Professional Documents
Culture Documents
He was accompanied by his wife, Mary Todd Lincoln, in the Presidents box, as well as Major
Henry Rathbone and his fiance, Clara Harris.
History tells us that the assassin was John Wilkes Booth.
Booth shot Lincoln in the back of the head with a one-shot, blue-smoke Derringer.
After Booth shot the President, he leapt over the balcony and onto the stage, which was about
15 or 20 feet below.
o
o
B. Presentation of Evidence
Exam Tip 1: On the MBE, the Federal Rules of Evidence (FRE) govern. Watch
out for answer choices that may be correct under common law, but are
inconsistent with the federal rules.
Example 2:
been allowed to testify, she was going to say that she saw a man who looked
like John Wilkes Booth jump over the balcony and run across the stage yelling,
Sic semper tyrannus.
Example 5:
Objection. Your Honor, pursuant to the Rule of Completeness, we ask that the
original letter also be entered into evidence.
Opposing counsel can wait until cross-examination to bring in the omitted portion.
CHAPTER 2:
MODE OF PRESENTATION
A. Judicial Notice
The courts acceptance of a _______________ as true without requiring formal
________________________
o
th
o
o
o
Procedure:
o A party can ask a court to judicially notice a fact ____________________________________
during the trial; or
o Court can take judicial notice __________________________________________
Exception: Court may not take judicial notice against a ___________________________
_____________________________ for the first time on appeal
o Court must take judicial notice if:
Requested; and
Necessary information is given to court
Effect of Judicial Notice
o
o
The judge may question witnesses and may call witnesses. Judges may also object.
Examination of Witnesses:
o
o
o
Form of Questions:
1. Leading Questions: Suggests the ____________________ in the question
General Rule: _________________________________________ on direct
POP QUIZ
1) What is the color of the sky? Is this leading? ____________________.
2) The color of the sky was blue, right? Is this leading? ____________________.
3) Is the color of the sky blue? Is this leading? ___________________.
Exceptions:
_________________________________ or basic information.
Example 8: Your name is Major Rathbone? You are a Major in the
Union Army? You were in the viewing box at Fords Theater on April
th
Mr. Booth, you were an actor, you were at Fords Theater on the
th
night of April 14 , you had rented a horse, and you shot President Lincoln?
o
o
Prevents contamination
Exceptions:
A party;
Only one party in a criminal case (the defendant)
An officer or employee who is the ____________________________________________
of a corporation;
_____________________ witnesses; and
Victims
D. Presumptions
A conclusion that the trier must draw regarding a basic fact
Example 14: The defendant is charged with murder. A presumption arises that
the victim is dead when the person has been missing for more than seven years.
Two types:
o
____________________________________; and
If no contrary evidence is presented, a judge must instruct the jury to accept the
presumption
Shifts the burden of production to other side
_____________________________________ (irrebuttable)
May not be challenged
Example 15: A child under four years of age lacks the ability to form the intent
necessary to commit an intentional tort. This is a conclusive presumption. No
contrary evidence is permitted.
The Erie Doctrine applies if state law governs the effect of presumptions
Destruction of Evidence
o
Raises presumption that it would have been unfavorable to the destroying party
Example 16: John Wilkes Booth purposefully destroys evidence. This raises a
presumption that what he destroyed would have hurt him at trial.
CHAPTER 3:
Rule;
Law; or
Constitutional provision
What does it mean for evidence to be relevant? It must be both ______________________ and
__________________________.
o
o
POP QUIZ
Can circumstantial evidence be more probative than direct evidence?
When relevant evidence depends on the existence of another fact, it is admissible if sufficient
proof of the other fact is introduced. Standard is by a preponderance of evidence.
Example 23: Mary Todd Lincoln is sitting in viewing box. She hears someone
yell, Sic semper tyrannus, but she does not know who it is. Someone else
could testify that they saw John Wilkes Booth yell that. The relevance and
admissibility of Mary Todd Lincolns testimony is dependent upon the other
witness testimony.
