Evidence

The law of evidence governs the use of testimony, or other documentary material, which is admissible to be considered by the trier of fact, (a judge or jury) in a judicial or administrative proceeding. Evidence includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either, presumed to be true, or are themselves proven to demonstrate an assertion’s truth.

There are about thirty questions on the MBE. For each question, first discuss why that piece of evidence is relevant and then discuss the issue. Example: opinion, privilege, hearsay, etc. Know the federal rules for the MBE and common law differences for essays questions. 70% of MBE questions deal with character evidence, impeachment and hearsay. Most essays are crossover questions with approximately five calls in each question.

Always ask what is the purpose for which the evidence is being offered.

Analyzing evidence problems.

  1. Is the evidence relevant?
  2. Has a proper foundation been laid?
    1. Competency of the witness must be established.
    2. Personal knowledge of the witness must be established.
    3. Authenticity of the evidence.
    4. Reliability of the scientific test.
    5. Expertise of the expert.
  3. Is the evidence in the proper form?
    1. Questions must be properly phrased.
    2. Answers are within the requirements for lay and expert opinion.
    3. Documents must comply with the best evidence rule.
  4. Is the evidence beyond the application of, or within an exception to the exclusionary rules?
    1. Prejudicial nature outweighs probative value.
    2. Policy-based exclusion.
      1. Subsequent remedial measures.
      2. Liability insurance.
      3. Settlement negotiations.
      4. Offer to pay medical bills.
    3. Privileged communications.
    4. Hearsay.
    5. Parol evidence.
  1. I. Article 1.Rulings, objections, admissibility/exclusion of evidence.
  2. Rulings on evidence.
    1. Objections. FRE 103. If a court admits evidence, a timely and specific objection must be made to preserve the issue for an appeal, unless there is plain error or reversible error. (Not harmless error).

Example of plain error: Obvious prejudice to the defendant.

  1. Objections should be made before a witness answers.
  2. If the need to object is not readily apparent and the witness has already answered, a motion to strike would be proper.
  3. Offers of proof. Where a trial court excludes evidence, no error for on appeal may be established unless an offer of proof was made or the reason was apparent from the context.
    1. Method of offer of proof. May be a oral or written explanation, or in Q&A format.
    2. Preliminary questions of admissibility of evidence determined by the trial judge as a matter of law. (Qualifications of witnesses, existence of a privilege, or unavailability, etc.) Both affidavits and hearsay are allowed at this point.
      1. Weight and credibility of evidence is a question of fact for the jury.

The trial judge is not bound by federal rules during preliminary questions of admissibility.

  1. Conditional relevancy. FRE 104. Where the relevancy of preferred evidence depends on the existence of another fact, such evidence is admissible, subject to the introduction of evidence sufficient to sustain a finding as to the existence of the additional conditioned fact. (Situations where the relevancy of one fact is conditioned on the existence of another fact.)

Example: In a forgery case, the relevancy of forged checks, allegedly written by the defendant, would be conditioned upon evidence sufficient to sustain a finding as to the authentication of the defendant’s handwriting. Therefore, once the defendant’s handwriting has been authenticated, the forged checks would be relevant.

  1. Hearings on objections. Any hearing as to the admissibility of evidence is done outside the presence of the jury.
    1. In a criminal case hearing on the admissibility of confessions must be conducted outside the jury’s presence.
    2. Testimony of a criminal defendant as to a preliminary issue does not constitute a 5th amendment waiver as to other issues.
    3. Limited admissibility. FRE 105. Upon request a court may restrict the admissibility of evidence by allowing it for one purpose, such as party or purpose, excluding it to another party as to another purpose.

Example: Evidence that a retailer received a letter from a customer complaining about the sale of a defective sofa that caused injury, may be used to show notice or knowledge to the retailer, but it may not be used for the purpose of negligence in a subsequent law suit brought by a customer who purchased a similar sofa and suffered injury.

  1. Introduction of parts of a writing. FRE 106. Once a party introduces part of a writing or a recorded statement, the adverse party may immediately require the admission of other parts of that writing, which in fairness out to be considered.
    1. The opponent may wait until cross-examination, or their own direct testimony to admit other parts of that writing.
    2. Conversations are not covered under the federal rules, but as a general policy, the adverse party must wait until either cross-examination, or their own direct testimony to introduce other parts of a conversation.

MBE: There is no rule of evidence requiring that if part of a writing is admitted, all other parts of that writing must also be admitted. (Classic wrong answer on the multi-state.)

  1. II. Article 2. Judicial notice.Substitution for proof where a court accepts certain facts as true, doing away with the presentation of evidence. Based on notions of accuracy and certainty.

MBE approach to judicial notice: First, determine whether judicial notice is mandatory or discretionary. Then determine if it is a civil or criminal case.

  1. Legislative facts. Facts relevant to legal reasoning and law-making processes.
    1. Not recognized under the FRE. Distinguished from adjudicative facts.

Example: Whether or not one spouse is permitted to recover tort damages against another spouse in a particular jurisdiction.

  1. Adjudicative facts. Underlying facts involved in a particular case, which aid the fact finder in its adjudication.
    1. FRE 201(b). A judicial notice is one that is not subject to reasonable dispute because it is generally known within the territorial jurisdiction of the court, or it is capable of accurate and ready determination by resorting to sources whose accuracy cannot be questioned.

Example: Generally known within a jurisdiction. A court in Los Angeles may take judicial notice of the fact that Wilshire Blvd. runs east/west. However, a judge in Boston, despite their personal knowledge of this fact may not take such judicial notice.

Example: Accurate and ready determination. The fact that Christmas day in 1985 fell on a Wednesday, or the time of sunrise or sunset on a particular day.

Two types of judicial notice.

  1. Mandatory. A court must take judicial notice. May be taken at any stage of the proceeding.
    1. State and federal law.
    2. Indisputable scientific fact.

Example: Blood test to prove paternity, ballistics tests or radar, but not a lie detector test.

MBE. A said Main street in city where the court is located runs north and south. B said cigarette smoking “may” be hazardous to your health. A is correct, because it’s a matter of local geography. B smoking “has” been found to be hazardous, not indisputable, only for mandatory scientific facts.

Example: In a negligence action, against a building contractor the plaintiff asks the court to take judicial notice of the requirements necessary to obtain a state contractors license and plaintiff hands to the court an official statement of that particular state’s contractor license requirements. Here. The court would take judicial notice.

  1. Discretionary. The court is liberal in finding judicial notice. On its own motion a state or federal court can take judicial notice on the following facts:
    1. Laws of foreign countries.
    2. Laws of other states.
    3. Municipal ordinances.
    4. Regulations of public and private agencies.
    5. Matters of local geography.
    6. Economic data such as insurance rates, interests rates, customary salary and fees paid in different professions, current events, political events, trademarks and patents.
    7. Procedural effect of judicial notice. FRE 201(g).
      1. Civil cases. Judicially noticed facts are indisputable. A civil jury must accept as conclusive any fact judicially noticed.
      2. Criminal cases. Based on the 6th amendment right to a jury trial in a criminal case, a jury is to be instructed that it may, but is not required to accept as conclusive any fact judicially noticed.
  1. III. Article 3. Presumptions. An inference that something is true.
  2. Burdens.
    1. Burdens of production. (Going forward) Is placed on a party to introduce initial evidence on a particular issue or risk a directed verdict.
      1. Generally the plaintiff has the burden to prove all elements of a prima facie case.
      2. However, in presumptions and affirmative defenses, the burden may shift to the opposing party.
      3. In criminal cases a directed verdict for the prosecution is unconstitutional.
      4. Degree of proof required:
        1. In civil cases, the plaintiff must establish each element of their case by the preponderance of the evidence. A more probable than not standard.
        2. In criminal cases the prosecution must prove its case beyond a reasonable doubt. This applies to every element of a crime.
        3. In certain criminally related civil proceedings such as fraud, the plaintiff must show a convincing standard of proof.
    2. Affirmative defense. Insanity, self-defense, duress, adequate provocation to reduce murder to voluntary manslaughter.

Two procedural operations:

  1. The defendant may have the burden to prove his defense by a preponderance of the evidence.
  2. The plaintiff has the burden of persuasion to prove all issues beyond a reasonable doubt.

Example: Insanity as defense to murder:

  1. The plaintiff must prove murder beyond reasonable doubt without regard to the defenses sanity. Once this is done, then defendant may introduce evidence of insanity. If they fail to do so, the issue of insanity is deleted from case and no jury instruction is given. If the defendant succeeds:
    1. The prosecution has to prove sanity beyond a reasonable doubt or.
    2. The defendant must prove insanity by a preponderance of the evidence.
    3. Presumptions. An inference the jury must draw that shifts the burden of producing evidence to the opposing party. Once established, the burden of producing evidence shifts to the opposing party.
      1. Basic facts. Presumptions that arise once a set of facts have been established, giving rise to another set of fact are called presumed facts.

