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Evidence
MBE
54
Law
07/16/2011

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Term
Evidence on the MBE
Definition
Federal Rules only! Forget state statutory or common law.
Term
Relevance
Definition
a fact is relevant if it tends to prove or disprove a material fact

generally, the evidence must relate to the time, event, or person involved in the present litigation; otherwise, evidence is not relevant
Term
Relevance - Discretionary Exclusion of Relevant Evidence
Definition
trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice (or confusing the issues, misleading the jury, undue delay)
Term
Relevance - Exclusion of Relevant Evidence for Public Policy Reasons
Definition
1) Liability Insurance - evidence of insurance against liability is not admissible to show negligence or ability to pay (may be admissible to show ownership or control, to impeach, or as part of an admission

2) Subsequent Remedial Measures - Evidence of repairs or other precautionary measures made following an inquiry NOT admissible to prove negligence (may be admissible to prove ownership or control, rebut claim that precaution was not feasible)

3) Settlement Offers/Withdrawn Guilty Pleas- not admissible to prove liability for, or invalidity of, a claim in dispute

4) Offers to Pay Medical Expenses - payment of or offers to pay injured party's medical expenses are inadmissible; HOWEVER, unlike settlement negotiations, admissions of fact accompanying offers to pay medical expenses ARE admissible
Term
Propensity Evidence vs. Habit Evidence
Definition
propensity evidence: character evidence used to prove conduct in a specific instance--INADMISSIBLE

habit evidence: regular response to a specific set of circumstances; ADMISSIBLE and relevant to prove conduct of the person on a particular occasion was in conformity with the habit

Compare: "Lara takes very good care of her car" vs. "Lara checks the brakes on her car every Sunday before church."
Term
Character Evidence - Means of Proving Character
Definition
one or all of the following may be available to prove character (depending on jurisdiction, purpose of the evidence, and nature of case):
1) evidence of specific acts:
2) opinion testimony of a witness who knows the person
3) testimony as to the person's general reputation in the community

Unless directly in issue (e.g., defamation) character evidence generally not admissible in civil cases
Term
Character Evidence - Criminal Proceedings
Definition
generally, only accused can initiate: prosecution cannot initiate evidence of D's bad character merely to show that she is more likely to have committed the crime; accused, however, may introduce evidence of her good character to show her innocence

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

rebuttal by prosecution: once D opens the door, prosecution may rebut by:
1) cross-examining the character witness
2) calling other qualified witnesses
Term
Specific Acts of Misconduct (MIMIC)
Definition
evidence of a person's other crimes or misconduct is inadmissible if offered solely to establish a criminal disposition or bad character

it IS admissible, however, if these acts are relevant to some other issue: MIMIC.

M otive
I ntent
M istake (absence of)
I dentity
C ommon plan or scheme
Term
Judicial Notice
Definition
the recognition of a fact as true without formal presentation of evidence

facts appropriate for judicial notice:
-indisputable facts (matters of common knowledge in the community or facts capable of verification by resort to easily accessible sources of unquestionable accuracy
Term
Real Evidence
Definition
actual physical evidence addressed directly to the trier of fact

Admissibility: to be admissible, real evidence must be relevant and meet following requirements:
-Authentication: either by testimony of a witness that she recognizes the object as what the proponent claims it is, or by evidence that object has been held in unbroken chain of custody
-Relevance

types of real proof:
-reproductions and explanatory real evidence: diagrams, maps, relevant photos--admissible if their value not outweighed by danger of unfair prejudice
-exhibition of injuries
-jury view of scene
-demonstrations (in courtroom)
Term
Documentary Evidence
Definition
authentication necessary as one aspect of a writing's relevancy

authentication: as a general rule, a writing or any secondary evidence of its content will not be received in evidence unless authenticated by proof that shows the writing is what the proponent claims it is; proof must be sufficient to support a jury finding of genuineness

admissions: writing may be authenticated by evidence that the party against whom it is offered has admitted its authenticity

