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EVIDENCE Presentation of Evidence


Under the FRE, what are the two elements of testimonial competence?

Knowledge). Under the FRE note further that the judge. FRE 603.1 The witness must have personal knowledge of the matter on which he will testify (FRE 602). not the jury. Competence. Observance. . Note that there are no mental requirements FOR competency. determines witness competence. by oath or affirmation. Test Tip: See if the witness has MOCK (Memory. and he must declare that he will testify truthfully.

EVIDENCE Presentation of Evidence 2 If evidence is admissible for one purpose.PassYourBar. is it admissible for any purpose? .

According to the doctrine of "limited admissibility. insurance to show ownership but not the ability to pay).2 No.." evidence can be admitted for one purpose without being admissible for some other purpose (e. .g. .EVIDENCE Presentation of Evidence What is the "Doctrine of Limited Admissibility"? 3 www.

.admissible to prove a common plan. EXAMPLE: Prior bad acts . but not admissible for some other purpose or against some other party. but not to prove "criminal character" – sometimes referred to as propensity evidence.3 It holds that evidence may be admissible for one purpose and against one party.

PassYourBar.EVIDENCE Presentation of Evidence What is "judicial notice"? 4 .

undoubtedly accurate sources.capable of positive verification through readily accessible. .subject to common knowledge in the community . Such facts include notorious facts .4 It is the court's recognition of a fact as true without requiring formal presentation of evidence. FRE 201(b).and manifest facts .

EVIDENCE Presentation of Evidence 5 At what stage of the trial must a judge take judicial notice of a fact. if he's going to do so at all? .

In fact.5 Trick question. that an appeals court must take judicial notice of any fact the trial court properly noticed. or that the trial court was obliged to notice. . Note. however." under FRE 201(f). "Judicial notice may be taken at any stage of the proceeding. judicial notice may first be taken at the appeals court level.

com .g. municipal. federal..PassYourBar. foreign) are generally subject to mandatory judicial notice? www.EVIDENCE Presentation of Evidence 6 What kinds of laws (e. state.

g.: If the law of a foreign state is to govern a transaction. federal and state laws (e. Congressional resolutions. but not state agency management and organization rules).. codes and rules of the federal and state governments. official regulations (e.B. Most courts may take judicial notice of municipal codes. but the court need not do so. the court cannot take judicial notice of it.g. N. public acts of Congress. treaties. it must be pleaded and proven as an issue of fact. the state's common law and federal case law). .6 For most courts.. constitutions. and foreign countries' laws.

EVIDENCE Presentation of Evidence 7 What's the difference between the burden of persuasion. and the burden of going forward (or the burden of production)? .PassYourBar.

like assumption of the risk or contributory negligence. The burden of going forward. The burden of persuasion does not shift throughout the trial. breach. causation. requires that a party introduce enough evidence on an issue such that a reasonable jury could infer the fact alleged. must prove a defense. and damages. plaintiff must prove duty. . if he so chooses. defendant.7 The burden of persuasion refers to the party's duty to produce sufficient evidence to convince the trier of fact that he should prevail. in a negligence suit. It shifts from plaintiff to defendant. on the other hand. Thus.

com .EVIDENCE Presentation of Evidence 8 What's the difference between the burden of persuasion and the burden of going forward? www.PassYourBar.

If he does. if defendant wants to establish assumption of the risk. if it doesn't believe plaintiff has mot the burden of persuasion on some issue). this. This is plaintiff's "prima facie" case. . defendant has the burden of going forward . If plaintiff doesn't meet this burden. If defendant introduces no evidence.8 For example. breach. and the initial burden of going forward. of course. it has the burden of persuasion. a verdict will be directed against him. in a negligence suit. and damages such that a reasonable jury could infer each element. decreases the likelihood he'll win (although jury still needn't necessarily find for plaintiff. Conversely. causation. for instance.he can otter evidence to increase the possibility that the jury will find plaintiff has not mot the burden of persuasion. plaintiff must produce sufficient evidence on duty.

PassYourBar.EVIDENCE Presentation of Evidence 9 What is the burden of persuasion in an ordinary civil case? .

" Such civil suits include those for fraud. oral contracts to make a will." Definitions of "preponderance of the evidence" vary. in general.proof by "clear and convincing evidence. COMPARE: Certain civil cases require a higher standard . but in general it means "highly probable. but.9 The trier of fact must be persuaded of the truth of disputed facts by a "preponderance of the evidence. This standard is also not easy to define." . and for the specific performance of an oral contract. undue influence." COMPARE: Burden of persuasion in a criminal case . a "Preponderance" exists when all the evidence of a fact's existence is more convincing to the trier of fact than the opposing evidence.prosecutor must prove every element of the crime to convince the jury of guilt "beyond a reasonable doubt.

com .EVIDENCE Presentation of Evidence 10 Does a presumption shift the burden of production? www.PassYourBar.

10 Yes. The party adversely affected by the presumption has the burden of "going forward" to rebut the presumption. Note that a presumption does not shift the burden of persuasion (e.g., every element "beyond a reasonable doubt" in a criminal case), which remains the same throughout the trial.

EVIDENCE Presentation of Evidence


Does a presumption have any effect once it has been rebutted?

11 No, according to the Federal Rules, Rule 301, and most courts: once the other party has produced "substantial" evidence to rebut a presumption, the presumption loses effect (and the judge will not instruct the jury upon it). However, the inference created by the rebutted presumption will remain - in other words, the jury can still draw conclusions from the facts presented to establish the presumption.

com .PassYourBar.EVIDENCE Presentation of Evidence 12 What is the common law "Dead Man's Rule"? www.

12 It is a law which exists in some form in most states. . Therefore it is always the wrong answer on a Multistate Bar Exam question. prohibiting testimony concerning a transaction between a witness with an interest in the outcome and a now-deceased person. in cases pressed or defended by the decedent's executor. since the living person can lie without fear of contradiction. The laws are founded on the theory that such one-sided testimony is unreliable.

com .EVIDENCE Presentation of Evidence What is a "leading question"? 13 www.PassYourBar.

