Evidence MBE

244 terms by jschell64 

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How should be approach an Evidence question?

1. underline the cause of action
2. Situate the Proceeding (are we on direct, cross, redirect, def-witness, P's witness, etc?)
3. Determine the purpose for which the evidence is being offered (is substantive, for impeachment, or for character or credibility?)

What are the 3 main Substantive Areas tested on the MBE?

Character evidence (5 ques) Impeachment (5 ques) Hearsay (12 ques)

Where do the Fed. Rules apply, and where don't they apply?

Apply: All civil and criminal trials and proceedings in Fed. court. Also, bankruptcy and admiralty

don't apply: Preliminary Question of Fact, Grand Jury Proceedings, Preliminary Hearings, Sentencing and Probation Hearings, Obtaining A Warrant, Bail Proceedings

Requirements for an Appellate Court to reverse a trial court's decision:

Where a ruling ADMITS evidence, a TIMELY AND SPECIFIC objection must be made to preserve the issue for appeal. If there is a general objection (i.e., "I object") the issue is not preserved for appeal

If an error is made during an objection, but it is not prejudicial to the outcome, then the harmless error rule applies. What is the harmless error rule?

Harmless error is if the jury would have reached the same verdict had the error not occurred.

What preliminary questions of admissibility must be determined by the court?

1. Competency - witness qualifications 2. Admissibility - whether or not hearsay exception applies 3. Privilege - attorney/client, husband/wife

Conditional Relevancy 104(b)

Where the admissibility of one item of evidence is conditioned on the relevancy of another item of evidence. Once that condition is met, the judge shall admit the evidence.
ex: one letter says girl is cool, but a photocopy says she's a fool. THE RELEVANCY OF THE P.C. IS CONDITIONED ON THE RELEVANCY OF THE LETTER SO THE JUDGE WILL ADMIT AND LET THE JURY DECIDE

Limited admissibility 105

If evidence is admitted as to one party or for one purpose but inadmissible as to another party or for another purpose the court shall restrict the evidence to its proper scope and instruct the jury accordingly. Counsel must request a limiting instruction.
ex: If a defendant is being impeached with his former convictions, we allow the jury to decide whether it believes the defendant. The prior convictions are admissible to challenge defendant's credibility, but not as substantive evidence of defendant's guilt. The jury is not allowed to use those prior convictions to determine the defendant's criminal disposition

Remainder of or Related Writings or Recorded Statements (Rule 106

WHERE A PARTY INTRODUCES PART OF A WRITING OR RECORDING, THE ADVERSE PARTY MAY IMMEDIATELY INTRODUCE ANY OTHER WRITING OR PART OF THE WRITING WHICH IN FAIRNESS OUGHT TO BE CONSIDERED

Judicial Notice Rule 201

a substitute for proof where the court excepts certain adjudicative facts as true without requiring formal presentation of evidence (science, geography, calendars, etc)

Type of Judicial Notice

1. Commonly Known Facts: Not subject to reasonable dispute, generally known within the jurisdiction (water boils at 212F, capital of Texas is Austin)
2. Facts that are readily ascertainable and cannot be disputed: fact which are capable of accurate and ready determination by resort to sources of unquestionable accuracy (Radar, blood test, DNA profiling, interest rates)

When is the taking of Judicial Notice mandatory, and when is it permissible?

Permissible: The judge may not take judicial notice of a fact merely because it is within her knowledge
Mandatory: 201d - when requested by a party, and supplied with the necessary info.

When can issues of judicial notice be raised?

Pre-trial, during trial, or on appeal

Can one contradict once fact has been judicially noticed?

NO CONTRADICTORY EVIDENCE IS PERMITED ON THAT ISSUE

HIGHLY TESTED: The effect of a jury instruction on judicial notice (civil and criminal)

1. A civil jury MUST ACCEPT A JUDICIALLY NOTICED FACT IS CONCLUSIVE
2. A criminal jury MAY ACCEPT A JUDICALLY NOTICED FACT AS CONCLUSIVE

Presumptions in General and Civil Actions and Proceedings (Rule 301):Burden of Production... Ex:

Plaintiff presents a prima face case for negligence but fails to prove the element of damages. Plaintiff did not meet his burden of production.

Burden of Persuasion

The degree to which evidence must be proven. Ex: Prosecution has the burden of production and persuasion to prove every element of murder beyond a reasonable doubt that defendant committed the murder. Then in most jurisdictions and in federal courts, if the defense raises an insanity defense, the burden of production shifts to the defendant to prove insanity by a POTE (Model Penal Code and most state courts) or by clear and convincing evidence (federal court. standard)

For Flashcard studies: What does the acronym POTE stand for?