eyewitness testimony: writing may be authenticated by testimony of one who sees it executed or hears it acknowledged

handwriting verifications: nonexpert with personal knowledge of alleged writer's handwriting; expert who has compared the writing to samples of maker's handwriting

ancient documents: by evidence that 1) document is at least 20 yrs old, 2) is in such condition as to be free from suspicion as to its authenticity, and 3) was found in a place where such a writing would likely be kept

reply letter doctrine: writing authenticated by evidence it was written in response to a communication sent to the claimed author

photographs: authenticated by identification by witness as a correct representation of facts in the photo.

x-rays: must show process used is accurate, machine was in working order, operator was qualified to operate it, custodial chain

voice identification: may be identified by anyone who has heard the voice at any time (even after trial has started)

telephone conversations: may be authenticated by one of the parties to the call who testifies that 1) he recognized the other party's voice, 2) the speaker had knowledge of certain facts only a particular person would have, 3) he called a particular number and a voice answered as that person, or 4) he called a business and spoke with the person answering the phone about matters relevant to that business

self-authenticating documents: extrinsic evidence of authentication not necessary for 1) certified copies of public records; 2) official publications; 3) newspapers and periodicals; 4) trade inscriptions; 5) acknowledged documents; 6) commercial paper and related documents; 7) certified business records
Term
Best Evidence Rule
Definition
to prove the terms of a writing, the original writing must be produced if the terms of the writing are material. Secondary evidence of the writing (e.g., oral testimony) admissible only if writing is unavailable

valid excuses justifying admissibility of secondary evidence:
-loss or destruction of the original
-original is in possession of a third party outside the jurisdiction and is unobtainable
-original is in possession of an adversary who, after due notice, fails to produce the original
Term
Parol Evidence Rule
Definition
if an agreement is reduced to writing, that writing IS the agreement and hence constitutes the only evidence of it--prior or contemporaneous negotiations or agreements are merged into the written agreement, and are INADMISSIBLE to very the terms of the writing

rule does not apply in cases of incomplete/ambiguous Ks, mistake, or when the validity of the K is challenged
Term
Opinion Testimony by Lay Witnesses
Definition
generally inadmissible, except when it is: rationally based on the witness's perception, helpful to a clear understanding of his testimony or helpful to the determination of a fact in issue, and no based on scientific, technical, or other specialized knowledge

situations where opinions of lay witnesses are admissible:
-general appearance or condition of a person
-state of emotion of a person
-matters involving sense recognition
-voice or handwriting identification
-speed of a moving object
-value of his own services
-rational or irrational nature of another's conduct
-intoxication of another
Term
Opinion Testimony by Expert Witnesses
Definition
an expert may state an opinion or a conclusion, provided:
1) subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact
2) witness is qualified as an expert
3) expert possesses reasonable probability regarding his opinions
4) opinion supported by a proper factual basis
Term
Cross-Examination
Definition
scope: generally limited to 1) scope of direct examination, including all reasonable inferences that may be drawn from it, and 2) testing the credibility of the witness
Term
Impeachment
Definition
impeachment means casting an adverse reflection on the veracity of the witness

-generally, a witness may not be bolstered until the witness has been impeached
-any party can impeach (i.e., can impeach own witness)

impeachment methods:
1) prior inconsistent statements
2) bias or interest
3) conviction of crime: any crime involving dishonesty; felony not involving dishonesty (may not use conviction if more than 10 years have passed, if conviction was juvenile, or if conviction was constitutionally invalid)
Term
Rehabilitation
Definition
a witness who has been impeached may be rehabilitated by the following methods:
1) explanation on redirect
2) calling other witnesses to bolster impeached witness's reputation for truthfulness
3) prior consistent statement
Term
Objections
Definition
should be made as soon as something inadmissible happens--after the question/before the answer, if question calls for an inadmissible answer; during the answer as soon as something inadmissible has been said (along with a motion to strike)

failure to object is deemed a waiver of any ground for objection--thus, if no objection is made, otherwise inadmissible evidence will be admitted