B. Character Evidence
General information about a persons behavior
Example 25: He is a bad parent. She is an inattentive driver. Hes a criminal.
She kicks puppies.
Typically _______________________________.
Exceptions:
Past sexual assault and molestation by defendant in sexual assault and molestation
cases
When character is an ______________________________ element
Example 28: Defamation, negligent hiring, negligent entrustment, child
custody, etc.
Form of evidence:
Must be through reputation or _______________________ testimony
Example 32: Booths fiance could testify that Booth had a reputation in the
theater community for being non-violent.
o
o
The prosecution may introduce character evidence to rebut the defendants evidence.
Must relate to the ________________________ character trait
The defendant does not open the door to the prosecutions attack simply by
_______________________________.
CHAPTER 4:
A criminal defendant may introduce evidence of the victims character that is relevant to
one of the ______________________________ asserted.
Example 33:
This gives defense counsel the opportunity to present evidence claiming that
Lincoln was violent.
o
o
o
Knowledge
Absence of ________________________________
Example 36: The prosecution seeks to introduce evidence that John Wilkes
Booth previously attacked a man in Fords Theater, in the viewing box where
President Lincoln was sitting. The defense will object that this is improper
character evidence. The prosecution can respond that the evidence is offered to
show opportunity, plan, or preparation.
o
o
Criminal Cases:
Specific instances of conduct are _________________________________________
Exceptions:
o
Example 38: John Wilkes Booths fiance testifies that Booth was a very
peaceful, non-violent man. Prosecution cannot present evidence of a prior
attack in the box, because it is a specific instance of conduct. However, the
prosecution may use evidence of the prior attack for MIMIC.
Example 39: John Wilkes Booths fiance testifies that Booth was a very
peaceful, non-violent man. The prosecution can cross-examine her on Booths
previous attack of a man in that viewing box.
that can testify about Booths behavior. The prosecution may show that this
was Booths habit.
CHAPTER 5:
WITNESSES
A. Competence
Every person is ______________________________ competent. (FRE 601)
o
Exceptions:
________________________________ prejudicial information was brought in
Outside improper influences
________________________________ in entering the verdict on the form
Kids as Witnesses
o
o
C. Impeachment
Bases:
o
o
o
o
o
o
o
Bias;
Financial interest;
Character for untruthfulness;
Inability to perceive what they are testifying about;
Inability to testify accurately;
Prior inconsistent statements; or
Another contradictory witness or evidence
_______________________;
Opinion; or
_________________________________
Character for Truthfulness: Credibility may not be _________________________ until it has first
been attacked.
Example 44: Prosecution cannot put Major Rathbone on the stand and ask on
direct, Are you honest? Do you tell the truth? This is bolstering.
Note 1: Attacking a witness bias is NOT attacking his truthfulness
Limits:
Rule 403: If probative value is substantially outweighed by unfair prejudice
Rule 611: Harassing, argumentative, etc.
Must have a good-faith belief
Arrests: May not cross-examine a witness about an _______________________
o
General Rule: A prior crime is a possible basis for impeaching a witnesss character for
truthfulness
Admissible: Any prior conviction (including misdemeanors) for a crime of
_________________________ or false statement that occurred within the last
_____________ years.
Example 48: Fraud, perjury, embezzlement, and false pretenses are crimes
of dishonesty. Murder, rape, and assault are NOT crimes of dishonesty.
Example 49: George Atzerodt testifies for the prosecution. Five years
earlier, he was convicted of check kiting. Is this is admissible? __________.
Example 50:
John Wilkes Booth testifies. He was convicted five years ago for
assault. Even if he was imprisoned for more than one year, the prosecution must
prove that the probative value of the evidence outweighs its possible prejudicial
effect.
CHAPTER 6:
WITNESSES (CONT.)