Preponderance of the Evidence

2 main ways to shift burden of production:

1. affirmative defenses 2. presumptions

3 levels to the Burden of Persuasion

1. Lowest - preponderance of the evidence
2. Intermediate - Clear and Convincing
3. High - Beyond a reasonable doubt

How do presumptions function as a shortcut to evidence:

Presumption arises where one set of facts, once established, give rise to another set of facts (which are called presumed facts)

Bubble Bursting Theory (Thayer Theory):

ONCE THE OPPONENT PRESENTS SUFFICIENT EVIDENCE THAT THE PRESUMED FACT IS NOT TRUE, THEN THE PRESUMPTION DISAPPEARS FROM THE CASE AND THE BUBBLE BURSTS (SOMEONE MISSING FOR 6 YEARS, PERSON IS DEAD, BUT EVIDENCE CAN BE BROUGHT IN TO BURST THE BUBBLE)

Relevant Evidence

EVIDENCE WHICH TENDS TO MAKE THE EXISTENCE OF ANY FACT MORE PROBABLE OR LESS PROBABLE THAN IT WOULD BE WITHOUT THE EVIDENCE

3. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time (Rule 403). 6 ways to exclude relevant evidence:

1. the danger of UNFAIR PREJUDICE 2. MISLEADING the jury. 3. considerations of UNDUE DELAY 4. WASTE OF TIME 5. needless presentation of CUMULATIVE EVIDENCE

2 MBE TIPS CONCERNING RELEVANCY

1. Most 403 objections are properly overruled
2. 403 balancing test favors admission

Relevancy: In negligence and product liability cases, evidence of prior or subsequent accidents may be relevant to prove (4), but the prior accident must have occurred*:

1. A dangerous condition existed 2. a product was defective 3. the cause of the accident, or 4. notice of a dangerous condition

*under SUBSTANTIALLY SIMILAR CONDITIONS (SIMC) SUBSTANTIAL IDENTITY OF MATERIAL CIRCUMSTANCES

Entering evidence to show consciousness of guilt: How is it relevant, and what examples have been seen on MBE?

Relevant to show a guilty mind.
Fleeing the scene, threats by the D against a witness, hiding from the police, using an alias, failing to submit to a blood alcohol test

Direct v. Circumstantial

D: no inference is required "i saw the D shoot him"
C: an inference is required to connect it to a conclusion of fact
"I didn't see the D shoot the V, but I heard gunshot, and saw D running down the alley"

Real Evidence

Tangible

Character Evidence in CIVIL CASES 404: when can you use it, and what 3 forms can you use?

Character evidence is inadmissible to prove conduct in conformity therewith. Exception WHERE CHARACTER IS IN ISSUE. All 3 forms of character may be admitted: 1) REPUTATION , 2) OPINION and 3) SPECIFIC ACTS

If reputation, the witness must establish:

that he is aware of the relevant community

If opinion, the witness must establish that:

she has sufficient knowledge to form an opinion

Specific Cases of actions in Civil Cases where character is an issue:

Defamation, Child Custody, Negligent Intrustment, Negligent Hiring, Fraud or Misrepresentation

Character Evidence in Criminal Cases:

It is rare for character evidence to be relevant unless fraud cases

Rules for Character Evidence in Criminal Cases: 404(a)(1)

1. The prosecution may not initially introduce evidence of defendant's bad character: D HAS TO OPEN THE DOOR FIRST.
2. Testimony about a pertinent trait of the defendant (good character): THIS OPENS THE DOOR
3. Once the door to character evidence has been opened (rebuttal), the prosecution may rebut with reputation or opinion

How might the prosecution cross the D's witness concerning the D's character?

did you know the D committed 3 robberies in the past year? (proper question) Specific acts maybe inquired into on cross of the D's witness

FRE 404(a)(2): Testimony about a pertinent trait or character of a victim (bad character): How can D get it in?

D MAY OFFER EVIDENCE OF THE BAD CHARACTER OF THE VICTIM TO SHOW HE ACTED IN SELF-DEFENSE AND THE P CAN DO THE SAME, BOTH USE OPINION AND REPUTATION

What if the D doesn't attack the victim's character, but merely states he acted in self-defense?

The victim may only offer evidence of his peacefulness

In a homicide case, may the D offer specific acts against the victim?

Yes, the D's fear of the victim isn't addressing any pertinent trait of the victim's character.

FRE 404b "Evidence of character may be admissible when offered for a purpose other than to show... (complete)
What is MIAMI KOPPS?

...conduct in conformity with one's character"
Circumstantial evidence of other crimes, wrongs or acts is generally inadmissible, but may be offered to prove: Motive, Intent, Absence of Mistake, Identity, Knowledge, Opportunity, Preparation, Plan or Scheme

The 404b Exception can be simplified to MIMIC.

Motive, Intent, absence of Mistake, Identity, or Common plan or scheme

MIMIC character evidence never comes in to . . . (complete)

show criminal disposition or propensity of the evidence

When might the MIMIC evidence (other acts) have occurred and still be admissible under this rule?

before, during, or after the date of the offense

Habit: Routine Practice 406: Rule, in what forms is it admissible, and what key words to look for:

Evidence of the habit of a person, or routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove conduct in conformity of the habit.
Admissible in the form of OPINION or SPECIFIC ACTS.
Key: ALWAYS, AUTOMATICALLY, REGULARLY, INSTINCTIVELY, WITHOUT FAIL, HABITUALLY

Subsequent Remedial Measures (SRM) (Rule 407). What can't it be entered to show, and what can it be entered to show? Whats the public policy.

