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MBE EVIDENCE

APPROACH:
1. Underline CoA (Civ/Crim?); 2. Situate proceeding (Direct/redirect; Party or W?); 3. Purpose for E (subst or impeach?)

GENERAL PROVISIONS
Make objctn ASAP- state precise legal basis; Prelim Q = POTE std; Judge not bound to FREs except re. privilege;
rule of completeness

Frequently Tested Topics


Hearsay, Character and
Impeachment (NC: Presentation,
HS, Relevancy)

JUDICIAL NOTICE AND PRESUMPTIONS (Ct accepts w/out formal proof; fact not subj to Rable dispute)
MUST take JN if requested by party and ct supplied w/necessary info. Genl R: Fact jlly noticed, no contradictory E
permitted; [Crim: jury instructed it MAY accept as conclusive any jlly noticed fact][Civ: jury MUST accept as cnclsv]
Presumption: Shifts burden; inference drawn that establishes high problty of existence of other set of facts,
absent contrary E. [Crim: prove each element BaRD] Bursting Bubble: prsmptn disappears upon intro of contrary
E. Conclusive (irrebuttable/irrefutable) prsmptn = conclsvly established when basic facts proven; then treated as
substantive law, not prsmptn. **NC: if contrary E, prsmptn does NOT disappear jury instructed they can find
existence of presumed fact, but not reqd to do so.**
RELEVANCY AND ITS LIMITS (Character
- Probative Value: Makes existence of any fact more or less probable; All relevant E is admissible UNLESS ct
determines probative value substlly outweighed by prejudice, confusion (mislead jury), waste of time/undue
delay/cumulative (Balancing Test). **NC: Can be excluded by NC C, Genl Assembly, NCGS or NCRE** Unfair
surprise E admissible
- Character to prove acts: GR: char E inadmissible to prove propensity. [Crim: cant show bad char traits
UNLESS opens door by introducing E of char traits inconsistent w/crime charged honesty, peaceful, etc. If
attacks vic char then can rebut and attack s bad traits.
o Note: 1. R,O only NOT SA. But on CX SA can be introd. 2. If char is essential element of crime or
defense, SA allowed (s char in issue: defam, child custody, negligent hiring & entrustment, deceit, fraud,
misrep; s char in issue: crim fraud, perjury)
o Note: E of Ws char can be admitted under 607-09 for impeachment
o **NC: Crim ltd to rebut vic bad char only to good char of vic NO E of s bad char**
- E of other crimes: Crim may intro circmstnl E of other crimes, wrongs, acts for narrow purpose of proving
MIMIC. **NC: can also be used to rebut defense of entrapment**
- Habit, Custom, Routine: Admissible to show conduct on specific occasion was in conformity w/habit. Does not
need to be corroborated; frequently, often not enough for habit watch for always, etc.
- SRM: Not admissible to prove negl, culpable conduct, product defect, design defect, or need for warning.
Admissible to prove ownership, control, feasibilty of precaut measures if controverted, or impeachment.
- Compromise Offers: Not admissible to prove validity or amt of disputed claim. Cant use for impeachment; can
use to show bias/prejudice, negate charge of undue delay, or to prove obstruction of crim invest/prosecution.
Note: Admissions made during compromise offers are inadmissible.
o If offer to pay medical, not admissible to prove liability, but any admissions made are admissible (severed).
o **NC: Expenses expanded to cover other items (lost wages, property damage, etc.)
- Rape Shield: Civ/Crim: E genlly inadmissible to show vic engaged in other sex or any alleged sexl predispostn.
o Crim: Admissible for 1. Prove specific instances of V, if offered to prove non- was source of phys E; 2. If
offered by to prove consent or offered by ; 3. If exclusion would violate Cl rights of . Note: If consent is
defense, can offer Vs mental incap or defect to prove consent not intelligent, knowing, or voluntary.
o **NC: Vs prior sex admissible if sex 1. Was betwn V and ; 2. Is E of specific instance offered to show acts
charged werent committed by ; 3. Is E of pattern of sex closely related to prior acts w/ that imply consent;
4. Is E offered as basis of psych opinion that V fantasized/invented acts charged.