A. Impeaching a Witness
Prior Inconsistent Statement:
o
o
o
o
Sensory Competence:
o May be impeached by showing witness has a ____________________________ in ability to
perceive, recall, or relate information
Example 57: An audience member did not have her glasses on when she saw a
guy jump from the balcony onto the stage.
o
o
May be impeached by any evidence that would have been admissible had the declarant
testified
Declarant need not be given an opportunity to explain or deny
Religious Beliefs:
o
Contradictory Evidence:
o
Collateral Issues:
General Rule: May not impeach the credibility of a witness by introducing extrinsic evidence on
a collateral matter
Example 64: The defendant is charged with assault. The prosecution witness
says the victim was wearing a plaid shirt. The defendant cannot call another
witness to testify that the victim was wearing a striped shirt.
The witness may not use the object or item while testifying (i.e., read from document)
Example 66: A police officer may not read his report aloud; he must put it
away and then testify.
The memorandum or record may be read to the jury, but it is not admitted as an exhibit unless
it is offered by ______________________________________________.
Difference between present recollection refreshed and past recorded recollection:
o
o
The item used to refresh the witnesss present memory is NOT admitted into evidence.
The document used as a recorded recollection may be admitted into evidence.
D. Opinion Testimony
1. Lay Witnesses (FRE 701)
o
o
Basis of an Opinion:
Personal observations; or
Data that was provided
Experts testimony is admissible, even if underlying data is not (e.g., expert relied on
hearsay documents)
It must be reasonable for experts in the field to rely on the data
Can use hypotheticals
Court-Appointed Experts:
Court may appoint an expert
Court must inform expert of duties
Expert must advise both parties of findings
CHAPTER 7:
A. Authentication
1. In General
o
o
o
3) By ________________________________________________________________
Example 72: Blood samples, drug samples
Witness must verify whereabouts from time evidence was collected until trial
2. Authenticating Physical Evidence:
o
Reproductions:
A witness who has personal knowledge must testify that it accurately depicts what it is
claimed to represent.
Does not need to be the creator someone familiar with the subject can authenticate
X-Rays or Electrocardiograms: Must meet four criteria:
i.
Accurate _________________________;
Common methods:
_______________________________: Both parties agree;
Testimony of an ____________________________________; or
__________________________________________ verification
Example 73: David Harold traveled with John Wilkes Booth. He testifies that
the diary belongs to Booth, and he saw Booth writing in it.
Example 74: David Harold could also testify that he has known Booth for 10
years, knows what his handwriting looks like, and the handwriting in the diary
belongs to Booth.
Public Records:
Recorded or ________________________ in a public office as authorized by law; or
The document is from the office where items of that kind are kept.
Reply Letter Doctrine:
Written _______________________________ to an original communication; and
Unlikely it was forged by original letters author.
Handwriting Verification:
i.
Example 76: David Harold needs to have original knowledge of what John
Wilkes Booths handwriting looked like before litigation.
ix. Records of regularly conducted business activity certified by a custodian of the records.
Attested Documents (e.g., wills): Testimony of authenticating witness is not required
5. Oral Statements
o
Voice Identification
Any person who has heard the voice at ________________________________
Even if made for purpose of litigation
Makes no difference whether mechanical, electronic, or live
Example 77: An audience member heard John Wilkes Booth yell. Then, she
stands outside the window of his jail cell to hear him talk. Her testimony is
admissible as identification of Booths voice.
ii. The speaker ____________________________ that only a particular person would have
known;
Example 78: John Wilkes Booth told George Atzerodt that he keeps his
Derringer hidden under his armoire.
iii. The caller dialed the number that was believed to be the speakers and the speaker
________________________________ himself upon answering; or
iv. The caller dialed a _____________________________________________ and spoke to
the person about regular business.
1. In General
o
o
Example 79: Clara Harris writes down her observations immediately after the
shooting. She can testify about the event, even though a writing exists.