Evidence of SRM is inadmissible to prove NEGLIGENCE, CUPABLE CONDUCT, DESIGN DEFECT, OR A NEED FOR A WARNING
Exceptions: TO SHOW OWNERSHIP OR CONTROL, TO IMPEACH, TO SHOW FEASIBILTY OF PRECAUTION
PP: to encourage people to fix dangerous conditions and make products safe

SMR: Feasibility of Precautions

If defendant claims "a different accelerator design was not feasible" to prevent such accidents, evidence that defendant did make subsequent changes to make the design of the accelerator safer is ADMISSIBLE to refute defendant's claim: WOULD APPLY IN NEGLIGENCE AND PRODUCT LIABILITY CASES

Compromise and Offer to Compromise 408 (Offer to Settle) - 3 points

1) an offer to settle is inadmissible
2) Judge Determines whether they are compromised negotiations
3) Must be a dispute as to an amount or fault, but an offer will be admissible as an admission if both fault and damages are admitted (statement offered against party opponent)

408 Offer to Settle: Exceptions

1. offers to settle can be admitted to show bias or prejudice 2. to negate a contention of undue delay, or 3) to show efforts to construct a criminal investigation

408 Offer to Settle: Severance (COMMON ON MBE)

There is no severance. Ex: X & Y have a car accident. Assume the facts state there's a dispute as to fault between the 2 parties. X says to Y, "I may have been driving a little too fast (admission), but you went through the red light. Anyway, I'm willing to settle this matter with you." Result:
NEITHER THE ADMISSION OR SETTLEMENT OFFER WILL BE ADMITTED

409 Payment of Medical and Similar Expenses: Rule, and is there severance?

Evidence of an offer to pay medical bills is inadmissible to prove liability of any injury
Ex: "Redaction Rule" same hypothetical as last card. This time defendant says, "I may have been driving a little too fast (admission), but you went through the red light. Anyway, I'm willing to pay your medical bills (409)." Result: THERE IS SERVANCE UNDER RULE 409, SO ADMISSION WILL COME IN WHEN COMBINED WITH OFFERS TO PAY MEDICAL BILLS

Inadmissibiliity of Pleas, Plea Discussions, and Related Statements 410: Rule, when does it apply, and when it doesn't apply.

A PLEA AND ANY STATEMENT MADE DURING PLEA NEGOTIATIONS BY A D, IN A CIVIL OR CRIMINAL PROCEEDING, WILL BE INADMISSIBLE AGAINST THE D IN A LATER PROCEEDING
Applies: 1. pleas of guilty later withdrawn 2. pleas of nolo contendere 3. offers to plea guilty
Doesn't Apply: 1. statements made to police

Liability Insurance Rule 411: Rule, severance,

Evidence that a person was not insured is inadmissible to prove negligence or fault
Ex: Following an accident, defendant says, "It was my fault (admission), but don't worry, I have plenty of insurance." Result: YES YOU CAN SEVERE. IT WAS MY FAULT WOULD BE ADMITTED

Is there an exception to Rule 411 concerning insurance against liability?

Evidence of insurance against liability may be admitted for another purpose, such as: PROOF OF AGENCY, OWNERSHIP OR CONTROL, BIAS OR PREJUDICE OF A WITNESS

Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition (Rule 412) Rape Shield Law:

IN ANY CIVIL OR CRIMINAL PROCEEDING INVOLVING ALLEGED SEXUAL MISCONDUCT, EVIDENCE OFFERED TO SHOW THE ALLEGED VICTIMS SEXUAL BEHAVIOR, PREDISPOSTION, AND HISTORY IS EXCLUDED. REPUTATION AND OPINION EVIDENCE IS INADMISSIBLE

Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition (Rule 412) When is evidence admissible? and what constitutes sexual behavior?

Evidence will not be admissible unless: 1.) notice is given to the opposing party, 2.) unless evidence is reviewed in chambers, and 3) unless evidence alleges sexual misconduct
S.B: actual sexual/physical conduct, contraceptives, fantasies, etc.

Under 412, in what 3 cases are specific acts admissible?

1. past acts with D which tend to show consent, 2. past acts with other men, to show the D was not the source of the semen, and 3. evidence is permitted if exclusion would violate any constitutional right of the D

In civil cases, how might evidence offered to prove the sexual behavior or predisposition of any alleged victim be admissible?

absent any other reason of admissibility, there will be a balancing test to see if the probative value substantially outweighs the harm to the victim or the danger of unfair prejudice to any party

Rule 413-415 How are specific acts treated in criminal and civil child molestation cases? What are the two limitations?