"opening the door"--the party introducing evidence thereby asserts the relevance of the subject, and cannot then complain if his adversary then offers evidence on the same subject

if part of a conversation or writing is admitted, the adverse party may require the proponent of the evidence to introduce any other part that ought in fairness to be considered
Term
Testimonial Privileges
Definition
privileges permit one to refuse to disclose, ad prohibit others from disclosing, certain confidential information in judicial proceedings
Term
Testimonial Privileges - Attorney-Client
Definition
attorney-client: client holds privilege, not attorney
-communications made between an attorney and a client during professional consultation are privileged
-applies indefinitely, even after client's death
-exceptions:
--when attorney's services were sought to aid in the planning or commission of something the client should have known was a crime or fraud
--regarding a communication relevant to an issue between parties claiming through the same deceased client
--regarding a breach-of-duty dispute between the attorney and the client
Term
Testimonial Privileges - Physician-Patient
Definition
communications between physician and patient are privileged, provided that:
-a professional relationship exists
-information is acquired while attending the patient in the course of treatment
-information is necessary for treatment

does NOT apply if:
-patient puts his physical condition at issue (e.g., personal injury suit)
-physician's assistance was sought to aid wrongdoing
-communication is relevant to an issue of breach of duty in a dispute between physician and patient
-patient agreed by K to waive privilege
-it is a federal case applying federal law of privilege
Term
Testimonial Privileges - Psychotherapist/Social Worker-Client Privilege
Definition
most states recognize this privilege (NB: TEXAS DOES NOT.)

in most particulars, this privilege operates like the attorney-client privilege
Term
Testimonial Privileges - Husband-Wife Privilege
Definition
2 privileges: Spousal Immunity and Privilege for Confidential Marital Communications

Spousal Immunity: a married person whose spouse is a D in a criminal case may not be called as a witness by the prosecution; moreover, a married person may not be compelled to testify against spouse in ANY criminal proceeding, regardless of whether the spouse is the D.
-privilege lasts only as long as the marriage does

Confidential Marital Communications: in any civil or criminal case, confidential communications between spouses during a valid marriage are privileged. Divorce does not terminate the privilege, but communications made after divorce are not privileged. Privilege belongs to BOTH spouses.
Term
Testimonial Privileges - Privilege Against Self-Incrimination
Definition
Under 5A, a witness cannot be compelled to testify against himself. Any witness compelled to appear in a civil or criminal proceeding may refuse to give an answer that ties the witness to the commission of a crime
Term
Testimonial Privileges - Clergy or Accountant Privilege
Definition
privilege exists for statements made to a member of the clergy or an accountant; privilege operates much like attorney-client
Term
Testimonial Privileges - Professional Journalist Privilege
Definition
no constitutional right for journalists to protect their sources, so this is limited to any state statutes which might exist
Term
Testimonial Privileges - Governmental Privilege
Definition
Official Information not otherwise open to the public may be protected by a privilege for the government
Term
Exclusion and Sequestration of Witnesses
Definition
upon a party's request, trial judge will order witnesses excluded from the courtroom (judge may also do this on his own motion). Judge may NOT exclude 1) a party, or a designated officer or employee of a party, 2) a person whose presence is essential to the presentation of a party's case, or 3) a person statutorily authorized to be present
Term
Hearsay
Definition
a statement, other than the other made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted

hearsay is inadmissible, unless it falls within an exception

statement: for purposes of the rule, a statement is 1) an oral or written assertion, or 2) nonverbal conduct intended as an assertion (e.g., nod of the head)

offered to prove the truth of the matter: if the out-of-court statement is offered for any purpose other than to prove the truth of the matter asserted, there is no need to cross-examine, so there is no hearsay. The following statements are NOT hearsay:
-verbal acts or legally operative facts (e.g., words of contract, defamatory words)
-statements offered to show their effect on the hearer or reader (e.g., to prove notice in a negligence case)
-statements offered as circumstantial evidence of the declarant's state of mind