13 It is a question which would lead an average person to believe that the questioner desires one answer over another. EXAMPLE: "Didn't you see the red light?" .

when is the use of "leading questions" permissible? 14 www.EVIDENCE Presentation of Evidence Under the .PassYourBar.

The witness is a child. On cross-examination. 4. The witness's recollection is exhausted 5. The witness is hostile. . unwilling or biased. IF 2.14 Under FRE 611(c): 1. The questioning concerns undisputed preliminary matters. or an adult with difficulty communicating. 3. OR on direct examination. .EVIDENCE Presentation of Evidence 15 If a witness has been impeached on crossexamination. in what two ways can he be rehabilitated" on redirect? www.

To defeat a charge of bias or recent fabrication only. and testimony of other witnesses on reputation for truthfulness (if witness's truthfulness has been attacked). NOTE: Under limited circumstances. under FRE 801(d)(1)(b). prior consistent statements made before the alleged bias or fabrication will be admitted. .15 Explanation of responses on cross-examination. prior consistent statements can be used to rehabilitate. a witness can never be rehabilitated. NOTE: Once bias has been established.

EVIDENCE Presentation of Evidence 16 What types of materials may be used to refresh a witness's memory? .PassYourBar.

documents.16 There's no limitation .although the refreshing item cannot be used unless and until the witness's present memory is exhausted.anything can be used. and the item can be marked as an exhibit under FRE 612. . The only requirement is that the "refreshing object" must be used to refresh the memory. including leading questions. not just to show the jury the item. Note that the opposing counsel must have an opportunity to see the refreshing item before it's used. and objects .

may a party impeach his own witness? .EVIDENCE Presentation of Evidence 17 Under the Federal Rules.

g. spouse. employee).17 Yes. COMMON LAW RULE: A party cannot impeach his own witness . an attesting witness in a will case). or the party is "surprised" by harmful testimony. a witness who must be called by law (e... e. . including permissible impeachment when the witness is the adverse party (or someone associated with the adverse party.but this rule is fraught with exceptions. according to FRE 607.g.

EVIDENCE Presentation of Evidence What is "intrinsic impeachment"? 18 .

18 Testimony that discredits the witness." which is discrediting testimony from any other source. . elicited solely from the witness himself on cross – examination. COMPARE: "Extrinsic impeachment.

What are they? www.EVIDENCE Presentation of Evidence 19 There are five basic types of questions that can be used to elicit intrinsic impeachment from a .PassYourBar.

Sensory deficiencies (e. 5. Prior inconsistent statements ("laying a foundation" is not required under the FRE. 3. Prior convictions (majority rule. memory.g.. not more than ten years old). . 2. misdemeanors involving dishonesty and any felony under Rule 609(a). only felonies or misdemeanors involving dishonesty. Bias or interest. Bad character for honesty (including unconvicted bad acts).19 Questions seeking to show: 1. mental disability). it is required at common law). under FRE. eyesight. 4.

PassYourBar.EVIDENCE Presentation of Evidence 20 What are the primary methods of extrinsic impeachment? .

2. 5. COD BITCH (Convictions. 6. Defects.20 1. Bad character for truthfulness (via reputation or opinion testimony. Bias. FRE 608(a). 3. Inconsistent Statements (require a foundation). under FRE. Truthfulness. any crime involving dishonesty. memory. or capacity. under FRE. under majority rule). Bias. MNEMONIC. Convictions (all felonies. Inconsistencies. Contradicting facts. Defects in perception. and misdemeanors involving dishonesty. 4. Contradictions) .

EVIDENCE Presentation of Evidence 21 What types of prior criminal convictions are admissible for impeachment purposes under the FRE? .

if offered. Notes to Rule 609(a). with a trend towards allowing only crimes reflecting on veracity. whether felony or misdemeanor. evidence of witness's prior felonies cannot be admitted if the defendant (not the witness) is prejudiced thereby. the judge must admit the conviction to impeach. NOTE: In criminal cases. or very old convictions. or 2. NOTE: Juvenile convictions. . involving dishonesty or false statement. if the crime doesn't involve dishonesty. Any felony (crime punishable by at least one year in prison). but most allow any felony conviction. admission is discretionary. Any crime.21 Under FRE 609(a): 1. felony or misdemeanor. NOTE: The use of prior convictions to impeach is not subject to the "collateral matter" rule. COMMON LAW RULE: States vary. NOTE: In crimes involving dishonesty. are generally inadmissible for impeachment.

com .PassYourBar.EVIDENCE Presentation of Evidence 22 Can unconvicted bad conduct ever be used to impeach a witness? www.

and the questioning must be carried out in good faith as to a reasonable basis for believing witness has undertaken such conduct (thus. witness could not be impeached with an act for which he’d been tried and acquitted. Such conduct is probative of witness’s truthfulness. and 2.22 Yes: but only if: 1.) . Evidence is from witness’s own mouth on cross examination (“intrinsic”). Admission of such evidence is within the judge’s discretion.

EVIDENCE Presentation of Evidence What is the "collateral matter" rule? 23 .PassYourBar.

" i. including where the matter sought to be proven is considered "material.e.. showing witness bias. . If the evidence also proves or disproves a substantive issue. FRE 403.23 "Extrinsic" evidence (not from the witness's own mouth) is "collateral" and cannot be admitted if it is relevant only to discredit a witness. EXCEPTIONS: There are several. the evidence is admissible. in which case extrinsic evidence is allowed even if it proves nothing else except bias.

com .PassYourBar.EVIDENCE Presentation of Evidence 24 How does the FRE deal with the use of old convictions to impeach? www.

so the adverse party can contest its use. NOTE: "Old convictions" include those where "a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction. AND 2.24 Under FRE 609(b). . The Proponent give the adverse party sufficient advance notice that it will use the conviction to impeach. 1. The court determines in the interest of justice that the probative value of the conviction substantially outweighs its prejudicial effect." FRE 609(b) RATIONALE: Old convictions are not probative of witness's current veracity. whichever is the later date. “old convictions” (generally more than ten years old) are not permissible unless. COMMON LAW RULE: Judge has discretion as to whether a remote con-viction is relevant to current credibility. FRE 609(b). .EVIDENCE Presentation of Evidence Can reputation evidence be used to impeach a witness's honesty? 25 www.