Contents at issue:
A document is being used as proof of an event;
The document has _________________________ effect (e.g., a will or contract); or
The witness is testifying based on the facts learned in the writing
2. Duplicates
o
o
o
4. Public Records:
o
o
Must be certified;
If non-certified, there must be testimony by someone who saw the original
If no copies available, court may allow other means to prove the issue
5. Summaries of an Original:
o
o
CHAPTER 8:
1. In General
Definition: When there is potential evidence, but an individual cannot be forced to provide
the information
The FRE have _______________ specific privilege provisions
Exception: Diversity cases where state law is applied (Erie)
A claim of privilege applies at _______________________________ of a case
For a privilege to apply, there must be a __________________________________
communication
o
o
Holder:
Federal court and a majority of the states: __________________________ holds
privilege and may choose to testify
Minority of states: ___________________________________________. May
prevent spouse from testifying, even if witness spouse wants to testify
28 | 2014 Themis Bar Review, LLC | MBE Evidence
Example 83: In the majority of states, John Wilkes Booths wife holds the
privilege. She may waive the privilege and testify against him.
Holder: ________________________________________
Scope of the privilege:
Only applies to communications made ________________________ the marriage.
Applies to both _____________________ and criminal cases.
When can it be asserted? Extends _________________________ end of the marriage.
c. Exceptions
Neither spousal privilege applies in cases when one spouse is ______________________
the other spouse.
Crime is against the other spouse
Crime is against the ________________________________ of either spouse
Note 2: Spousal immunity begins before marriage but ends when the marriage
does, whereas the confidential communication privilege begins with the
marriage but extends beyond the end of the marriage.
3. Attorney-Client Privilege
o
Fee arrangement;
Identity of client;
Underlying facts;
Statement made to an attorney who is acting in another capacity
Example 85: The attorney is a tax preparer. Or, the attorney is the chief
operations officer and general counsel of a corporation.
Corporate Clients:
Some states limit the privilege only to the control group members of the corporation
(i.e., directors and officers)
Federal law: Non-control group communications can be privileged if they are
communicating:
Within their employment duties; and
For the purpose of seeking legal advice for the corporation
Holder:
The _____________________; only client can ____________________________.
The attorney must ________________________ the privilege
The privilege survives the clients __________________________.
Exceptions
The attorney-client privilege does not exist in the following situations:
Future Crimes: Communications enable or aid what client knew or should have known
was a ____________________________ or perpetration of fraud.
Disputes between Attorney and Client: If a dispute arises between the attorney and the
client, disclosure of confidential communication relevant to the dispute is allowed.
Two parties who claim the same deceased client
Communications between co-clients who are now adverse
Example 86: You represent both John Wilkes Booth and his wife. Litigation
arises between them. My communications between those co-clients are not
privileged.
o
o
Intentional;
o
o
Acts as a waiver
Extends to related, __________________________________ information if:
vi. A case is brought in federal court and state law does not apply.
What if an attorney sends a client to a doctor? Only privileged if the patient is sent to the
doctor for ___________________________________________.
5. Psychotherapist-Patient Privilege
o
o
o
o
o
POP QUIZ:
Which is more widely recognized: The doctor-patient privilege or the psychotherapistpatient privilege?
The psychotherapist-patient privilege
Federal courts and most states recognize this privilege.
Made between a psychiatrist, psychologist, or licensed social worker and a patient
_________________________ holds privilege, but psychotherapist must assert
This privilege does NOT exist if:
i.
CHAPTER 9:
A. Privileges
1. Self-Incrimination
o
o
o
o
o
o
o
5th Amendment Protection: Allows a witness to refuse to give testimony that may tend to
incriminate him
Only covers _________________________, not prior, statements.
Does not apply to _____________________________ characteristics or mannerisms
Holder: Human beings not _________________________________ or other organizations
Criminal case: A prosecutor may not comment on a defendants failure to take the stand.
