Evidence MBE In-class activity

Evidence MBE In-class activity How should be approach an Evidence question? - 1. underline the cause of action 2. Situate the Proceeding (are we on direct, cross, redirect, def-witness, P's witness, etc?) 3. Determine the purpose for which the evidence is being offered (is substantive, for impeachment, or for character or credibility?) What are the 3 main Substantive Areas tested on the MBE? - Character evidence (5 ques) Impeachment (5 ques) Hearsay (12 ques) Where do the Fed. Rules apply, and where don't they apply? - Apply: All civil and criminal trials and proceedings in Fed. court. Also, bankruptcy and admiralty don't apply: Preliminary Question of Fact, Grand Jury Proceedings, Preliminary Hearings, Sentencing and Probation Hearings, Obtaining A Warrant, Bail Proceedings Requirements for an Appellate Court to reverse a trial court's decision: - Where a ruling ADMITS evidence, a TIMELY AND SPECIFIC objection must be made to preserve the issue for appeal. If there is a general objection (i.e., "I object") the issue is not preserved for appeal If an error is made during an objection, but it is not prejudicial to the outcome, then the harmless error rule applies. What is the harmless error rule? - Harmless error is if the jury would have reached the same verdict had the error not occurred. What preliminary questions of admissibility must be determined by the court? - 1. Competency - witness qualifications 2. Admissibility - whether or not hearsay exception applies 3. Privilege - attorney/client, husband/wife Conditional Relevancy 104(b) - Where the admissibility of one item of evidence is conditioned on the relevancy of another item of evidence. Once that condition is met, the judge shall admit the evidence. ex: one letter says girl is cool, but a photocopy says she's a fool. THE RELEVANCY OF THE P.C. IS CONDITIONED ON THE RELEVANCY OF THE LETTER SO THE JUDGE WILL ADMIT AND LET THE JURY DECIDE Limited admissibility 105 - If evidence is admitted as to one party or for one purpose but inadmissible as to another party or for another purpose the court shall restrict the evidence to its proper scope and instruct the jury accordingly. Counsel must request a limiting instruction. ex: If a defendant is being impeached with his former convictions, we allow the jury to decide whether it believes the defendant. The prior convictions are admissible to challenge defendant's credibility, but not as substantive evidence of defendant's guilt. The jury is not allowed to use those prior convictions to determine the defendant's criminal disposition Remainder of or Related Writings or Recorded Statements (Rule 106 - WHERE A PARTY INTRODUCES PART OF A WRITING OR RECORDING, THE ADVERSE PARTY MAY IMMEDIATELY INTRODUCE ANY OTHER WRITING OR PART OF THE WRITING WHICH IN FAIRNESS OUGHT TO BE CONSIDERED Judicial Notice Rule 201 - a substitute for proof where the court excepts certain adjudicative facts as true without requiring formal presentation of evidence (science, geography, calendars, etc) Type of Judicial Notice - 1. Commonly Known Facts: Not subject to reasonable dispute, generally known within the jurisdiction (water boils at 212F, capital of Texas is Austin) 2. Facts that are readily ascertainable and cannot be disputed: fact which are capable of accurate and ready determination by resort to sources of unquestionable accuracy (Radar, blood test, DNA profiling, interest rates) When is the taking of Judicial Notice mandatory, and when is it permissible? - Permissible: The judge may not take judicial notice of a fact merely because it is within her knowledge Mandatory: 201d - when requested by a party, and supplied with the necessary info. When can issues of judicial notice be raised? - Pre-trial, during trial, or on appeal Can one contradict once fact has been judicially noticed? - NO CONTRADICTORY EVIDENCE IS PERMITED ON THAT ISSUE HIGHLY TESTED: The effect of a jury instruction on judicial notice (civil and criminal) - 1. A civil jury MUST ACCEPT A JUDICIALLY NOTICED FACT IS CONCLUSIVE 2. A criminal jury MAY ACCEPT A JUDICALLY NOTICED FACT AS CONCLUSIVE Presumptions in General and Civil Actions and Proceedings (Rule 301):Burden of Production... Ex: - Plaintiff presents a prima face case for negligence but fails to prove the element of damages. Plaintiff did not meet his burden of production. Burden of Persuasion - The degree to which evidence must be proven. Ex: Prosecution has the burden of production and persuasion to prove every element of murder beyond a reasonable doubt that defendant committed the murder. Then in most jurisdictions and