Mnemonics
GR = General Rule
E = Evidence
R O SA = Reputation, Opinion,
Specific Acts
MIMIC = Motive/opp, Intent/prep/,
Absnce of Mistake, Identity,
Common plan/knowledge, lack of
accident
SRM = Subsqnt Remedial Measure
V = Victim
CC = Confidential Communications
T = Testify/testimony
PK = Personal Knowledge

PRIVILEGES (and EXCLUSIONS)


Procedure: **Diversity: apply FRE to procedure, but apply state law wrt Privileges, BoP/Prsmptns, Dead Man Stats
Substance: Fed cts recognize Attny-client, Spousal (both testimony and confid comm), Clergy (Priest-Penitent), Psychotherapist-Patient. Note: Fedl CL doesnt
recognize Dr.-patient; most states do.
- Attny-Client: Client prvlgd to refus to disclose/prevent others from disclosing CC made for purpose of facilitating rendering of pro legal svcs to client
o Applies if comm intended to be confid; applies if client reasonably believed talking to attny; extends to attny reps (employed by attny)
o No privilege: if attny sought to enable/aid commission of crime or fraud; for pre-existing docs (K, lease, memo) merely b/c given to attny.
- Psychotherapist-Patient: P holds privilege of CC made for purpose of diagnosis/trtmt of phys, mental, emotional condition including alcohol/drug addiction.
o **NC: extended to social workers or therapists; Judge can waive privilege if necess for proper admin of jstc; must be pretrial appl to pierce prvlg;
cannot be pierced in divorce or alimony if info is from marriage counseling. No privilege in child abuse or neglect.
o Presence of 3P doesnt destroy iff: 1. Are present to further interest of patient in consult, exam, interview; 2. Reasonably necess for transmission of
comm; or 3. Are participating in diagnos, trtmt under direction of dr. or psychthrpst, including members of patients family
o Applies when patient consults for diagn or trtmt. Exams in prep for litigation or by ct-appnted attny NOT w/in privilege, nor are autopsy reports.
Observations and impressions by dr. privileged; amt of fee not privileged.
o Privilege waived if patient, in any proceeding, puts his physical, mental and/or emotional condition at issue (sues for personal injury).
o Client examined by dr. at attny request, evaluate primary purpose:
For medical trtmt: Dr.-patient privilege applicable (if allowed by jx); privilege waived if client puts med cond at issue (sues for personal injury)
To render expert opinion to attny: Dr.-patient likely not apply (b/c no trtmt contemplated) but attny-client privilege may cover comm btwn client/doctor
b/c exam necess for attnys abilty to conduct case. Note: attny-client privilege waived if dr. later called as expert W by same client.
- Spousal: Spousal Testimony P (right of H or W in crim case to prohibit testimony by other); and Spousal Comm P (protects CC mad during marriage)
o Exceptions: GR neither Ps cover comm or acts: 1. In furtherance of future crime or fraud (joint crim activity); or 2. Spousal/child abuse.
o SCP: Any cases (Crim/Civ) protects CC if married at time of comm; may be waived only by BOTH spouses together. Survives divorce
o STP: Crim cases protects testmny against spouse if married at time of trial; may be waived by Witness spouse
- Self-Incrimination: Crim-any stmts made in course of plea discussion w/prosecutor are excluded even if guilty plea later w/drawn; applies only to
testimonial E (not real or demonstrative: writing, hair/blood, fingerprints, lineup). Can testify at prelim hearing w/out waiving privilege to not take stand at
trial. E given at prelim hearing is inadmissible at trial and cannot comment on it. Note: Govt can compel T w/out jeopardizing 5 th A by granting immunity
from using actual T of W and any E derived therefrom (derivative use.)