Civil case: Opposing counsel may comment on defendants failure to testify
A witness may be compelled to provide incriminating testimony if the government grants
him ________________________ from prosecution.
Transactional immunity: Protection regards entire transaction
Use immunity: Protection only covers the compelled statements.
Example 89: George Atzerodt is being compelled by the prosecution to testify.
This is permissible, even if he only gets use immunity.
Exceptions:
Government has the burden to show in a later proceeding that compelled testimony
did not provide an investigative lead to the prosecution.
o
2. Clergy-Penitent
o
o
3. Accountant-Client
o
o
o
4. Professional Journalist
o
o
5. Governmental Privileges
The government, at all levels, is privileged against disclosing the identity of an
____________________________________ and the communication of official information.
Prohibits admission of measures taken after injury or harm that make future injury less likely
Inadmissible to prove negligence, culpable conduct, a defective _______________________
or design, or the need for a warning
Editor's Note 4: The professor misspoke. Evidence of a subsequent remedial
measure IS admissible to prove the defendant had control of the area.
o
o
Exceptions:
Fairness dictates;
Perjury hearings
Sexual Conduct:
o
Victims Conduct:
Criminal Cases: Rape Shield Law:
Victims sexual behavior or predisposition is ________________________________
________________________
o Sexual behavior: Intercourse, diseases, use of contraception, etc.
o Predisposition: The way a person dresses, speech, lifestyle, etc.
Applies in both civil and criminal proceedings involving sexual misconduct
Cannot be used for impeachment or for substantive purposes
Exceptions:
o Used to prove source of semen or source of injury;
o Used to prove victims __________________________;
o If offered by the prosecution;
o Exclusion would violate ______________________________________ rights of
defendant
Opinion or reputation evidence is NOT admissible
Civil Cases:
Victims reputation is only admissible if victim places it in controversy
Sexual behavior is admissible if the ________________________________________
outweighs any unfair prejudice
o Only applies if the party is a victim of sexual misconduct
Procedure:
o Notice requirement: At least ______________ days before trial
Defendants Conduct
In a criminal case, evidence of defendants other sexual assault is
________________________________ when defendant is accused of committing sexual
assault, rape, or child molestation
This evidence can be used for propensity
Court has discretion under 403 to exclude the evidence
Not limited to convictions can include arrests and unreported incidents
No time restriction
Notice requirement: At least _____________ days before trial
Three Categories:
o Dead (FRE 802);
Hearsay is inadmissible
o Undead (FRE 803 and 804)
These statements should be hearsay (offered for truth of matter asserted).
The rules have brought them back to life.
Example 93: Opposing counsel makes a hearsay objection. Your response,
This is hearsay. However, this statement falls under an exception to hearsay,
making it admissible.
and then a gun went off. She testifies that she knows the shooter was John
Wilkes Booth because she heard his voice. This statement is not being offered
to show that the sky was blue. The statement is being offered for identification
purposes, and is admissible.
______________________;
Written;
___________________________ conduct, if intended as an assertion, e.g., nodding, thumbs
up, pointing
Example 100: John Wilkes Booth testifies and says he asked George Atzerodt,
Did you kill Abraham Lincoln? Atzerodt responded by nodding and smiling.
This is an assertion.
Statements that are offered to prove something other than the truth of the matter asserted are
______________________________________.
Example 101: John Wilkes Booth testifies that George Atzerodt said, I just killed
the President! If this statement is to show that Atzerodt knows English, it is not
hearsay. If it is offered to show Atzerodt could speak, it is not hearsay. If it is
offered to show that Atzerodt killed the President, there could be a hearsay
problem.
