Mbe Evidence

Front 1

Role of judge

Back 1

Decides preliminary questions of competency of evidence

Front 2

Role of jury

Back 2

Determine weight and credibility of evidence

Front 3

Challenge to evidence ruling

Back 3

Ruling must affect substantial right of a party and the party must notify judge of error

- Through an objection if evidence is admitted

- Through an offer of proof if the evidence is excluded

Front 4

Completeness rule

Back 4

For partial introduction of evidence, adverse party may compel introduction of omitted portion to help explain admitted evidence

Front 5

Judicial notice

Back 5

Court's acceptance of a fact as true without requiring formal proof

Front 6

ADjudicative facts

Back 6

Subject to judicial notice if fact is not subject to reasonable dispute bc

Generally known within the community, or

Can be accurately and readily determined from reliable sources

Front 7

Mode and order of presentation of evidence - trial process

Back 7

Judiciary has control over order of witnesses/presentation of case to effectiveley determine truth and avoid wasted time or witness harassment; may also question or call witnesses

Front 8

Leading questions

Back 8

Direct - not permitted unless hostile witness, needed to develop witness's testimony, or witness struggles with communication

Cross-examination - OK

Front 9

Compound questions

Back 9

Improper - requires answers to multiple questions

Front 10

Question assuming facts not in evidence

Back 10

Not OK

Front 11

Argumentative questions

Back 11

Not OK

Front 12

Question calling for conclusion/opinion

Back 12

Not OK

Front 13

Repetitive question

Back 13

Not OK

Front 14

Burden of production

Back 14

Must produce legally sufficient evidence for each element of claim such that reasonable trier of fact could infer alleged fact has been proven

Front 15

Burden of persuasion

Back 15

Civil - preponderance of the evidence

Criminal - beyond a reasonable doubt

Front 16

Rebuttable presumption

Back 16

Shifts burden of production to opposing party

Front 17

Conclusive presumption

Back 17

Cannot be challenged by contrary evidence

Front 18

Evidence is relevant if

Back 18

- has a tendency to make a fact more or less probable than it would e without the evidence (probative value)

- the fact is of consequence in determining the action (material)

Front 19

Direct evidence

Back 19

Identical to factual proposition it is offered to prove

Front 20

Circumstantial evidence

Back 20

Indirect proof of factual proposition through inference from collateral facts

Front 21

Exclusion of relevant evidence

Back 21

If probative value is substantially outweighed by the danger of unfair prejudice

Front 22

Relevance dependent on existence of fact

Back 22

Proof must be sufficient to support finding that the fact does exist

Front 23

Curative admission of irrelevant evidence

Back 23

Admitted when necessary to rebut previously admitted irrelevant evidence to remove unfair prejudice

Front 24

Character evidence is typically

Back 24

inadmissible

Front 25

Character evidence - civil cases - inadmissible to...

Back 25

prove person acted in accordance with that character/trait on a particular occasion

Front 26

Character evidence - civil cases - admissible when...

Back 26

character is essential element of claim/defense instead of proving a person's conduct

usually defamation, negligent hiring/entrustment, and child custody

Front 27

Criminal case - D's character - prosecution...

Back 27

not permitted to introduce evidence of D's bad character to prove propensity

Front 28

Criminal case - D's character - defense...

Back 28

permitted to introduce evidence of good character, but must be pertinent, and must be reputation/opinion testimony

Front 29

Criminal case - character - opening the door

Back 29

Once D offers evidence of good character, prosecution can attack D's character

Front 30

Criminal case - victim's character - defense...

Back 30

D may introduce reputation/opinion evidence of victim's character when relevant to defense asserted

Front 31

Criminal case - victim's character - prosecution...

Back 31

Rebuttal evidence of victim's good character when D has introduced evidence of victim's bad character

Front 32

Methods of proving character

Back 32

Testimony about person's reputation or witness opinion

Front 33

Character impeachment

Back 33

Evidence of witness's untruthfulness is admissible/relevant to impeach witness

Front 34

Prior bad acts - in general

Back 34

Not admissible to show D's criminal propensity to prove he committed crime in question

Front 35

MIMIC stands for

Back 35

Motive

Intent

absence of Mistake

Identity

Common Plan

Front 36

MIMIC evidence may be introduced for...