SPECIFIC ACTS BY THE D ARE ADMISSIBLE AND THEY MAYBE CONSIDERED AS THEY BARE ON ANY RELEVANT MATTER. A prior conviction is not required. Merely needs to meet the preponderance of the evidence
Limitation: 1. subject to judges discretion, and 2. D gets notice

Privilege Generally (Rule 501) - what law governs privileges and why?

ONLY COMMON LAW PRIVILEGES ARE RECOGNIZED AS INTERPRETED BY THE FEDERAL COURTS. THE FED RULES OF EVIDENCE DO NOT CONTAIN A LIST OF RECOGNIZED PRIVILEGES DUE TO DISAGREEMENT IN CONGRESS. Governed by common law, subject to superseding state law.

How are privileges handled differently in civil cases, compared to federal question cases and criminal cases?

Civil: this would be diversity actions, the privilege of a witness is determined by state law
In Federal Question cases and criminal cases: the privilege of a witness is determined by common law.

Privilege under Common Law:

Except as otherwise provided by the constitution or statute or by these or other rules promulgated by the state, no person has a privilege to: 1) refuse to be a witness 2) refuse to disclose any matter 3) refuse to produce an object or writing

What are the 4 Confidential Communication Privileges recognized in federal court and all 50 states?

Husband/wife, Attorney/Client, Psychotherapist/Patient, Clergy/Penitent

6 Key Privilege Issues:

1. was there a protected relationship 2. was there communication 3. is it confidential 4. who is the holder of the privilege 5. has there been a waiver of the privilege 6. exceptions

Lawyer/Client: who is the holder of the privilege and what does it mean?

CLIENT IS THE HOLDER, AND MAY REFUSE TO DISCLOSE CONFIDENTIAL COMMUNICATIONS MADE FOR THE PURPOSE FOR SEEKING PROFESSIONAL LEGAL ADVICE OR SERVICES. THE CLIENT MAY PREVENT OTHERS FROM DISCLOSING THAT INFORMATION ALSO

What constitutes confidential communications?

oral and written Communications are privileged, observations are not
Pre-existing document not privileged, work product is

3 types of 3rd Parties that wouldn't waive confidentiality under the Lawyer/Client Privilege:

Essential 3rd Parties: SOMEONE WHO IS FURTHERING SOME PURPOSE OF THE RELATIONSHIP.
Attorney Representatives: peo hired by attorney to assist (accountant, investigator, doctor, etc)
Eavesdroppers: as long as they are unknown

How is a client?

ANY PERSON WHO IS SEEKING PROFESSSIONAL LEGAL SERVICES, OR CONSULTING WITH A POSSIBILITY OF OBTAINING SUCH LEGAL SERVICES

How might one Waive the privilege Rule 502"

Not asserting the privilege in a timely manner.
But a waiver generally operates as a partial waiver. The privilege is waived only to the extent to permit reasonable scrutiny by the opposing party.
Total waiver occurs only if waiver was intentional and disclosed and undisclosed info concerns the same subject matter

What must a client do if he has inadvertently waived his privilege?

1. the client must not have intended to do so, 2. take reasonable steps to protect info, and 3. take timely steps to remedy the waiver

what the client/attorney privilege wont protect:

1. future crime or fraud, 2. suits b/t attorney and client, 3. Joint Client Exception: two clients hire the same attorney, there earlier communications are no longer privileged

Are fee arrangements and client identity privileged?

NO

Duration of the Privilege:

Beyond client's death

Physician/Patient Privilege: How do the 50 states view this and who does it apply to, who doesn't it apply to?

All 50 states have a privilege (Jackie v. Redman) it extends to license social workers, psychologists, mental health specialist, psychiatrist, marriage counselors. IT DOES NOT APPLY TO EDUCATIONAL AND VOCATIONAL COUNSELORS

Exceptions to the Physician/Patient Privilege:

1. statements made reguarding commitment proceedings 2. statements dealing with court ordered examinations 3. when medical condition is part of the claim 4. future crime or fraud

Husband/Wife Privilege

PROTECTS ALL COMMUNICATIONS REGUARDLESS OF CONFIDENTIALITY BOTH DURING AND BEFORE MARRIAGE. INCLUDES TESTIMONY, IMPERSSIONS, AND OBSERVATIONS

Key Characteristics of Spousal Privilege

(i) This is much broader than the marital communications privilege.
(ii) Under this rule, a testifying spouse may refuse to testify against her spouse.
(iii) It only applies in the following circumstances:
a) IN CRIMINAL CASES
b) AND BOTH DURING AND BEFORE MARRIAGE, BUT DIVORCE WIPES OUT PRIVILEGE

Exceptions to Spousal Privilege

1. suits b/t the spouses
2. suits involving a child of either spouse

Marital Communications Privilege (MCP) Key Points:

