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Comprehensive PMBR Evidence

Comprehensive PMBR Evidence

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Published by: api-3803061 on Oct 17, 2008
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01/08/2015

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PMBR CD #1

Most important area on the bar exam. It appears on both the MBE & essay portion of the
bar exam. It is one of the highly tested areas on the bar exam along with Contracts &
Evidence.

On the MBE:
a. For each call of the question, discussrelevancy.
b. Then discuss the issue: opinion, etc.

c. FRE & common law distinctions (where the common law differs from the federal rules); don\u2019t need to know any state law on the state essay portion. Multistate tests on the federal rules \u2013 certain areas where the federal rules are silent, however.

d. 70% of multistate: focus heavily on these areas:
i. Character evidence
ii. Impeachment
iii. Hearsay
II.
Generally\ue000 FREs:
a. Article I: General provisions: Rulings, Objections, and Admissibility or

Exclusion of Evidence
b. Article II: Judicial Notice
c. Article III: Presumptions
d. Article IV: Relevancy

i. Logical relevancy
ii. Legal relevancy
iii. Character relevance
e. Article V: Privileges
f. Article VI: Witnesses
i. Competency
ii. Impeachment
g. Article VII: Opinion
i. Lay opinion
ii. Expert opinion

h. Article VIII: Hearsay and Hearsay Exceptions
i. Article IX: Authentication and Identification
j. Article X: Contents of Writings

III.
Article I \u2013 Rulings on Evidence \u2013 Objections

a. FRE 103: Where a trial court admits evidence, a timely and specific
objection to the admission of such evidence, must be made to preserve the
issue for appeal,unless plain error (prejudicial error) is involved \u2013 not
harmless error.

i. Timeliness of objections: Objection should be made before the
witness answers.
11
Evidence
1. But where the need to object is not readily apparent, a
motion to strike would be proper.
ii. Objections \u2013 admissions of evidence at trial
iii. Offers of proof \u2013 exclusions of evidence

1. Where the trial court excludes evidence, no error on appeal
may be establishedunless an offer of proof was madeor
the reason was apparent from the context.

iv. Method of offer of proof:
1. Oral or written explanation
2. Question and answer format

b. Preliminary questions of admissibility:
i. Role of the judge and the jury

1. Preliminary questions of admissibility of evidence are to be
determined by the trial judge as a matter of law, including
such areas as: qualification of witnesses, existence of a

privilege, or unavailability.

a. Both affidavits and hearsay are allowed at this
point. Trial court is not bound by FRE in dealing
with preliminary questions of admissibility.

c. Weight and credibility of evidence:
i. Question of fact for the jury.
d.FRE 104 : Conditional relevancy

i. Where the relevancy of proffered evidence depends on the
existence of another fact, such evidence is admissible subject to
introduction of evidence sufficient to sustain a finding as to the
additional conditioned facts.

1. Conditional relevancy covers situation where the relevancy
of one fact is conditioned on the existence of another fact.

2. Example: Forgery case. The relevance of certain forged checks, purportedly written by D, would be conditioned upon evidence sufficient to sustain a finding as to the

authentication of D\u2019s handwriting.
e. Hearings on admissibility of evidence are done outside the presence of a
jury.
i.In a criminal case, hearings on the admissibility of confessions
must be conducted outside the hearing of the jury.
f. Testimony on a criminal D as to a preliminary issue does not constitute a
waiver of the 5th amendment privilege as to other issues.

g. FRE 105: Limited admissibility: upon request, the court may restrict the admissibility of evidence for allowing it for one party or for one purpose, but excluding it for another party or another purpose.

i. Ex: Evidence that a retailer received a letter from a customer
complaining about the sale of a defective sofa which caused injury
may be used to show notice or knowledge on the part of the D,
but it may not be used in proving negligence in a subsequent

22
lawsuit by a customer that purchased a similar sofa and suffered
similar injury.
h. FRE 106: Introduction of parts of a writing: Once a party introducespart
of a writing or a recorded statement, the adverse party may immediately
require the admission of any other part of that writing which in fairness
ought to be considered.
i. The adverse party may also elect to wait until cross-examination to
introduce parts of the writing.
ii.Or, the adverse party may wait until presentation of her ownd irect
presentation to admit parts of writings.
i. Conversations not covered under the federal rules.
i. Adverse party must wait until either cross examination or until her
own direct testimony to introduce other parts of a conversation.
j.Multistate : There is no rule of evidencerequiring that if part of a writing
is admitted, all other parts must be admitted.
i.Inadmissible because of the rule that requires writings to be
admitted in their entirety.(Classic wrong answer on the
multistate.)
IV.
Article II: Judicial Notice

a. Judicial notice is a substitute for proof whereby the court will accept
certain facts as true and thus dispense the need of formal presentation of
evidence. Court will do this based on accuracy and certainty. It\u2019s a
shortcut.

b. 2 kinds of facts that come under judicial notice:
i. Legislative facts
1. Those facts which haverelevance to legal reasoning and
the lawmaking process.
2. Ex: Whether a spouse is permitted to recover damages
against another spouse.
3. Not recognized under the federal rules of evidence.
ii. Adjudicative facts

1. Thoseunderlying facts involved in a particular case which
aid the factfinder in its adjudication (i.e., facts of the case
itself).

2. FRE 201(b) \u2013 defining judicially noticed facts: A
judicially noticed fact must be one that is not subject to
reasonable dispute because either: 1) it is generally known

within the territorial jurisdiction of the court;or, 2) it is capable of accurate and ready determination by resort to source that cannot be questioned.

3. Ex: A court in Los Angeles may take judicial notice of the fact that Wilshire Blvd. Runs east & west. But, a judge in Boston who has personal knowledge of this fact may not

take judicial notice.
4. Ex: The fact that Christmas Day 1985 was on a Wednesday,
or the time or sunset or sunrise on a certain day\ue000
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