Example 102: As he was running across the stage, John Wilkes Booth said, Im
wearing a red sweater. If we were offering that statement to prove that Booth
was wearing a red sweater, it is arguably hearsay. (An out-of-court statement
offered to prove that he was wearing a red sweater). But, if we were offering it
to show that he can speak and run at the same time, it would not be hearsay
because it was not offered to prove the truth of the matter asserted.
told me on April the 13 , I have a lot of ill will toward the President. This is
not being offered to show that Atzerodt has ill will toward the President, but
rather to show that he has said contradictory things.
Multiple Hearsay:
o
o
May be admissible
Make sure that both levels of hearsay fall within an exception
Example 107: A police officer testifies at trial and says, George Atzerodt ran up
to me right after the shooting in a very excited state. He said, John Wilkes
Booth just told me that he was going to kill the President! Two levels of
hearsay: (1) what Booth said to Atzerodt; and (2) what Atzerodt said to the
police officer. If both of those statements can overcome hearsay, the statement
is admissible. Booths statement is an admission of a party opponent (if offered
by the prosecution). Atzerodts statement to the police officer is an excited
utterance.
Example 111: Clara Harris saw a photo lineup and identified someone as a
shooter. This is admissible if she testifies.
Exam Tip 7: Beware of fact patterns involving prior out-of-court identifications
by a witness who is not testifying at this current trial (and is therefore not
subject to cross-examination). This exception cannot apply if, for instance, the
witness is dead or otherwise unavailable for trial.
4. Party Admissions
o
A prior out-of-court statement by a party to the current litigation that is used against that
party is ________________________________________.
This does not have to be a statement against the persons interest
Example 112: George Atzerodt testifies that John Wilkes Booth said, Im a
Libra! This statement is admissible, even though it is not against Booths
interest.
o
o
Vicarious Admission:
An out-of-court statement made by one person that may be imputed to an opposing
party based upon certain relationships between the parties
A statement made by ______________________________ or agent qualifies if:
Made within scope of employment; and
During the course of the relationship
o
o
A statement that is offered against a party who is wrongfully responsible for the
declarants unavailability.
Action need not be criminal (e.g., sending someone on a world cruise)
Excited Utterance:
o
o
State of mind:
Present intent;
Motive;
Plan
Example 127: John Wilkes Booth is on the stand. He is testifying about
something David Harold said. Booth says that Harold said, Im so angry, Im
going to kill Abraham Lincoln. Is this admissible for the truth of the matter
asserted? ____________________. It displays Harolds then-existing state of
mind that he was angry and wanted to kill President Lincoln.
Physical condition:
Used to prove that the condition existed
Cannot be used to prove the cause of the condition
Example 129: John Wilkes Booth could not testify, The morning after the
assassination, David Harold said to me, My leg is killing me from jumping off
the balcony at Fords Theater last night. This goes to the cause of the
condition.
o
o
Example 131: Mrs. Booth was with John Wilkes Booth when he went to see Dr.
Mudd. John Wilkes Booth was so tired he couldnt talk. Mrs. Booth said,
Johnny just broke his leg when he jumped off the balcony at Fords Theater last
night. This statement falls under the exception and is admissible.
The record is read into evidence because the witness cannot recall the event or information
Requirements:
The record is about a matter the witness once _______________________ about;
The witness _____________________ or adopted the record when the matter was fresh
in his mind;
The record accurately _________________________ the witnesss knowledge; and
The witness now cannot __________________________ the events well enough to
testify, even after consulting the writing while on the stand.
Example 132: Mary Todd Lincoln had a diary. She went home immediately after
the shooting and wrote about the assassination. Now, she cannot recall the
event, even after she reads her diary entry. This would possibly qualify for
admission under the recorded recollection exception.
The proponent may only ___________________ the document into evidence. Only the
opponent can introduce it as an exhibit.
