Evidence MBE

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Evidence MBE
2011-06-16 01:05:17
bar exam

Evidence MBE
Show Answers:

  1. Proof of Utterances and Writings
    May be made w/ an almost infinite variety of other purposes, not resting for their value upon the veracity of the out of court declarant (ev is always admissible someway)
  2. Hearsay Exception: State of Mind
    Availability of Declarant Immaterial

    Only present mental attitude and physical condition
  3. Hearsay Exception: Former Testimony
    Declarant unavailable

    Testimony given @ another hearing or the same or diff proceeding or deposition (under oath etc...)
  4. Dead Man Statutes
    Prohibit claimants against estates from testifying about conversation or transactions w/ the deceased
  5. When is testimony about character admissible as substantive evidence?
    When character may be a material fact that, under substantive law determines rights and liabilities of the parties
  6. Police Reports
    General rule, statements in PR attributed to Ws or to prove conclusions of investigating officer are inadmissible
  7. Admission
    Words or acts of a party-opponent offered as evidence against him
  8. Best evidence rule
    When proving the terms of a writing, and the terms are material, the original writing must be produced unless it's shown to be unavailable for some reason other than serious fault of the proponent

    *Deeds, Ks, judgements, xrays
  9. Hearsay Exceptions: Availability of Declarant Imaterial

    • 1) Present sence impressions
    • 2) Excited utterances
    • 3) Then existing state of mind

    • 4) Medical diagnosis and Treatment
    • 5) Record Recollection

    • 6) Business Records
    • 7) Public Records
    • 8) Vital Statistics
    • 9) Family Record
    • 10) Learned treatises
  10. Hearsay Exceptions: Declarant Unavailable
    • 1) Former Testimony
    • 2)Dying Declaration
    • 3)Statement against interest
    • 4) Statement of Pedigree
  11. Hearsay Exception: Medical History
    Statements made for the purposes of medical diagnosis or treatment and describing medica history or past or present symptoms or the inception or general character of the cause are not excluded by the hearsay rule

    *Statements pointing to persons responsible for the codition are considered irrelevant and don't fall w/in the exception
  12. Settlement Negotiations
    Statements made during negotiations are not admissible (against public policy)

    *There must be an actual dispute
  13. Offer to pay medical expenses
    Admissions made are severed and admitted into evidence, the offer to pay medical expenses is not
  14. Character Evidence: 405
    In all cases in which evidence of character or a trait of a person is admissible, proof may be made by testimony as to reputation or opinion
  15. Character essential element of offense: 405(2)
    In cases which character of a person is an essential element, proof may also be made of specific instances of conduct
  16. Present Recollection Refreshed
    • Elements:
    • 1) Present recollection exhausted
    • 2) Refreshing done by: a) leading ?s, or 2) a writing
    • 3) W looks @ writing
    • 4) Writing can be introduced into evidence by opposing counsel for impeachment
  17. Present Recollection Recorded
    • Elements:
    • 1) Present recollection exhausted
    • 2) refreshing attempted and fails to job memory
    • 3) W looks @ writing (read into evidence)
    • 4) Writing NOT admitted into evidence unless offereed by opposing counsel substantively
  18. Duplicates:1003
    • A duplicate is admissible to the same extent as an original, UNLESS:
    • 1) a genuine question is raised as to the authenticity of the original (BER), or

    2) It would be unfair to admit the duplicates in lieu of the original
  19. Hearsay
    W proposes to testify in court as to what he said at another prior time out of court (W is quoting herself)
  20. Hearsay Exception: Then existing
    Availability of Declarant immaterial