TIP: ask yourself, does it matter if the declarant is telling the truth? If not, it's not hearsay.
Term
Hearsay - Nonhearsay Statements
Definition
The following are not hearsay, and are therefore admissible (absent another flaw):

-Prior Statements by Witness: if the prior statement was under oath in a judicial proceeding

-Admissions by Party-Opponent: can be an opinion, can be based on hearsay, can be SILENCE (in certain circumstances)--as long as it is a statement made by a party opponent about a relevant fact, it is admissible as an admission by party opponent.

Vicarious Admissions:
-Co-Parties: Admissions of a party against her co-parties are not receivable merely because they are joined as co-parties
-Authorized Spokesperson: statement of a person authorized to speak for the company can be admitted against the party as an admission
-Principal-Agent: statements by an agent concerning any matter within the scope of her agency, made while the agency relationship exists, are admissible against the principal
-Co-Conspirators: admissions of one conspirator, made to a third party in furtherance of a conspiracy at a time when the declarant was participating in the conspiracy, are admissible against all co-conspirators
-Partners: after a partnership is known to exist, an admission of one partner relating to matters within scope of partnership is binding upon her co-partners
Term
Hearsay Exceptions - Declarant Unavailable
Definition
declarant is unavailable if he:
-is exempt from testifying due to privilege
-refuses to testify concerning the statement despite a court order
-testifies to lack of memory of the subject matter of the statement
-unable to testify due to death or physical or mental illness
-is absent beyond the reach of court subpoena
Term
Hearsay Exceptions - Former Testimony
Definition
testimony of a now-unavailable witness given at another hearing or deposition, is admissible if:
1) the party against whom the testimony is offered was a party in the former action
2) former action involved the same subject matter (not necessarily same cause of action)
3) testimony was given under oath
4) party against whom testimony is offered had an opportunity at prior proceeding to develop the declarant's testimony (either by direct, cross, or redirect)
Term
Hearsay Exceptions - Statements Against Interest
Definition
the statement of a person, now unavailable as a witness, against that person's pecuniary, proprietary, or penal interest when the statement was made is admissible under this exception
Term
Hearsay Exceptions - Dying Declaration
Definition
in a homicide prosecution or a civil action, a statement made by a now unavailable declarant is admissible if:
-the declarant believed his death was imminent (actual death not necessary)
-statement concerned the cause or circumstances of what he believed to be his impending death
Term
Hearsay Exceptions - Statements of Personal or Family History
Definition
statements by a now unavailable declarant concerning births, marriages, divorces, relationships, genealogical status, etc., are admissible provided that:
-the declarant is a member of the family in question or intimately associated with it
-statements are based on the declarant's personal knowledge of the facts or her knowledge of family reputation
Term
Hearsay Exceptions - Statements Offered Against Party Procuring Declarant's Unavailability
Definition
the statement of a person, unavailable as a witness, is admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant's unavailability
Term
Hearsay Exceptions - Present State of Mind
Definition
statement of a declarant's then-existing state of mind, emotion, sensation, or physical condition is admissible (not to prove the truth of the fact remembered or believed, however)
Term
Hearsay Exceptions - Excited Utterances
Definition
out-of-court statement relating to a startling event, made while under the stress of the excitement from the event (i.e., before the declarant had time to reflect upon it) is admissible
Term
Hearsay Exceptions - Present Sense Impression
Definition
comments made concurrently with the sense impression of an event that is not necessarily exciting may be admissible.

