Multistate Bar Exam - Evidence

Front 1

Hearsay

Back 1

An out-of-court statement offered for the truth of the matter asserted. If a statement is hearsay, and no exception to the hearsay rule is applicable, the evidence must be excluded upon appropriate objection to its admission.

Front 2

Statement by an Opposing Party

Back 2

A party's statement offered against that party.

Front 3

Testimonial Statements

Back 3

When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal investigation, the derivative statements are testimonial.

Front 4

Statements that are Not Hearsay

Back 4

1. A statement offered for a reason other than to prove the truth of the matter asserted therein;

2. Prior sworn inconsistent statements of a witness;

3. Prior consistent statements of a witness offered to rehabilitate after that witness's credibility has been impeached;

4. Prior statement of identification; or

5. Statements by an opposing party.

Front 5

Hearsay Exceptions Where the Declarant Is Unavailable

Back 5

1. Former testimony

2. Statements against interest

3. Dying declarations

4. Statements of personal or family history

5. Statements offered against the party who engaged or acquiesced in wrongdoing that intentionally procured the declarant's unavailability

Front 6

Unavailability

Back 6

A declarant is unavailable if he:

1. Is exempt from testifying because of privilege;

2. Stubbornly refuses to testify;

3. Testifies that he does not remember;

4. Is unable to testify due to death or illness; or

5. Is beyond the reach of the court's subpoena, and the proponent is unable to procure his attendance by reasonable means.

Front 7

Hearsay Exceptions Where Declarant's Availability is Immaterial

Back 7

1. Present state of mind

2. Excited utterance

3. Present sense impressions

4. Declaration of physical condition

5. Business records

6. Past recollection recorded

7. Public records and official documents

Front 8

Vicarious Admissions

Back 8

Statements by an agent concerning any matter within the scope of her agency, made during the existence of the employment relationship, are admissible against the principal.

Front 9

Former Testimony Exception to Hearsay

Back 9

1. Witness must be unavailable

2. Statement is offered against a party (or a predecessor in interest) in the former action

3. The former action involved the same subject matter

4. The testimony was given under oath

5. The party had an opportunity at the prior proceeding to develop the declarant's testimony

Front 10

Statement Against Interest

Back 10

1. The statement must have been against the pecuniary, proprietary, or penal interest of the declarant;

2. Declarant must have personal knowledge;

3. Declarant must have been aware that the statement was against her interest and had no motive to misrepresent;

4. Declarant is unavailable

Front 11

Declarations of Existing State of Mind

Back 11

Admissible when:

1. declarant's state of mind is directly in issue, or

2. if they are declarations of intent offered to show subsequent acts of the declarant.

Front 12

Present Sense Impression

Back 12

A statement describing an event or condition happening contemporaneously with or immediately prior to the statement.

Front 13

Excited Utterance

Back 13

A statement made by a declarant during or soon after a startling event and while still under the stress of the event.

Front 14

Business Records

Back 14

To be admissible, a business record must be made in the regular course of any business, where it was the regular course of such business to make it at the time of the transaction or within a reasonable time thereafter, and it must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant.

Front 15

Past Recollection Recorded

Back 15

Where a witness's memory cannot be revived by reviewing a writing made by a witness at or near the time of the event, a party may introduce the writing into evidence if a proper foundation is laid.

Front 16

Dying Declaration

Back 16

Available only in homicide prosecutions and civil actions. The declarant need not actually die, he must only be unavailable. To apply, the declaration must concern the cause or circumstances of what the declarant believed to be his impending death.

Front 17

Character Evidence

Back 17

Admissible only in civil cases where character is at issue, or in criminal cases where the defendant has "opened the door" by introducing evidence of his own good character to show his innocence. In civil cases, any form of character evidence is acceptable, but in criminal cases, only opinion and reputation evidence is permissible.

Front 18

Prior Acts of Sexual Assault or Child Molestation

Back 18

Admissible in civil or criminal cases where the defendant is accused of committing an act of sexual assault or child molestation. The prior act need not have involved the same victim.

Front 19

Habit Evidence

Back 19

Concerns a person's regular response to a specific set of circumstances.

