was imminent
-that concerns cause or circumstances of what she believed to be her impending death

declarant does not need to actually die from those circumstances; just unavailable.

Front 38

Driving record in civil case admissible?

Back 38

No, character evidence to prove conduct of person in the litigated event generally inadmissible.

Slight probative nature outweighed by prej and distracting jury from main issue.

Front 39

Deadman act or Deadman's statute

*reword answer

Back 39

Deadman act provides that a party or person interested in the event, or her predecessor in interest,
- is incompetent to testify to a personal transaction or communication with a deceased when such testimony is offered against the representative or successor in interest of the deceased

Hypo: here, the dealer (defendant) isn't a representative/successor in interest of the brother (i.e., executor, administrator, heir, legatee, devisee). Therefore the dealer is not a protected party for purposes of the act. Testimony of purchaser (plaintiff) is not being offered against a representative/successor in interest of the decedent, the Deadman act is inapplicable.

Front 40

*Defamation cases - Defendant's out of court statement (P is alleging to be defamatory)

Back 40

- is not hearsay
- the out-of-court statement is a verbal act or legally operative act
- it is not being offered to prove TOMA, but rather merely to show that the legally actionable statement was made

Front 41

When witness testifies he does not remember either having seen D take anything or having told P that that she had done so

Back 41

I picked P could take the stand, admissible as prior inconsistent statement.

Answer: inadmissible hearsay offered to prove TOMA (that D witness did see D stealing);

Even though prior inconsistent statements would be admissible in SOME jx, where witness is clearly being deliberately evasive.... B was the better answer (hearsay)

*watch out for hearsay!!! duh. :)

Front 42

Extrinsic evidence of other crimes, admissible?

Back 42

not admissible to establish criminal disposition (exceptions MIMIC)

A specific act of misconduct offered to attack witness's character for truthfulness can be elicited only on cross-examination.

If witness denies the act, the cross examiner cannot refute the answer by calling other witnesses or producing other evidence

Front 43

Common law privileges

Back 43

a-c priv recognized

physician-patient not recognized in common law (statutory priv)

Front 44

Hearsay exceptions: official records ...personal history or family history written in bibles

Back 44

statements of fact concerning personal or family history contained in family bibles, engravings on tombstones (regardless if declarant is available)

certified copies of birth certificates (official records birth, deaths and marriages -- all self authenticating)

Front 45

Testimony regarding D's attempt to bribe the witness, admissible?

Back 45

Yes, admissible as substantive evidence against the D (of the weakness of the D's case)

Various kinds of conduct, including attempts to bribe witnesses, may be held to manifest an awareness of liability or guilt.

Here, liability is an issue

Not limited to just impeachment

Front 46

Privilege - confidential marital communication

Back 46

both spouses have a privilege to prevent disclosure of the statement because,
statement is made in reliance upon intimacy of marital relationship at the time

divorce doesn't terminate the priv.
neither does an unknown 3d party eavesdropping