(a) The privilege can be asserted by
(i) EITHER SPOUSE
(b) The privilege applies in: BOTH CIVIL AND CRIMINAL CASES
(c) It only protects particular kinds of communications:
(i) CONFIDENTIAL COMMUNICATIONS, CONDUCT INTENDED BY THE PARTIES TO BE CONFIDENTIAL PROTECTED ONLY DURING MARRIAGE, BUT DIVORCE HAS NO EFFECT ON THOSE COMMUNICATIONS MADE DURING THE MARRIAGE
(ii) COMMUNICATIONS IN FRONT OF RELATIVES OR OLDER CHILDREN ARE NOT PROTECTED
(iii) MAJORITY: OBSERVATIONS ARE NOT PROTECTED

Exceptions to the Marital Communication Privilege:

1. crimes committed by one spouse against the other or against children
2. divorce proceedings
3. Joint participant exception: HUSBAND IS CHARGED WITH TAX FRAUD BUT THE WIFE ASSISTED HIM. SHE MAYBE COMPELLED TO TESTIFY AS TO ANY CONFIDENTIAL INFO ABOUT THIS

Religious Privilege:

PROTECTS CONFIDENTIAL COMMUNICATIONS FROM PENITENT TO CLERGYMAN IN HIS CAPACITY AS SPIRITUAL ADVISOR. Either might assert the privilege b/c both are holders

Political Vote

Every person has a privilege to refuse to disclose his vote, unless compelled by state election laws.

Trade Secrets

A person has a privilege to refuse to disclose any trade secret he owns or to prevent others from disclosing such information unless concealment will create fraud or injustice.

Secrets of State and Other Official Info

(1) A secret of state is a government secret relating to national security or international relations.
(2) The privilege applies to intergovernmental opinions and policy decisions, investigatory files, and other government materials.

Identity of Informer (Fed and State Govt. v. the Press)

(1) Both the U.S. and the individual states have a privilege to refuse to disclose the identity of a person funneling information vital and relevant to law enforcement.
(2) Only the government can assert this privilege, not THE PRESS .
(3) MBE note: STATES WEN THE OTHER WAY HAVE SHEILD LAWS

Executive Privilege

president has Rite to refuse to disclose matters of national security. Exception: showing of special need

5th Amendment Privilege Against self-incrimination

This privilege applies only to: EVIDENCE THAT IS TESTIMONIAL IN NATURE. TANGIBLE EVIDENCE IS NOT PROTECTED
(b) Presentation of real and demonstrative forms of evidence are not protected. Ex: BLOOD, HAIR, OR HAND WRITING SAMPLES, LINEUPS, PHOTO IDS, FINGER PRINTS, ETC

How mite one Waive a Privilege?

(1) WAIVER CAN OCCUR EXPRESSLY WHENEVER THE HOLDER VOLUNTARILY DISCLOSES THE INFO
(2) OR IT CAN OCCUR IMPLIABILY BY FAILURE TO TIMELY OBJECT TO TESTIMONY

Can the opposing party comment on one choosing to take the 5th?

Criminal: No, no adverse interest may be drawn for failure to take the stand
Civil: yes... ex: In a custody case, if an attorney asked a parent whether she sold heroin, the parent could assert the Fifth Amendment privilege. However, the opposing party could then draw attention to the fact that the privilege had been asserted with regard to the question of heroin selling.

General rule of competency 601

Every person is competent to be a witness. Special witnesses are: children, insane witness, an attorney, an alcoholic/addict
But judge can't testify

Dead Man's Statute

there is no federal dead man statute, but it disables any witness from testifying about a transaction involving a decedent (you can still be tested on it. b/c if state has such a statute the Fed. Court will apply it under Erie Doctrine)

Lack of Personal Knowledge 602

A WITNESS CAN ONLY TESTIFY TO MATTERS ABOUT WHICH HE HAS PERSONAL KNOWLEDGE
lay witness: must have personal knowledge
Expert witness doesn't need it

Oath or Affirmation 603

A WITNESS MUST DECLARE TO TESTIFY TRUTHFULLY EITHER ABOUT OATH OR AFFIRMATION IN A FORM A TO AWAKEN THE CONSCIOUS. if he doesn't, judge wont allow testimony

Interpreters 604

QUALIFIED THE SAME WAY AS AN EXPERT WITNESS, MUST TAKE AN OATH OR AFFIRMATION

Inquiry into the validity of a verdict or indictment [Rule 606(b)

(1) A juror may not testify as to the manner in which the jury reached its decision. Affidavits by jurors are also excluded.
(2) This Rule includes:
(a) ANY STATEMENTS MADE DURING DELIBERATIONS
(b) IT CANNOT INCLUDE THE THOUGHT PROCESSES OF THE JURY
(c) VOTES TAKEN TO REACH THE VERDICT
d. Examples where a juror's testimony will be excluded:
(1) A JUROR MISUNDERSTOOD THE EVIDENCE OR INSTRUCTIONS
(2) THE JURY REACHED ITS VERDICT IMPROPERLY
(3) JURORS DRANK ALCOHOL AND SMOKED MARIJUANA DURING
DELIBERATIONS
(4) ONE JUROR PHYSICALLY BULLIED ANOTHER TO WIN VOTE
(5) ONE JUROR FEEL ASLEEP

