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Evidence by Mind Map: Evidence
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Evidence

General Provisions

Approach for MBE Issues

Underline the cause of action Situate the proceeding (cross, redirect, party or witness; D's witness or P's witness) Determine the purpose for which evidence is offered (substantive vs. impeachment; character vs. credibility) Tell examiner why its relevant  

Govern

civil and criminal trials, bankruptcy and admiral

Does Not Govern

Preliminary questions of fact Grand Jury Proceed Preliminary hearings sentancing and probation hearings obtaining a warrant Bailment

Objections

"timely and specific objections" required. If answer already: motion to strike is required. Offer of proof: outside of the jury.  

Preliminary Facts

Mandatory

Related Statements

Rule of Completeness - does not apply to conversations

Judicial Notice

Not subject to reasonable dispute

Readily ascertainable and cannot be disputed

Mandatory If

[1] requested by a party AND [2] supplied with the necessary facts Civil Jury Must Accept Criminal Jury May Accept

Presumptions

Burden Shifts

2 ways

Burden Levels

Relevancy Limits

Balancing Test

Danger of unfair prejudice confusion of the issues misleading the jury considerations of undue delay wasste of time needless preseentation of cumulative evidence NOTE: UNFAIR SURPRISE IS NOT ON THE BAR NOTE: Most 403 Objections fail. NOTE: Rule 403 favors admisibility

Prior or subsequent actions

a dangerous condition existed product was defective cause of an accident notice of a condition Provided that: Substantially identical material circumstances

Character Evidences

Legal Relevancy against Public Policy

Sexual Conduct

Privileges

Essay Topics

Applicable Law

State Law  is applied In federal question and Criminal Law determined by common law  

Atty / Client

Phsycotherapist / Patient

Husband and Wife

Clergy Man Privilege

Spiratual Advisor Both parties are holders No excxeptions

Other Privileges

Political Vote Trade Secret Secrets of State or other Official information Identity of Informor Executive Privilege 5th Amendment - Only applies to testimonial in nature; does not apply to blood, eair, handwriting, lineup, photo ids, scars, tatoos, try things on. If criminal and refuses to take the stand, Prosecutor cannot commend. If civil and refuses to take the stand, prosecutor may comment and must take stand first

Witnesses

Generally

All may testify but not a judge Dead Man's Statute -unless state law says otherwise, disquallifies a witness from what the dead person said Lay witness must have personal Knowledge. Not experts Must take oath

Judges

presiding judge may not serve as a witness. Objections are automatic.

Juror

Usually excluded example: Juror misunderstood evidence or instruction, improper methods, drank and smoked during delib, physically bullied another, fell asleep. Juror may testify if: extraneous prejudicial info came to juror, whether any outside influence was imrproperly, clerical error

Impeachment

Generally Extrensic evidence is not allowed

Examining W

Opinions and Expert Testimony

Opinion Testimony by Lay

Testimony by Experts

Hearsay

Definition

    Statement (oral or written or assertive/nonverbal) not made by the declarant while testifying to prove the truth of the matter asserted   Verify that:   Made by human      

Analysis

  [1] Isolate the statement [2] Determine who is the declarant [3] Determine the purpose for which the evidence is being offered a) to impeach b) CAPPP Rule c) Verbal Acts d) Statement of Mind [4] Apply the hearsay exceptions  

Non-Hearsay Purposes

Exceptions - Availability Immaterial

Exceptions - Declarant Required to be Unavailable

F - Former Testimony S - statement against interest D - Dying Declaration S - Statement of Pedigree

ConfrontationClause

Multiple Hearsay

Attacking and Supporting Credibiity of Declarant

impeachment of a hearsy (out of court) declarant

Authentication

Types of Evidence

CONTAC - Self-Authentication

Certified Docs (seal, official transcript from public school) Official Publications (public authority book, FAA Booklet on Airlines) Newspaper and Periodicals Trade Inscriptions - signs tags, labels Acknowledged Docs - notarized Commercial Paper

Issues Proponent Must Overcome RE Admissibiity

OPRAH Original Writing Rule (Best Evidence) Privileged Relevancy (403 Balance) Authentication Hearsay

Contents of Writings, Recordings and Photos

Original Document Rule (Best Evidence)

To prove teh content of a writing The original is required  

(LOCS) Rule of Exceptions

Original is not required if LOCS Lost or destroyed unless in bad faith opponent has original and will not deliver Collateral -  writing not closely related to subject matter Subpoena - original cannot be obtained  

Public Records

Summaries (Substantively)

cannot convenienttly be examined may form a chart, summary, or calculation Foundation Showing that originals themselves would be admissible hearsay the opponent must be given reasonable access to review Comes in Substantively

Testimony or Written Admission of Party

writing may be proved by opposing party