    Testimony to W's then existing mental, emotional, or physical condition
  21. Prior Consistent Statements
    • Generally, unadmissible to support W's statement
    • *Exception: When W gets accused of "recent fabrication", it may be confirmed by proof of declarations of the same before motive to falsify existed (can be used to rehab a W's testimony when accused of bias)
  22. Who determines questions concerning the admissiblity of evidence?
    104(a): Determined by the court judge
  23. Specific instances: Attacking or supporting Credibility
    608(6): Other than conviction of a crime, may not be proved by extrinsic evidence
  24. Impeachment: 608
    • 1) Opinion or reputation (only truthfulness or untruthfulness)
    • 2) Specific instances , other than conviction, may not be proved w/ extrinsic evidence (may come in on cross if probative for truthfulness)
  25. Antient Documents
    Permits admissibility of statements in a document >20 years old, the authenticity of which has been established
  26. Attacking Credibility: Past convictions
    Evidence that D has been convicted of a crim shall be admitted only if the conviction involved dishonesty or false statements regardless of punishment (also felonies less than or equal to 10 years)
  27. Fraud Cases
    Character trait is honesty, not truthfulness
  28. Vicarious Admissions
    Statement offered against a part by his agent, w/in scope of employment, made during the existence of the employer-employee relationship
  29. Adoptive Admissions
    Statment is an adoptive admission if offered against a party and is a statement of which (the party) has manifested his adoption or belief in its truth under circumstances where a R person would deny the statement

    *Silence could be an admission
  30. Tacit Admission
    Admission via silence (usually adoptive)
  31. Collateral Matter Rule
    Contradictory evidence on collateral matters, non-material issues

    *Extrinsic evidence not allowed w/ collateral matters, intrinsic allowed
  32. Pedigree Exception
    Statement by unavailable declarant as to his own birth, adoption, or other fact of personal or family history
  33. Statement against interest
    • Declarant Unavailable
    • Statement of a non-party against the interest when made ($, prop, crim) such that a R person would not have made it unless he believed it to be true
  34. Dying Declaration
    Declarant Unavialble

    • *Homicide Only! or Civil
    • Statement made by declarant while believing that his death was imminent, concerning the cause or circumstances of what the declarant believed to be the declarants impeding death
  35. Confrontation Clause
    Bars admission of testimonial statements of W's who dont appear @ trial unless W is unavailable and D had prior opportunity to cross

    Test: Statements are non-testimonial when made in the course of police interrogation OBJECTIVELY indicating the purpose of interrogation is to enable the cops assistance to meet an ongoing emergency
  36. Public Records
    • Availability of Declarant Immaterial
    • Records in any form of public office or agency setting forth:
    • 1) the activities of the office
    • 2) matters observed pursuant to duty (crim= maters observed by cops and other LE personeel)
    • 3)In civil and against Gov in crim, factual findings resulting from investigation

  37. Absence of Entry in records of regularly conducted business activity
    Evidence that a matter is not included in the memo

    -To prove non-occurrence of a matter, if matter was a kind of which a memo/record was regularly made and preserved, unless source lacks trustworthiness
  38. Business Records
    The custodian or other qualified W states that it is the business practice to base the entry upon data supplied by one w/ personal knowledge made in the regular course of business, that was the regular practice to make the kind of entry in question

    Writing is admitted into evidence
  39. Character evidence in criminal cases
    Accussed may offer evidence of good character, but not specific instances and prosecution can rebut the same

    *D must first open the door for pros
  40. Specific instances of conduct
  41. Extrinsic Evidence
    Permitted to impeach a W by showing bias
  42. Preliminary Question of Fact
    Resolved in both crim and civil by using a preponderance of the evidence
  43. Difference between presumptions and inferences
    Presumption= you have to believe (disfavored in crim)

    Inferences= you can/may believe
  44. Marital Privilege
    Protects confidential communications between the spouses made during the marriage
  45. Spousal Privilege
    Prevents one spouse from testifying against another spouse in criminal cases

    -applies to premarital acts

    -W spouse is the holder of the privilege
  46. Attorney-Client Privilege
    Protects only the narrow right of a client to communicate confidentially w/ his lawyer about a legal problem

    *Billing records not protected
  47. Authorized Admission
    Includes statements of predecessors in interest during the time of ownership of land
  48. Preliminary Questions
    Pre lim questions are determined by the judge

    The judge also determines hearsay exceptions