Evidence outline bar exam-Federal rules of Evidence I. General provision a. Rulings on evidence i. Objections 1.

03-deals with rulings on evidence 1. Where a trial court admits evidence a timely and specific objection to the admission of such evidence must be made in order to preserve for appeal unless plain error was involved a. Plain error includes prejudicial/reversible error and NOT harmless b. Should be made before the witness answer c. If not readily apparent then a motion to strike is apparent 2. Offers of proof 1.03 -Deals with exclusion of evidence a. Where the trial court excludes evidence no error on appeal may be established unless an offer of proof made was made or the reason was apparent from the context b. Method may be one of two i. Oral or written explanation ii. Or question or answer format 3. Preliminary questions of admissibility a. To be determined by trial judge as a matter of law i. Includes areas such as qualifications of witnesses, existence of a privileges or unavailability ii. Affidavits and hearsay are allowed at this point 4. Weight and credibility a. To be determined by jury as a question of fact ii. Conditional Relevancy 1.04 1. Where the relevancy of proffered 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 addition of the conditional fact a. Example: In a forgery case, the relevance of forged checks would be conditioned on initial evidence as to the authentication of the defendant s handwriting. 2. Hearings objections a. Any hearing on the admissibility of evidence are done outside of the jury b. In criminal hearings on admissibility of confessions must be done outside of the jury c. Testimony by a criminal defendant as to a preliminary issue does not constitute a Fifth amendment waiver on other issues iii. Limited admissibility 1.05

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1. Upon request, the court MAY restrict the admissibility of evidence by allowing it for one party/purpose but exclude it for another party/purpose a. Example-evidence that a retailer received a letter from a customer complaining about a defective product may be used to show notice but not for negligence for a subsequent lawsuit by a person who purchased a similar product and had a similar result iv. Introduction of parts of a writing 1.06 1. Once a party introduces part of a writing or recorded statement, the adverse party may immediately require the admission of any other part of that statement. a. The adverse party may elect to wait to introduce part of the writing b. Adverse party may wait until direct testimony of the writing. c. Conversations are not covered under federal rules but adverse party must wait until direct testimony or cross examination d. There is no rule that if part of the writing is admitted then all of the writing is admitted -classic wrong answer on the multistate Judicial notice-2.01 a. A substitute for proof by where the court will accept certain facts as true and thus dispense the need for the formal presentation of evidence i. Notions of accuracy and certainty b. Two types of facts under judicial notice i. Legislative facts 1. Have relevance to legal reasoning and the law making process 2. Example if one spouse is allowed to recover tort damages under another spouse 3. Not recognized under federal rules of evidence ii. Adjudicative facts 2.01b 1. Those facts involved in a particular case which aid the fact finder in it s adjudication (facts of the case) 2. a judicially noticed facts is one that is not subject to reasonable dispute because either a. 1. It is generally known within the territorial jurisdiction within the court or i. Example In Detroit, the court knows that woodward is a street that runs in Detroit however a court in Chicago may not know that fact b. 2. It is capable of accurate and ready determination by sources whose accuracy is not disputed.

i. Example Christmas 1985 was on a Wednesday. c. Two types of judicial notice i. Mandatory 1. Must take judicial a. State and federal law b. Indisputable scientific facts-blood tests, ballistics, radar BUT NO LIE DETECTORS 2. Where requested by a party for generally known facts and facts capable of ready determination MUST take mandatory if requested by a party and supplied with the necessary information a. Example in a negligence case with a building contractor the party asks the court to take note of the requirements to be a licensed general contractor. Party then presents this document to the courts. ii. Discretionary 1. On it s own motion, a state or federal motion may take discretionary judicial notice on the following types of facts a. Laws of foreign countries b. Laws of sister states c. Municipal ordinances d. Regulations of public or private agencies e. Matters of local geography 2. Extremely broad area 3. Examples-economic data (insurance rates, customary fees, salaries, current events, political events, trademarks and patents) d. Judicial notice may be taken at any time of the proceeding e. The party who judicial notice has been taken has an opportunity to be heard. Such a request may be heard before or after judicial be taken-court s discretion f. Procedural effects of judicial noticed facts 2.01g i. In civil cases-judicially noticed facts are indisputable. ii. In criminal cases-due to the 6th amendment right to a jury trial, the jury MAY but is not required to accept as conclusive judicially noted facts g. TIP FOR MBE-Determine whether judicial notice is mandatory or discretionary, then determine if it is civil or criminal Presumptions Article 3 a. Burdens two types i. Production-going forward is placed on a party to produce initial evidence on a particular issue or risk a directed verdict against them 1. Allocation is generally on the plaintiff-all elements 2. Exceptions-affirmative defenses the burden goes against the opposing party

III.