Example: Upon proof that a person has been absent from their home for seven years. (The basic fact is the absence for seven years.) Many jurisdictions have presumed that the person has died. (Death is the presumed fact.)

  1. Presumption v. inference.
    1. A presumption shifts the burden of production to the opposing party.
    2. An inference does not shift the burden of production to the other party.
    3. Presumption v. conclusive presumption. The basic facts conclusively establish the presumed facts.

Example: A child under a certain age is not capable of committing an intentional tort.

Example: A child born during wedlock is presumed to be legitimate.

  1. Permissive presumptions.

Bursting bubble theory. Once an opposing party has introduced evidence sufficient to sustain a finding as to the non-occurrence of a presumed fact, the presumption disappears.

Example: Plaintiff-wife has established her husband has been absent from the jurisdiction for seven years. (A presumption of death.) The burden of production shifts to the defense. The defense introduces evidence that a witness saw the husband in the jurisdiction within the past year.

  1. Presumptions in criminal cases. Both mandatory and permissive presumptions are permitted, but in most criminal cases.
    1. FRE are silent as to presumptions in criminal cases.
    2. Use the Uniform Rule of Evidence 103. If the presumed facts established guilt, or is an element of the offense, the court shall instruct he jury that its existence must be proved beyond a reasonable doubt.

Example: The defendant is charged with DWI after their BAC is measured at .14. The trial judge instructs the jury that persons with BAC more than .10 is presumed intoxicated according to state law. Such instruction is proper only if a further instruction is also given that the presumed fact (intoxication) must be proved beyond a reasonable doubt, or the jury might think the prosecution was relieved of the burden of proving their case beyond a reasonable doubt.

  1. Burden of persuasion. The degree that a party must convince the trier of fact.

IV. Article 4. Logical and legal relevancy including character evidence.

  1. Logical relevancy. Circumstantial evidence that is reasonably related. It must have a tendency to prove or disprove a fact of consequence.
    1. Materiality, a narrower concept than relevancy, deals with whether evidence bares on a fact of consequence.
      1. FRE 401. Combines the concepts of relevance and materiality.
    2. Logical relevance only involves circumstantial evidence, not direct evidence. (Usually on essays).
      1. Direct evidence. Evidence that does not depend on any inference for its relevancy.

Example: Testimony of eyewitness that saw defendant shoot victim.

  1. Circumstantial evidence. Evidence that draws on an inference.

Example: Testimony from a witness that didn’t see the shooting, but saw the defendant running from the scene of the crime.

  1. Circumstantial evidence.
    1. Similar acts. Evidence of other prior acts may be admissible to prove a dangerous situation existed or to prove the defendant was aware that a dangerous condition existed. If, and only if, the plaintiff establishes a substantial identity of material circumstances.

Essays. Argue there is substantial identity of material circumstances.

Example: The plaintiff offers evidence of other accidents at a particular railroad crossing to show the dangerous nature of the crossing. Admissibility depends on whether substantial identity of material circumstances is present. The plaintiff would have to show similar time of day, similar weather and similar speed.

  1. Absence of acts. A defendant offering evidence of absence of similar accidents to establish due care. To be admissible the defendant must show a substantial identity of material circumstances.

Example: Plaintiff sues city after an accident at an intersection. The defendant offers to prove that over the last fourteen years, the intersection has remained the same and there have been no reported accidents. Admissible? Yes, because the intersection has remained the same for fourteen years (substantial identity of material circumstances) and there have been no accidents reported (if there had been, it would have been observed).

Example: The plaintiff slips and falls on freshly waxed tile floor in a hotel lobby. The defendant offers evidence that over the last week, 1500 people used the same floor and no one else was hurt. Not admissible to establish due care because the floor in the plaintiff’s case was freshly waxed and the floor had not been freshly waxed when 1500 people walked over it. No substantial identity, therefore inadmissible.

  1. Prior tort claims. The fact that the plaintiff has filed previous similar tort claims may be admissible to show common plan or scheme or to show the plaintiff has brought similar claims for similar injuries.
  2. Prior contracts between the two parties may be admissible to prove the meaning of ambiguous terms, but prior contracts between one party and a third party is only admissible to show customary dealing and trade usage.
  3. Prior sale of land may be used circumstantially to prove value of existing property if substantial identity of material circumstances. Time, size, condition. Sale of unique property however (a Picasso), would require expert testimony to show similarity of value.
  4. Legal relevancy. Public policy considerations excluding relevant evidence that otherwise would be admissible.

FRE 403. Highly tested on the MBE. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of:

  1. Unfair prejudice. Subject of appellate review.
  2. Confusion of the issue. Subject of appellate review.
  3. Misleading the jury. Subject of appellate review.
  4. Undue delay. Not likely heard on appeal.
  5. Waste of time. Not likely heard on appeal.
  6. Needless presentation of cumulative evidence. Not likely heard on appeal.

Applies to:

  1. Subsequent remedial measures. FRE 407. Inadmissible to prove negligence in connection with an improvement or repair that was made following an injury caused by the prior existing condition.

Exceptions:

  1. To prove ownership or control.
  2. To impeach.

Example: Evidence that D put new brake linings into his car after an accident that was caused by faulty brakes would be inadmissible to prove negligence.

Example: Evidence that D cut down a rotted tree after it fell on plaintiff and injured him. Admissible to show ownership and control if D first claimed that the tree was on city property.

Example: In a products liability action against a tractor manufacturer, evidence that D corporation changed the design of its tractor three months after P was injured would be admissible in a products liability action.

  1. Public policy is to encourage people to make products safe and make repairs without fear that such evidence will later be used against them in court. Discuss this on an essay.
  2. Offers to settle. FRE 408. An offer to settle a claim is inadmissible to prove liability for the claim or its amount. The public policy is to encourage litigants to settle disputes. This rule recognizes that parties may make settlement offers even where they believe they have no actual liability, in order to avoid the expense of litigation.

Exceptions:

  1. To prove bias or prejudice of a witness.
  2. To controvert a contention of undue delay by one of the parties or.
  3. To prove that a party attempted to obstruct a criminal investigation.

Example: The plaintiff sues the defendant after a car accident. The defendant offers 1000.00 to settle the matter. This offer to settle is not admissible.

Example: Evidence by the plaintiff that the defendant’s expert witness received payment to testify against the plaintiff as an offer to compromise or settle the expert’s own claim against the plaintiff may be admissible to show bias or prejudice.

Statements made in connection with offers to settle are inadmissible.

Example: In a negligence action following a car accident, D walks over to plaintiff and says. “I’m sorry it was my fault. I’m willing to settle this matter with you.

Can the first sentence, which is an admission, be offered into evidence? No. Can it be severed from the offer to settle? No, there is no severance. Statements made in connection with offers to settle are inadmissible.

  1. Offers to pay medical expenses. Evidence offering to pay medical or hospital expenses related to an injury is inadmissible to prove liability. The public policy rationale is that courts don’t want to discourage parties responsible for injuring others from paying for those injuries.

Example: “It was my fault. I’m willing to pay for your injuries.”

The first part of the admission is admissible. The second part is not.

  1. Offer to plead guilty, withdrawal a guilty plea, and nolo contendere are inadmissible against the individual who made it. The public policy is to encourage pleading or there would be a great effect of discouraging such a plea.

Exceptions:

  1. A prosecution for perjury.
  2. For impeachment purposes.

Distinguish from a guilty plea that is not withdrawn, which is admissible as an admission.

Evidence of a final judgment entered after a guilty plea following any felony conviction is admissible under a hearsay exception.

  1. Liability insurance. Evidence that a person was or was not insured at the time of an accident is inadmissible to prove negligence.

Exceptions:

  1. Agency.
  2. Ownership and control.
  3. Bias or prejudice.

Example: D claims that a truck driver involved in an accident was an independent contractor not an employee. Evidence that D took out liability insurance on that truck is admissible to show ownership and control.

Statements made in connection of ownership of liability insurance are inadmissible. No severance.

Example: D says to P,  “I ran that red light, don’t worry, my insurance will pay for it.” The admission is not admissible.

  1. Character evidence.
  2. Character evidence. Describes testimony for the purpose of proving that a person acted in a particular way on a particular occasion based on the known character or disposition of that person. Use FRE 403 to determine if the evidence’s probative value is outweighed by its prejudicial effect.
    1. Determine the form of the character evidence.
      1. Reputation in the community.
      2. Personal opinion.
      3. Specific instances of conduct. Specific acts.
    2. Determine the type of case. Criminal or civil.
      1. Civil cases. FRE 404(a)(1). Character evidence is inadmissible to prove conduct in conformity on a particular occasion.

Example: in a negligence action, evidence the defendant had the reputation, as a careful person is inadmissible.

Example: In a breach of warranty action, evidence the seller was an honest man would be inadmissible.

Exceptions:

  1. Essential elements. Character is admissible if it is an essential element of a claim, defense, or cause of action.

Example: Defamation or child custody cases.

