Evidence for the Bar Exam

Not frequently tested:

· Procedural considerations

· Burden of proof

· Presumptions

· Judicial notice

· Real evidence

Most frequently tested;

• Relevance
• Witness’
• Hearsay
• Authentication
• Best evidence rule
• Privileges

NOTES:

Use federal rules of evidence unless specified otherwise

Ask what purpose the evidence is being used for

Sometimes evidence can have limited admissibility

Fed ct usually applies fed procedure and common law rules, BUT

Fed ct under diversity applies common law of state

Privileges, deadman’ statute, burden of proof etc.

I. Relevance

A. Basic rules

1. Evidence is relevant if

a. it has any tendency to make a material fact more or less probable.

2. Relevant evidence is admissible unless an exclusionary rule applies. OR

a. The probative value is substantially outweighed by the danger of unfair prejudice or efficiency issues.

B. Per se outweighed rules

1. similar occurrences/prior conduct

a. RULE; NO, not to show propensity of behavior or likelihood person did this. Otherwise usually ok.

b. Exceptions;

1) P’s accident history Ok if injuries at issue (and that is purpose)

2) D’s other accidents

a) Ok if substantially similar circumstances and to show

(i) Causation

(ii) Dangerous condition

(iii) Prior notice

3) Intent is an issue and to show intent

4) Comparable sales of value

5) Industrial custom

a) Same trade or industry to show

b) Appropriate standard of care”

2. Policy exceptions

a. Liability insurance

1) Not ok for fault issue

2) Ok for control/ownership if D brought up

b. Settlements of disputed claims (need claim and dispute)

1) Not to show liability, weakness

2) Ok to show witness bias

3) Statements of fact during, NOT ok

4) OK if civil govt agency and related criminal case.

c. Plea bargaining

1) Not where D offered to plead guilty, etc.

2) Ok where D actually pleaded.

d. Offer to pay hospital expenses

1) NO

2) Statements of fact during OK

3. Character evidence

a. Always ok to testify to reputation of law abiding

b. If sex crimes or child molestation at issue, then all OK

c. How?

1) Witness to testify to reputation or character

2) No specific details or extrinsic evidence

3) Procedure

a) If D was convicted

b) Prove with witnesses

(i) “conditional relevance standard” easy (sufficient to reasonable jury find..)

c) Need pre trial notice

d) Ct retains discretion “outweigh” test

d. Purpose?

1) Material essential element? Rare

2) Character for truthfulness to impeach credibility

a)

3) Conduct in conformity with character or Propensity evidence

a) Criminal D

(i) NO (unless D brings up)

(ii) Exceptions

(1) Self defense (victim propensity for violence)

(2) Rape

(i) (victim’s consentual sexual relations with D) IF CONSENT Issue

(ii) To show someone else did it

b) Civil

(i) NO

(ii) OK if material element

(1) Tort negligent hiring

(2) Defamation

(3) Child custody

4) Non-character purposes

a) Ok if to show: MIMIC

(i) Motive

(ii) Intent

(iii) Mistake, accident

(iv) Identity

(v) Common scheme/plan

II. Authentication

A. Use if relevance depends on source

B. Methods

1. personal knowledge of witness

2. proof of handwriting

a. laywit with personal knowledge

b. expert compares

c. trier of fact compares

3. ancient doc

a. 20 years old

b. No facial suspicion

c. Found where supposed to

4. solicited reply

C. procedure

1. conditional relevance standard “sufficient reasonable juror to find”

D. self-authenticating docs

1. official publications of govt

2. certified records on file with govt

3. newspapers/magazines

4. labels

5. acknowledged doc- notary …

6. commercial paper (promissory note)

III. Best evidence rule

A. Not applies to evidence in general

B. Only applies to writing (recording, xrays, film)

C. Only when proving contents of writing

1. usually legal doc or when witness is testifying facts soley from reading them

D. Requirement

1. original writing (counterparts)

2. duplicate unless (question of authenticity or blurred)

3. NOT handwritten copy

E. Exceptions = copy ok

1. excuses

a. lost, not found with due diligence

b. destroyed w/o bad faith

c. can’t be obtained through legal means

2. vlumenous- tons of paper, ok to summary

3. collateral docs. (ct discretion, not important to case)

IV. Witness’

A. Compentency

1. Need

a. personal knowledge AND

b. oath/affirmation

2. sometimes

a. deadman’s statute

1) incompentent to testify if against estate and about what deadman said to you.