Business Records
o
o
o
Distinguished from Recorded Recollection: Does not require witnesss ability to remember
Authenticating Records:
By the _____________________________;
Qualified witness;
Records may be self-authenticated
May be deemed inadmissible if the source or the preparation of the information appears to
lack trustworthiness
Examples:
Medical records;
Police reports;
Exception: Witness statements within police reports
Absence of a Record:
May be admissible to prove the event did not occur
Admissible if a record is usually kept for that type of matter
Example 135: Mary Todd Lincoln sues Fords Theater for wrongful death
because of improper locks and poor security. There is a maintenance and
security log. Mary Todd Lincoln could offer the log to show that on the night of
the assassination, there were no entries showing that the security guards made
their rounds that night.
Public Records
o
o
o
May exclude if the source of information or other aspects indicate a lack of trustworthiness
Absence of a Record:
Public officer usually keeps a record and no record exists, the absence
______________________________________ to show that it did not occur
By expert
By another expert
By judicial notice
If admitted, statement is _______________________ into evidence; the publication is
NOT admitted
o
C. Constitutional Limitations
Two constitutional grounds:
o
Unavailable:
Prosecution must show the defendant __________________________ the
declarants unavailability and the defendant did it with the ____________________
to make the declarant unavailable.
o
Face-to-Face Confrontation
The Confrontation Clause generally requires a face-to-face confrontation between the
defendant and a witness in court.
Example 140: The defendant can force a child witness who is a victim of a sex
offense to step out from behind a screen to testify.
C. RELEVANCE
1. What is the standard or test for determining whether evidence is relevant?
Evidence is relevant if it makes any fact of import ______________________________________
than it is without the evidence.
2. Under what circumstances can the court exclude relevant evidence under Rule 403?
__________________________________________ is _________________________________
______________________________ by ____________________ (unfair prejudice)
3. What is character evidence?
Proof of a ______________________________________________________ as a way of proving
that the person probably acted in that manner on a particular occasion
4. For what purpose is character evidence not admissible in civil cases?
To prove ___________________________________________________ with that character trait
Example 142: The defendant drove fast on two previous occasions. This
evidence is not admissible to prove the defendant drove fast on the day of the
collision.
4. If a defendant offers proof of an alleged victims character or propensity for violence, may the
prosecution offer evidence of the defendants character or propensity to commit fraud?
_____________________
5. If character evidence is admissible in a criminal case to prove propensity, what form(s) may it
take?
____________________________________________; or
_______________________________________;
Not _______________________________________
6. For what purposes may the prosecution introduce evidence of a criminal defendant's prior
crimes?
To prove something other than ___________________________________________
7. What is the difference between character evidence and habit evidence (which is admissible
under Rule 406)?
Habit evidence is more ___________________________________________________
E. WITNESSES: IMPEACHMENT
1. Is it permissible to impeach a witness regarding bad character for untruthfulness?
_____________________
2. If evidence of bad character for untruthfulness is admissible, what form(s) may it take?
___________________________________________________________
3. Under what circumstances may evidence be offered of a witness's good character for
truthfulness?
F. OPINION TESTIMONY
1. Under what circumstances may an expert witness testify?
When __________________________________________________________________ will
____________________________ the trier of fact
2. Under Daubert and Rule 702, what requirements must expert testimony meet?
Editor's Note 6: There are actually five requirements for expert testimony
under Daubert.
2. If an accurate video recording of a car accident were available, would it violate the best
evidence rule for a party to call a witness to describe the accident, rather than introducing the
videotape?
_______________
3. When might a photocopy or carbon copy be considered the original under the best evidence
rule?
Any copy meant to have the _______________________________________________________
H. PRIVILEGES
1. What are the two forms of spousal privilege?
____________________________________________________
________________________________________________________________________
2. May the spousal immunity privilege be invoked regarding testimony about events that occurred
before the defendant spouse and the witness spouse were married?