  1. Knowledge of the character of another is an issue.

Example: Self-defense and negligent entrustment (negligent hiring or negligent selection).

Example: Paul was injured when Wanda collided with him while driving Doris’ car. Paul is suing Doris for negligent entrustment.

Example: Paul offers evidence Doris knew Wanda had three previous driving accidents that year.

Negligent entrustment, character is an issue and a specific act (three previous accidents). This is a proper form of character evidence and is admissible.

The character of entrustee is an issue in negligent entrustment case (Wanda) to prove that entrustor (Doris) negligently loaned the car.

Example: Doris offers opinion testimony of her husband that Doris always inquired as to persons past driving record before loaning her car. This is inadmissible opinion testimony because Doris’ character is not at issue. Wanda, the entrustee’s character is at issue.

  1. FRE 405: Admissible character evidence. If character is an issue or knowledge of character of another is an issue, all forms of character evidence, reputation, opinion and specific acts may be used as proof of character.

Beware of the use of specific acts.

Example: Paul is suing Dan for defamation claiming Dan falsely called him a thief. Dan says he’s not a thief. Paul introduces testimony of Wilma that Paul committed three larcenies in the last year. For specific acts character is an issue and therefore admissible.

Character evidence of parties. FRE 405 deals with character evidence of parties, not impeachment of witnesses.

  1. Criminal cases. A criminal defendant not the prosecution may use circumstantial character evidence in three ways:
    1. Open the door rule. FRE 404(a)1. A defendant may offer evidence of their good character by reputation or opinion to prove their innocence. The prosecution’s rebuttal is limited to character and opinion evidence only.

Example: In a murder case D offers testimony of W: “I’ve been D’s neighbor for fourteen years and he’s a good man.” Inadmissible because an honesty trait is not relevant to whether D is innocent to a charge of murder. This is an improper way to open the door to D’s peaceful character.

Example : W: “I’ve been D’s neighbor for fourteen years and D is a kind and gentle person.” Admissible because being a gentle person is a trait that would bear on a charge of murder. Admissible as a proper way for a defendant to open the door to their character.

Example: The prosecution offers testimony of another neighbor that’s known D for fourteen years and says D has a reputation of a violent temper. This is a proper admissible form for rebuttal by the prosecution to show that D has a propensity to commit violent acts.

  1. Robbery cases. Honest character is admissible in robbery cases.

Example: D’s witness testifies that he has been D’s neighbor for fourteen years and is an honest man. Admissible to prove D is incapable of committing a dishonest act such as robbery. The door is open. The prosecution asks the defendants witness on cross-examination: “Did you know, or have you heard, that D committed three burglaries in the last year? Committing burglaries is a specific act, not a question of reputation or opinion? Admissible because the question is being offered not to attack D’s character, but it is being asked to challenge the credibility of the witness.

Distinguishing character v. credibility. If the witness doesn’t know D committed the burglaries, then how well do they really know the defendant? If they do know about the burglaries, then how credible of a witness are they?

  1. Bad character of the victim. FRE 404(a)2. The defendant may use all three forms of character evidence to prove the bad character of the victim. The prosecution may, of course rebut.

Example: In a murder case, D may introduce evidence that the victim is a violent person to show the victim was the aggressor. The prosecution may rebut by showing the victim is non-violent and has a reputation for peacefulness.

  1. Rape cases. FRE 412. Reputation and opinion evidence is inadmissible. Admissible at common law. Specific acts of sexual behavior by the victim are admissible in two ways:
    1. Behavior with other persons that explain the signs of rape.

Example: Sexual intercourse with other men besides defendant, to show the defendant was not the source of sperm found on the victim after the alleged rape.

  1. Past behavior with the defendant not other men that tend to show consent.
  2. MIMIC rule. FRE 404(b). Circumstantial evidence may be offered in a criminal case by the prosecution and offered in rebuttal, if the specific trait is an issue. When dealing with MIMIC evidence always balance the probative value with the prejudicial effect.
    1. Motive.
    2. Intent.
    3. Absence of mistake.
    4. Identity.
    5. Common plan or scheme.

MBE answer will be admissible for purposes of MIMIC or inadmissible because probative value is substantially outweighed by prejudicial effect.

MBE: Admissible because it’s probative value, is substantially outweighed by its prejudicial affect. It is never admissible to prove criminal disposition or propensity to commit a crime.

Example: Motive. In a burglary case P offers testimony that D needed money to defend themselves against three other charges of burglary. Inadmissible because it’s highly prejudicial. The jury could look at the other burglary evidence and say, “He committed the other burglaries, he probably committed this one too.”

Example: In a murder case D claims the victim was his friend and he had no reason to kill the victim. In rebuttal since motive is an issue the prosecution may introduce evidence that D and the victim took part in an earlier bank robbery and the victim hid all of the stolen money. Admissible to prove motive.

  1. Habit. Character is a general description of a person’s disposition. Habit is circumstantial evidence of a person’s regular response to a repeated situation.

FRE 406. Evidence of the routine practice of a person or organization, regardless of the presence of an eyewitness is relevant to prove the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

MBE: Looks for words such as always, automatically, invariably, regularly, without fail as tip offs they are testing character evidence. Frequently or often is not enough.

Example: Evidence of a routine by which a company answers phone orders and encloses them in an envelope and then uses Federal Express to ship those orders, would be admissible as a routine business practice of a corporation.

Example: Passenger is suing driver after a car accident. D’s eyewitness testifies that P was not wearing their seatbelt. P then calls W to testify that she drives to work everyday with passenger and has done so every workday for the past three years and P always wears their seatbelt. Is this admissible habit evidence? Yes, even if there is no eyewitness.

  1. V. Article 5. Privileges. Article five only contains FRE 501. MBE and bar essays test on common law or the uniform rules of evidence, which are not adopted by the federal rules.
  2. FRE 501. The privilege of a witness shall be governed by common law. Two step approach.
    1. The privilege of a witness is determined by state law if it is a:
      1. Diversity case.
      2. Case arising under state law.
    2. The privilege of a witness is determined by common law if it’s a:
      1. Federal question case.
      2. A case arising under federal law.
      3. A criminal case.

MBE: NAACP is suing the city of Chicago alleging racial discrimination. The city attorney is called as a witness and objects to testify claiming testifying would violate the attorney/client privilege. Will the objection to sustained? It will be sustained provided the court concludes that the privilege should be recognized as part of the modern common law. What type of case is this? The plaintiff is alleging racial discrimination, a federal question therefore apply the second rule.

MBE: Wrong answer. Objection overruled because there is no such privilege explicitly set forth under the federal rules.

  1. Privileges.
    1. Confidential communications.
    2. Incompetency. Common law type privileges.
      1. FRE 601 abolishes dead man statutes.
      2. The rule requires federal courts to follow a state’s dead man’s statute if one exists in any case controlled by state law.

A dead man’s statute is a state law that prohibits testimony from an interested witness regarding any conversation or transaction they had with the deceased. There is no federal dead man’s statute. Such statutes aim to prevent false testimony from witnesses that is unable to be refuted by the deceased or an agent of the deceased.

Example: A diversity case where state law controls. If the state has a dead man’s statute the court will follow it.

  1. Constitutional privileges. Privileges in defamation, and self-incrimination.
  2. Public policy privileges. (Legal relevancy, such as subsequent remedial measures.)
  3. Privilege exam approach.
    1. Relationship. Does a protected relationship exist? (An attorney/client or doctor/patient relationship).
      1. A protected relationship exists if the client is seeking professional advice or consultation.
      2. No compensation needs to be paid and the attorney or doctor doesn’t have to take the case for the privilege to apply.
    2. Communication. The communication is protected, not the information.

Example: Client tells attorney he was driving too fast at the time of an accident. The attorney may not testify the client was speeding because the communication is protected.

Example: Defendant reveals the same information to a friend. The friend may testify.

  1. Confidentiality. Only confidential communications are protected.

Essay. The issue is the presence of third parties. Determine if the third-party is essential or non-essential.

  1. Non-essential third party presence destroys confidentiality.
  2. Essential third parties do not destroy confidentiality if they are furthering the confidential relationship such as a secretary, stenographer, lab technician or nurse.
  3. Eavesdroppers.
    1. Common law. Eavesdroppers could testify.
    2. FRE. No clear-cut view as to whether eavesdroppers may testify.
    3. Modern view. Known or reasonably anticipated eavesdroppers destroy confidentiality if a party knew or should have known the third party was present. Unknown eavesdroppers do not destroy confidentiality.

MBE: While standing in line at a racetrack to place a bet, the husband was overheard by an eavesdropper telling his wife in a low whisper, that he just robbed a bank. May the eavesdropper testify to what the husband said to his wife? Yes, the eavesdropper’s testimony is admissible because communications made in public are never confidential.

