Mbe Evidence

Front 1

What is hearsay?

Back 1

hearsay is a statement made by an out of court declarant offered in evidence to prove the truth of the matter asserted.

Front 2

How do you approach an evidence essay question?

Back 2

How to Answer an Evidence Essay Question

1) Form—issues concerning legal objections to questions and answers
-identify each item of evidence
2) Purpose—issues concerning logical and legal relevance, extrinsic policy exclusions, and character evidence.
Logical relevance: does this evidence tend to prove or disprove a material fact?
Legal or pragmatic relevance: will the evidence result in unfair prejudice, cofusin of the issues, misleading the jury or undue delay?
3) Presentation—involves witness requirements, document reliability, and judicial notice
Personal knowledge: is the evidence based on personal knowledge?
Lay Opinion
4) Hearsay and Privileges.
Hearsay evidence
Nonhearsay/Exceptions

Front 3

How do you approach a relevance question?

Back 3

Step 1: determine whether the evidence is relevant (tends to prove/disprove a material fact).
Step 2: if relevant determine whether the evidence should nonetheless be excluded based on (i)judicial discretion (probative value outweighed by prejudice), or (ii) public policy (insurance, subsequent repairs).

Front 4

What is the general rule for relevance?

Back 4

Genrally the evidence must relate to time, event, or person in controversy.

Exception Previous similar occurances may be relevant if they are probative of a material issue and probativeness outweighs risk of confusion or unfair prejudice

Front 5

How do you determine admissibility of evidence?

Back 5

1) Is the evidence RELEVANT?
2) Is there a proper FOUNDATION (authenticity, competency, reliability)
3) Is the evidence in the proper FORM? (questions properly phrased, answers ok for lay or expert opinion, docs comply with best evidence)
4) is the evidence beyond the application of or within an EXCLUSIONARY RULES? (too prejudicial--rul 403, policy based exclusions, privilege, hearsay, parol evidence)
-->IF YES TO ALL, IT'S ADMISSIBLE

Front 6

Are withdrawn guilty please or offers to plead guilty admissible?

Back 6

No. Withdrawn guilty please or offers to plead guilty are not admissible to prove liability for or invalidty of a claim that is disputed as to validity or amount.

Front 7

What are characteristics of admissible subsequent remedial measures?

Back 7

to prove ownership or control, to rebut a claim that precautions were impossible or to prove destruction of evidence.

Front 8

When can character evidence be offered?

Back 8

Character evidence may be offered as substantive rather than impeachment evidence to (i) prove character when it is the ultimate issue in the case or(ii) serve as circumstantial evidence of how a person probably acted.

Front 9

Is character evidence generally admissible in a civil case?

Back 9

No unless character is directly in issue (defamation).

Front 10

How does defendant prove his character?

Back 10

A witness for defendant may testify to defendant's good reputation for the trait in question and may give his personal opinion concerning that trait of defendant.

Front 11

When are specific acts of misconduct admissible?

Back 11

These acts are admissible to show: MIMIC
M-Motive
I-Intent
M-Mistake (absence of)
I-Identity
C-Common plan or scheme

Front 12

What kind of facts are available for judicial notice?

Back 12

Manifest and notorious facts.

indisputable facts that are either matters of common knowledge in the community (notorious facts) or capable of verification by resort to easily verifiable sources of unquestionable accuracy) manifest facts.

Front 13

What are the requirements for real evidence to be admissible?

Back 13

1) Authentication (unbroken chain of possession or testimony of a witness that she recognizes the object as what the proponent claims)
2) Condition of object (if it's significant it has to be in the same condition)
3) Balancing test--legal relevance (like inconvenience, undue prejudice)

Front 14

What are the ways an ancient document might be authenticated?

Back 14

1) it is at least 20 years old
2) it is in such condition as to be free from suspicion as to authenticity; and
3) was found in a place where such a writing would likely be kept

Front 15

What is the best evidence rule?

Back 15

To prove the terms of a writing (including a recording, photo or x-ray), the original writing must be produced if the terms of teh writing are material. Secondary evidence is admissible only if the original is unavailable.

Front 16

When does the best evidence rule apply?

Back 16

1) where the writing is a legally operative or dispositive instrument; or
2) the knowledge of a witness concerning a fact results from having read it in a statement.

Front 17

Describe the parol evidence rule.

Back 17

Prior or contemporaneous negotiations or agreements are merged into the written agreement and they are not admissible to vary the terms of the writing.

Front 18

What are exceptions to the parol evidence rule?

Back 18

1) incomplete or ambiguous contract
2) reformation of contract
3) challenge to validity of contract

Front 19

Describe the dead man acts.

Back 19

These provide that a party or person interested in the event is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased.

Front 20

What are the requirements for witness competency?

Back 20

1) witness must have personal knowledge of the matter about which he is to testify and
2) the witness must declare he will testify truthfully.

Front 21

When are leading questions allowed?