A juror may testify as to:

1) extranious prejudicial information improperly brought to the jurors attention
2) whether any outside influence was improperly brought to bare on any juror
3) any clerical or secretarial error

Examples where a juror's affidavit will be admitted:

(1) A juror may be questioned regarding whether or not someone brought in a newspaper article about the case.
(2) A JUROR MADE AN AUTHORIZED VISIT TO THE SCENE
(3) A JUROR ACCEPTED A BRIBE
(4) A JUROR CONDUCTED HIS OWN OUT OF COURT EXPERIMENTS
(5) THREATS OF HARM THAT ARE MADE AGAINST THE JURORS FAMILY
(6) COMMUNICATION BY THE JUROR WITH COURT PERSONALE
(7) A JUROR BROUGHT A BIBLE INTO THE COURTROOM READING PASSAGES SUGGESTING GUILT

Who may impeach 607?

The credibility of a witness may be attacked by any party, including the party calling him.
e.g., where the witness' testimony _SURPRISES and DAMAGES the examining party.

Collateral Matter Rule:

EXTRINSIC EVIDENCE ON COLLATERAL MATTERS IS INADMISSIBLE TO IMPEACH. GENERALLY APPLIES TO BAD ACT IMPEACHMENT AND PRIOR INCONSISTENT STATEMENTS.

Extrinsic v. Intrinsic:

INTRINSIC: ANY QUESTION FROM ANSWERED BY THE WITNESS ON THE STAND. ALL OTHER EVIDENCE IS EXTRINSIC.

Methods of Impeachment

1. bias (always admissible)
2. Sensory defects (can't observe, communicate, hear, remember, etc) this evidence is always material, never collateral
3. Prior inconsistent statements 613
4. Character (a. reputation/opinion, b. bad acts, c. felony convictions, d. convictions involving dishonesty

Character and Conduct of Witness Rule 608

A witness' character for UNTRUTHFULNESS is always material and may be attacked by using REPUTATION OR OPINION evidence.
(1) Either party may call a witness in both civil and criminal cases.
(2) Example: Plaintiff testifies on direct. Defendant then calls an extrinsic witness to testify, "Plaintiff has a bad reputation in the community for truthfulness."
(3) A witness' character for TRUTHFULNESS can be shown by REPUTATION OR OPINION evidence only if the witness' credibility for truthfulness has first been attacked.

Rule 608(b) - Bad Act Impeachment:

Specific instances of the conduct of any testifying witness that are probative for their truthfulness are admissible for attacking or supporting the witness' credibility.
1. Must be a question 2. On cross 3. and inquires into prior unconvicted acts that bare untruthfulness or truthfulness

Limitations on Bad Act Impeachment:

(a) MUST BE PROBATIVE OF TRUTHFULNESS
(b) ASKED IN GOOD FAITH
(c) BAD ACTS CAN'T BE TOO REMOTE IN TIME
(d) ONLY QUESTIONS OF FACT ARE ALLOWED
(e) JUDGE HAS DISCRETION TO EXCLUDE

What happens if the witness lies about the specific instance?

Extrinsic evidence is inadmissible to prove the prior dishonest act... the examiner is bound by the witnesses answer

Impeaching Witness or Defendant w/ Felony Conviction 609a1:

Witness: A felony conviction is subject to the Rule 403 balancing test (i.e., excluded if the probative value is substantially outweighed by unfair prejudice).
Defendant: the conviction will be admitted if the prosecution shows the probative value outweighs the prejudicial effect.

Impeachment with Crime Involving Dishonesty 609a2

Crimes involving dishonesty or false statement include both felonies and misdemeanors.
THIS TYPE OF CONVICTION IS ADMISSIBLE AS A RIGHT as long as IT IF NO MORE THAN 10 YEARS OLD

609b 10 year rule:

CONVICTIONS MORE THAN 10 YRS OLD ARE INDAMISSIBLE TO IMPEACH UNLESS THE PROBATIVE VALUE SUBSTANTIALLY OUTWEIGHS THE PREJUDICIAL AFFECT, AND NOTICE MUST BE GIVEN TO OPPOSING PARTY. the 10 year limit is either based on the conviction date, or release from confinement date

Juvenile Adjudications against Witness and Defendant:

inadmissible against he accused, but subject to the court's discretion for all other witnesses. Judge must make sure its NECESSARY for the interest of justice, and NOTICE must be given to opposing party

Is a conviction under appeal admissible?

yes, but the fact that its under appeal is also admissible

Religious Beliefs or Opinions:

a witness's religious beliefs are inadmissible to impare or enhance credibility

Mode and Order of Interrogation and Prosecution (Rule 611a)