Note that they need not know him personally to testify to his reputation. both at common law and under the FRE (Rule 608(a)). Usually.25 Yes. in order to impeach a witness's veracity with reputation evidence. other witnesses will be called to testify about the witness's reputation for truth and veracity in his community. .

com . must it address a material issue in the case)? www..EVIDENCE Presentation of Evidence 26 Is extrinsic evidence relevant to bias covered by the "collateral matter" rule (i.PassYourBar.e.

anything other than the witness's own testimony .i.Bias is never considered "collateral." so extrinsic evidence .e.. .may be used to prove it.26 No . . can lay witnesses offer opinion testimony? www.EVIDENCE Presentation of Evidence 27 As a general rule.

27 No. everyday knowledge." "He looked crazy" or "He was going too fast. and the like." "He was suffering from manic-depressive syndrome with schizophrenic tendencies" or "He was going 67 m.p. For instance. the approximate speed of moving vehicles.h." whereas a lay witness would not be competent to testify "He had beriberi. lay witnesses can testify to their own sense impressions based on common everyday knowledge. or emotional state. such as a person's age. but "general" is the operative word here . Thus. a lay witness can testify "He looked sick. sobriety." since these latter statements are not the subject of common.the exceptions to this rule are legion. .

PassYourBar.EVIDENCE Presentation of Evidence 28 In what situations may lay witnesses offer opinion testimony? .

Sanity of another. voice. etc. Odor. 7. 4. happy. age. under FRE 701. Odor. such as: 1.). 2. Temperature. Value of one's own goods or services. strength. Value. Recognition (looks. drunkenness. 6.). Speed. Recognition. Sanity) . handwriting). and are rationally based on witness's first-hand knowledge. 5.28 Generally. Emotional state of another (angry. distance. Speed. etc. height. temperature (within everyday experience only). where the opinion testimony is helpful to understanding witness's testimony or determining a fact in issue. MNEMONIC: DOVeR SEATS (Distance. 3. Physical appearance of a person (weight. Appearance. Emotion.

com . under what circumstances will expert testimony be considered necessary? www.EVIDENCE Presentation of Evidence 29 Under the FRE.PassYourBar.

29 Where the court determines that "scientific. . technical." FRE 702. or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. COMMON LAW RULE: Strict necessity is required: expert testimony is admissible only as to matters beyond common experience and knowledge.

may an expert rely on inadmissible evidence? www.EVIDENCE Presentation of Evidence 30 In forming his .PassYourBar.

30 Yes, It's only necessary that the expert rely on those things a reasonable expert in the field normally relies on. FRE 703. Thus, an expert may rely on hearsay and opinion which could not, in and of themselves, be admitted into evidence directly. EXAMPLE: A physician bases his opinion on a victim's diagnosis, in part, on statements made by relatives of the victim. Although the relatives' statements themselves are inadmissible hearsay, a physician can rely on them in forming an opinion for use in expert testimony, because they are facts physicians normally would rely on for diagnosis purposes.

EVIDENCE Relevancy What is "logical relevancy"?


1 Evidence is "logically relevant" if it tends to prove or disprove a material fact. FRE 401. If it does so, it's relevant, and might be admissible (if it meets other evidence requirements); if it doesn't, it's inadmissible. NOTE: Another aspect to relevance is "legal relevance," which requires that the probative value of the evidence substantially outweighs its prejudicial impact. A piece of evidence must be both logically and legally relevant to be admissible.

PassYourBar.EVIDENCE Relevancy 2 What is the balancing test used to determine if a piece of evidence is "legally relevant"? .

2 Is the probative value of the evidence substantially outweighed by the probability of undue prejudice? If so. body parts. and the like. .graphic and gruesome photos. FRE 403. NOTE: This happens most frequently with "inflammatory" evidence in criminal cases . the court will exclude the evidence.

com .EVIDENCE Relevancy If a piece of evidence is relevant.PassYourBar. is it admissible? 3 www.

however. Authentication problem. it must overcome HARB: Hearsay objections. and Best evidence objections. .3 No . etc. that the reverse is true . Note. it's inadmissible.evidence must be relevant and clear other obstacles (hearsay.) to be admissible. Relevancy issues.if a piece of evidence is irrelevant. privilege. If it is a writing.

EVIDENCE Relevancy


Why is character evidence generally inadmissible to prove a person acted in conformity with his character on a given occasion?

4 Because if a person's character is shown through evidence the jury is likely to be unduly influenced by its reaction toward the person, not by his actions under the circumstances in question. NOTE: Character evidence is evidence of how a person generally behaves, or behaved on some other occasion(s), offered to prove how he acted on the occasion in question.

EVIDENCE Relevancy What are the three types of character evidence?


reputation or opinion evidence can be used. .not reputation or opinion. or to prove notice (e.5 1. for negligent entrustment and self-defense).. However. For instance. specific acts can only be used when the character of a person is an essential element of a charge. under the FRE. claim. Specific acts. 2. to prove habit.g. or defense . Reputation. IMPORTANCE OF DISTINCTION: The type(s) of character evidence admissible in a given instance depend on the purpose for which the evidence is offered. 3. only evidence of specific acts can be used . Opinion. whenever character evidence is admissible.or to impeach a reputation witness (by testing his competence).

com . When is character "in issue"? www.PassYourBar.EVIDENCE Relevancy 6 Character evidence is generally not admissible to prove conduct. However." such evidence is admissible. when character is "in issue.