Back 21

1) on cross examination;
2) to elicit preliminary or introductory matter;
3) when the witness needs aid to respond because of loss of memory, immaturity, or physical or mental weakness; or
4) when the witness is hostile.

Front 22

Describe the requirements for past recollection recorded-recorded recollection.

Back 22

When the wtiness can't remember even after consulting a writing, the writing itself may be read into evidence if a proper foundation is laid. The foundation must include proof that:
1) the witness at one time had personal knowledge of the facts in the writing;
2) teh writing was made by the witness or under her direction, or it was adopted by the witness;
3)The writing was timely made when the matter was fresh in the witness's mind;
4) the writing is accurate; and
5) the witness has insufficient recollection to testify fully and accurately.

Front 23

Can a witness be impeached by a crime?

Back 23

Yes. felony or misdemeanor involving dishonesty or false statements.

Can also be impeached for felony not involving dishonesty but court has discretion to exclude if witness impeached is a criminal defendant and presuction has not shown more probative than prejudicial or the court determines too prejudicial.

Front 24

Can a witness who has been impeached be brought back?

Back 24

yes through rehabilitation, showing witnesses good reputation for truth, or showing the witness was not lying or exagerrating through a prior consistent statement (usually this isn't allowed).

Front 25

What are the requirements for the physician-patient privilege?

Back 25

1) A professional relationship exists;
2) The information is acquired while attending teh patient in the course of treatment; and
3) the information is necessary for treatment (nonmedical info is not privileged)

Front 26

Describe Spousal Immunity.

Back 26

One spouse cannot be compelled to testify against the other spouse in any criminal proceeding.

The privilege can be claimed only during marriage, but covers information learned before and during the marriage.

Only the witness spouse may invoke spousal immunity. (cannot be compelled but may choose). In most state courts, the privilege belongs to party-spouse.

Front 27

Describe the privilege for marital communication

Back 27

Communications made in reliance upon the intimacy of the marital relationship are privileged. The privilege applies in both civil and criminal cases.

Both spouses have privilege not to disclose and to prevent the other from disclosing a confidential marital communication.

The privilege survives the marriage, but covers only statements made during marriage.

Front 28

Is there a constitutional right for a professional journalist to protect his source of information?

Back 28

No. any privilege must be based on statute law.

Front 29

What is the definition of hearsay?

Back 29

Hearsay is an out of court statement offered into evidence to prove the truth of the matter asserted.

Front 30

What are examples of non-hearsay?

Back 30

1) verbal acts or legally operative facts (words of contract, defamatory words)
2)statements offered to show their effect on the hearer or reader; and
3) statements offered as circumstantial evidence of declarant's state of mind.

Front 31

When are prior statements by a witness not hearsay?

Back 31

Prior statemetns by a witness are not hearsay if:
1) the prior statement is inconsistent with the declarant's in-court testimony and was given under oath at a prior proceeding;
2) the prior statemetn is consistent with the declarant's in-court testimony and is offered to rebut a charge that the witness is lyiing or exaggering because of some other motive; or
3) the prior statement is one of identification of a person made after perceiving him.

Front 32

Are admission of a party opponent hearsay?

Back 32

No. They also do not need to be against interst when made and admission may be predicated on hearsay.

Front 33

Can silence be an admission?

Back 33

Yes if
1) person heard and understood the statement
2) the party was physically and mentally capable of denying the statement; and
3) a reasonable person would have denied the accusation.

Silence in the face of accusation by police in a criminal case is almost never considered admission of the crime.

Front 34

Are admissions of a party receivable against her co-parties?

Back 34

No.

Front 35

Are an agent's statements concerning any matter in the scope of her agency while employment exists hearsay?

Back 35

no

Front 36

Are admissions of co-conspirators made to third parties in furtherance of the conspiracy admissible against co-conspirators?

Back 36

yes. but only if there was an opportunity to cross-examine the hearsay declarant.

Front 37

Describe the hearsay exception-->unavailability.

Back 37

A declarant is unavailable if he:
1) is exempt because of privilege;
2) refuses to testify concerning the statement despite a court order;
3) testifies to lack of memory of the subject matter of the statement;
4) is unable to testify due to death or physical or mental illness; or
5) is absent (beyond the reach of the court's subpoena), and the proponent is unable to procure his attendance by reasonable means.

Front 38

When is former testimony of a now-unavailable witness given at another hearing or deposition admissible?

Back 38

if:
1) the party against whom the testimony is offered was a party or in privity with a party in the former action;
2) the former action was about the same subject matter (cause of action doesn't need to be identical);
3) the testimony was given under oath; and
4) the party against whom the testimony is offered had an opportunity at the prior proceeding to develop the declarant's testimony.

Front 39

Define hearsay exception: state of mind.

Back 39

Statement of then-existing state of mind, emotion, sensation or physical condition. (usually introduced to establish intent. Admissible when state of mind is a material issue or to show subsequent acts of declarant.)

Front 40

Define hearsay exception: excited utterance.