  1. Holder. The person in whose favor the privilege operates.
    1. It may only be asserted or waived by the holder, or an authorized representative of that holder.
    2. A waiver does not operate as a total waiver, but merely permits questioning by the opposing party to the extent reasonably necessary to scrutinize the disclosed information.

Example: Squirt whip cream from a can. What comes out can’t go back in, but what remains in the can is protected.

  1. Types of privileges.
    1. Attorney/client. Protects confidential communications from attorney to client and from client to attorney made during the existence of the relationship.
      1. Attorney must be licensed, or one who is reasonably believed to be licensed by the client.
      2. The holder is the client, but the attorney may assert the privilege on behalf of the client.

Exceptions:

  1. Suits between attorney and clients.
  2. Suits between joint clients.
  3. Disputes over a client’s will after client’s death.
  4. Communications made in furtherance of a future crime or fraud.
  5. Work product. Material prepared by the attorney for their own use, such as files. Such material is not protected under the privilege, but it may be protected from unjustified disclosure or discovery under the work product rule in Hickman.

Hickman v. Taylor, 329 U.S. 495 (1947). The general policy against invading the privacy of an attorney’s course of preparation is so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order. There must be some showing of necessity or justification by the party seeking its discovery. If relevant and non-privileged facts remain hidden in an attorney’s file and the production of those facts is essential to the preparation of a case, discovery may be made.

MBE: Simply handing over pre-existing documents or records to an attorney does not automatically make the documents privileged, such as bank documents or contracts.

  1. Basic facts. Name, address and occupation are not privileged.
  2. Notes and files are not protected under the attorney/client privilege but may be protected from disclosure or unjustified discovery.
  3. Corporations. A corporation may claim the client privilege.
    1. Federal courts. Upjohn. The privilege applies to statements given by ordinary employees to attorneys investigating relevant issues.
    2. State courts. Control group test. The privilege only applies to high-level officials that have authority over corporate policy.
    3. Doctor/patient. The privilege exists for the purpose of obtaining medical diagnosis and treatment.
      1. The holder is the patient.
      2. Broad communications are protected not only verbal. Applies to observations, X-ray, scars, gunshot wounds.

Exceptions.

  1. Where physical condition is at issue.
  2. In criminal proceedings.
  3. In malpractice actions.
  4. Competency or commitment proceedings.
  5. Psychotherapist/patient. Some jurisdictions. Broader than doctor/patient privilege. Includes psychoanalysis, psychologists and medical doctors such as psychiatrists.
    1. There is no privilege where mental condition is an issue.
    2. State law. Tarasoft v. Regents of University of California, 551 P.2d 334 (1976). There is a duty of a psychotherapist to warn as to any immediate threat of harm by the patient to another.
    3. Priest/penitent. Both the clergy and penitent are holders and both may refuse to disclose information.
    4. Husband/wife. Two privileges.
      1. Marital communication privilege.
        1. Common law rule protects confidential verbal communications made during marriage. Applies to both civil and criminal cases.
        2. Upon divorce any communications made during marriage remains privileged.
        3. Modernly. Both observation and impressions are protected not just verbal.

Example: Husband comes home and roles up his shirtsleeve, showing his wife fresh needle marks on his forearm. Modernly protected, under common law not protected because it was not a verbal communication.

  1. Both spouses are holders. Each spouse may prevent the other from disclosure.

Exceptions.

  1. No privilege for crimes against the other spouse or children.
  2. Statements made in furtherance of a future crime or fraud.
  3. Spousal privilege. Privilege of incapacity in a criminal case that protects all communications, verbal, observations and impressions both prior to marriage and during marriage. Marry a person and seal their lips.
    1. Upon divorce the entire privilege is lost.

MBE: Who is the holder of the privilege?

Common law. The party spouse is the holder.

Federal courts. The witness spouse is the holder.

Example: D is being prosecuted for larceny and the prosecution is taking place in federal court. Here, a criminal case and federal court. If D’s wife saw him commit the larceny as a witness she may either refuse to testify or testify because she is the holder of the spousal privilege. If the wife did not see her husband commit the larceny but confides to her that he committed the crime. Event though the wife may choose to testify under Trammel, the husband may prohibit her from doing so under the confidential marriage privilege.

Exceptions.

  1. Crimes against the other spouse.
  2. Crimes against the children of either spouse.

VI. Article 6. Witness including competency and impeachment.

Article 4 relevancy, article 6 witnesses and article 8 hearsay are three main areas of federal rules tested on the MBE and essays.

  1. Witness competency.
    1. Common law required:
      1. Witness must take an oath to testify truthfully.
      2. Witness must show mental capacity sufficient to understand the obligation to tell the truth.
      3. Witness must have personal knowledge. (Witnesses own present perception.)
      4. Common law grounds for disqualification/incompetence.
        1. Felon.
        2. Atheist.
        3. Children.
        4. Spouse. (Each spouse could prevent the other from testifying in a civil case.)
        5. Mental incompetence.
        6. Financially interested parties.
    2. FRE 601. Every person is competent to be a witness except where state law supplies the rule of decision.
      1. In a diversity case where state law supplies the rule of decision, a child witness would have to satisfy the three common law requirements.
      2. Minimum competency test under the federal rules:
        1. Personal knowledge.
        2. A declaration to testify truthfully under oath or affirmation.
        3. Federal rules are more liberal, the policy is to dispense with strict competency requirements, let the testimony in and let the jury determine the weight of the testimony.

Example: In a diversity case, for a child to testify they have to satisfy the three common law requirements of oath, capacity and personal knowledge.

  1. Interpreters. Use of interpreters are permitted provided they:
    1. Take an oath to testify truthfully and,
    2. Qualify as an expert witness.
    3. Courts may appoint expert witnesses in civil and criminal cases and provide reasonable compensation for the interpreters.
    4. Competency of judge and jury.
      1. Under FRE 605, neither the presiding judge nor any jury member may testify in any trial in which they are sitting.
      2. An attorney may be called as a witness.
      3. Impeachment. Discrediting the credibility of a witness.
        1. FRE 607. Any party, including the party calling them, may attack the credibility of a witness. At common law a party could not impeach their own witness.
        2. When would a party want to impeach their own witness?
          1. When a party is surprised by the witnesses’ hostile testimony.
          2. When a witness’s testimony is harmful to the calling parties case.
          3. Where a party calls the opposing party as a witness.
            1. The normal rules of impeachment are reversed.
            2. The witness may be impeached by the calling party and then subject to direct examination by their own counsel.
    5. Forms of impeachment.
      1. Intrinsic impeachment. Evidence from the mouth of the witness.
      2. Extrinsic impeachment. All other evidence not from the mouth of the witness, such as contradictory evidence from other witnesses that discredit the testifying witness.
    6. Collateral matter rule. A collateral matter is evidence that exclusively affects the credibility of a witness.
      1. Not material to the matter being litigated.
      2. Collateral evidence offered to attack the credibility of a witness may be inquired into on cross-examination, intrinsically, subject to the courts discretion.
      3. Prior inconsistent statements. The most common way to do this is attacking a prior inconsistent statement.
      4. Extrinsic evidence, such as testimony of other witnesses on the same question with regard to collateral matters may not be introduced.

Example: W testifies D is an honest man. On cross-examination W is asked, “Did you know D committed three burglaries in the last year?” This question is being asked to discredit W’s credibility. If they say, yes or no, this is an attempt to intrinsically attack W’s credibility.

Example: P’s witness testifies that D drove through a red light at an intersection and was wearing a green sweater at the time. D may not call another witness to testify that D’s sweater was blue. Such extrinsic evidence on a collateral matter would be inadmissible.

  1. Impeachment methods.
    1. Sensory defects. Go to the credibility of a witness. The manner of impeachment by sensory defects may be questioning intrinsically the witness or extrinsic evidence such as the witness’ inability to perceive because of poor eyesight, or poor memory.
      1. FRE 610. A person’s religious beliefs are inadmissible to attack credibility.
      2. Foundation requirement.

Example: Do you normally wear glasses? Must be asked before introducing extrinsic evidence.

  1. Bias. Manner of impeachment as to bias may be either intrinsic questioning or extrinsic testimony. Bias is always material and never collateral. Foundation requirement. First, ask witness about the facts that form the foundation of the bias. Four ways to impeach under bias:
    1. Interest in the outcome.
    2. Economic or marital relationship.
    3. Hostility or favoritism.
    4. Fee paid to an expert witness.
    5. Character. Impeachment by character.
      1. Reputation and opinion.
        1. FRE 608(a) allows both.
        2. Common law only allowed reputation. Proof of reputation is limited to the character trait of untruthfulness.
        3. Bad act impeachment. Prior unconvicted acts.
          1. FRE 608(b). Questions on cross-examinations may inquire into prior unconvicted acts relating to truthfulness.

Example: On cross-examination W is asked if they embezzled money from an employer. An unconvicted act related to truthfulness. What if W says no? At this point no other witness may be called to contradict W’s answer because such evidence is extrinsic on a collateral matter and would be excluded under the collateral matter rule.