6 When the issue involves: 1.. Sanity." can be impeached with "Did you know Floyd was convicted of armed robbery?"). Defamation (to prove or disprove truth or damages). Sanity. Child custody (to prove character of parents). Impeach reputation witness.. 2. victim's knowledge of attacker's violent nature where victim claims self defense).g. 6. 4. 7. MNEMONIC: CHILD DENTIST (Child custody. 3. 5. Testamentary capacity.e. Entrapment. Testamentary) . Impeaching a reputation witness (e. "Floyd is known as a good boy. Notice (i. Defamation. Entrapment (to prove or disprove that defendant was predisposed to commit the crime). knowledge of entrustee's character in negligent entrustment. Notice.

com .PassYourBar.EVIDENCE Relevancy What is "habit" evidence? 7 www.

only character evidence in the form of specific acts can be used . ADMISSIBILITY AT COMMON LAW: Generally either inadmissible or only admissible in the absence of eyewitnesses. .not reputation or opinion.7 It is evidence describing a person's regular response to a certain set of circumstances. NOTE: Where habit is being proven. ADMISSIBILITY UNDER FRE: Freely admissible under FRE 406 to prove a person acted in conformity with his habit on a certain occasion. EXAMPLE: Person always takes the same route to work.

under what circumstances will evidence of other specific instances of misconduct be admissible under the FRE? 8 www.EVIDENCE Relevancy In a criminal .

Intent. 4. .8 Where they have independent relevance. Common plan or scheme MNEMONIC: MIMIC NOTE: The evidence must still be logically relevant. 2. Mistake. Motive. Identity 5. 3. absence of. under FRE 404(b): 1.

EVIDENCE Relevancy What is the "Mercy Rule" in relation to character evidence? 9 .

i. not specific acts). to prove his innocence. Note that. the defendant may offer pertinent character evidence (in the form of reputation or opinion only. once defendant has done so. however.9 It holds that. “opens the door. .. FRE 404(a)(1). in a criminal case only. prosecutor can rebut defendant's evidence with reputation and opinion testimony as to defendant's bad character.” then the prosecutor cannot do so either.e. RELATED ISSUE: If defendant doesn't offer character evidence.

com .EVIDENCE Relevancy 10 In a criminal case. is defendant prohibited from introducing evidence of his own good character? www. since the state cannot initiate evidence of the defendant's bad character.PassYourBar.

. TYPES ADMISSIBLE UNDER THE COMMON LAW: Reputation only.the defendant can introduce evidence of his own good character to show he did not commit the crime in question. NOTE: Once defendant has introduced character evidence." FRE 404(a)(1). under FRE 405. the prosecutor can ask defendant’s character witness whether he knows of specific acts of misconduct by asking “Have you heard…?” or “Do you know…?” type questions. prosecutor can rebut .10 No .with reputation and opinion only. This is the "Mercy Rule. not specific acts. TYPES ADMISSIBLE UNDER THE FRE: Reputation and opinion. However.

EVIDENCE Relevancy 11 Under what circumstances can a criminal defendant introduce character evidence of his victim? .PassYourBar.

under FRE 412. if victim acted in conformity with his character. However.11 Defendant can offer reputation and opinion evidence of victim's character where. This rule does not extend to rape cases. where defendant cannot show the victim's bad character through reputation or opinion evidence to prove consent or to impeach. FRE 404(a)(2). . N. the conduct would tend to prove the defendant's innocence.B. EXAMPLE: In a murder trial. defendant could offer reputation or opinion evidence of victim's violent character to prove the victim was the aggressor. specific acts may be proven under very limited circumstances. prosecutor could then rebut with evidence of the victim's peacefulness with reputation or opinion evidence.

PassYourBar.EVIDENCE Relevancy 12 Could circumstantial evidence alone be sufficient to justify a verdict in a civil or criminal case? .

NOTE: Circumstantial evidence (as opposed to direct evidence) requires that inferences be made.12 In a word . .yes.

PassYourBar.EVIDENCE Relevancy 13 What's the difference between "real evidence" and "demonstrative evidence"? .

g. e. the cleaver used as a murder weapon..g. a cleaver similar to the one used as a murder weapon. e. Demonstrative evidence is an aid to help the jury understand evidence..13 Real evidence has probative value itself. and are subject to hearsay rules. . Note: that both real and demonstrative evidence can also be hearsay.

PassYourBar.EVIDENCE Privileges/Policy Exclusions 1 Under what general circumstances will a given piece of evidence be subject to a "privilege"? .

Relationship existed at time of communication.. client or patient holds privilege.g. legal advice sought for future wrongdoing. .. Appropriate person is claiming the privilege (i. physician/patient). 6. NOTE: Judge determines the preliminary issue of whether the privilege exists or not.1 1.g. 3. verbal or communicative act. 7. Appropriate relationship between communicants (e. 5. attorney/client. Privilege has not been waived (via contract or in court). 2. The communication was made in confidence (presence of third parties normally destroys privilege). 4.. i. There is no reason privilege should not control (e. not attorney or doctor). medical advice not in course of treatment).e.. There was a communication.e.

com .PassYourBar.EVIDENCE Privileges/Policy Exclusions 2 What testimonial privileges are available under the FRE? www.

FRE 501 provides that common law rules on witness privilege will control. However. as federal courts in-terpret them. with respect to an element of a claim or defense for which state law supplies the rule of decision. . state or political subdivision thereof is to be determined in accordance with state law. person. government. and. the privilege of a witness.2 There aren't any privileges under the FRE. in civil proceedings.

com .EVIDENCE Privileges/Policy Exclusions 3 Does the physician-patient privilege expire along with the patient? www.PassYourBar.

the privilege belongs only to the patient . in personal injury cases and criminal proceedings.and he may decide to claim or waive the privilege. N.the privilege belongs to the patient's estate after he dies. in states which recognize it. applying primarily to domestic relations cases. that while the patient is alive. however. It is inapplicable. .B. Note.: The physician-patient privilege is very limited. among other times.3 No .