MBE EVIDENCE
- Auto Crash Report P: Crim: PD may T as to stmts made, IFF stmts dont violate partys privilege against self-incrim. Tests (breath, urine, blood) given after
accident are NOT confidential and may be admissible at trial.
- Priest-Penitent and Social worker-client privileges also exist in some jurisdictions.
WITNESSES (Generally, must have PK)
- Qualifications/Competence: All are competent, except: if incompetent under state law, lack of PK (except experts), unable to understand need to tell truth,
trial judge, juror. **NC: Disqualified if incapable of exprsng self in understandable manner (direc,t indirect, through interpretor) or not able to know to tell
truth.
- Any party can impeach any W
- E of Char and Conduct of W: Ws credibility can be attacked by R or O E bearing on Ws char for untruthfulness. IFF credibility for truthfulness attacked then
SA can be introd. SAs, other than conviction of crime, can be inquired into during CX when it concerns char for truthfulness; Extrinsic E cannot be
introduced into E (Collateral Matter Doctrine.)
- Impeachment by E of Conviction of Crime: Conviction of past crime can be raised by opposing party to undermine credibility of W.
o Ct MUST admit any crime involving dishonesty or false stmt against any W if conviction/release was w/in 10 yrs. (FRE 403 balancing test applies).
o Ct MAY admit recent conviction of crim for felony (punishable by death or >= 1 year in prison if proponent shows probative value > prejudicial effect.
o CT MUST admit recent conviction of W (non-) for nonfraud crime punishable by death or >= 1 year unless opponent shows FRE 403 <Juvenile p.106>
Exam of W: CX genlly ltd to same scope as DX; leading Qs typically only on CX; **NC - : CX scope not ltd to same scope as DX ANY relevant
matter.
- Refreshing Recollection: present memory refreshed W had knowledge but now forgets. Item not entered into E, only used to refresh
- Prior Inconsistent Stmt: Admitted for TOMA if: 1. sworn under 801d1 (testifies and subject to CX); 2. Admission under 801d2 (opposing party stmt); or 3.
HS exception applies.
o Admissible only to impeach unless is an exception to HS or given under oath then admissible for TOMA.
o If examng W, stmt need not be shown nor contents disclosed to W at that time, but shown/disclosed to opponent on request.
o Extrinsic E of prior inconsistent stmt by W not admissible unless W is afforded opp to explain or deny and opposing party given opp to interrogate W (or
interest of justice otherwise require.)
- Exclusion of Ws: At request of party or at ct discretion, Ws shall be excluded so they cannot hear testimony of other Ws.
o **NC: Judicial discretion may instead of shall
OPINIONS AND EXPERT TESTIMONY
- Lay Ws: Opinion T allowed that are rationally based on perception of W, helpful to a clear understanding of T, or to the determination of a fact in issue (not
based on scientific, technical, or other specialized knowledge.)
o Allowed Perceptions: speed, measurements, physical states (intox/injury), emotions (fear, sorrow), sensory descriptions (taste, sound, smell), value of
own land, sanity of testator.
o Inadmissible: legal conclusions (schizophrenic, alcoholic), E of Ws truthful char allowed only after Ws char for truthfulness attacked.
- Expert Ws: W qualified by knowledge, skill, experience, trng, or educ. may testify if: 1. T based on sufficient facts/data; 2. T is product of reliable principles &
methods; and 3. W has reliably applied principles and methods to facts of the case.
o **NC: NCRE matches FRE, but NCSCt hasnt ruled on amend, so applies: 1. Method must be sufficiently reliable as area for Expert T; 2. W must be
qualified as expert in that area of T; and 3. Expert T must be relevant.
o **NC: Offering party must 1. Intro E showing that W is expert; and 2. tender the expert by asking that ct declare W as expert
- Basis of Opinion T by Experts: May be based on perceptions by or made known to Expert at or before hearing; May rely on facts/data not admissible if
facts/data are type reasonably relied upon by experts in his field.
o **NC: Adverse party may request disclosure of underlying facts or data of opinion before giving opinion
- Opinion on Ultimate Issue: GR: Expert and lay Ws may testify as to an ultimate issue EXCEPT: Crim expert W re. mental state may not state opinion
whether possessed mental state constituting element of or defense to crime.
o **NC: Does NOT prohibit opinions as to mental state in criminal case.
- Disclosure of Facts or Data Underlying Expert Opinion: Experts may be CXd re. qualifications, SM and basis of opinion, and compensation.
HEARSAY [Approach: 1. Isolate stmt; 2. Who is declarant?; 3. Purpose of E being offered: TOMA = HS, not for TOMA = not HS; 4. Apply HS
exceptions.]
- Definitions: HS = Out of ct stmt being offered to prove TOMA. Stmt = oral/written assertion or nonverbal conduct, if intended to be assertion (gestures like
pointing, nodding head, thumbs up, silence where intended to comm.)
- Exemptions (NOT HS): 1. Stmt by opposing party; 2. Prior sworn inconsistent stmts; 3. Prior consistent stmts; and 4. Prior identifications **NC: Only Stmt
by opposing party is non-HS.
- Non-HS Purposes: 1. Words of legal signf.; 2. Verbal acts that show notice, knowledge, motive or good faith; 3. Stmts offered to prove attitude, belief, or
intent of declarant or listener (effect on listener); and 4. W stmts challenging credibility or to show perjury.
- NonHS Prior Sworn Inconsistent Stmts: sworn under penalty of perjury, includes depos and grand jury T, but not affidavit; must be under oath and
subject to CX.
- NonHS Prior Consistent Stmt: Allowed to rebut charge against declarantor recent fabrication or improper influence or motive. Must have been made prior
to motivation to fabricate.
- NonHS Prior Out-of-Court ID by W at Trial: admissible only where declarant (eyewitness) is presenty testifying at the trial.
- NonHS Statements by Opposing Party: admissible even if not against partys interest when made; can be anything words, letters, documents.
o **NC: Admissions are considered HS (not exempt), but provides HS exception.
o **NC: Nolo contendere plea is not considered admission
- NonHS Adoptive Statements: Occurs when party remains silent when stmt made in his presence which he would deny if it were false. Pre-arrest silence
may be adoptive stmt, but post-arrest silence may not be.
- NonHS Vicarious Statements: stmt of employee made during employment, concerning matter w/in scope of employment is admissible against employer.
- Top 10 HS Exceptions: D is party: Party admission; D is unavailable: FSDS = Former T; Stmt against interest; Dying declaration; Stmt of pedigree. D is
anyone: Excited utterance; Present Sense Impression; Stmt of then-existing mental, emotional, or physical condition; Stmt for Med Trtmt/Diagnosis; Biz or
public records.
- HS Exception Stmts of Mental or Physical Condition: Stmt of Ds then existing SoM, emotion, sensation or physical condition (intent, plan, motive, design,
mental feeling, pain, bodily health) is admissible if offered to prove that condition.
o Statements of present physical condition are admissible if made to anyone; Stmts of past physical condition admissible only if made to dr. (or the like) for
purpose of medical diagnosis.
o HS Exception: Stmt of then existing SoM or physical condition intent, bodily condition
o NOT HS: Circumstantial E offered to show knowledge, intent, attitude or belief of D or listener

