Glossary of mbe evidence

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What is hearsay?
hearsay is a statement made by an out of court declarant offered in evidence to prove the truth of the matter asserted.
How do you approach an evidence essay question?
How to Answer an Evidence Essay Question

1) Form—issues concerning legal objections to questions and answers
-identify each item of evidence
2) Purpose—issues concerning logical and legal relevance, extrinsic policy exclusions, and character evidence.
Logical relevance: does this evidence tend to prove or disprove a material fact?
Legal or pragmatic relevance: will the evidence result in unfair prejudice, cofusin of the issues, misleading the jury or undue delay?
3) Presentation—involves witness requirements, document reliability, and judicial notice
Personal knowledge: is the evidence based on personal knowledge?
Lay Opinion
4) Hearsay and Privileges.
Hearsay evidence
How do you approach a relevance question?
Step 1: determine whether the evidence is relevant (tends to prove/disprove a material fact).
Step 2: if relevant determine whether the evidence should nonetheless be excluded based on (i)judicial discretion (probative value outweighed by prejudice), or (ii) public policy (insurance, subsequent repairs).
What is the general rule for relevance?
Genrally the evidence must relate to time, event, or person in controversy.

Exception Previous similar occurances may be relevant if they are probative of a material issue and probativeness outweighs risk of confusion or unfair prejudice
How do you determine admissibility of evidence?
1) Is the evidence RELEVANT?
2) Is there a proper FOUNDATION (authenticity, competency, reliability)
3) Is the evidence in the proper FORM? (questions properly phrased, answers ok for lay or expert opinion, docs comply with best evidence)
4) is the evidence beyond the application of or within an EXCLUSIONARY RULES? (too prejudicial--rul 403, policy based exclusions, privilege, hearsay, parol evidence)
Are withdrawn guilty please or offers to plead guilty admissible?
No. Withdrawn guilty please or offers to plead guilty are not admissible to prove liability for or invalidty of a claim that is disputed as to validity or amount.
What are characteristics of admissible subsequent remedial measures?
to prove ownership or control, to rebut a claim that precautions were impossible or to prove destruction of evidence.
When can character evidence be offered?
Character evidence may be offered as substantive rather than impeachment evidence to (i) prove character when it is the ultimate issue in the case or(ii) serve as circumstantial evidence of how a person probably acted.
Is character evidence generally admissible in a civil case?
No unless character is directly in issue (defamation).
How does defendant prove his character?
A witness for defendant may testify to defendant's good reputation for the trait in question and may give his personal opinion concerning that trait of defendant.
When are specific acts of misconduct admissible?
These acts are admissible to show: MIMIC
M-Mistake (absence of)
C-Common plan or scheme
What kind of facts are available for judicial notice?
Manifest and notorious facts.

indisputable facts that are either matters of common knowledge in the community (notorious facts) or capable of verification by resort to easily verifiable sources of unquestionable accuracy) manifest facts.
What are the requirements for real evidence to be admissible?
1) Authentication (unbroken chain of possession or testimony of a witness that she recognizes the object as what the proponent claims)
2) Condition of object (if it's significant it has to be in the same condition)
3) Balancing test--legal relevance (like inconvenience, undue prejudice)
What are the ways an ancient document might be authenticated?
1) it is at least 20 years old
2) it is in such condition as to be free from suspicion as to authenticity; and
3) was found in a place where such a writing would likely be kept
What is the best evidence rule?
To prove the terms of a writing (including a recording, photo or x-ray), the original writing must be produced if the terms of teh writing are material. Secondary evidence is admissible only if the original is unavailable.
When does the best evidence rule apply?
1) where the writing is a legally operative or dispositive instrument; or
2) the knowledge of a witness concerning a fact results from having read it in a statement.
Describe the parol evidence rule.
Prior or contemporaneous negotiations or agreements are merged into the written agreement and they are not admissible to vary the terms of the writing.
What are exceptions to the parol evidence rule?
1) incomplete or ambiguous contract
2) reformation of contract
3) challenge to validity of contract
Describe the dead man acts.
These provide that a party or person interested in the event is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased.
What are the requirements for witness competency?
1) witness must have personal knowledge of the matter about which he is to testify and
2) the witness must declare he will testify truthfully.
When are leading questions allowed?
1) on cross examination;
2) to elicit preliminary or introductory matter;
3) when the witness needs aid to respond because of loss of memory, immaturity, or physical or mental weakness; or
4) when the witness is hostile.
Describe the requirements for past recollection recorded-recorded recollection.
When the wtiness can't remember even after consulting a writing, the writing itself may be read into evidence if a proper foundation is laid. The foundation must include proof that:
1) the witness at one time had personal knowledge of the facts in the writing;
2) teh writing was made by the witness or under her direction, or it was adopted by the witness;
3)The writing was timely made when the matter was fresh in the witness's mind;
4) the writing is accurate; and
5) the witness has insufficient recollection to testify fully and accurately.
Can a witness be impeached by a crime?
Yes. felony or misdemeanor involving dishonesty or false statements.