Back 40

Statement made while under stress of excitement of startling event.

Front 41

Define hearsay exception: former testimony.

Back 41

Unavailability required.
Statement under oath at teh same or at another proceeding at which te party against whom it is offered had motive and opportunity to develop testimony.

Front 42

Define hearsay exception: statement against interest.

Back 42

Unavailability required. Statement against decelarant's pecuniary, proprietary, or penal interest when made.

Front 43

Define hearsay exception: Dying declaration.

Back 43

Unavailability required.
Statement made while the declarant believed death was imminent, concerning the cause or circumstances of the impending death.

Front 44

Define hearsay exception: statement of personal or family history.

Back 44

Unavailability required.

Statement of personal or family history made by family member or one intimately associated with the family.

Front 45

Define hearsay exception: statement offered against party procuring declarant's unavailability.

Back 45

Unavailability required.
Statement of unavailable declarant offered against party who procured declarant's unavailability.

Front 46

Define hearsay exception: state of mind.

Back 46

availability immaterial.
Statement of then-existing state of mind, emotion, sensation, or physical condition. (usually introduced to establish intent. Admissible when state of mind is a material issue or to show subsequent acts of declarant.)

Front 47

Define hearsay exception: excited utterance.

Back 47

availability immaterial.
statement made while under stress of excitement of startling event.

Front 48

Define hearsay exception: present sense impression.

Back 48

availability immaterial.
statement made concurrently with perception of event described.

Front 49

Define hearsay exception: medical diagnosis.

Back 49

availability immaterial.
statement made to medical personnel for the purpose of diagnosis or treatment.

Front 50

Define hearsay exception: recorded recollection.

Back 50

availability immaterial.
writing by witness who cannot now remember the facts, made while the facts were fresh in her mind.

Front 51

Define hearsay exception: bsuiness records or absence thereof.

Back 51

availability immaterial.
writing made in the regular course of business, consisting of matters within the personal knowledge of one with a business duty to transmit. Lack of such writing may be used to show nonoccurrence of event.

Front 52

Define hearsay exception: public records and reports of absence therof; records of vital statistics.

Back 52

availability immaterial.
Records and reports of public agencies regarding their activities, and records of briths, deaths, marriages, etc. Absence of public record is admissible to show nonexistence of matter.

Front 53

Define hearsay exception: judgments.

Back 53

availability immaterial.
a copy of a judgment of a prior felony is admissible to prove any fact essential to the judgment. In a criminal case, it may be used for this purpose only against the accused.

Front 54

Define hearsay exception: ancient documents.

Back 54

availability immaterial.
documents 20 years old or more.

Front 55

Define hearsay exception: documents affecting property interest.

Back 55

availability immaterial.
statements in a document affecting an interest in a property (deed, will)

Front 56

Define hearsay exception: learned treatise.

Back 56

availability immaterial.
statements from authoritative works admitted if called to attention of expert witness and established as reliable authority.

Front 57

Define hearsay exception: reputation.

Back 57

availability immaterial.
reputation evidence concerning a person's character, a person's personal or family history, land boundaries, or a community's general history.

Front 58

Define hearsay exception: family records.

Back 58

availability immaterial.
statements of fact found in family bibles, jewelry engravings, tombstones, etc.

Front 59

Define hearsay exception: market reports.

Back 59

availability immaterial.
market reports and public compilations generally relied on by the public or persons of a particular occupation.

Front 60

What are the requirements for the residual cat-call exception for a hearsay statement not covered by specific exceptions?

Back 60

1) the hearsay statement must possess circumstantial guarantees of trustworthiness;
2) that the statement be strictly necessary; and
3) that notice be given to the adversary as to the nature of the statement.

Front 61

list the 6 nonhearsay admissible out of court statements.

Back 61

1) nonassertive conduct
2) statement not offered for its truth
3) prior inconsistent statement made under oath.
4) prior consistent statement offered to rebut charge that witness is lying or exagerrating.
5) prior statement of identification
6) admission of party opponent (including vicarious admissions).

Front 62

What are the special considerations regarding presumptions in jury instructions?

Back 62

The judge cannot instruct the jury that it must find a presumed fact against the accused. he must instruct them that they MAY regard the basic facts as sufficient evidence of the presumed fact.

Front 63

Describe conclusive presumptions.

Back 63

They cannot be rebutted and are really rules of substantive law.

Front 64

What are the preliminary facts to be decided by the jury?

Back 64

agency, authenticity of a document, credibility of a witness, and personal knowledge.

Front 65

What are the preliminary facts to be decided by a judge?

Back 65

facts affecting the competency of the evidence must be determined by the judge. Requirements for hearsay exceptions, privileges, and expert testimony as well as mental competence, must also be decided by the judge.

Front 66

May an accused testify as to a preliminary matter without subjecting herself to testifying at trial?

Back 66

yes.

Front 67

may a judge comment on the weight of the evidence in federal courts? state courts?

Back 67

yes in federal but not in state courts.