Front 20

Victim's Bad Character in Criminal Case

Back 20

Once the defendant has introduced evidence of a bad character trait of the alleged victim, the prosecution may counter with reputation or opinion evidence of the victim's good character, or the defendant's bad character for the same trait.

Front 21

Bias

Back 21

A witness may always be impeached by extrinsic evidence of bias or interest, provided a proper foundation is laid. Evidence that is substantively inadmissible may be admitted for impeachment purposes if relevant to show bias. The party must ask the witness about the facts that show bias on cross-examination. If the witness admits those facts, then the court decides whether to allow extrinsic evidence.

Front 22

Impeachment by Proof of Felony Conviction

Back 22

A witness's character for truthfulness may be attacked by any felony, whether or not it involves dishonesty. A conviction is too remote if more than 10 years have elapsed since the date of conviction or the date of release from confinement, whichever is later.

Front 23

Impeachment by Proof of Misdemeanor Conviction

Back 23

A witness's character for truthfulness may be attacked by a misdemeanor involving dishonesty or a false statement. A conviction is too remote and inadmissible if more than 10 years have elapsed since the date of conviction or the date of release from confinement, whichever is later.

Front 24

Impeachment by Bad Acts

Back 24

Subject to the discretionary control of the trial judge, a witness may be interrogated on cross-examination with respect to any immoral, vicious, or criminal act of his life that may affect his character and show him to be unworthy of belief. Extrinsic evidence of bad acts is inadmissible.

Front 25

Prior Consistent Statements

Back 25

Admissible when the opposing counsel has impeached the credibility of a witness by making an express or an implied charge that the witness is lying or exaggerating because of some motive, if the prior consistent statement was made by the witness before the time of the alleged motive to lie or exaggerate. When opposing counsel has impeached the credibility of a witness on some non-character ground, counsel may introduce a prior consistent statement if it has a special tendency to rehabilitate the witness's credibility.

Front 26

Credibility of Unavailable Declarants

Back 26

The credibility of an unavailable declarant may be attacked by evidence that would be admissible if the declarant had testified as a witness. If the unavailable declarant is impeached with evidence of her prior inconsistent statement, the requirement that she must explain or deny her statement does not apply. Furthermore, where the declarant's credibility is impeached, it may also be rehabilitated.

Front 27

Prior Inconsistent Statement by Extrinsic Evidence

Back 27

1. Statement must be relevant to the case;

2. the witness must have an opportunity to explain or deny her statement at some point during the trial; and

3. the adverse party must have an to examine the witness about the statement.

Front 28

Materiality

Back 28

Whether the disputed fact is at issue in the case.

Front 29

Probativeness

Back 29

Whether the evidence tends to make the existence of the fact more probable or less probable than it would without the evidence.

Front 30

Proximity

Back 30

How close in time the evidence is to the events at issue in the case. When evidence that relates to a time, event, or person other than the time, event, or person directly involved in the controversy being litigated is offered, courts consider the evidences proximity in time to the events in question when determining relevance.

Front 31

Evidence of Party's Liability Insurance

Back 31

Generally, evidence that a party has liability insurance is not admissible to prove that a party acted negligently, or that the party is able to pay a substantial judgment. However, it is admissible to show ownership or control over a property or item when that fact is disputed.

Front 32

Subsequent Remedial Measures

Back 32

Admissible to rebut a claim that the repair or precautionary measure was not feasible. However, it is inadmissible to prove:

1. negligence or other culpable conduct

2. a defect in the product or its design

3. the need for a warning or an instruction

Front 33

Offer to Pay Medical Expenses

Back 33

Evidence that a party paid or offered to pay the injured party's medical expenses is not admissible to prove liability for the injury. However, an admission of fact accompanying an offer to pay medical expenses is admissible.

Front 34

Spousal Immunity

Back 34

Lasts only during marriage, and terminates upon divorce or annulment. If a marriage exists, the privilege can be asserted even as to matters taking place before the marriage. Only the witness-spouse may invoke the privilege against adverse spousal testimony, and she may not be compelled to testify before a criminal court if she so chooses to invoke the privilege.

Front 35

When may an attorney use leading questions on direct examinations?