3. Criminal cases-no directed verdict for the prosecutionUNCONSTITUTIONAL ii. Persuasion 1. The degree to which a party must convince the trier of fact with regard to a particular issue a. Civil case-proof by the plaintiff to establish each element by preponderance of the evidence (more probable than not) b. Criminal case-beyond a reasonable doubt (applies to every element) c. Intermediate standard-certain criminally related civil cases such as fraud (clear and convincing which is more than a preponderance but less than beyond a reasonable doubt) iii. Affirmative defenses 1. Types a. Insanity i. Prosecution must prove murder beyond a reasonable doubt without regard to defendant s sanity. Once this occurs, the defendant may introduce some evidence of insanity. If the defendant fails-deleted from case, if succeeds then there are two possibilities 1. Prosecution would have to prove sanity beyond a reasonable doubt or 2. Defendant would have to prove insanity by a preponderance of evidence b. Self defense c. Duress d. Adequate provocation to reduce a murder charge to manslaughter 2. Two ways that affirmative defenses can op a. Defendant may have the burden to prove by a preponderance b. Prosecution may have the burden of persuasion beyond reasonable doubt b. Presumptions i. An inference the jury must draw which shifts the burden of producing evidence to the opposing party ii. Two components to presumption 1. Basic facts once established gives rise to another set of facts which are presumed facts a. Example upon proof that a person has been absent for seven years, it is assumed that the person has died. b. Effect of a presumption-shifts the burden of producing evidence to the opposing party (once established)

IV.

i. Inference does not shift burden of production ii. Conclusive presumption or irrebutable presumption is a rule of law where the basic facts conclusively establish the presumed facts 1. Example child under a certain age is not capable of intentional tort 2. Presumed facts iii. Bursting bubble theory 1. If a wife has established that her husband has been absent for seven years, the burden of production shifts to the opposing party who may then introduce evidence saying that someone saw her husband last year (year 6) in Canada. Once the opposing party has introduce evidence sufficient to sustain a finding as to the non existence of the presumed fact, the presumption bursts 2. Conflicting presumptions will be eliminated from the case iv. Criminal cases-mandatory and permissive are permitted, in most you cases you will NO FEDERAL RULE IN PRESUMPTIO NS (MUST KNOW UNIFORM EVIDENCE RULE 1.03)-if the presumed fact establishes guilt or is an element of the offense, the court shall instruct the jury that its existence must be established beyond a reasonable doubt. ie. Defendant is charged with a DWI because the blood alcohol level is .4. Trial judge instructs jury that if a person has a blood alcohol over .08 then they are presumed drunk. It s proper only if a further instruction that the presumed fact must be proven beyond the reasonable doubt. Relevancy (logical, legal and character) Rule 4.01 a. Logical i. Deals with the probativeness of evidence ii. Relevant evidence must have some logical tendency to prove or disprove a fact of consequence iii. Materiality-narrower and more specific-whether the proferred evidence bears on the fact of consequence in a matter before the court iv. Federal rules combine the two v. Definition-relevant evidence is that which has the tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. 1. Has a relevancy and material element to it vi. Direct evidence v. circumstantial evidence (circumstantial evidence only for essays logical relevancy) 1. Direct evidence does not depend on any inference for its relevancy a. Eyewitness testimony that she saw the accused shoot the victim 2. Circumstantial evidence is evidence whose relevancy depends on the drawing of an inference

a. Same eyewitness that she did not see the shooting but she saw the witness running from the scene b. Problems dealing with logical relevancy i. Similar accidents1. Evidence of other prior accidents may be admissible by a plaintiff to prove a dangerous situation existed or to prove that the defendant was aware of a dangerous condition ONLY IF the plaintiff establishes a substantial identity of material circumstances (MEMORIZE AND ARGUE ON ESSAYS) a. Examples: plaintiffs is offering evidence about other accidents at a railway crossing to prove a dangerous condition. is it admissible-depends? Plaintiff would have to show similar time of day, similar weather, etc b. Logical relevance problem deals with absence of similar accidents (courts are more likely to admit) two requirements for defendant i. Substantial identity of material circumstances ii. Defendant must show that if an accident had occurred it would have been observed iii. Example-plaintiff is suing the city after an accident at an intersection. Defendant is offering evidence to prove that the intersection has remained the same over the last 14 years. iv. Defendant s evidence will be admissible ii. Prior tort claims 1. Common plan or scheme iii. Prior contracts between the same parties to interpret ambiguity 1. Third party contracts show customary trade usage