Limited to good faith questioning. Can’t ask if W embezzled money from their employer if there is no foundation for asking such question.

  1. Felony convictions. FRE 609(a). Crimes punishable by death or imprisonment for more than one year may be admissible to impeach provided the court balances and determines the probative value outweighs its prejudicial affect.
  2. Convictions of crimes bearing on untruthfulness. Misdemeanor or felony crimes involving dishonesty or false statements may be used to impeach. The judge has no discretion to exclude such proof.
  3. Limitation on impeachment.
    1. Ten-year rule. FRE 609(b). A discretionary rule where conviction of a crime is inadmissible to impeach if more than 10-years has elapsed after the conviction, unless the court determines it’s probative value is outweighed by its prejudicial affect.
    2. Requires advance written notice given to the opposing party.

MBE: Which conviction would most likely be allowed for impeachment?

  1. A 12-year-old conviction for forgery. More than ten years old. A felony that bears on truthfulness. A weak choice under the 10-year rule.
  2. A 3-year-old conviction for assault and battery. Assault and battery doesn’t bear on truthfulness.
  3. A 10-year-old conviction for petty theft. Not more than 10-years-old, and a petty theft is a crime involving untruthfulness. It comes in without any balancing.
  4. An 8-year-old conviction for murder. It’s less than ten years old, it doesn’t bear on truthfulness. However, murder is a felony and would probably come in, but its probative value would have to outweigh its prejudicial affect.
  5. Procedurally. How to impeach using a conviction?
    1. Ask the witness intrinsically.
    2. Offer a certified copy of the conviction extrinsically.
    3. Other areas of impeachment.
      1. Pardons. FRE 609. A conviction subject to a pardon is inadmissible to impeach. Common law it would be admissible.
      2. Juvenile adjudication. Inadmissible if offered against the defendant. When offered against a witness, subject to the courts discretion.
      3. A conviction under appeal is admissible to impeach, but the other party may state that it is still pending.
      4. Prior inconsistent statements. Most common form of impeachment.
        1. FRE 613. Foundation requirements. A witness needs to be given an opportunity to explain or deny the statement. Does not need to be done on cross-examination.
        2. Common law. Inadmissible unless first asked on cross-examination if they made such a statement.

Example: On examination W testifies D’s sweater was green. On cross-examination W is asked, “Did you tell X that the sweater was blue? If W says, “No, I did not.” X cannot be called to refute W’s answer. Collateral rule of evidence applies.

  1. FRE 806. The credibility of a hearsay declarant/out-of-court declarant can be impeached.
  2. Presentation of evidence.
    1. FRE 611. Cross-examination is limited to the subject matter of the direct examination and matters affecting the credibility of the witness.
    2. Three areas:
      1. Questions addressing the scope of direct examination.
      2. Leading questions.
      3. Impeachment. Matters affecting the credibility of the witness.

Example: P testifies a large brown German Sheppard with a white paw bit them without provocation. P then calls the other party as an adverse witness and asks one question. (Scope of questioning is limited to ownership.) “Do you own a large brown German Sheppard with a white paw.?” D answers, yes. D’s attorney then asks D, “Isn’t it true that your dog is gentle and never bites unless provoked?” P objects. Upon objection the defense attorney’s question should be ruled: Inadmissible, subject to the courts discretion because D’s answer goes beyond the scope of direct examination.

  1. Leading questions. Not allowed on direct examination except:
    1. Preliminary background information.
    2. Examination of expert witnesses.
    3. Children as a witness.
    4. Hostile or adverse witnesses.
    5. Refresh recollection.
      1. FRE 612. W’s memory may be refreshed by leading questions or a writing while testifying or before testifying.
      2. The witness must testify without looking at the writing.
      3. Opposing council has the right to inspect the document, to use it on cross-examination and may introduce relevant portions of the writing.
      4. The witness need not have prepared the writing themselves and it didn’t have to be prepared at or near the time of the event.
      5. The writing need not be admissible as evidence.
      6. It can be the attorney’s notes or anything else.
      7. If the witness had not been shown the writing while testifying but had reviewed it prior to coming into court, the court may order production of the writing for opposing council to examine.
  1. VII. Article 7. Lay and expert opinion.
  2. Lay opinion. (Non-expert opinion.) FRE 701. A non-expert or lay witness may testify in the form on opinions or inferences if they are:
    1. Rationally based on the perception of the witness.
    2. If the opinions are helpful to a clear understanding of the witnesses testimony. Exam. Helpfulness addresses the issue of relevancy.
    3. A lay witness must have personal knowledge.
    4. Scope of permissible lay opinion.
      1. Speed and other physical measurements.

Example: The car was going 50 m.p.h.

Example: Height, weight, or color.

  1. Improper scope because they are legal conclusions.

Example: The car was driving recklessly.

Example: The car was driving properly.

Example: The bridge was properly constructed.

  1. Identity of a person.
  2. Sensory descriptions

Example: Sound, taste, smell.

  1. Value of property.
  2. Familiarity with another person’s handwriting.
  3. Sanity, but not that a person is mentally incompetent.
  4. Physical condition.

Example: She appeared intoxicated.

Example: He appeared drunk.

Example: He’s an alcoholic. An improper legal conclusion that requires an expert opinion.

Example: She’s a schizophrenic. An improper legal conclusion that requires an expert opinion.

  1. Expert opinion. FRE 702. Qualifications of expert witnesses.
    1. An expert must have special knowledge, skill, training, education or experience. Court has broad discretion to constitute such skills.
    2. The opinion must be helpful or assist the trier of fact to understand the evidence. Addresses the concept of relevancy.
    3. The opinion must be within the field of expertise.

Example: An expert truck mechanic may not give an opinion as to the speed of two vehicles at the point of impact. Beyond the scope of the mechanics field of expertise. It would require an expert on accident reconstruction to be permissible.

  1. FRE 703. Under what facts may an expert base their opinion? An expert may base their opinion on facts perceived by the expert or may known to the expert, at or before the trial.

Example: Testimony by a coroner as to the findings of an autopsy.

Example: Facts about a fatal accident made known to the expert at trial, despite their lack of personal knowledge.

  1. Distinction: An expert need not have personal knowledge, but a lay witness must have personal knowledge
  2. An expert may give their opinion on a fact reasonably relied upon by experts in the particular field. This means an expert opinion may be based on facts not in evidence or even inadmissible hearsay as long as they are facts reasonably relied upon by experts in a particular field.
  3. FRE 704(a). Opinions on ultimate issues. (Highly tested). Unlike at common law an expert may give an opinion on ultimate issues.

Example: Testimony as to whether a testator had sufficient mental capacity to know the nature and extent of their property and the nature objects of their bounty would be permissible area of their opinion.

Example:  Improper question if asked: In your opinion did the testator have legal capacity to make a will? Not proper because it takes the question away from the trier of fact.

  1. FRE 704(b). Tested on the MBE two times recently. Deals with opinions on ultimate issues in criminal cases. An expert may not give an opinion as to whether a criminal defendant did or did not have a particular mental state constituting an element of the crime charged or a defense thereto.

Example: A murder case and the defendant plead not guilty by reason of insanity. An expert witness may not be asked if in their opinion they thought the defendant was insane at the time of the killing.

  1. FRE 705. Cross examinations of experts. An expert need not give the reasons of their opinion on direct examination. However, they may be required to do so on cross-examination.
  1. VIII. Article 8. Hearsay and exceptions.
  2. Definitions.
    1. Statements. FRE 801(a). An oral or written assertion, or non-verbal conduct intended by a person as an assertion. Tested often. So preliminary that test takers often pass over this issue.

Example: D is charged with driving while intoxicated. At their booking a video is made showing tem acting in an abusive manner with slurred speech. D moves to suppress the videotape from being included as evidence. Will this motion be granted or denied?

1) Denied because the videotape is an admission. Wrong answer.

2) Granted because the videotape is inadmissible as hearsay. Wrong

answer.

3) Denied because the videotape is relevant information. Correct.

A videotape is not a statement. It’s not an oral or written assertion, or conduct of the defendant as an assertion. They didn’t act abusive and slur to prove they were intoxicated. The videotape is not a statement and therefore cannot be hearsay. It is an out of court statement offered as truth. The motion would be denied because the videotape was relevant evidence.

Example: P was injured in a windsurfing accident collision with a powerboat. P is suing the owner of the powerboat. At issue is the wind speed at the time of the accident. P is offering into evidence a computer printout measuring the wind speed which was given to him by another boat owner, who was an eyewitness and had a sophisticated weathering device that measures wind speed. The computer printout will be:

1)    Admissible as a business record. Wrong.

2)    Inadmissible as hearsay. Wrong.