in federal courts, if the defense raises an insanity defense, the burden of production shifts to the defendant to prove insanity by a POTE (Model Penal Code and most state courts) or by clear and convincing evidence (federal court. standard) For Flashcard studies: What does the acronym POTE stand for? - Preponderance of the Evidence 2 main ways to shift burden of production: - 1. affirmative defenses 2. presumptions 3 levels to the Burden of Persuasion - 1. Lowest - preponderance of the evidence 2. Intermediate - Clear and Convincing 3. High - Beyond a reasonable doubt How do presumptions function as a shortcut to evidence: - Presumption arises where one set of facts, once established, give rise to another set of facts (which are called presumed facts) Bubble Bursting Theory (Thayer Theory): - ONCE THE OPPONENT PRESENTS SUFFICIENT EVIDENCE THAT THE PRESUMED FACT IS NOT TRUE, THEN THE PRESUMPTION DISAPPEARS FROM THE CASE AND THE BUBBLE BURSTS (SOMEONE MISSING FOR 6 YEARS, PERSON IS DEAD, BUT EVIDENCE CAN BE BROUGHT IN TO BURST THE BUBBLE) Relevant Evidence - EVIDENCE WHICH TENDS TO MAKE THE EXISTENCE OF ANY FACT MORE PROBABLE OR LESS PROBABLE THAN IT WOULD BE WITHOUT THE EVIDENCE 3. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time (Rule 403). 6 ways to exclude relevant evidence: - 1. the danger of UNFAIR PREJUDICE 2. MISLEADING the jury. 3. considerations of UNDUE DELAY 4. WASTE OF TIME 5. needless presentation of CUMULATIVE EVIDENCE 2 MBE TIPS CONCERNING RELEVANCY - 1. Most 403 objections are properly overruled 2. 403 balancing test favors admission Relevancy: In negligence and product liability cases, evidence of prior or subsequent accidents may be relevant to prove (4), but the prior accident must have occurred*: - 1. A dangerous condition existed 2. a product was defective 3. the cause of the accident, or 4. notice of a dangerous condition *under SUBSTANTIALLY SIMILAR CONDITIONS (SIMC) SUBSTANTIAL IDENTITY OF MATERIAL CIRCUMSTANCES Entering evidence to show consciousness of guilt: How is it relevant, and what examples have been seen on MBE? - Relevant to show a guilty mind. Fleeing the scene, threats by the D against a witness, hiding from the police, using an alias, failing to submit to a blood alcohol test Direct v. Circumstantial - D: no inference is required "i saw the D shoot him" C: an inference is required to connect it to a conclusion of fact "I didn't see the D shoot the V, but I heard gunshot, and saw D running down the alley" Real Evidence - Tangible Character Evidence in CIVIL CASES 404: when can you use it, and what 3 forms can you use? - Character evidence is inadmissible to prove conduct in conformity therewith. Exception WHERE CHARACTER IS IN ISSUE. All 3 forms of character may be admitted: 1) REPUTATION , 2) OPINION and 3) SPECIFIC ACTS If reputation, the witness must establish: - that he is aware of the relevant community If opinion, the witness must establish that: - she has sufficient knowledge to form an opinion Specific Cases of actions in Civil Cases where character is an issue: - Defamation, Child Custody, Negligent Intrustment, Negligent Hiring, Fraud or Misrepresentation Character Evidence in Criminal Cases: - It is rare for character evidence to be relevant unless fraud cases Rules for Character Evidence in Criminal Cases: 404(a)(1) - 1. The prosecution may not initially introduce evidence of defendant's bad character: D HAS TO OPEN THE DOOR FIRST. 2. Testimony about a pertinent trait of the defendant (good character): THIS OPENS THE DOOR 3. Once the door to character evidence has been opened (rebuttal), the prosecution may rebut with reputation or opinion How might the prosecution cross the D's witness concerning the D's character? - did you know the D committed 3 robberies in the past year? (proper question) Specific acts maybe inquired into on cross of the D's witness FRE 404(a)(2): Testimony about a pertinent trait or character of a victim (bad character): How can D get it in? - D MAY OFFER EVIDENCE OF THE BAD CHARACTER OF THE VICTIM TO SHOW HE ACTED IN SELF-DEFENSE AND THE P CAN DO THE SAME, BOTH USE OPINION AND REPUTATION What if the D doesn't attack the victim's character, but merely states he acted in self-defense? - The victim may only offer evidence of his peacefulness In a homicide case, may the D offer specific acts against the victim? - Yes, the D's fear of the victim isn't addressing any pertinent trait of the victim's character. FRE 404b "Evidence of character may be admissible when offered for a purpose other than to show... (complete) What is MIAMI KOPPS? - ...conduct in conformity with one's character