What are they? www.EVIDENCE Privileges/Policy Exclusions 4 There are two types of husband-wife privilege in federal .

a witness/spouse has the choice of testifying. . Note that both spouses hold the privilege. without the consent of the accused/spouse. 2.4 1.A witness may not testify as to matters communicated in confidence during the marriage. and either one can assert the privilege against the other. Federal courts: Criminal cases .WITNESS SPOUSE HOLDS THE PRIVILEGE . except as to confidential communications (on which the accused/spouse can forbid testimony). Privilege of marital communications . The spousal privilege (incompetency to testify). if the presenter former spouse objects. apply to actions between the spouses). or a third party (privilege doesn't. however.

EVIDENCE Privileges/Policy Exclusions 5 Under the FRE. are admissions in conjunction with offers to settle treated the same as admissions in conjunction with offers to pay medical bills? .PassYourBar.

Admissions in conjunction with settlement offers are inadmissible to prove negligence." Admission is admissible (but offer itself and actual payment is not." The entire statement is inadmissible under Rule 408. liability.I wasn't watching. under FRE 409). I'll pay your medical bills. . It's my fault. However.5 No. or a claim's value: "I'm sorry . It's my fault.I wasn't watching. admissions in conjunction with an offer to pay medical bills (or actual payment of them) are admissible: "I'm sorry . I'll pay you $1000 to settle.

PassYourBar.EVIDENCE Privileges/Policy Exclusions 6 Under the FRE. are admissions in conjunction with offers to settle treated the same as admissions in conjunction with offers to pay medical bills? .

6 COMMON LAW RULE: All types of statements with regard to paying medical bills .admissions. like Jamestown.Imagine a primitive settlement. MENTAL PICTURE FOR FRE . Offer + Pmt. Medical Bills – Admission Adm.are admissible.Admissions Excl. offers to pay. red plastic "X" over it. So . This will remind you that settlements are "X-cluded" (excluded). and guess to admit under the common law. Excl. Offer + Pmt. Adm. With settlements. Adm. . C/L FRE Settlements . admissions made in conjunction with the settlement are admissible.if you're reduced to guessing because you can't remember the rules . Excl.guess to exclude under the FRE. the offer to settle and the actual settlement are excluded. Adm. with a big. Excl. and payment .

com .PassYourBar.EVIDENCE Privileges/Policy Exclusions Can defendant's liability insurance be admitted into evidence on the issue of negligence or wrongdoing? 7 www.

) RATIONALE: The jury would otherwise be likely to decide the case on improper grounds. according to FRE 411. including control or ownership. . However. agency.7 No. (It can also be brought up during voir dire to determine if a prospective juror has an interest in an insurance company. This is done to determine bias. ability to pay. and witness bias. any other logically relevant issue may be proven via liability insurance. if an insurance company is a party in interest.. e.g. .EVIDENCE Writings/Recordings/Photographs What is the "Best Evidence Rule"? 1 www.

if it's available. NOTE: The Best Evidence Rule can be waived if the opposing party does not timely object to admission of the secondary evidence. as well as fraud. RATIONALE: Errors or gaps in memory.1 When a party wants to prove the material terms of a writing. can be avoided by allowing the trier of fact to see the writing itself. . Copies and oral testimony concerning the writing's contents are only permissible on a showing of the original's unavailability not the result of proponent's serious misconduct. FRE 1002. the "original writing" (which includes photocopies and carbons) must be produced. NOTE: The judge decides the threshold issue of whether the document is unavailable.


g. NOTE: Even if the witness is relying on a writing. The terms of a writing are being proven. the writing must still satisfy the hearsay rule.2 Only consider the Best Evidence Rule when: 1. contract. Witness is testifying relying on a writing. . FRE 1004(4).. Note that. or 2. something not closely related to a controlling issue. words of will. if facts are not legally operative (e.that is. it won't be covered by the Best Evidence Rule if it involves a "collateral matter" . or defamation).

" if the original is .PassYourBar. is any evidence on the contents of the writing barred? www.EVIDENCE Writings/Recordings/Photographs 3 When a document is covered by the "Best Evidence Rule.

the nonexistence of written copies had to be proven before oral testimony would be allowed. or otherwise legally unavailable). FRE 1004. notes.copies. If the original cannot be produced (it was lost or destroyed. . it's just that the original is preferable. COMMON LAW RULE: Although rejected by many states. the common law rule observed "degrees" of secondary evidence.3 No. secondary evidence . or oral testimony will be admissible. such that if the original was unavailable.

com .PassYourBar.EVIDENCE Writings/Recordings/Photographs What is the "Parol Evidence Rule"? 4 www.

oral OR written. Lack of capacity). Ambiguity. N. or contemporaneous oral agreements. providing that Where there exists an unambiguous written agreement intended by the parties to embody the full and final expression of their agreement. POLICY: To avoid perjured testimony. . Illegality.B. Oral agreement precedent. Fraud. will be admissible to contradict or supplement the terms of the writing. as well as oral ones! Exceptions to admissibility are DAM FOIL (Duress. and give a clear basis on which to base a judgment. NO prior agreements. Mistake.: Prior written agreements are all covered.4 The Parol Evidence Rule is a rule of substantive contract law.

or can it be authenticated in some other way? www.EVIDENCE Writings/Recordings/Photographs 5 Must a writing be authenticated at .PassYourBar.

5 Pretrial authentication is permissible. depositions. via. stipulations. and requests for admission of genuineness . for instance.

PassYourBar.EVIDENCE Writings/Recordings/Photographs Are newspapers self-authenticating? 6 .

Trade inscriptions. Acknowledged documents. MNEMONIC of self-authenticating documents under the FRE: CONTAC (Commercial paper. Official publications.6 Yes. Newspapers and periodicals. under FRE 902(6). Certified copies of public documents). .

EVIDENCE Writings/Recordings/Photographs 7 Is expert testimony necessary to identify handwriting as being that of a particular person? .PassYourBar.

FRE 901(b)(3). FRE 901(b)(2). can be sought for purposes of litigation. NOTE: An expert. on the other hand. can identify handwriting by merely comparing the sample in question with an authenticated sample. Familiarity with voice recordings. . or the trier of fact.7 No . as long as the familiarity was not acquired for purposes of the litigation.Anyone with personal knowledge of an individual's handwriting is qualified to testify as to its authenticity.

