Evidence Bar Exam

Evidence is relevant if

it tends to make the existence of any fact of consequence more or less probable than it would be without the evidence

Discretionary Exclusion of Relevant Evidence (FRE 403)

A court may exclude logically relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or waste of time

Balancing test - to exclude relative evidence,

probative value must be substantially outweighed by the danger of unfair prejudice

Impeachment evidence based on convictions for crimes involving false statements is

not subject to discretionary exclusion

Evidentiary hearings

court may conduct a hearing on admissibility of evidence (or other preliminary questions) but must do so outside the presence of a jury

Exclusion of relevant evidence - often arises with evidence that is:

Emotionally disturbing,

Repetitive or confusing,

Admissible for one purpose but inadmissible for another

Unfair surprise to a party or witness is…

Not a valid ground for excluding relevant evidence

Similar occurrences

evidence of prior similar occurrences concerning the time, event, or person in the present controversy is often inadmissible as irrelevant or as presenting an unfair risk of prejudice

Similar occurrences may be relevant and admissible to prove:

1) Causation,

2) Prior accidents demonstrating a) a pattern of fraudulent claims and b) pre-existing conditions

3) Intent or absence of mistake

4) To rebut a defense of impossibility

5) Value (similar transactions can establish value)

6) Industry custom (prove standard of care)

7) Business routine (show a particular event occurred)

A person’s habit may be relevant and admissible to

show that the person acted in conformity with that habit on a given occasion

In civil cases, character evidence is admissible where

a) character is at issue, or b) prior acts of sexual assault or child molestation in cases for similar claims

Rape Shield in Criminal cases - Exceptions: evidence offered to prove the victim’s sexual behavior is admissible to show:

a) a third party is the source of injury or DNA evidence, or b) prior acts of consensual intercourse between victim and D

Rape Shield in civil cases

Reputation, opinion, and specific instances of victim’s character are admissible if: 1) probative value substantially outweighs unfair prejudice; and 2) in the case of reputation evidence, P puts her reputation at issue in some way

Rape shield in criminal cases

Reputation and opinion evidence of victim and evidence offered to prove victim’s sexual behavior or disposition is inadmissible

Rape Shield: Procedure to present evidence of victim’s character

Parties must disclose intent to offer evidence, describe its purpose, and notify the victim 14 days before trial

Specific Instances of Defendant’s Bad Conduct (Prior Bad Acts)

In civil and criminal cases, specific instances of D’s bad conduct are generally inadmissible to prove character but admissible if independently relevant

Exception to Specific Instances of Defendant’s Bad Conduct (Prior Bad Acts)

In sexual assault or molestation cases, evidence of D’s prior acts of sexual assault or molestation is admissible

MIMIC - common non-character uses of prior acts evidence

Motive, Intent, Mistake (or absence of), Identity (extremely similar or unique prior act), Common Plan or Scheme

Co-Defendant Statements

The Confrontation Clause bars admission of an out of court statement by a non-testifying co-D if the statement expressly implicates another D

A co-D’s out-of-court statement is admissible if either

a) Declarant co-D testifies and is subject to cross examination, b) portions of co-D’s testimony referring to the non-declarant D are redacted, c) the statement is used to rebut a charge of a coerced confession

Hearsay Exceptions - Declarant Unavailability Required

Former testimony exception,

Statements against interest,

Dying declarations,

Statements of personal or family history,

Statements offered against party procuring declarant’s unavailability

Hearsay Exceptions - Declarant Unavailability is immaterial

1. Present state of mind,

2. Excited utterances,

3. Present sense impressions,

4. Physical condition (for medical diagnosis or treatment),

5. Past recollection recorded,

6. Business records,

7. Public records or reports,

8. Judgments and prior convictions,

9. Ancient documents,

10. Documents affecting property interests,

11. Learned treatises,

12. Family records,

13. Market reports

Declarant is unavailable if either:

a) privilege, b) death or physical/mental sickness, c) refusal to testify despite a court order, d) lack of memory, e) absent

Out-of-court statements are not hearsay if

offered to prove anything other than the truth of the matter they assert

Common non-hearsay out-of-court statements:

Statements of independent legal significance,

Statements offered to show their effect on the listener or reader,

Statements offered to show speaker’s knowledge,

Statements offered to show state of mind.

Judicial notice of laws

Courts must take judicial notice of federal and state laws and regulations. All other laws - court has discretion to take judicial notice

Judicially-noticeable facts

Manifest facts and notorious facts

manifest facts

those capable of verification by a source that is not subject to reasonable dispute

notorious facts

those generally known within the jurisdiction

Judicial Notice

A court may recognize a fact as true without formal presentation of evidence, either on its own or upon formal request of a party