THE JUDGE SHALL CONTROL THE EXAMINATION OF WITNESSES AND PRESENATION OF EVIDENCE TO AFFECTIVELY ASCERTAIN THE TRUTH AND PREVENT THE HARRASSMENT OF WITNESSES

5 circumstances where leading questions might be appropriate on direct

1. hostile or adverse witnesses 2. child witnesses 3. to gain preliminary background info 4. refresh recollection 5. on cross-examination

Writing used to Refresh Memory Rule 612 (4 key points)

1. proponent may not introduce the writing as evidence 2) hearsay nor best evidence rule apply 3) authentication is not required 4) writing, photo, further questioning, or other form of evidence will suffice

What may adverse party do with writing to refresh?

inspect it, cross with it, can show writing to jury for comparison, introduce relevant portions into evidence

Steps to refresh:

1. Give a copy to the judge, opposing counsel 2. mark it as an exhibit 3. hand to witness to silently read 4. take it back 5. ask him to testify independently of writing

Where privileged material is used to refresh, what will the court rule?

The court will rule a waiver has occured and allow the adverse party to inspect.

Prior Statement of Witness 613

Under this rule, a prior inconsistent statement (PINS) is not "sworn" and is admissible only to impeach.

613 and Prior Inconsistent Statements

PINS may be ORAL OR WRITTEN, ITS CONTENTS NEED NOT BE SHOWN TO THE WITNESS AT THE TIME, BUT ON REQUEST CONTENTS MUST BE SHOWN TO OPPOSING COUNSEL.

613 Foundation Requirement for PINS

Extrinsic evidence of a prior inconsistent statement by a witness may be admissible provided the witness is AFFORDED AN OPPORTUNITY TO EXPLAIN OR DENY THE EVIDENCE. THE FOUNDATION JUST NEEDS TO BE LAID AT SOME POINT. UNLESS THE INTEREST OF JUSTICE REQUIRES OTHERWISE

613 If the witness denies making the PINS:

Extrinsic evidence could come in

613 If the witness admits making the PINS

Extrinsic evidence is inadmissible but the witness much explain the answer

613 If the PINS relates to a collateral matter

Extrinsic evidence is inadmissible and examiner is bound by answer

613 If the PIN was not given under oath

it may only be used for impeachment

613 However, a prior inconsistent statement can be offered substantively in 3 cases:

(a)IF A PARTY MAKES THE INCONSISTENT STATEMENT (ADMISSION)
(b) IF IT IS SWORN PRIOR INCONSISTENT STATEMENT
(c) IF PIN IS CONTAINED IN AN HEARSAY EXCEPTION (SOMETHING ABOUT OFFERING IT AS A BUSINESS RECORD)

613 Can a party call a witness solely to impeach that witness with a PIN?

NO

614 Calling and Interrogation of Witness by the Court: How may the court call a witness and whats the outcome?

COURT/JUDGE ON ITS OWN MOTION MAY CALL WITNESSES AND ALL PARTIES MAY EXAMINE ALL WITNESSES CALLED BY THEY COURT. Court may also interrogate any witness called by a party.

615 Exclusion of Witnesses: Rule?

AT THE REQUEST OF A PARTY THE COURT SHALL ORDER WITNESSES EXCLUDED SO THAT THEY CAN NOT HEAR TESTIMONY OF OTHER WITNESSES. PURPOSE IS TO PREVENT FABRICATION, PROTECT CHILD WITNESS

615 Doesn't authorize exclusion of:

1. a party/party representative 2. a person whose presence is deemed essential 3. Most Recent Exam: An attorney can't be excluded 4. or any person exempted by statute

615 Whats the remedy for violation of 615?

MISTRIAL, OR TO HOLD THE WITNESS IN CONTEMPT, BUT THE COMPLAING PARTY MUST SHOW MORE THAN HARMLESS ERROR

701 Opinion Testimony of a lay witness

If the witness is not testifying as an expert, any testimony he gives that is an opinion or an inference must be:
(1) RATIONALLY BASED ON THE PRECEPTION OF THE WITNESS (a) The testimony must be based on personal knowledge.
(2) MUST BE HELPFUL

What is the acronym for the proper scope (examples) of non-expert opinion? and list the examples

VEMPSS
Value of a person's own land, Emotional state for others, Measurements (speed of a vehicle), Physical states (testify to height, intoxication), Sensory descriptions (smell, color, taste, sound) Sanity of a testator

What would be an improper scope of lay witness opinion?

Opinions stated in conclusory terms are not appropriate.
EXAMPLE: THE PLAINTIFF WAS CONTRIBUTORIALY NEGLIGENT, A CONTRACT EXISTED, THE DEF ASSUALTED THE VICTIM
(1) Legal conclusions must be avoided. CAN'T TESTIFY THAT SOMEONE IS AN ADDICT, ALCHOLIC, ETC

702 Expert Testimony: what are the requirements? whats the acronym? and how are these qualifications determined?

SKEET
Special Skills, Knowledge, Education, Experience, Training.
The judge determines qualifications by POTE (Rule 104).