EVIDENCE Writings/Recordings/Photographs Must a voice be authenticated by an expert? 8 .PassYourBar.

whether heard firsthand or through mechanical or electronic transmission or recording. [can be accomplished] by opinion based upon hearing the voice at any time under any circumstances connecting it with the alleged speaker" NOTE: An expert witness. can authenticate a voice by comparing the voice with an authenticated voice specimen. or the jury. "Identification of a voice." and that there was no subsequent editing.8 No. the proponent must still establish that the conversation was not "staged. NOTE: Once a voice has been authenticated. a voice can be authenticated by any person who recognizes it. . Proponent must also disclose how and when the tape was made. before the conversation can be admitted. Under FRE 901(b)(5).

EVIDENCE Writings/Recordings/Photographs 9 Must a photographer authenticate a photo used by a witness to help illustrate his testimony? .

. FRE 901(a). from personal knowledge. that the photo fairly represents what it's supposed to represent. the witness must testify.9 No .however.

are statements in any authenticated.EVIDENCE Writings/Recordings/Photographs 10 Under the Federal Rules.PassYourBar. 20-year-old document admissible? .

.10 Yes. under FRE 803(16) and 901(b)(8). the "ancient documents" hearsay exception.

EVIDENCE Writings/Recordings/Photographs


Under what circumstances will "learned treatises" be admitted into evidence under the Federal Rules?

11 According to FRE 803(18), a learned treatise (on "history, medicine, or other science or art") can be read into evidence (but not ad-mitted as an exhibit) if: 1. An expert witness relies on it on direct examination, or it's called to his attention on cross-examination; and 2. It's established as reliable authority by witness's testimony or admission, other expert testimony, or judicial notice.

EVIDENCE Hearsay What is hearsay?


3. 2. and the other party objects to its admission.1 According to FRE 801(c). If a statement is hearsay and does not fit any exception or exclusion to the hearsay rule. (i. Offered to prove the truth of the matter asserted. hearsay is: 1. it must be excluded. FRE 802. Other than one made by the declarant while testifying.e.. out-of-court). . A statement.

PassYourBar.EVIDENCE Hearsay 2 Why is hearsay excluded from evidence? .

it has no idea of how much weight to place on the evidence. and ability to communicate. . sincerity. perception. thus. the jury has no way to evaluate his memory. hearsay does not give the opposing party the chance to confront evidence offered against him. If the declarant does not appear in court. Furthermore.2 Because it is unreliable.

com .PassYourBar.EVIDENCE Hearsay What is often-tested non-hearsay? 3 www.

3 There are three major types. knowledge. Verbal acts (e. good faith).. These are: 1. words of gift. 2. Circumstantial evidence of speaker's state of mind (e.g. not that drink actually was poisoned). Statements to show effect on hearer or reader (e. and 3.g. .g... contract. "My drink is poisoned. FRE 801(c) excludes out of court statements from the hearsay rule because they are not offered to prove the truth of their assertions. notice. but only to prove they were made. or defamation) Notes to FRE 801(c). motive." to show belief that drink was poisoned.

com .EVIDENCE Hearsay 4 What are the hearsay exclusions under the FRE? www.PassYourBar.

and 2.4 There are exclusions for statements theoretically exclusion under FRE 801(d)(2). Prior identification) . 5. 4. Co-conspirators’ statements made during and in the course of the conspiracy. Prior inconsistent statements. made after perceiving him. but explicitly excluded under FRE 801(d)(1): 1. MNEMONIC: CAPPP (Co-conspirators’ statements. Prior consistent statements. to rebut a charge of recent fabrication or bias. Admissions. Prior Inconsistent Statements (made under oath. 3. Admissions . Prior Consistent Statements. Prior identification of a person. and an exception at common law. subject to penalty of perjury).

PassYourBar.EVIDENCE Hearsay 5 What's the distinction between a statement which is an exception to the hearsay rule. and one which is excluded from the hearsay rule? .

but explicitly excluded from the hearsay rule. and the witness's prior identification of some other person. contract. or statements that constitute verbal acts (e. and three kinds of prior statements of a presently testifying witness . like trustworthiness and necessity. These include admissions. . under penalty of perjury. The other type of exclusion includes those statements which are not offered to show the truth of their assertion. statements which show effect on speaker. prior consistent statements offered to rebut a charge (express or implied) against witness of improper motive/influence or recent fabrication. it can be.prior inconsistent statements given while testifying under oath.. theoretically.5 Hearsay exceptions involve statements which fit the hearsay definition out-of-court statements offered to prove the truth of their assertions which are admissible due to other factors. at a prior proceeding. An exclusion can be one of the two types. gift. so aren't really hearsay at all: circumstantial evidence of speaker's state of mind. under FRE 801(d).g. hearsay. or defamation).

com .EVIDENCE Hearsay Are admissions by a party-opponent "hearsay"? 6 www.PassYourBar.

Admissions are admissible into evidence.6 Under the Federal rules – no. under Rule 801(d)(2). admissions are non-hearsay. . Under the FRE.

EVIDENCE Hearsay 7 In order to qualify as an admission by a party .PassYourBar. must a statement have been against interest when it was made? www.

the statement could have been self-serving. Furthermore.7 No . . This distinguishes an admission from a declaration against interest. unlike a declaration against the time. admissions can only be made by party-opponents and an admission need not be based on personal knowledge of the facts included in the admission. which must have been against interest when made. It need only be unfavorable to declarant at trial time. .EVIDENCE Hearsay 8 Under what circumstances will silence be admitted as a "tacit admission"? www.