Back 36

for any purpose except for propensity

Front 37

Specific acts as character evidence - civil case

Back 37

When character evidence is an essential element of claim/defense, specific acts or opinion/reputation

Front 38

Specific acts as character evidence - criminal case

Back 38

Not admissible except when character is element of claim

Front 39

Specific acts as character evidence - cross-examination

Back 39

Character witness can be asked about specific acts committed by person witness is testifying about

Front 40

Habit evidence

Back 40

Evidence of persons habit admissible to prove person acted in accordance with habit on a particular occasion

May be admitted without corroboration and without an eyewitness

Front 41

Witnesses 0 competence - personal knowledge

Back 41

non-expert witness must have personal knowledge of matter in order to testify

Front 42

Dead man's statute

Back 42

Protects decedent's estate from parties with financial interest in estate

Waiver - protected party can waive by failing to object to disqualified witness or introducing protected evidence

Not applicable in criminal cases

Front 43

Impeachment - generally

Back 43

Challenge to witness's testimony can be based on character for truthfulness, bias, ability to perceive/testify accurately, contradictory prior statement, or another witness

Front 44

Witness's criminal conviction

Back 44

Can be used to impeach witness's character for truthfulness

Crimes not involving dishonesty/false statement - admissible only if felony or punishable by death

COnviction or release > 10 years ago - admissible if probative value substantially outweighs prejudicial effect and reasonable written notice

Front 45

Prior inconsistent statements

Back 45

Can be used to impeach if inconsistent with material part of witness's testimony

Front 46

Impeachment of hearsay declarant

Back 46

Credibility of dclarant can be attacked by any evidence admissible if a declarant had testified as witness

Front 47

Rehabilitation of witness

Back 47

Explain/clarify on redirect examination

Offer oponion/reputation evidence of witness's character for truthfulness

Offer prior consistent statement to rebut express/implied charge that witness lied due to improper motive/influence

Front 48

Present recollection refreshed

Back 48

Witness may examine any item to refresh witness's present recollection, and testimony must be based on refreshed recollection

Front 49

Past recollection refreshed

Back 49

Memo/record about matter witness once had knowledge of but now has insufficient recollection of to testify about may be admissible under recorded recollection hearsay exception

Front 50

Lay witness opinion

Back 50

Admissible if based upon the perception of the witness and helpful to clear understanding of witness's testimony or determination of a fact in issue

Front 51

Expert witness testimony

Back 51

Scientific, technical or some other specialized knowledge

Front 52

Qualified expert

Back 52

Qualified as an expert by knowledge, skill, experience etc

Front 53

Authentication of tnagible evidence

Back 53

All tangible evidence must be authenticated with sufficient evidence to support a finding that the thing is what its proponent claims it is

Front 54

Physical objects authenticated through

Back 54

Personal knowledge

Distinctive characteristics

Chain of custody

Reproductions

X-rays, EKGs - process was accurate, verified

Front 55

Documentary evidence authenticated by

Back 55

Stipulation, eyewitness testimony, or handwriting verification

Ancient documents - 20 years

Front 56

Best evidence rule - original document

Back 56

Must be produced to prove contents of writing when contents are at issue or witness is relying on contents when testifying

Handwritten copies of original are not duplicates and are admissible under BER only when original is lost

Front 57

Best Evidence Rule - original not required when originals are lost or destroyed in good faith

Front 58

Parol Evidence Rule

Back 58

Operates to exclude evidence that, if introduced, would change the terms of a written agreement

Front 59

Extrinsic evidence always admissible to:

Back 59

Clarify ambiguity

Prove course of dealing

show fraud/duress/mistake

Show presence/absence of consideration

Front 60

Subsequent remedial measures

Back 60

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

Admissible for impeachment or ownership

Front 61

Compromise offers and negotiations

Back 61

Not admissible to prove/disrove validity or amount of disputed claim, or for impeachment by prior inconsistent statement

Admissible to show bias or prejudice, negate claim of undue delay, or prove obstruction

Front 62

Evidence of payment, offers, medical expenses

Back 62

Not admissible to prove liability, but statements accompanying offer may be admissible

Front 63

Plea negotiation as evidence

Back 63

Withdrawn guilty pleas, pleas of no contest, and statements made while negotiating plea bargain or during plea proceeding are not admissible

Front 64

Confrontation clause

Back 64

Prefers face to face confrontations, but can be denied if important public interest at stake