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Evidence MBE

Evidence MBE

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Published by browerma
Notes on the Evidence portion of the MBE
Notes on the Evidence portion of the MBE

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Published by: browerma on Jun 20, 2011
Copyright:Attribution Non-commercial


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1. Approach for MBE Issuesa. Underline the Cause of Action (Civil or Criminal?) b. Situate the Proceeding (where are we in the proceeding? Party or Witness? If a Witness,what side?c. Determine the Purpose for which the evidence is offered.Character or Credibility? Substantive or impeachment?2. 3 Main Substantive Areasa. Character Evidence b. Impeachmentc. Hearsay3. Essay Tip First issue is always relevancy
B. The Federal Rules of Evidence
There are two ways rules come into being:
Codification of Rules from the common law
Rules passed by Congress Congress
The Federal Rules govern all civil and criminal trials and proceedings in federal courts, and alsoinclude: Bankruptcy and admiralty Cases4. Certain proceedings where the Rules do not apply include:
Preliminary Questions of act
Grand Jury Proceedings
Preliminary Hearings (except for hearsay exceptions)
Sentencing and Probation Hearings
Obtaining a Warrant
Stale Proceedings???
C. Rulings on Evidence (Rule 103)
(OL I.C)1. Sets forth the requirements for an Appellate Court to reverse a trial court’s decision. Where aruling _admits_____ evidence, a timely and specific objection must be made to preserve the issuefor appealIf the answer has already been heard, then a motion to strike is required
Effect of a general objection (i.e., “I object”) if overruled – The issue is not preserved for appeal
If the evidence is excluded, where a ruling _excludes___ evidence, an offer of proof is required
Unless the substance of the evidence was apparent from the context
When dealing with an offer of Proof, it is madeoutside the presence of the jury
Motions in Limine
are pretrial rulings on the admissibility of evidence
If the error is not prejudicial to the outcome, then the harmless error rule appliesError is harmless if the jury would have reached the same verdict even if the error did notoccur 
If no objection is made, the evidence will be admitted even if objectionable.
The only time a reversal will result from the admission of evidence despite an objection not being raised is when: there is “plain error.” A serious mistake that affects the outcome of the case.
D. Preliminary Facts (Rule 104(a)
(OL I.D) Preliminary Questions of Admissibility shall be determined by the court.1. Preliminary facts: (CAP Rule)1. Competency Witness QualificationsIs the lay witness qualified? Does he have proper knowledge? Is he helpful?Does the expert witness have special expertise that makes him helpful?Did the witness swear under oath?2. AdmissibilityJudge determines application of technical evidentiary rules such as whether or not ahearsay exception applies3. PrivilegeWhether or not a privilege existsEXAMPLE:Dying Declaration
The burden on the judge when determining admissibility of evidence:
Hearings on admissibility held outside the presence of the jury
Standard used: PotE (preponderance of the evidence)
Decisions are final and binding on the jury
A judge is not bound by the rules of evidence when determining preliminary facts exceptwith regard to privilege2. Conditional relevancy: FRE 104(b)Where admissibility of one item of evidence is conditioned on the relevancy of another itemof evidence, once that condition is met, the judge
admit the evidence
E. Limited Admissibility (Rule 105)
(OL I.E)1. If evidence is admitted as to one party or for one purpose, but is inadmissible as to another partyor for another purpose, the court, upon request,
restrict the evidence to its proper scope andinstruct the jury accordingly.
EXAMPLE:If a defendant is being impeached with his former convictions, we allow the jury to decidewhether it believes the defendant. The prior convictions are admissible to challenge defendant’scredibility, but not as substantive evidence of defendant’s guilt. The jury is not allowed to usethose prior convictions to determine the defendant’s criminal disposition.2. Counsel must request a limiting instruction.3. Related area: An accused may decide to testify on a preliminary matter without waiving his 5
 Amendment privilege against self-incrimination as to other subsequent issues. Cross-examinationis then limited to the scope of the preliminary issues.
F. Remainder of or Related Writings or Recorded Statements (Rule 106)
(OL I.F)
Rule of Completenessa. If one party introduces a writing or recorded statement, or part thereof, the adverse party mayrequire the introduction at that time of any other part or any other writing that ought, incomplete fairness, to be considered contemporaneously with it.(1) Purpose: To Prevent a party from misleading the jury about the content or writings or recorded statements by someone taking something out of context b. Caveat: Rule 106 N/A to conversations – only to writings Completeness rule will not applyto conversations – only writings or recorded statementsc. EXAMPLE:Police reports: plaintiff sues defendant for personal injuries after a car accident. Plaintiff offers officer’s testimony regarding his personal observation of skid marks to show defendantwas speeding. Defendant then wants to offer eyewitness statement to the police officer recorded in the police report that “plaintiff was crossing a red light at the time” (to show plaintiff was Contributorily Negligent). Defendant cites Rule 106 to admit the statement.Result: Hearsay rule will trump the completeness doctrineEXAMPLE:Prosecution offers defendant’s statement “I killed the victim.”Defendant’s attorney may now offer defendant’s later statement in the same confession, “Ikilled the victim in self-defense.”Result: Completeness rule would apply, statement would be admitted

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