Back 35

1. If used to elicit preliminary or introductory matters;

2. When the witness needs aid to respond because of loss of memory, immaturity, or physical or mental weakness; or

3. When the witness is hostile and improperly uncooperative, an adverse party, or a person identified with the adverse party

Front 36

Refreshing a Witness's Recollection

Back 36

Any item may be used at trial solely to refresh a witness's recollection, and it need not be authenticated. Whenever a witness has used a writing to refresh her memory, an adverse party is entitled to have the writing produced at trial, to inspect it, to cross-examine the witness thereon, and to introduce it into evidence.

Front 37

Authentication

Back 37

Authentication of real evidence requires only enough evidence to support a finding that the matter is what its proponent claims it is. All that is necessary is proof sufficient to support a jury finding of genuineness. A writing may be authenticated by evidence that the party against whom the writing is offered has either admitted its authenticity, or acted upon it as authentic.

Front 38

Voluminous Writings Exception

Back 38

When it would be inconvenient to examine a voluminous collection of writings, recordings, or photographs in court, the proponent may present their contents in the form of a chart, summary, or calculation. However, the originals or duplicates must be made available for examination and copying, and the judge may order them to be produced in court.

Front 39

Prior Inconsistent Sworn Statement

Back 39

A statement made under penalty of perjury at a prior trial or proceeding, or in a deposition, is admissible nonhearsay and may be used as substantive evidence as well as for impeachment.

Front 40

Records of Felony Conviction

Back 40

Records of felony convictions are admissible in both criminal and civil actions to prove any fact essential to the judgment, whether the judgment arose after trial or upon a plea of guilty.

A felony is any crime punishable by death or imprisonment in excess of one year.

Front 41

Cross-Examination

Back 41

Cross-examination is limited to matters brought out on direct examination and inferences drawn therefrom; and matters affecting the credibility of the witness.

Front 42

Judicial Limitations on Cross-Examination

Back 42

The trial court may cut off cross-examination where there has been adequate opportunity for meaningful cross-examination.

The judge may exercise reasonable control over the examination of witnesses to aid the effective ascertainment of truth, avoid wasting time, and protect the witness from harassment or undue embarrassment.

Front 43

Relevance

Back 43

Evidence is relevant when it tends to to make the existence of any material fact more or less probable than it would be without the evidence.

Front 44

Circumstantial Evidence

Back 44

Evidence used as a basis to prove that another fact is true.

Front 45

Direct Evidence

Back 45

Evidence offered to prove a fact about the object as an end in itself.

Front 46

Foundation for Past Recollection Recorded

Back 46

1. Witness at one time had knowledge of the facts recited in the writing;

2. Writing was made by witness, at her direction, or adopted by her;

3. Writing was made when the matter was fresh in witness's mind;

4. Writing is accurate; and

5. Witness lacks the recollection to testify fully and accurately

Front 47

Physician-Patient Privilege

Back 47

A licensed physician present for the purposes of treatment, with information necessary for treatment obtained while attending the patient, cannot be compelled to testify about such information. However, the patient must reasonably believe the consultant is a licensed physician for the privilege to apply.

Front 48

Marital Communications Privilege

Back 48

Either spouse has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were validly married. Both spouses hold this privilege. The communication must be made in reliance upon the intimacy of marriage. Divorce does not terminate the privilege retroactively.

Front 49

Preliminary Facts

Back 49

Preliminary facts (e.g. competency of testimony or qualification of a witness as an expert) other than those of conditional relevance must be determined by the court, out of the hearing of the jury.

Front 50

Learned Treatise

Back 50

Learned treatises may be used for either impeachment or substantive evidence. They are admissible as substantive evidence if:

1. the expert is on the stand and it is called to his attention, and

2. it is established as reliable authority.

Front 51

Reliable Authority

Back 51

The reliability of a publication may be established by:

1. the direct testimony or cross-examination admission of the expert;

2. the testimony of another expert; or

3. judicial notice.

Front 52

Chain of Custody

Back 52

If the evidence is of a type that is likely to be confused or can easily be tampered with, the proponent must present evidence of chain of custody, showing that the object has been held in a substantially unbroken chain of possession. This requires a showing of adherence to some system of identification and custody.