B. Leading questions

1. no direct

2. yes cross

3. exceptions

a. hostile wit

b. foundation/ preliminary

c. youthful, forgetful

d. adverse party/agent

C. writings to aid

1. refreshing recollection

a. NO read

b. Just jog- then not offered into evidence, not hearsay

c. Past recollection recorded OK if fails to job then OK if

1) Personal knowledge

2) Made/adopted by wit

3) Close in time

4) Wit can vouch for

d. If admitted opposing party gets to

1) See

2) Examine

3) Cross about

4) Admit as evidence

D. Opinion testimony

1. lay person OK if

a. personal knowledge

b. helpful

2. expert OK if

a. qualifications

b. proper subject

c. basis

1) “reasonable degree of probability or reasonable certainty” AND

2) Personal knowledge or

3) Evidence from trial or

4) If reasonably relied on by most experts in field

d. NEED Relevance and reliability

1) Tested

2) Rate of error

3) acceptance

4) published

e. learned treatis

1) Ok if read into evidence through expert

2) Not exhibit

f. Substantive

3. ultimate issues

a. FINE

b. Except not criminal mental state

E. Cross

1. scope

a. within direct or

b. credibility

1) bolster? If attacked

c. hearsay?

1) referring to wit prior statement No unless motive to lie attacked

2) OK if prior identification of person

2. Impeach

a. Own wit? OK

b. Consider

1) Can you ?

2) Extrinsic evidence?

3) Wit chance to respond

c. HOW

1) Prior inconsistent statements-NO, but

a) OK to impeach

b) OK oral oath formal proceeding-hearsay exclusion

c) Opposing party statement- hearsay ex.

2) Bias, interest or motive to lie

a) Confront with? Court discretion

b) Extrinsic evidence? Yes

3) Sensory deficiencies

a) Confrontation? NO

b) Extrinsic? Yes

4) Character for truthfulness

a) Reputation/opinion OK

b) NO confrontation

c) Extrinsic (general character with ok)

5) Criminal convictions

a) IF Prosecution had to show false statement

b) IF felony (and court decides) AND

c) Within 10 years (conviction or release)

d) Ask wit or certified copy

6) Inquiry about bad acts (not convicted)

a) OK if about truthfulness and

b) Good faith reason to ask

c) Confrontation? OK-

d) Extrinsic? No

e) NOT just arrest

7) Contradiction

a) Exrtrinsic? No if collateral

b) Ok if material

3. Rehabilitation

a. Good character for truthfulness

1) When suggested wit is lying

2) Through character wit

b. Prior inconsistent statement to rebut charge of recent fabrication

1) If before motive to fabricate arose

2) OK substantive (hearsay exception)

F. Privileges

1. dr. patient

a. confidential

b. facts dr learned from patient

c. statute

d. for medical diagnosis and treatment

e. Ok if at issue by patient

f. Fed law only applies to psychological symptoms

2. attorney client

a. confidential

b. attorney client

c. legal consultation

d. waived/

e. exceptions

1) future crim

2) in controversy by client

3) suits where lawyer and client parties

3. spouse

a. spouse immunity

1) criminal

2) wit-spouse can waive

3) not compelled to testify

4) need marriage at time of trial

b. confidential communications

1) between spouses

2) during marriage

3) need consent by both spouses

4) exceptions

a) future crim/ joint

b) destructive family unit (abuse)

V. Hearsay

A. Definition

1. out of court statement by person

2. to prove the truth of the matter asserted

B. confrontation clause

1. if ok under hearsay,

a. if criminal D

b. if testimonial (like testimony)

c. need confrontation (cross here or similar opportunity to cross before)

C. When not proving truth of matter

1. verbal act (legal effect just from uttering)

2. effect on person who heard

3. state of mind

D. exclusions- NOT hearsay

1. wit prior statement

a. prior identification of person

b. witn prior inconsistent if oath/formal

c. witn prior consiste if recently accused of fabrication

2. party admissions

a. made by party

b. against themselves

3. vicarious admissions

a. agent/employee while employed and scope of employment

E. exceptions

1. Declarant unavailable

a. Mob exception

1) Ok if wit unavailable because of D

b. former testimony

1) ok if cross opportunity same and wit unavailable

a) unavailable= privilege, illness, death, not in jurisdiction, lack of memory, refuse to testify

c. statement against interest

1) interest (money, property, criminal liability)

2) against (at time made)

3) personal knowledge required

4) declarant unavailable

d. dying declaration

1) belief of impending death

2) case for murder

3) about death or cause

2. spontineity (made at time of event)

a. exited utterance

1) During or very soon after

2) Factors

a) Nature of event

b) Passage of time

c) Visual clues

b. present sense impression

c. present state of mind

d. present physical condition

3. declaration of intent

a. Declarant unique knowledge

b. About future

c. If about other person also, evidence against them

4. statement for medical treatment or diagnosis

a. to anyone AND

b. past/present symptom or general cause

c. for medical treatment

5. business records

a. elements

1) regular course of business

2) regularly kept kind

3) At time

4) Contents

a) Personal knowledge of recorder or ind. Hearsay except.

b. Foundation

1) Ok to bring in business person not recorder

6. public records

a. covers all of

1) activities of office/agency

2) a duty imposed by law

3) findings of fact/opinion

7. past recollection recorded

a. to jog or if not

F. impeachment of hearsay declarants

1. OK any impeachment method that would apply to declarant as witness.