The person must have heard the accusatory statement. MNEMONIC: COD HERD (Capable Of Denying. there is no requirement to respond to an agent of the state. Reasonable to Deny) EXAMPLE: Silence in response to the comment. a police officer. under the same circumstances. . at the scene of the crime: "You murderer!" However. The person must have been capable of denying the statement. Heard.g. 2. A reasonable person would have denied the statement were it not true. e. and 3.8 Notes to FRE 801(d)(2): 1.. .EVIDENCE Hearsay Is non-assertive conduct considered "hearsay" under the FRE? 9 www.

since they are not intended as an assertion. Doctor's actions are non-assertive conduct. Rationale: Non-assertive conduct is not as likely to be fabricated as assertive conduct or words.9 No. under Rule 801(a) EXAMPLE: Doctor treats patient for AIDS. . Under the Federal Rules. the doctor's conduct could be admissible as nonhearsay to prove the patient had AIDS.

EVIDENCE Hearsay 10 Traditionally.PassYourBar. can a witness' prior inconsistent statement be admitted to prove the truth of its assertion? .

such a statement could be used for impeachment purposes only. in which case it is not hearsay and can be used to prove the truth of the facts it contains (as long as the declarant is available for cross-examination at the present proceeding). FRE 801(d)(1)(A). Traditionally. . The Federal Rules agree. unless the prior inconsistency was testimony under oath at a trial or deposition.10 No.

com .EVIDENCE Hearsay 11 There are three kinds of prior statements of a presently testifying witness which are not considered hearsay under the Federal Rules. What are they? www.PassYourBar.

2. under penalty of perjury. 3.: For all three of these. at a prior proceeding. The witness' prior identification of some other person. Prior consistent statements offered to rebut a charge (express or implied) against witness of improper motive/influence or recent fabrication. Prior inconsistent statements given while testifying under oath. . the declarant must be subject to cross examination at the current proceeding. MNEMONIC: PICSI (Prior Inconsistent and Consistent Statements.11 Under FRE 801(d)(1): 1.B.) N. Identifications.

com .PassYourBar.EVIDENCE Hearsay 12 What are the major hearsay exceptions when declarant is unavailable and when availability is immaterial under the FRE? www.

FRE 803: 1. 10. Excited utterance. 11. 7. 3. and 4. Present sense impression. . 2. 8. Family records. or physical condition. emotional. Former testimony. Statements against interest. 2. Pedigree (family history). 12. Treatises (learned). Marital records. Recorded recollection. 9. 5. Dying declaration. Public records and reports. 6. Statements for purposes of medical diagnosis. Absence of public records.12 FRE 804: 1. 4. Then existing mental. Ancient documents. 13. Records. 3. Absence of records. business.

com . emotional. are past conditions admissible? www.EVIDENCE Hearsay 13 Under FRE 803(3) then existing mental. or physical condition.PassYourBar.

. expressions of future intent or plans are included. However.13 No.

com .PassYourBar.EVIDENCE Hearsay 14 Which hearsay exceptions require that the out-of-court declarant be unavailable to testify? www.

14 Under FRE 804(b). 3. Former testimony. Dying declarations. MNEMONIC: SFPD . 2. Statements against interest. Pedigree/Family History. 1. 4.

EVIDENCE Hearsay 15 Under what circumstances will the declarant of an out-of-court statement be considered unavailable to testify? .

(including. not the jury. when he/she is: 1. 3. Incapability. 4. Subpoena. death) 2." but recognizes the rest. . Subject to mental or physical incapability. Outside court's subpoena power. obviously. Claiming lack of memory on events as to which he is to testify. Memory) NOTE: The judge determines unavailability. MNEMONIC: PRISM (Privilege. Refusing to testify. COMMON LAW RULE: The common law does not recognize lack of memory and refusal to testify as "unavailability. Refusal. Under a privilege not to testify.15 Under FRE 804. 5. .EVIDENCE Hearsay Is reputation evidence hearsay? 16 www.

16 Yes under the FRE. Rule 803(21). Under the Federal Rules. it is an exception to the hearsay rule. .

com .EVIDENCE Hearsay 17 What are the requirements of the "former testimony" exception to the hearsay rule under FRE 804? www.PassYourBar.

. will be satisfactory. or that of a reliable person who attended (or that person's notes). which is more liberal than the federal rules. Testimony must be under oath. . 3.17 1. 2. so prior testimony was only usable at a retrial. party against whom the testimony was examine. there need only be identity of interest and motive. testimony of judge at prior proceeding. TYPE OF PROOF: Typically. under traditional common law. a certified transcript. with opportunity and motive to cross-examine at former proceeding). The opposing party had to have the incentive to cross-examine when testimony was originally offered (under FRE for civil cases. and 4. issues and parties must have been identical. under the modern trend. There must have been an opportunity to cross-examine in the former proceeding. Declarant must be unavailable. If unavailable.

EVIDENCE Hearsay 18 Can former testimony from a criminal case ever be used in a civil . under the FRE? www.

therefore. in the first trial. a witness's testimony against a defendant in a criminal case can be used against the same defendant in a civil case concerning the same transaction. as long as the witness is now unavailable. (The "same transaction" requirement means the defendant had a similar motive to cross-examine the witness. under FRE 804(b)(1).18 Yes.) .

com .PassYourBar.EVIDENCE Hearsay 19 How does the FRE regard the admissibility of prior testimony in a criminal case? www.

. Under 804(b)(1). . as long as the former defendant was the current defendant's predecessor in interest (i. by a declarant unavailable at the present proceedings.19 It is admissible under Rule 804(b)(1) if the prior testimony was given under oath.FRE ON CIVIL CASES. who had the opportunity and a similar motive for cross-examination when the former testimony was given. the testimony need not be offered only against the same defendant. the former owner of property). and it is now offered against the same defendant. in a proceeding where there was a chance to cross-examine. COMPARE .e. .EVIDENCE Hearsay 20 What is the rationale behind allowing "dying declarations" into evidence as an exception to the hearsay rule? www.

there are circumstances which suggest trustworthiness. the statement has to do with a Belief of death. declarant has to be Unavailable.20 As with all exceptions. . The theory is that no one wants to die with a lie on his lips. it is Admissible only in civil cases and homicide cases). MNEMOMIC: CUBA (the statement has to do with the Cause of death. and thus a statement made when the declarant believes he is in extremis is likely to be true.