3)    Inadmissible unless there is foundation testimony as to the accuracy and proper working condition of the weathering device. Authentication. The correct answer did not deal with hearsay or hearsay exceptions. Why are business records and hearsay incorrect answers? Because a computer printout is not a statement. A statement must be a human statement, not one made by animal or machine.

  1. Declarant. A person who makes a statement or assertion. The main issue is whether the declarant is the same person as the in court witness, or an out of court person. Are they giving their own statement or did somebody else give the statement that the witness is offering.
  2. Hearsay. FRE 801. An out of court statement other than one made by the declarant while testifying in court, which is offered to prove the truth of the matter, asserted. How to deal with hearsay and hearsay problems?
    1. Analyze the statement.
      1. Is there a statement?
      2. Isolate the statement?
      3. Focus on the statement or assertion.
      4. Determine who is the declarant.
        1. Who made the statement?
        2. Are they in court testifying?
        3. Is it a party or another witness?
        4. Is it someone else?
        5. Most important, determine the purpose for which the evidence is being offered.
          1. Not for its truth, then it is not hearsay.
          2. If the evidence is being offered for its truth, then it‘s hearsay. Only if its hearsay, go to step four.
          3. Apply the hearsay exceptions. If the evidence is not being offered for its truth, then it is non-hearsay.
          4. Non-hearsay.
            1. FRE 801(d). Four types of statements, which by definition are non-hearsay. Hearsay exemptions. For the first three the declarant must be available and subject to cross examination regarding their statement.
              1. Prior inconsistent statements. Prior sworn inconsistent statements are admissible substantively and to impeach. Prior inconsistent statements that are not sworn are only admissible to impeach.
                1. Sworn means subject to penalty of perjury at a trial, hearing or other proceeding.

Example: On direct examination, W testifies that a traffic light was red. On cross-examination W is asked about a statement made at their deposition where they said the light was green. The deposition was at a prior hearing, where W gave a sworn statement, therefore the prior inconsistent statement is admissible both substantively and to impeach.

Example: W made a prior statement to a friend that the light was green. That prior statement was not a sworn statement and would only come in to impeach.

Example: W testifies he saw D kill victim. On cross-examination W is asked about a statement made in an affidavit where W said they weren’t sure who killed victim. An affidavit is sworn, but not at a proceeding, therefore the statement will be admissible only to impeach not as substantive evidence.

  1. Prior consistent statements. Non-hearsay offered to rebut a charge of fabrication or improper influence.
    1. The declarant must be available and subject to cross-examination regarding the statement.
    2. Such prior consistent statements are admitted substantively and for purposes of impeachment.

Example: On direct examination W testifies favorable for P. On cross-examination the defense asks if W is P’s former husband. He answers yes. There is an inference of bias or favoritism because W is P’s former husband. To rebut a charge of bias or favoritism on re-direct W may properly testify that they have not spoken to each other since their bitter divorce three-years ago.

  1. Prior identifications. A prior statement of identification of a person made after perceiving them, admissible substantively for its truth.
    1. The declarant must be available and subject to cross-examination regarding the statement.
    2. Admissible substantively for its truth as a form of non-hearsay.

Example: W testifies that a large man with red hair committed a bank robbery. D shows up at trial with a baldhead. Jailer is called to testify that when D was first brought in he had red hair. Jailer’s testimony will be

A)    Admissible as a prior identification? Wrong.

B)   Admissible? Yes, relevant to explain the discrepancy with W’s testimony.

Why is this not a prior identification? Prior identifications require a prior statement. The jailer at a prior time did not make an identification of D? All the jailer did was testify that when D was first brought to jail he had red hair.

  1. Admissions.
    1. Direct admission/general admission. FRE 801(d)2.  A statement of a party offered against them by their opponent. Admissible substantively as non-hearsay under FRE. At common law admissions were viewed as hearsay exceptions.

Example: D says to P after a car accident, “It was my fault.”

Example: A non-party bystander said to P, it was D’s fault. This is not an admission it’s an example of non-admissible hearsay.

  1. Admission by conduct or silence/adoptive admission. Evidence of conduct of a party, which reasonably supports an inference inconsistent with the party’s position. Admissible as an admission. The circumstance must be that a reasonable person would have denied the statement.

Example: P is suing his former employer after long exposure to a chemical that caused leukemia. D is denying both that the chemical was unsafe and that they knew there was any danger of exposure caused by the chemical. P is seeking to offer into evidence a report, which was compiled by defendant to a federal agency detailing the harmful effects of the chemical. Upon objection the report will be admissible as an adoptive admission by the defendant. A situation where a party conducts itself inconsistently with its trial contentions is a basis for an admission by conduct. Here, the defendant is conducting itself in court inconsistently with the report it gave to federal agents.

Example: In a post arrest situation the silence of an accused may not be used against them, because a reasonable accused person would be relying on their Miranda right to remain silent.

  1. Representative admissions/Authorized and vicarious admissions.
    1. An authorized admission. A statement of any person, not necessarily an employee specifically authorized by a party to speak, which may be offered against them as an authorized admission. Authority to speak is required.
    2. A vicarious admission. Is a statement of an agent or employee made during the existence of the relationship and concerning a matter within the scope of employment.
      1. FRE. Admissible.
      2. Common law. The statement had to relate to employment duties as well as scope of employment.

Example: A truck driver has an accident while making a routine business delivery. He makes a statement to the police, “Gee, I guess I had too many beers at lunch.” It’s a statement of a party employee, made during the existence of the relationship, within the scope of employment because he was delivering a package for the company at the time. However, at common law such a statement would be inadmissible because the statement, “I had too many beers at lunch,” did not relate to employment duties, the statement did not relate to driving a truck. At common law truck drivers are employed to make trucks, not to make statements. Under the FRE the statement would be admissible as a statement made within the scope of employment.

  1. Co-conspirator admission. A statement of a coconspirator of a party made during the course and in furtherance of the conspiracy is admissible against the party. The rationale is that each conspirator is viewed as an agent of all other conspirators.
    1. The conspiracy must be established with preponderance of independent evidence.
    2. Verbal acts/operative facts. A statement whose relevance is independently significant of their truth.
      1. Transactional words. The actual words of a contract, will or deed by themselves having independent significance.
      2. Tortious words. Actual words of liable or slander in a defamation action.

Example: In a defamation action P offers W’s testimony that D told a group of friends (publication) that P regularly turns in his employee’s works as his own because he is so incompetent. This statement will be admissible as non-hearsay because it’s offered as a verbal act to prove D made the statement. Its not being offered to prove its true.

  1. Non-assertive conduct.
    1. FRE. Behavior the actor does not intend to operate as a communicative statement, but which may be interpreted as one. Rarely tested on the MBE.

Example: A captain prepares and inspects his boat then brings his family onboard and sales away. The captain is not putting his family on the boat to prove the vessel is safe, he’s putting them on board so he can sail away. His conduct was not intended as an assertion. He did not bring his family onboard to prove the seaworthiness of the vessel.

Example: People opening umbrellas as it starts to rain. They are not opening their umbrellas to show the people in the office buildings that it is raining, they are opening them to keep from getting wet.

Example: Pointing a finger to give directions is assertive conduct and is hearsay.

Example: Nodding ones head yes, or no is assertive conduct and hearsay.

Example: A football referee signaling a touchdown by raising both hands over his head is assertive conduct and is hearsay.

  1. State of mind. Always tested on the MBE. Independently relevant circumstantial evidence may be used to prove:
    1. Knowledge.
    2. Intent.
    3. Attitude or belief of either the declarant of the listener.

Caveat. Always determine what the purpose of the evidence is being offered. Sometimes it’s not offered for its truth, but to show knowledge, notice, etc.

Example: P is suing D for negligence after a car accident where D’s brakes failed. D denies any knowledge of any existing problem. P calls W, D’s brother-in-law who testifies he drove the car a week before the accident and after he drove it, he told D his brakes needed to be repaired. Why is evidence being offered? It is coming in to show knowledge or notice because D has denied any existing problems. The evidence is coming in to show state of mind, knowledge of the listener, D who heard his brother-in-laws statement.

  1. Hearsay exceptions.
    1. FRE 803. Unavailability is not required.
      1. Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately after. The event doesn’t have to be startling.
        1. Applies to the FRE.
        2. Did not exist at common law.
        3. The declarant need not be available or known.

The most highly tested aspect is the time the event was perceived or immediately after. A question of moments or minutes. Ten minutes would be too long because there would be time for reflection and deliberation, so the statement would lack trustworthiness.

Example: The weather conditions on the night of a burglary are at issue. The victim who had been sleeping in his home, just after a prowler had fled his home, his teenage son returned home from a date and said, “What a great night, it’s so clear you can see a million stars.” It’s not a startling event but its describing or explaining a condition at the time and it was made just after the prowler fled.

Example: P is suing D after an automobile accident, which occurred near Times Square. At trial P’s witness testifies that when it happened, someone in the crowd yelled, “That red car did it.” Who is the declarant? Someone. The witness is testifying as to what someone said. We don’t know who the person was, they are not available.