iv. Prior sale of land circumstantially to prove value of an existing piece of property if there is a substantial identity of material circumstances b. Legal i. Public policy considerations to exclude otherwise relevant evidence ii. Includes offers to settle, remedial repair but character evidence. iii. 4.03 relevant evidence may be excluded if its probative value is outweighed by the danger of 1. Unfair prejudice a. Appealate review 2. Confusion of the issues a. Appealate review 3. Misleading the jury a. Appealate review 4. Undue delay a. Not likely to be heard on appeal 5. Waste of time a. Not likely to be heard on appeal 6. Needless presentation of cumulative evidence a. Not likely to be heard on appeal iv. Balancing test used often on the bar exam c. Character evidence i. Determine the form of the character evidence 1. Reputation-red flag for a. Community reputation 2. Opinion a. Personal opinion 3. Specific instances of conduct ii. Determine the type of case (civil or criminal) 1. Civil case-rule 404.a.1 character evidence is inadmissible to prove conduct in conformity with on a particular occasion a. Negligence evidence that the person had a reputation as being a careful person (not admissible) b. Breach of warranty evidence that the person was an honest man is inadmissible c. Exceptions where it would be admitted i. Where the character is an essential element of a claim, defense or a cause of action 1. Defamation cases 2. Child custody ii. Where knowledge of the character of another is an issues

1. Self defense 2. Negligent entrustment/negligent hiring/negligent selection a. Example=paul is injured while wanda was suing doris s car. Paul is now suing Doris for negligent entrustment i. Paul is evidence that doris kenw that wanda had three previous accidents that year-yes character evidence is admissible because of three specifics acts and negligent entrustment/wanda s character is at issue ii. Doris is now offering that in his opinion, doris always inquires about a person s driving recordinadmissible because it is not doris character in issue, it is wanda s character iii. Rule 405 where character evidence is admissible (where it is an issue) all three forms of character evidence may be used as proof of character 1. Beware of specific acts-paul is suing dan for defamation. Paul is claiming that dan called him a theif . Dan introduced testimony that paul committed three larceny. admissible because of specific acts 2. Not used for impeachment of witnesses. 2. Criminal case-where the defendant may use circumstantial evidence in three ways: a. Opening the door rule i. 404.a.1-a defendant may offer of his good character by reputation or opinion evidence to prove his innocence and the prosecution may rebut (NOT FOR SPECIFIC INSTANCES) ii. Example in a murder case, defendant offers testimony by Wilma that he defendant is an honest man (not admissible because it is not relevant on innocence to a charge of murder). If wanda says that the defendant is kind and gentle, then it is admissible because kindness and gentle are traits relevant to the charge of murder

iii. HINT-focus on the trait being offered-trait must go to proving innocence for particular charge iv. Prosecution rebuttal-limited to reputation and opinion evidence-always ask what is the purpose 1. Example prosecution offered another neighbors testimony that defendant has a reputation for a violent temper admissible rebuttal 2. Example defense witness testifies that in a robbery case the defendant is an honest man (admissible). Prosecution during cross asks-have you heard that the defendant committed three burglaries last year (specific act) admissible because this question is being asked not to attack the defendant s character but to question the witnesses credibility. b. Bad character of the victim 404.a.2 i. A defendant may use all three forms of character evidence to prove the bad character of the victim and the prosecution may so rebut 1. For example in a murder case where the defendant claims self-defense, she may introduce evidence of the victim s character as a violent person to show the victim was the first aggressor. Then the prosecution may rebut the same with the victim s character s rep for nonviolence c. Rape cases 412 i. Reputation and opinion evidence is inadmissible but specific acts of sexual behavior by the victim are admissible in two instances 1. Behavior with other persons which would explain signs of rape a. Example-sex with other men not the defendant to show that the defendant was not the source of sperm in a rape 2. Past behavior with the defendant which tends to show consent d. Mimic rule 404b e. Circumstantial evidence may be offered by prosecution in criminal case and is only offered by rebuttal and the specific trait which is to be proved must be an issue