PassYourBar.EVIDENCE Hearsay 21 What are the elements of the "declaration against interest" hearsay exception? .

it is inadmissible unless corroborating circumstances indicate trustworthiness. and his testimony (by deposition) cannot be obtained by process or other reasonable means. NOTE: Under the FRE. penal interest also qualifies). Declarant must have had no motive to lie. 2. 4. Declarant must have known the statement was against interest when made. the exception also includes any statement so contrary to the declarant's interest that no reasonable person would have made it were it not true. and 5. Rule 804(b)(3). but if it is offered to exculpate the accused in a criminal trial. 804(a)(5).21 1. Declarant must have had personal knowledge of the facts. Declarant must be unavailable to testify. 3. . The statement must have been against declarant's financial or property interest when made (under modern rules and FRE 804(b)(3).

EVIDENCE Hearsay 22 What are the differences between a "declaration against interest" and an "admission by a party-opponent"? .PassYourBar.

Unavailability required 3. Made by non party 2. Personal knowledge of facts necessary Admission Made by party Unavailability not necessary Could be self serving when made Personal knowledge of facts unnecessary .22 Declaration 1. Against interest when make 4.

PassYourBar." an exception to the hearsay rule under the Federal Rules? www.EVIDENCE Hearsay 23 What are the elements of a "present sense .

NOTE: Typically this is tested while declarant is on a telephone call. MNEMONIC: WED (While Event happens. and Describes or explains the event/condition.23 According to FRE 803(1). the statement made: Has been made while the declarant was perceiving an event/condition (or immediately thereafter). Note: Declarant’s availability to testify is irrelevant. Describe) .

com .PassYourBar.EVIDENCE Hearsay 24 What is the rationale behind the "present sense impression" hearsay exception? www.

furthermore. . it will suffer no defects in memory. there was an opportunity for at least one other person to correct it. since it usually would have been made to someone else who was also present.24 Because the statement was made contemporaneously with the event it concerns.

PassYourBar.EVIDENCE Hearsay 25 What are the elements of the "excited utterance" exception to the hearsay rule? .

Excitement. and 3. Statement must relate to the event or condition. 2. Due to a startling event or condition.25 Under the FRE 803(2). the statement must: 1. MNEMONIC: SEER (Startling Event. Relate) . Be made while declarant is under stress of excitement. .EVIDENCE Hearsay 26 Statements of "present state of mind" may be offered to prove two things. What are they? www.

Declarant's conduct (in following through with his stated intent).26 Under FRE 803(3): 1. Direct evidence of declarant's state of mind itself. Intent. MNEMONIC: A BIC (Attitude.g. intent. Conduct). belief). . or 2. Belief. attitude.. where state of mind is "in issue" and material (e.

in the FRE? .EVIDENCE Hearsay 27 What is the rationale behind the "present state of mind" hearsay exception.

since: 1. The declarant knows his own state of mind. such statements may be the only way to prove it. so there can't be memory defects.27 The statement is likely to be trustworthy. . so there are no perception problems. 2. Necessity is also a factor. The statement deals with present state of mind. to prove intent). when a party's state of mind is in issue (e..g. since.

under the FRE? www.EVIDENCE Hearsay 28 What are the elements of the "past physical sensation" hearsay .PassYourBar.

.28 Under FRE 803(4). Made for purposes of diagnosis or treat-ment (thus. statements of past physical sensation or condition are admissible to prove pain and its cause if it was: 1. Reasonably pertinent to diagnosis or treatment. and 2. they must be made to medical personnel).

EVIDENCE Hearsay 29 What are the elements of the "recorded recollection" hearsay exception. under the FRE? .PassYourBar.

and attesting to the truth of the statements when made). . If the document qualifies. The document must be authenticated (normally. but it cannot be received as an exhibit unless the adverse party offers it. it may be read into evidence. the document is inadmissible). Document must have been made based on personal knowledge. 2. and 5. Witness must have no present recollection of the facts (if document revives memory enabling the witness to testify without it.29 Under FRE 803(5). 1. 3. Witness must verify that the document was true when made. but not necessarily. Document must have been made at the time of the event (or shortly thereafter). and made or adopted by the witness. by witness testifying he recognizes his own handwriting or signature. 4.

when a writing is admitted into evidence as a "past recollection recorded.EVIDENCE Hearsay 30 In general.” must the document itself be admitted into evidence or can it be read to the jury? .

to insure that the jury does not overvalue its contents. FRE 803(5). . In most cases. the writing must simply be read to the jury.30 Generally the writing itself is inadmissible unless the opponent requests otherwise.

EVIDENCE Hearsay 31 What are the elements of the "business records" exception to the hearsay rule? .

custodian of the record will testify as to how the record was prepared. 3. Must be authenticated at trial (normally. 6. to exclude the business record if circumstances indicate the record lacks trustworthiness. Knowledge. Entered by one with personal knowledge of matters record-ed or transmitted from such a person. 4. . under the FRE. In conjunction with a business activity. Entered at or near time of transaction. Time of Transaction. Entry must be made in regular course of business. and its identity). 2. Course of business. Entered under a duty to record. 5. Authenticated at Trial) NOTE: The trial court has discretion.31 Under FRE 803(6) 1. MNEMONIC: BAD KiTTy CAT (Business Activity. Duty. . under the FRE? www.EVIDENCE Hearsay 32 What are the elements of the "official records" exception to the hearsay rule.

" are admissible if: 1. Under a duty imposed by law (does not include police and law enforcement personnel). Also. RELATED ISSUE: The absence of such records can be used as negative evidence on the same basis. factual findings resulting from investigations made under authority of law are admissible ONLY AGAINST the government in CRIMINAL cases. "records. of public offices and agencies. reports. . They set forth the activities of the office or agencies. or data compilations. in any form. FRE 803(10). 2. statements.32 Under FRE 803(8). Note that circumstances and the source of the information must indicate trustworthiness.

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