_______________
3. What is protected by the confidential marital communications privilege?
Confidential communications made _______________________________________________
4. May the confidential marital communications privilege be invoked after a divorce?
_______________
5. What are the key exceptions to the confidential marital communications privilege?
Lawsuits ___________________________________
When one spouse is accused of a _______________________________________________
___________________________ or their children
6. What are the essential elements of the attorney-client privilege?
_____________________________________________________ between a lawyer and a client
for the purpose of __________________________________________________________
7. Identify two central exceptions to the coverage of the attorney-client privilege:
Future ______________________________________________
Disputes between _________________________________________________
8. Under state laws recognizing a physician-patient privilege, what limitations are common?
Does not exist if acquired for
____________________________________________________________________;
______________________________ purpose;
Dispute between _______________________________________________________
9. What limits attach to the psychotherapist-patient privilege?
_____________________ as physician-patient privilege
Does not apply if part of a _____________________________________________ or
__________________________________________________________
10. May the privilege against self-incrimination be invoked in a civil case?
_______________
7. The three categories of prior statements that are defined as not hearsay by Rule 801(d)(1) all
share one common threshold requirement or element. What is that threshold requirement?
4. What are the elements of the dying declaration hearsay exception under Rule 804(b)(2)?
Declarant believed _______________________________________
Declarant believed that __________________________________________
Statement concerned _________________________________________________________
________________________________
Exam Tip 10: The third prong of this test trips up a lot of students. Make sure
the statement is about the cause or circumstances of death.
5. What is the difference between a statement against interest and a party admission?
Statement against interest does not have to be ________________________________________
6. What would be the consequence under Rules 804(a) and 804(b) if a party was to threaten a
witness and frighten the witness into being unwilling to testify?
Party who frightened witness _______________________________________ claim that the
witness was _________________________________________;
_______________________________ could introduce ______________________________
_____________________________________________________________
5. What must be shown in order for a statement to qualify under the Rule 803(4) exception for
statements for purposes of medical diagnosis or treatment?
Made for purposes of ____________________________________________________________
6. If a plaintiff visits a doctor not for treatment, but in order for that doctor to diagnosis his
condition for purposes of testifying for the plaintiff as an expert at trial, will those statements
still be admissible under rule 803(4)?
_____________
7. If a declarant said to his doctor, I was run over by a white horse, will that statement be
admissible under the Rule 803(4) exception for statements for purposes of medical diagnosis or
treatment?
__________________________________________________________________________
8. What is the difference between a past recollection recorded and a present recollection
refreshed?
Past recollection recorded: ______________________________ to the hearsay rule if you
want to ___________________________________________ to the jury
Present recollection refreshed: used to ___________________________________________
so he can _____________________________________________________
9. What must be shown in order to render a document admissible under the past recollection
recorded exception (Rule 803(5))?
Record concerns a matter about which the witness _____________________________
Witness _____________________________________________ at the time the
__________________________________________________;
Record was ________________________________________________________;
Witness does not now have __________________________________________________ to
testify __________________________________________________________
10. What must be demonstrated to show that a document qualifies as admissible under the
business records exception of Rule 803(6)?
It was created in the _______________________________________________ of a regularly
conducted business activity by
________________________________________________________________.
Example 148: Medical records, phone log made by a receptionist, etc.
11. If an accident report were created primarily for purposes of preparing for possible litigation,
would it qualify under the business records exception of Rule 803(6)?
_____________
12. Under what circumstances may a court exclude a document otherwise fitting under Rule 803(6)?
Circumstances indicate ___________________________________________________________
13. May a party attempt to show that an act or event did not occur by the absence of an entry in a
record?
_____________
14. What limitation applies to statements in public records by law enforcement of matters
observed under Rule 803(8)(B)?
Cannot be used against ________________________________________________________
15. Under what circumstances may statements in a scientific, historical, or medical treatise or
periodical be admissible under Rule 803(18)?
Established as a _____________________________________________________; and
______________________________________________________________
Defendant had
________________________________________________________________________
7. If a witness is unavailable because the defendant killed him, will that necessarily render the
witness's prior statements admissible?
_____________;_________________________________________________________________
____________________________________________
[END OF HANDOUT]