(There is little time for a calculated misstatement, and the contemporaneous nature of the statement makes it reliable.)
Term
Hearsay Exceptions - Declarations of Physical Condition
Definition
Present Bodily Condition: admissible, even though not made to a physician

Past Bodily Condition: admissible if to assist diagnosis or treatment--generally inadmissible, but they come in if they are made to medical personnel to assist in diagnosing or treating the condition
Term
Hearsay Exceptions - Business Records
Definition
any writing or record made as a memorandum of any act or transaction is admissible as proof of that act or transaction

must be made in the regular course of business, by someone with personal knowledge of the matters recorded
Term
Hearsay Exceptions - Past Recollection Recorded
Definition
if the witness's memory cannot be revived, a party may introduce a memorandum that the witness made at or near the time of the event
-writing itself NOT admissible; must be read to the jury
Term
Hearsay Exceptions - Official Records and Other Official Writings
Definition
-Public Records and Reports (including Police Reports, but not against a criminal D)
-Records of Vital Statistics
-Statement of Absence of Public Record
-Judgments
Term
Hearsay Exceptions - Ancient Documents and Documents Affecting Property Interests
Definition
statements in any authenticated document 20 years old or more are admissible...

as are statements in any document affecting an interest in property, regardless of age
Term
Hearsay Exceptions - Learned Treatises
Definition
Treatises are admissible as substantive proof under FRE if:
1) called to the attention of, or relied upon by, an expert witness; and
2) established as reliable authority by the testimony of that witness, other expert testimony, or judicial notice
Term
Hearsay Exceptions - Reputation
Definition
reputation evidence is admissible, under several exceptions to the hearsay rule, as evidence of the following:
1) character
2) personal or family history
3) land boundaries
4) a community's general history
Term
Hearsay Exceptions - Family Records
Definition
Statements of fact concerning personal or family history contained in family Bibles, jewelry engravings, genealogies, tombstone engravings, etc., are admissible
Term
Hearsay Exceptions - Market Reports
Definition
market reports and other published compilations are admissible if generally used and relied upon by the public or by persons in a particular occupation
Term
Hearsay Exceptions - "Catch-All" Exception
Definition
for a hearsay exception not covered by a specific exception, FRE provides a catch-all exception, which requires that:
1) the hearsay statement possess circumstantial guarantees of trustworthiness;
2) the statement be strictly necessary
3) notice be given to the adversary as to the nature of the statement
Term
Burdens of Proof
Definition
Burden of Producing Evidence: party who has burden of pleading usually has the burden of producing evidence sufficient to make out a prima facie case. Once that party has satisfied that burden, it is incumbent upon the other side to come forward with rebuttal evidence.

Burden of Persuasion (Proof): civil cases--usually preponderance of the evidence, but sometimes clear and convincing evidence. Criminal cases--beyond a reasonable doubt
Term
Presumptions
Definition
effect of presumption is to shift the burden of production (NOT proof) to the party against whom the presumption operates

Specific presumptions:
-legitimacy: every person presumed legitimate
-against suicide: when cause of death is in issue in a civil case, presumption is that it was not suicide
-sanity: every person is presumed sane
-death from absence: if a person is unexplainably absent for 7 years and he has not been heard from, he is presumed dead
-ownership of car--agent driver: proof of ownership of a car creates presumption that owner (or his agent) was the driver
-chastity: every person is presumed chaste and virtuous
-regularity: presumption that persons acting in an official office are properly performing their duties
-continuance: proof of the existence of a person or condition at a given time raises a presumption that it continued for as long as is usual for things of that nature
-mail delivery: a letter, properly addressed, stamped, and mailed, is presumed to have been delivered
-solvency: a person is presumed solvent, and every debt collectible
-bailee's negligence: proof of delivery of goods in good condition and failure of bailee to return goods in same condition create presumption that the bailee was negligent
-marriage: upon proof of a marriage ceremony, a marriage is presumed valid
Term
Preliminary Facts Decided by Jury
Definition
include: agency, authenticity of a document, credibility of a witness, and personal knowledge
Term
Preliminary Facts Decided by Judge
Definition
include: facts affecting the competency of the evidence, requirements for hearsay exceptions, privileges, and expert testimony, as well as mental competence