Can also be impeached for felony not involving dishonesty but court has discretion to exclude if witness impeached is a criminal defendant and presuction has not shown more probative than prejudicial or the court determines too prejudicial.
Can a witness who has been impeached be brought back?
yes through rehabilitation, showing witnesses good reputation for truth, or showing the witness was not lying or exagerrating through a prior consistent statement (usually this isn't allowed).
What are the requirements for the physician-patient privilege?
1) A professional relationship exists;
2) The information is acquired while attending teh patient in the course of treatment; and
3) the information is necessary for treatment (nonmedical info is not privileged)
Describe Spousal Immunity.
One spouse cannot be compelled to testify against the other spouse in any criminal proceeding.

The privilege can be claimed only during marriage, but covers information learned before and during the marriage.

Only the witness spouse may invoke spousal immunity. (cannot be compelled but may choose). In most state courts, the privilege belongs to party-spouse.
Describe the privilege for marital communication
Communications made in reliance upon the intimacy of the marital relationship are privileged. The privilege applies in both civil and criminal cases.

Both spouses have privilege not to disclose and to prevent the other from disclosing a confidential marital communication.

The privilege survives the marriage, but covers only statements made during marriage.
Is there a constitutional right for a professional journalist to protect his source of information?
No. any privilege must be based on statute law.
What is the definition of hearsay?
Hearsay is an out of court statement offered into evidence to prove the truth of the matter asserted.
What are examples of non-hearsay?
1) verbal acts or legally operative facts (words of contract, defamatory words)
2)statements offered to show their effect on the hearer or reader; and
3) statements offered as circumstantial evidence of declarant's state of mind.
When are prior statements by a witness not hearsay?
Prior statemetns by a witness are not hearsay if:
1) the prior statement is inconsistent with the declarant's in-court testimony and was given under oath at a prior proceeding;
2) the prior statemetn is consistent with the declarant's in-court testimony and is offered to rebut a charge that the witness is lyiing or exaggering because of some other motive; or
3) the prior statement is one of identification of a person made after perceiving him.
Are admission of a party opponent hearsay?
No. They also do not need to be against interst when made and admission may be predicated on hearsay.
Can silence be an admission?
Yes if
1) person heard and understood the statement
2) the party was physically and mentally capable of denying the statement; and
3) a reasonable person would have denied the accusation.

Silence in the face of accusation by police in a criminal case is almost never considered admission of the crime.
Are admissions of a party receivable against her co-parties?
Are an agent's statements concerning any matter in the scope of her agency while employment exists hearsay?
Are admissions of co-conspirators made to third parties in furtherance of the conspiracy admissible against co-conspirators?
yes. but only if there was an opportunity to cross-examine the hearsay declarant.
Describe the hearsay exception-->unavailability.
A declarant is unavailable if he:
1) is exempt because of privilege;
2) refuses to testify concerning the statement despite a court order;
3) testifies to lack of memory of the subject matter of the statement;
4) is unable to testify due to death or physical or mental illness; or
5) is absent (beyond the reach of the court's subpoena), and the proponent is unable to procure his attendance by reasonable means.
When is former testimony of a now-unavailable witness given at another hearing or deposition admissible?
1) the party against whom the testimony is offered was a party or in privity with a party in the former action;
2) the former action was about the same subject matter (cause of action doesn't need to be identical);
3) the testimony was given under oath; and
4) the party against whom the testimony is offered had an opportunity at the prior proceeding to develop the declarant's testimony.
Define hearsay exception: state of mind.
availability immaterial.
Statement of then-existing state of mind, emotion, sensation, or physical condition. (usually introduced to establish intent. Admissible when state of mind is a material issue or to show subsequent acts of declarant.)
Define hearsay exception: excited utterance.
availability immaterial.
statement made while under stress of excitement of startling event.
Define hearsay exception: former testimony.
Unavailability required.
Statement under oath at teh same or at another proceeding at which te party against whom it is offered had motive and opportunity to develop testimony.
Define hearsay exception: statement against interest.
Unavailability required. Statement against decelarant's pecuniary, proprietary, or penal interest when made.
Define hearsay exception: Dying declaration.
Unavailability required.
Statement made while the declarant believed death was imminent, concerning the cause or circumstances of the impending death.
Define hearsay exception: statement of personal or family history.
Unavailability required.

