MBE Evidence

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  1. lay witness
    may only testify to matters which he has personal knowledge of
  2. Non hearsay
    prior sworn statements

    prior consistent statements

    prior out of court identification by witness at trial

    admissions by party

    adoptive admissions

    vicarious admissions
  3. specific acts
    may be admitted to show character if character is an essential element of a charge, claim, or defense
  4. offer to settle (& any statements/conduct accompanying)
    not admissible to prove liability or amount of claim if disputed as to liability or amount
  5. criminal case exceptions for admitting evidence of prior sexual conduct
    to prove specific instances of sexual behavior by the alleged victim, if offered to prove that a person other than the accussed was source of physical evidence

    to prove specific instances of sexual behavior by alleged victim with person accussed; if offered by accussed to prove consent or by prosecution

    if exclusion of evidence would violate def's const. rights
  6. relevant evidence
    evidence tending to make the existence of any fact more probable or less probable than it would be without the evidence
  7. spousal testimony privilege
    right of either spouse in criminal cases to prohibit testimony by the other

    • ***all communications before & during
    • divorce destroys
  8. habit evidence
    of a person, or routine practice of an org is admissible to show conduct on particular occassion was in conformity with
  9. parol evidence rule
    once the parties have reduced their agreement to a writing, evidence of any prior oral or written or contemporaneous oral agreements is inadmissible to alter, vary, or contradict the writing
  10. doctrine of completeness (FRE 106)
    when one party introduces part of a writing, the other party may introduce any other admissible part of the document (does not trump the hearsay rule)
  11. prior inconsistent statements
    admissible substantively in 3 cases:

    • 1. if sworn under FRE 801(D)(1)
    • 2. as an admission
    • 3. if hearsay exception applies
  12. federal court privileges
    • atty-client
    • spousal (testimony privilege & confidential communication privilege)
    • clergy
    • psychotherapist-patient
  13. admissibility of felony convictions
    may admit (recent convictions)-if impeaching party 1st shows probative value outweighs prejudicial effect

    must-unless objecting party shows prejudicial effect of impeachment substantively outweighs the probative value of evidence
  14. admissible convictions (dishonesty/false statement)
    (must admit) convictions of dishonesty or false statements against any witness, as long as the conviction is within 10 yrs, so long as the conviction satisfies 403 balancing test

    (may) if older than 10 yrs, only if its determined probative value outweighs prejudicial effect
  15. offer/promise to pay medical expenses
    not admissible to prove liability for injury

    BUT admissions made in connection w/can be severed & admitted
  16. defencse of insanity burdens
    burden of production: def must 1st present "some evidence" of insanity @ time of the offense

    • burden of persuasion:
    • fed crts: def must prove insanity by clear & convincing

    • State crts: split
    • def must prove insanity by preponderance (MPC) or
    • prosecution must prove sanity beyond reasonable doubt
  17. evidence of prior conduct (sexual misconduct case)
    (civil or criminal) evidence generally inadmissible to show that an alleged victim engaged in other sexual behavior or any alleged victim's sexual predisposition
  18. spousal communications privilege
    protects confidential communications made during a legally valid marriage

    • applies only during marriage
    • divorce does not effect (civil & criminal)
  19. character evidence general rule
    evidence of a person's character is inadmissible to prove that they acted in conformity with that character
  20. MIMIC evidence
    in a criminal case, prosecution may introduce circumstantial evidence of other crimes, wrongs, or acts for very narrow purpose of proving:

    • motive
    • opportunity
    • intent
    • preparation
    • plan
    • knowledge
    • identity
    • absence of mistake
    • accident
  21. subsequent remedial measures
    inadmissible to prove: negligence, culpable conduct, defect in a product, defect in product's design, or a need for warning or instruction

    admissible to show: ownership, control, feasibility of precautionary measures, if controverted, or impeachment
  22. Hearsay exceptions
    party-party admission

    declarant unavailable: former testimony, forfeiture by wrong doing, statement against interest, dying declaration

    declarant is ANYONE: excited utterance, present sense impression, state of then-existing mental, emotional, or physical condition, statement for purpose of medical treatment or diagnosis, business & public records
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MBE Evidence
2011-11-19 22:42:47
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