Can the opposing party question the expert?

yes, THE OPPOSING PARTY MAY VOIR DIRE THE EXPERT OUTSIDE THE PRESENCE OF THE JURY

Can experts speculate?

NO

What are the appropriate subject matters for calling an expert?

1.scientific 2. technical 3. or other specialized knowledge

The expert opinion must be: (3 things)

HELPFUL, RELEVANT, AND RELIABLE

What are the 4 methods to determine whether the opinions are based on the reliability of scientific tests?

1) other expert testimony 2) Stipulation - parties can stipulate that they will allow a polygraph 3) judicial notice 4) general acceptance in a community

How to determine the reliability of scientific tests?

Reliability of Scientific Tests - The trial court acts as a "gatekeeper".
The MBE follows Daubert v. Merrill Dow (1993). Mnemonic TAPE
Daubert factors include:
(1) T TESTING
(2) A ACCEPTANCE
(3) P PEER REVIEW
(4) E ERROR - THEY LOOK AT THE DEGREE OF ERROR

703 Basis of Opinion Testimony for Experts: What are the three?

Personal Knowledge at or before trial, Facts presented to the expert at trial (hypothetical questions), Facts presented to the expert outside of court (reports from other people)

Reasonable Reliance Rule:

these out-of-court facts must be of the type reasonably rlied upon by other experts in the particular field and include: (a)ASSUMED FACTS
(b) FACTS NOT IN EVIDENCE
(c) INADMISSIBLE HEARSAY
EXAMPLE:
An arson expert might rely on conversations with other people, including firefighters, as the basis for his testimony. This would typically be hearsay.

703 Balancing Test

a. Underlying data that is otherwise inadmissible at trial cannot be revealed unless
(1) the proponent shows the probative value of the evidence substantially outweighs its prejudicial effect (a) A limiting instruction may be required (FRE 105).
(2) USED WHENEVER THE EXPERT OPINON DEALS WITH FACTS OR DATA THAT CONSIST OF OTHERWISE INADMISSIBLE HEARSAY
(3) burden is on proponent
703 BALANCING TEST FAVORS EXCLUSION NOT ADMITED UNLESS EXPERT CAN SHOW IT OUTWEIGHS. OPPOSITE 403

704 Opinion on Ultimate Issue and Experts:

GENERALLY AN EXPERT MAY GIVE AN OPINION OR INFERANCE WHICH EMBRACES AN ULTIMATE ISSUE

Examples you mite see where expert give opinion on ultimate issue: also, what they can't give an opinion on:

1) EXPERT CAN TESTIFY TO CAUSE OF ACCIDENT, ILLNESS, CAUSE OF DEATH
2)WHETHER A PRODUCT IS UNREASONABLY DANGEROUS OR DEFECTIVE
3)WHETHER A DOCUMENT IS FORGED
4)WHETHER D IS INSANE OR NOT
5)STANDARD OF CARE IN A MALPRACTICE ACTION
6) OUTCOME OF A DNA TEST IN PATERNITY SUIT
Examples (impermissible): 1) CAN'T TESTIFY THAT SOMEONE WAS CONTRIBUTORILY NEGLIGENT, D INTENDED TO SELL DRUGS, ETC. 2) legal conclusions regarding content of law

704(b) Limitation on Expert Opinion and Ultimate Issue:

AN EXPERT MAY NOT GIVE AN OPINION AS TO WHETHER DEFENDANT DID OR DID NOT POSSESS THE MENTAL STATE WHICH CONSTITUTE AN ELEMENT OF THE CRIME CHARGED
EXAMPLE (Improper expert opinion):
Defendant is charged with possession of narcotics with intent to distribute. An expert witness may not give an opinion on the ultimate issue that defendant "intended to distribute" narcotics.

Proper Expert Opinion concerning an Ultimate Issue:

(1)CIVIL (TESTATOR WAS IN SOUND MIND AND KNEW THE NATURAL OBJECTS OF HER BOUNTY)
(2)CAN GIVE OPINION TO MENTAL STATE

Disclosure of Facts or Data Underlying Expert Opinion 705

1. An expert may testify and give reasons without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may, however, be required to disclose these facts on cross-examination.
2. This rule serves to avoid using an expert as a conduit for inadmissible evidence and helps to limit the use of hypothetical questions.

Court-Appointed Experts 706

1. The court may, on its own, or at the request of either party, MAY appoint expert witnesses.
2. An appointed expert witness must ADVISE THE PARTIES OF HIS FINDINGS
and must ALLOW EITHER PARTY TO DIPOSE HIM. An appointed expert may BE CALLED TO TESTIFY and BE CROSSED by either party.

801 Hearsay: Rule and the 3 types of Assertion

AN OUT OF COURT STATEMENT OTHER THAN ONE MADE BY THE DECLARANT MADE WHILE TESTIFYING AT TRIAL OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED
1) an oral 2) written 3) or conduct intended to be, an assertion

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