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Evidence by Mind Map: Evidence
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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  


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


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

Preliminary Facts


CAP Rule

Standard of Proof


CAP Rule

Conditional Relevancy

Limited Admissibility

Require W to take Oath

The Rule

Judicial Notice

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


Burden Shifts

2 ways

Affirmative defenses


Burden Levels

Prepond of the Evid

Clear and Convincing

Beyond a Reason Doubt

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

Civil Cases, Actions where Character is at Issue, Examples

Criminal Cases, D's Good Character, MIAMI KOPPS, Victim's Bad Character, Examples, Accused offers Character E of V


Legal Relevancy against Public Policy

Sequential Remedial Measures

Offers to Compromise, Severance, Medical Bills, Plenty of Insurance, Pleas and Plea Discussions

Sexual Conduct

Rape Shield Law


Child Molestation


Essay Topics

Protected Relationship



holder of priv



Applicable Law

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

Atty / Client


Third Parties



Phsycotherapist / Patient



Husband and Wife

Spousal Privilege

Marital Communications Privilege

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



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


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


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


Generally Extrensic evidence is not allowed

Collateral Matter Rule

4 Methods, Bias, Sensory defects, Character, Reputation or Opinion, Bad Act, Proper, Improper, Limitations, Felony Conviction, Crimes of dishonesty or False Statements, Examples, On Cross, May Impeach W with Specific Instances (prior bad act), Prior Inconsistent Statements, PIS Generally, Offered into Evidence

Examining W

Leading Question

Writing Used to Refresh Memory, Adverse Party may then

Exclusion of Witnesses

Opinions and Expert Testimony

Opinion Testimony by Lay


Scope - VEMPSS

Testimony by Experts

Requires - SKEET

Daubert - Gatekeeper

Basis of Opinion

Balancing Test

Ultimate Issues



    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      


  [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

Statement of mind

Verbal Acts

CAPPP Rule, Co-conspirators, Admissions, Direct Admission, Adoptive Admission, Authorized Admission, Vicarious Admission, Prior Sworn Inconsistent Statments, Prior Consistent Statements, Prior Identifications

Exceptions - Availability Immaterial

Present Sense Impression

Excited Utterance

Then Existing Mental, Emotional, or Physical Condition

Statements for Purp of Medical Diagnosis

Recorded Recollection (Past Recollection)

Records of Regularly Conducted Activity (Business Records Exception

Absence of Entry in Records

Public Records and Reports

Other Exceptions

Exceptions - Declarant Required to be Unavailable

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

Unavailability Definition

Former Testimony Rule

Statements Under Belief of Impending Death

Statements Against Interest

Statements of Personal or Family History

Forfeitur by Wrongdoing


Multiple Hearsay

Attacking and Supporting Credibiity of Declarant

impeachment of a hearsy (out of court) declarant


Types of Evidence


Tangible, Read Evidence, Documents, Sound Recording, Handwriting, Voice ID, Telephone Calls, Demonstrative 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  


Independent Source Rule

Substitutes for Original

(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