MBE EVIDENCE
- HS Exception Past Recollection Recorded: Admissible if W once had knowledge, record was made or adopted while matter was fresh in Ws memory. If
admitted, memo/record can be read into E, but not received as exhibit unless offered by adverse party.
- HS Exception Biz Records: Records kept in routine course of biz; record keeper not reqd to have personal knowledge of event, but has personal
knowledge of biz ops; NA if biz record made in preparation of litigation
- HS Exception Former Testimony: If D is unavilable, former T given as W, or in depo, if the party against whome the T is now offered, (or in civ action, a
predecessor in interest) had opp and similar motive to develop T by direct, cross, and re-direct exam.
CONFRONTATION CLAUSE
Crim: If D is unavailable, testimonial E is inadmissible unless given opp to CX D. Stmts to PD during emergency are not testimonial thus intro at
trial does not violate Confrontation Clause.
Residual Exception: Even if no HS exception exists, stmt is not excluded when: 1. Stmt has circumstantial guarantees of trustworthiness; 2. Stmt is
evidence of material fact; 3. Stmt is more probative than any other E which can be reasonably procured; 4. Interests of justice will best be served by
admission of stmt; and 5. Adverse party is given advance notice.
AUTHENTICATION AND IDENTIFICATION
CONTENTS OF WRITINGS, RECORDINGS AND PHOTOGRAPHS
o

Mnemonics
GR = General Rule
E = Evidence
R O SA = Reputation, Opinion,
Specific Acts
MIMIC = Motive/opp, Intent/prep/,
Absnce of Mistake, Identity,
Common plan/knowledge, lack of
accident
SRM = Subsqnt Remedial Measure
V = Victim
CC = Confidential Communications

My Weaknesses
HS