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Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person to show that he acted in conformity in with but may be admissible for other purposes such as Mimic g. MIMIC i. Motive ii. Intent iii. Absence of mistake iv. Identity v. Common plan or scheme h. Example in a burglary case, prosecution offers evidence that defendant needed money to defend himself against other charges of burglary not admissible due to prejudicial i. Must always weigh and balance probative values v. prejudicial j. Either admissible due to mimic or not admissible due to the fact that it s probative value isn t outweighted by its prejudicial k. Never admissible to prove criminal disposition or propensity to commit a crime i. Example-in a murder case, defendant offers testimony that victim was his friend and that he had no reason to kill him. Since motive is at issue, the prosecution can offer evidence that victim and were in a burglary and

that victim hid all the money-admissible iii. Determine the purpose for which the evidence is being offered d. Habit evidence 406 i. Easy questionii. Character is a generalized description of a person s disposition v. habitcircumstantial evidence regarding a person s regular response to a repeated specific situation iii. Rule-evidence of the habit of a person or routine practice of an organization whether or not corroboration and regardless of the present of eyewitnesses is relevant to prove the conduct in conformity of the habit or routine practice. iv. Look for such words as always, invariably, regularly without fail, automatically (testing on character evidence) frequently or often are not enough v. Passenger is suing driver, drivers eyewitness says passenger was not wearing seatbelt. Passenger s witness says that she s rides with passenger everyday and she always wears a seatbelt-yes admissible vi. Proved by opinion or evidence of specific incidents of conduct e. Legal relevancy 407-11

i. 407-subsequent remedial measures-evidence of subsequent remedial measures is inadmissible to prove negligence or culpable conduct in connection with the event. 1. Exceptions:: a. To prove ownership or control b. To show feasibility of precautions if controverted c. Impeachment i. Examples put new break linings in his truck after an accident which was caused by faulty breaks would prove inadmissible to prove negligence since it is a subseqnet occurrence ii. Evidence that defendant cut down a rotted tree after it fell on . Would be admissible to show control/ownership if said that the tree fell on city property iii. in a products liability action against a tractor manufacture, evidence that the plaintiff changed design of product is not admissible (no under general prohibition) ii. Offers to settle 408 1. Offers to settle a claim which is disputed is inadmissible to prove liability for the claim or its amount. a. Exceptions i. To prove bias or prejudice of a witness 1. Evidence by the plaintiff that the defendant s expert witness received payment to testify against plaintiff to settle expert s own claim against plaintiff-admissible to show bias ii. To controvert a contention of undue delay by one of the parties iii. To prove a party attempted to obstruct a criminal investigation b. Statements made in connection with an offer to settle are not admissible c. Example in a negligence case involving a car accident, walks to says it was my fault and I am willing to settle.-NO no severance iii. Offers to pay medical bills 409 1. Offer to pay medical bills is inadmissible to prove liability for an injury 2. Statements made in connection, there is severance

3. In the car accident example, the prior statement says I m willing to offer to pay medical bills (can admit the fault and in admissible) iv. Offers to plea guilty, withdrawn guilty pleas and no contender are inadmissible against the person who made the plea 410 1. Exceptions a. A prosecution for perjury b. Purposes of impeachment 2. Final judgment entered after a guilty plea following any felony conviction (admissible under hearsay) also guilty pleas work in civil cases v. Lia evidence that a person was insured or not insured is not admissible to prove negligence 1. Exceptions a. Agency b. Ownership or control c. Bias or prejudice d. Example-where a d claimed that a truck driver that caused an accident, argued that the driver was an independent contractor and not an employee of the company, evidence showing that the purchased insurance on his truck and not the defendant is admissible to prove ownership vi. Statements made in connection with liability insurance is not admissible no severance Privileges 501 a. Federal rules of evidence only contain one section on privileges i. Test on uniform rules of evidence or common law) b. Except as otherwise required the privilege of a witness shall be governed by principles of common law as they are interpreted by the united states i. Application 1. In diversity cases 2. Cases arising under state law the privilege of a witness is determined by state law c. In criminal cases and federal question cases and cases arising under federal law,, the privilege of a witness shall be determined by modern common law i. Example-naacp is suing Chicago alleging racial discrimination, lawyer objects to testifying claiming that testimony violates attorney client privlilge-will sustain only if court recognizes that the privilege shall be protected in modern law (federal question so common law applies) ii. Ask yourself what type of case is it iii. Apply the two rules d. Four kinds of privileges

V.