  1. Excited utterances. A statement related to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
    1. The statement need only relate to a startling event.
    2. The statement must be made while the declarant was under the stress, not as strict as present sense impression, sometimes it can be longer depending on the facts.
    3. It will not cover statements made at the police station after the accident because there is time while driving from the scene to the station for reflection and deliberation.
    4. The purpose of an excited utterance is based on spontaneity and addresses the trustworthiness of the statement while under the stress.
    5. Common law. Res gestae an incorrect MBE answer choice.

Example: P is suing D after an automobile accident, which occurred near Times Square. At trial P’s witness testifies that when it happened, someone in the crowd yelled, “That red car did it.” Who’s the declarant? Someone. The witness is testifying as to what someone said. We don’t know who the person was, they are not available.

  1. Statement of present mental or physical condition. Statements of intent, pain and bodily health.
    1. Hillman Case, 145 U.S. 285 (1982). “I’m going to Colorado.” A statement of present mental intent that will come in substantively and admissible to prove its truth.
    2. Examiners will use the word going as a tipoff.
    3. The mental or physical condition must be a then existing, present tense.
    4. The statement can be made to anybody, not necessarily a physician.

Example: “My leg is broken.” Is a present tense statement.

Example: “I hurt my leg yesterday.” Is not a present tense statement.

Past mental state regarding a declarant’s will is permitted.

Example: “I revoked my will last week.”

  1. Statements of past physical conditions. Statements describing medical history and past or present symptoms. These statements may be admissible if made for the purpose of medical diagnosis or treatment.
    1. The statement may be made to anybody, not necessarily a physician.
    2. The declarant need not be the person seeking treatment himself.

Example: A family member (parent) can make a statement about the physical condition of their child.

Severance. Declarant says: “That speeding car hit me and broke my leg.” Sever the speeding aspect from the physical condition that the car hit the declarant. The statement the car broke my leg is admissible. The car speeding would not.

  1. Past recollection recorded. Where a witness’s memory has failed to be refreshed. The witness may read into evidence statements from a writing provided:
    1. The witness once had knowledge about the matter.
    2. The memorandum or writing must have been made by the witness or adopted by them at a time when it was fresh in their memory.
    3. Refreshing (handing a writing to a witness) must have been attempted and failed. Then and only then may the examiner hand the writing back a second time and let the witness read into evidence the words of the writing.
    4. The writing is not admitted into evidence unless offered by the adverse party. Any part of the writing that comes in by the adverse party comes in substantively not just to impeach.
    5. The writing must be properly authenticated so that it satisfies the best evidence rule, which prefers the original writing. However, the best evidence rule does not apply to refreshing recollection.
    6. Business records exception. A record or report of acts or events kept in the ordinary course of a regularly conducted business may be admissible as a hearsay exception subject to the following limitations.
      1. The record must be trustworthy.

Example: Palmer v. Hoffman, 318 U.S. 109 (1943). If records are prepared for anticipation of litigation they will be inadmissible for lack of trustworthiness.

  1. The custodian or a qualified person with knowledge must have prepared the business record. At common law it had to be the custodian who prepared the record.
  2. The record must have been prepared at or near the time of the event.
  3. Prepared by someone with a business duty to record.

Example: An accident report will be inadmissible if a checkout clerk in a supermarket made it. A checkout clerk’s job is to take care of people going through the line with groceries. This is not a person with a business duty to report.

  1. The absence of business entry may be admissible as a hearsay exception. It may be used to prove the non-occurrence of an event, or a non-existence of a record.

Example: A DMV record check to prove the defendant had no driver’s license.

  1. Public records. The recorder must be under an official duty to record. The court has discretion to exclude evidence due to lack of trustworthiness.
    1. Records of public office or agency activities.
    2. Records of records matters pursuant to a legal duty.
    3. Police reports are not included as official records because of their inherent lack of trustworthiness. Inadmissible as hearsay.
    4. Factual findings of official investigations. Used in either civil or criminal cases against the government.
    5. Absent of a public record is admissible as a hearsay exception.
    6. Hearsay examples dealing with records.

Example: Vital statistics, such as birth, death or marriage.

Example: Records of religious organizations, such as baptismal records.

Example: MBE favorite. Family records such as statements made in family bibles, and engraving on tombstones.

Example: Genealogy charts.

Example: Inscriptions on family portraits.

  1. Statements made in ancient documents.
    1. FRE more than 20-years-old. If it is found in the place it ought to be and if there is some form of authentication.
    2. Common law 30-years-old.

Example: A map to show that a certain road was in existence across a person’s property more than 20-years ago.

  1. Learned treatise. Highly tested. Statements published in treatises and periodicals are admissible if they are found to be authoritative.
    1. Admissible under the federal rules.
    2. Not admissible at common law.
    3. Statements contained in published treatises and periodicals are admissible hearsay exception if:
      1. Authoritative by expert testimony or judicial notice.
      2. The learned treatise must have been called to the expert witnesses attention on cross-examination or relied upon on direct examination.
      3. Statements in the learned treatise are read into evidence and admissible as substantive evidence. The writing is not admitted unless offered by the adverse party.
      4. Final judgments. Evidence of a final judgment entered after a trial or upon a plea of guilty to a felony is admissible.

Example: After a car accident D is charged with driving while intoxicated, which is a fine punishable by up to two-years in prison. (A felony.) D pleads guilty and serves six-months in jail. Subsequently, P is suing D in civil court for damages resulting from the car accident. P is offering into evidence a certified copy of D’s conviction.

A)    This certified copy will be admissible as proof of D’s character? Wrong, it would come in to impeach D’s character.

B)    It comes in as substantive evidence to prove intoxication. Hearsay exceptions always come in substantively. Admissible as proof of D’s intoxication? Correct under the hearsay exception of final judgments.

  1. Catchall All/equivalency exception. Usually the wrong answer on the MBE. Difficult to use because there are many restrictions.
    1. Admissible under FRE.
    2. Inadmissible at common law.
    3. The following limitations must be satisfied:
      1. The evidence must be more probative than any other evidence on point.
      2. The court must find circumstantial guarantees of trustworthiness equivalent to other hearsay exceptions.
      3. Admission of the statement must best serve the interest of justice.
      4. Advance written notice must be given to the opposing party.
      5. FRE 804 Unavailability is required and may arise in the following forms:
        1. Assertion of a privilege.
        2. Refusal to testify
        3. Lack of memory
        4. Absence due to death, illness or injury
        5. Absence from the courts jurisdiction.
        6. Unavailability is required.
          1. FRE 804. A broad expansion from the common law. May arise under the following forms:
            1. Assertion of a privilege.
            2. Refusal to testify.
            3. Lack of memory.
            4. Absence due to death, illness or injury.
            5. Absent from the court’s jurisdiction.
    4. Former testimony. Testimony given at an earlier proceeding by a now unavailable witness is admissible if the party against whom the testimony is being offered had the opportunity to cross-examine the person at the earlier proceeding and had a motive to examine similar to the reasons now presented.
      1. FRE. Identity of the party is not required.
      2. Common law. Identity of the party was required.
      3. The opportunity for prior examination may have been on direct examination, cross-examination or redirect examination.
      4. The party against whom the evidence is being offered must have been a party at the earlier proceeding.

Example: In a suit for negligence P is offering against D a deposition that the defense attorney took of a now deceased eye-witness, who observed a skiing accident where P was injured by D. Will the statement get in? Yes, admissible as former testimony. There’s similar motive, it’s the same cause of action, and it’s the same D at trial as it was in the deposition. There was an opportunity for direct examination at the time the deposition was taken.

  1. Dying declaration. A statement made by an unavailable declarant while under an imminent belief of death, concerning the cause or circumstances of the imminent death. It must occur in either a criminal homicide prosecution or any civil action. At common law a dying declaration was only available in criminal homicide cases, the declarant actually had to die.

The rule does not apply to non-homicide cases like theft, or assault and battery.

MBE: Does not apply in prosecutions for attempted murder.

Example: Declarant gets shot and says, “I know I’m dying X shot me.” However, somewhere in the fact pattern declarant is present at trial.

  1. Declaration against interests. A statement made by an unavailable, non-party, against their own interest when made. Made against:
    1. Pecuniary/financial interest.
    2. Penal interest. A declaration against a penal interest, offered to exculpate/exonerate the accused, corroborating circumstances must be shown clearly indicating the trustworthiness of the statement.
    3. Proprietary/property interest.
    4. Common law it had to be a pecuniary interest only.
    5. Multiple hearsay. Two or more layers of hearsay. For multiple hearsay to be admissible, each layer must be separately admissible, either under a hearsay exception or some form of non-hearsay.

Example: P is in the hospital. P’s mother is testifying what the nurse told P that the doctor had said about P’s condition. The approach is to deal with each layer separately. Start with the first statement.