Statement of personal or family history made by family member or one intimately associated with the family.
Define hearsay exception: statement offered against party procuring declarant's unavailability.
Unavailability required.
Statement of unavailable declarant offered against party who procured declarant's unavailability.
Define hearsay exception: present sense impression.
availability immaterial.
statement made concurrently with perception of event described.
Define hearsay exception: medical diagnosis.
availability immaterial.
statement made to medical personnel for the purpose of diagnosis or treatment.
Define hearsay exception: recorded recollection.
availability immaterial.
writing by witness who cannot now remember the facts, made while the facts were fresh in her mind.
Define hearsay exception: bsuiness records or absence thereof.
availability immaterial.
writing made in the regular course of business, consisting of matters within the personal knowledge of one with a business duty to transmit. Lack of such writing may be used to show nonoccurrence of event.
Define hearsay exception: public records and reports of absence therof; records of vital statistics.
availability immaterial.
Records and reports of public agencies regarding their activities, and records of briths, deaths, marriages, etc. Absence of public record is admissible to show nonexistence of matter.
Define hearsay exception: judgments.
availability immaterial.
a copy of a judgment of a prior felony is admissible to prove any fact essential to the judgment. In a criminal case, it may be used for this purpose only against the accused.
Define hearsay exception: ancient documents.
availability immaterial.
documents 20 years old or more.
Define hearsay exception: documents affecting property interest.
availability immaterial.
statements in a document affecting an interest in a property (deed, will)
Define hearsay exception: learned treatise.
availability immaterial.
statements from authoritative works admitted if called to attention of expert witness and established as reliable authority.
Define hearsay exception: reputation.
availability immaterial.
reputation evidence concerning a person's character, a person's personal or family history, land boundaries, or a community's general history.
Define hearsay exception: family records.
availability immaterial.
statements of fact found in family bibles, jewelry engravings, tombstones, etc.
Define hearsay exception: market reports.
availability immaterial.
market reports and public compilations generally relied on by the public or persons of a particular occupation.
What are the requirements for the residual cat-call exception for a hearsay statement not covered by specific exceptions?
1) the hearsay statement must possess circumstantial guarantees of trustworthiness;
2) that the statement be strictly necessary; and
3) that notice be given to the adversary as to the nature of the statement.
list the 6 nonhearsay admissible out of court statements.
1) nonassertive conduct
2) statement not offered for its truth
3) prior inconsistent statement made under oath.
4) prior consistent statement offered to rebut charge that witness is lying or exagerrating.
5) prior statement of identification
6) admission of party opponent (including vicarious admissions).
What are the special considerations regarding presumptions in jury instructions?
The judge cannot instruct the jury that it must find a presumed fact against the accused. he must instruct them that they MAY regard the basic facts as sufficient evidence of the presumed fact.
Describe conclusive presumptions.
They cannot be rebutted and are really rules of substantive law.
What are the preliminary facts to be decided by the jury?
agency, authenticity of a document, credibility of a witness, and personal knowledge.
What are the preliminary facts to be decided by a judge?
facts affecting the competency of the evidence must be determined by the judge. Requirements for hearsay exceptions, privileges, and expert testimony as well as mental competence, must also be decided by the judge.
May an accused testify as to a preliminary matter without subjecting herself to testifying at trial?
may a judge comment on the weight of the evidence in federal courts? state courts?
yes in federal but not in state courts.

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