i. Confidential communication 1. See attorney client stuff below ii. Incompetency (common law) 1. Dead man s statute-6.01 abandoned deadman s statute but still tested 2. Example action commenced or defendant on behalf of the deceased, testimony showing transaction with the deceased is inadmissible 3. Rule requires that follow state s deadman statue if it deals with a state law issue a. Diversity case b. Approach to coverage issues iii. Constitutional privileges iv. Based on public policy (legal relevancy) e. Approach five issues in coverage issues i. Relationship 1. Does a protected relationship exist 2. Test: to determine if protective relationship exists-if client is seeking professional advice or consultation ii. Communication 1. The actual communication (atty-client privilege) itself is protected but not the information (if I tell a friend) iii. Confidentiality 1. General rule, only confidential communications are privileged 2. Presence of third parties (non essential third parties destroy confidentiality) 3. Test to determine essential v. non-essential: if the third party is furthering some purpose of the relationship, essential 4. Eavesdroppers are not essential parties iv. Holder 1. A privilege may only be asserted or waived by the holder or someone authorized as the holder s representative v. Exceptions 1. Attorney client privlige a. Protects confidential communications attorney and client made during existence of a protected relationship i. Suits between joint clients ii. Suits between attorney and client iii. Disputes regarding a client s will after client s death iv. Communication made in furtherance of future crime or fraud v. Work prepared by the attorney herslf for her own use is not protected under ACP but may be protected from unjustified disclosure under work product rule

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4. 5.

vi. Simply handing pre existing documents does not make documents privilege (testing) basic info is never privilege b. Corporation may claim acp as a client (Upjohn) acp applies even to low level employees to attorneys investigating relevant issues *federal courts* state curts control group test (only applies to high up employees/those who decide corporate povilge Psychiatrist patient a. Scope is broader b. Many types of non medical professionals such as psychiatrists, psychoanalysts, psychologists c. Exceptions i. Where mental condition is an issue Doctor patient a. Protects confidential communications for the purpose of obtaining medical diagnosis or treatment. Privilege is the patients i. Verbal communications ii. Observations (scar, xray) iii. Exceptions 1. Where physical condition is at issue 2. Criminal proceedings 3. Malpractice actions 4. Competency or commitment proceedings Priest penant a. Both the clergy member and pennant are holders Husband wife a. Two privileges b. Marital communications i. Protects confidential verbal communications made during marriage in civil and criminal cases common law ii. Upon divorce, confidential communications remain privileged iii. Modern trend-observations and impressions are protected iv. Both spouses are holders v. Exceptions 1. Crimes against children or other spouse 2. Statement made in furtherance of a future crime or fraud c. Spousal privilege i. Privilege of incapacity in a criminal case

ii. Protects all communications regarless of confidentiality prior to marriage and during marriage iii. Upon divorce entire spousal privilege is lost iv. Common law-party spouse was the holder v. In federal courts-trammell v. us the witness spouse is the holder vi. Example federal court-if wife saw him commit larceny, she could refuse or elect to testify vii. Same scenario-if she didn t see him commit the larceny but confided in her, even under spousal privilege she could choose to testify, the husband under marital communications can refuse her testimony 1. Exceptions a. Crimes against other spouse b. Crimes against the children of either spouse VI. f. Witnesses-competency and impeachment article 6 a. Competency i. at common law 1. Take an oath to testify truthfully 2. Show mental capacity sufficient to understand the obligation to tell the truth 3. The witness must have personal knowledge 4. Common law, folks considered incompetent to testify a. Felons b. Atheists c. Children d. Spouses e. Mental incompents (crazy folk) f. Financially interested parties ii. Federal rule 601-everyone is competent to testify at trial except where state law supplies the rule of decision 1. In a diversity case a child witness would have to satisfy three common law requirements 2. Test for federal rules (minimum credibility) a. Personal knowledge 602 b. Declaration to testify truthfully 602 iii. Judge and members of jury 605-6 1. Neither the presiding judge or any jury member may testify in a trial in which he or she is sitting Note-attorney may be called as a witness

2. iv. b. Impeachment 607 i. Credibility of a witness may be attacked by any party including the party calling him ii. Certain instances where 1. Where witness is surprised by witness hostile testimony 2. Where witness testimony is positively harmful to the calling party s case 3. Where one party calls the opposing party as a witness a. Normal rules of impeachment are reversed iii. Forms of impeachment 1. Intrinsic impeachment brought out from the mouth of the witness herself 2. Extrinsic impeachment all other evidence not from the witness directly a. Contradictory evidence from other witnesses discrediting the testifying witness i. Collateral (non material) matter rule-offered to attack the credibility of the witness may be inquired during cross intrinsically subject to the courts discretion ii. Note that extrinsic evidence w regard to collateral matters may not be introduced 1. Witness testifies that he is an honest man, witness may be asked did you know that he committed three burglaries last year? 2. Intrinsic yes extrinsic no iv. Four methods of impeachment 1. Sensory defects a. 2. bias 3. character 4. prior inconsistent statements v. c. d. Presentation of evidence Opinion Hearsay Authentication and identification Contents of writings

VII. VIII. IX. X. XI.