  1. Step one. Start with what the doctor told the nurse.
  2. Step two. What the nurse told the mother.

The doctor’s statement might come in as a business record if what he said was made in the ordinary course of business, or reading to the nurse from some chart he had a business duty to record.

The nurse’s statement might be hearsay (probably). Most likely the entire statement would be hearsay. However, its possible the doctor made the statement to the nurse in such a way that the nurse made the statement under the state-of-mind exception. Knowledge or notice.

  1. Distinctions between declarations of interests and admissions.
    1. An admission is always a statement of a party, where a declaration against interest is always a statement of a non-party.
    2. An admission does not require unavailability, a declaration against interest does.
    3. An admission need not be against interest when made, a declaration must be made against a pecuniary, penal or proprietary interest at the time the statement was made.
    4. For an admission the declarant doesn’t have to have personal knowledge of the fact stated. Personal knowledge is required for a declaration against interest.
    5. As a general rule the same statement cannot be used as both an admission and a declaration against interest. Why? Because an admission is a statement made by a party and a declaration against interest is a statement of a non-party.

Example: On the MBE. A tricky question where a statement was used as both an admission and a declaration against interest.

IX. Article 9. Authentication and identification. Highly tested on essays.

  1. FRE 901. Authentication and identification. For real and demonstrative evidence a foundation must be laid to authenticate by a showing of evidence sufficient to sustain a finding that the matter in question is what the proponent claims.
    1. Real evidence.
      1. Documentary evidence.

Example: Writings.

  1. Voice and handwriting samples.
  2. Physical evidence.

Example: The murder weapon.

  1. Demonstrative. (Demonstration) Used for purposes of explanation. Not evidence of the actual case or crime itself.

Example: Visual aids, charts, maps, scale models.

  1. Forms of authentication. How does one authenticate evidence?
    1. Testimony based on personal knowledge.
    2. Distinctive markings.

Example: This gun is the murder weapon because it has a pearl handle and there aren’t many of them.

  1. Chain of custody. Highly tested on essays. An accounting of an items whereabouts from the time of issue until trial.

MBE: W took a photograph of a hit and run automobile leaving the scene of a crime. The only way the police were able to track down the defendant was by obtaining the film from the person who took the photo. They enlarged the photo to show the license plate number of the car. From that, they were able to track down the identity of the defendant who’s charged with vehicular manslaughter. The defendant was convicted and seeks to overturn the conviction based on use of the photo. There were no other eyewitnesses and no personal knowledge testimony to authenticate the license plate. The only method to authenticate was through the chain of custody. The test taker must analyze the whereabouts of the photo from the time it was taken until it came into the hands of police. The photographer took the picture, then had it developed. After he got it, he gave it to the police. The test taker would be unable to account for the whereabouts of the photo at all time. Such as who handled it and where they handled it. Was there an opportunity to tamper with the photograph? The question and issue could not be properly answered.

The other main issue also dealt with hearsay problems. The license plate and number was being offered for its truth to prove identity of the defendant.

  1. Authentication of scientific tests.
    1. Proper working device.
      1. A qualified individual must operate the device.
      2. The technique must be generally accepted in the scientific field.

Example: A weathering device that measures wind speed would have to be authenticated by a showing of all three requirements.

  1. Handwriting. There is no time limit as to how long ago a person was familiar with a person’s handwriting.

Example: A person’s third grade teacher could authenticate a person’s handwriting if they were familiar with it 20-years later. Familiarity could not have been obtained for purposes of litigation.

  1. A layperson with familiarity may authenticate a person’s handwriting.
  2. Comparison by an expert witness.
  3. Comparison by the trier of fact.
  4. Telephone conversations.
    1. Made to a resident.
      1. There must be a showing that the call was made to the number assigned by the telephone company.
      2. Self-identification. “Hello, this is Jones speaking.”
      3. Made to a business.
        1. There must be a showing that the call was made to the number assigned by the telephone company.
        2. The conversation was reasonably related to business transacted over the phone.
    2. Photographs. The photograph must be an accurate portrayal of what it depicts. Highly tested.
      1. The photographer need not testify as to the authentication of the photograph.
      2. Age of the photo is irrelevant as long as it is an actual visual representation of the scene.
    3. Self-authentication. FRE 902. In some areas no extrinsic evidence is required as a condition precedent of admissibility.
      1. Domestic public documents under seal.
      2. Certified foreign public documents.
      3. Certified copies of public records.

Example: A driver’s registration form

Example: A driver’s license.

  1. Official publications.

Example: An FAA pamphlet on air safety.

  1. Newspapers and periodicals.

Example: A copy of Time magazine.

  1. Trade inscriptions

Example: The label on Green Giant peas. At common law not self-authenticating.

  1. Notarized documents.
  2. Commercial paper.
  1. X. Article 10. Contents of writings, recordings and photographs.
  2. The best evidence rule.
    1. FRE 1002. To prove the contents of writings, recordings or photographs the original is required.
      1. Rule of preference for the original.
      2. Difficulty is in application.
      3. Does not apply to:
        1. Merely prove that a writing existed.
        2. Merely prove a statement was made.
        3. FRE 1004. Where the content of the writing are collateral to the issues being litigated.

Example: P is suing D over a contract dispute. The date of the party’s first conversation is at issue. P says date was 1.20 because he remembers reading a story about D’s daughter’s engagement in the newspaper that same day. D moves to strike.

A)    The motion will be granted because the best evidence rule would require the production of the newspaper. Wrong.

B)   Denied because the content of the newspaper was collateral to the issue being litigated. Correct. One must determine the purpose for which the testimony is being offered. Here, P’s testimony was being offered to show why he remembered, not to prove D’s daughter got engaged. Therefore, the best evidence rule does not apply.

  1. Where the rule applies.
    1. Where the writing itself has independent legal significance.

Example: The words of a contract, deed or will.

Example: The representations in a breach of warranty action. Best evidence rule would require the production of the actual warranty itself.

Example: A photo in a pornography action. The party introducing it into evidence would have to produce the photograph.

  1. Where the writing is offered into evidence to prove an event.

Example: An X-ray to prove injury.

Example: A receipt being offered to prove payment.

  1. Where the testimony is relying on the writing not relying on mere personal knowledge.

Example: P is seeking to testify as to what he remembers about the amount of pipe used, the number of workers employed and the numbers of hours spent on the job in a breach of a construction contract. P has also recorded this information in a notebook. P’s testimony will be:

A)    Admissible as based on first-hand knowledge. Correct.

B)   Inadmissible because it violates the best evidence rule. Wrong.

Is P’s testimony relying on the writing, or relying on his personal knowledge? His testimony is reliant on his personal knowledge, as to what he remembered and not as to what he wrote in his notebook.

Example: Same facts but he did not remember he had to rely on his notebook. If he had to look in the notebook then the best evidence rule would apply. Caveat: If the best evidence rule applies, there is a second problem, which is a hearsay issue. Test taker must find someway to offer this out of court statement into evidence. What is often used is a business record exception. Also, past recollection recorded, but his memory failed, he could read into evidence the words from the notebook and they would be substantively admitted under past recollection recorded.

Example: W is listening to their police ban radio in their apartment and heard the following broadcast. A red car just hit a blue car and is speeding away at the intersection of Maple and Cedar St. W who lives at this intersection, rushes to their window and see the red car at the scene with the blue car. At the trial that follows, W is called as a witness and asked to testify as to what she heard on the police ban broadcast. W’s testimony will be:

A)    Admissible as based on first hand knowledge. Wrong.

B)   Inadmissible because of the best evidence rule. Wrong.

C)   Inadmissible as hearsay. Correct.

D)   Inadmissible under both the best evidence rule and hearsay. Wrong.

What W heard on the police broadcast was an out-of-court statement offered to prove its truth because she is testifying that a speeding blue car hit the red car. She didn’t see the blue car speeding. All she did was look out her window and see the two cars a moment later. Speeding is an out-of-court statement offered as to its truth and is hearsay.

The best evidence rule doesn’t apply because to prove the content of a writing, the original writing is required. A police broadcast emanates over the air and then vanishes. There is no writing. It’s not a tangible or reproducible form.

  1. Duplicates. Duplicates and photocopies are admissible and treated as originals, unless a genuine question of authenticity exists.
  2. Summaries of voluminous records FRE 1006 the records to be admitted into evidence are so voluminous they can’t be conveniently brought into court. Summaries are admissible in the form of charts, summaries or calculations. Provided both the original and summary are separately authenticated.
    1. To authenticate the original record. (Public records).
      1. Self authentication.
      2. Judicial notice. (Regulation of a private or public agency.)
      3. To authenticate the summary.
        1. Testimony based on personal knowledge by the custodian or the person that drafted the summary or calculation.
        2. They would testify how they prepared the summary and the conditions involved, and their own qualifications.
        3. Once the authentication has been accomplished there is no hearsay problem.
        4. Once summaries of voluminous records are authenticated, they are admitted as substantive evidence.
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