Evidence Bar Exam - Bar Exam Outlines

Evidence

RELEVANCE

• Basic Principal

  • Evidence is RELEVANT if it has ANY TENDENCY to make a fact of consequence more probable or less probable than it would be without the evidence

  • All IRRELEVANT evidence is INADMISSIBLE

  • All relevant evidence is ADIMISSIBLE, UNLESS

    • Some specific EXCLUSION applies, or

    • Court makes discretionary determination that the PROBATIVE VALUE SUBSTANTIALLY OUTWEIGHED BY:

      • Danger of UNFAIR prejudice

      • Confusion of the issues

      • Misleading the jury

      • Undue delay

      • Waste of Time ( NOT OKLAHOMA)

      • Unduly cumulative

      • Unfair & Harmful Surprise (ONLY OKLAHOMA)

• OK: Homicide prosecution, "appropriate photo" of victim while alive admissible by DA to show general appearance & condition of victim while alive

• Prior Similar Occurrences

  • In general, if evidence concerns some Time, Event, or Person other than that involved in the case at hand, the evidence is INADMISSIBLE

    • Exception: some recurring situations have concrete rules that may permit admissibility

      • Plaintiff's accident history usually inadmissible

        • But is admissible if the cause of Plaintiff's damages is at issue

      • Similar Accidents Caused by Same Event or Condition (defendant's accidents) usually inadmissible

        • But other accidents involving same instrumentality or condition, and occurring under substantially similar circumstances, may be admitted for:

          • Existence of dangerous condition

          • Causation

          • Prior Notice to D

      • Intent in Issue

      • Comparable Sales on Issue of Value

      • Habit

        • Habit= a repetitive response to a particular set of circumstances

        • Habit of a person (or routine of a business organization) is Admissible as circumstantial evidence of how the person (or business) acted on the occasion at issue

        • Key words: always, invariably, automatically, instinctively

      • Industrial Custom as Standard of Care

        • How others in same trade or industry have acted in recent past may be admitted as some evidence as to how a party in this litigation Should have acted

        • Evidence of the APPROPRIATE STANDARD OF CARE

• Policy Based Exlusions

  • Relevant but not admissible

• Liability Insurance

  • Inadmissible to Prove Fault or Absence of Fault

  • Admissible as Proof of Ownership/Control of Instrumentality or Location, IF CONTROVERTED, or

  • For Purpose of Impeachment

    • Bias

• Subsequent Remedial Measures

  • Inadmissible to show negligence, culpable conduct, need for warning

  • BUT admissible to show proof of ownership/control , or feasibility of safer condition IF CONTROVERTED

• Settlements

  • Civil:

    • Evidence of a Settlement or OFFER to Settle a DISPUTED CLAIM is INADMISSIBLE to PROVE liability or weakness of case

    • Also, STATEMENTS OF FACT made in court of settlement discussions INADMISSIBLE

    • BUT, evidence of settlement ADMISSIBLE for purpose of IMPEACHMENT for BIAS

    • Claim must be disputed at time of statement as to validity or amount of damages

  • Criminal

    • Inadmissible:

      • Offer to plead guilty

        • Cant be used vs. defendant in pending criminal case or subsequent civil litigation based on same fact

      • Withdrawn guilty plea

        • Cant be used vs. defendant in pending criminal case or subsequent civil based on same facts

      • Plea of no contest or nolo contendere

        • Cant be used vs. defendant in subsequent civil lit based on same facts

      • Statements of fact

        • Made during any above plea discussions

    • BUT, plea of GUILTY (not withdrawn) is ADMISSIBLE in subsequent litigation based on the same facts under the rule of Party Admissions.

• Offer to Pay Hospital of Medical Expenses

  • Inadmissible to prove liability

    • But statements of fact made in conjunction w/ the offer to pay bills is admissible

      • No need to talk to be charitable

CHARACTER EVIDENCE

• Potential Purposes for Admissibility of Character Evidence:

  • Person's character is a MATRIAL element in the Case (Rare)

  • Character Evidence to Prove Conduct in Conformity With Character at the time of the litigated event, a/k/a character as circumstantial evidence of conduct on a particular occasion

    • Propensity Evidence

  • Witness's bad character for truthfulness to IMPEACH CREDIBILITY

    • Propensity to lie or tell truth on witness stand

• Criminal Cases

  • Defendant's Character

    • Generally

      • Evidence of defendant's character to prove conduct in conformity is NOT ADMISSIBLE DURING PROSECUTION"S CASE-IN-CHIEF

      • BUT, DEFENDANT, during defense, MAY INTRODUCE EVIDENCE OF A RELEVANT CHARACTER TRAIT (by reputation or opinion witness) to prove conduct in conformity, thereby OPENING THE DOOR TO REBUTTAL by prosecution

  • Prosecutions Rebuttal

    • IF defendant has "opened the door" by calling character witnesses, the prosecution may rebut:

      • By cross-examining the defendants' character witness w/ "Have your Heard" or "Did you know" questions about specific acts of the defendant that reflect adversely on the particular character trait that defendant has introduced

        • Must have good basis for question

        • If witness says no, cant use extrinsic evidence to prove it

        • Impeaches the character witness' knowledge

      • AND/OR

      • Calling own reputation or opinion witnesses to contradict defendant's witness

• Victims Character- Self Defense Case

  • Criminal defendant may introduce evidence of victim's violent character to prove victim's conduct in conformity, ie. , as circumstantial evidence that victim first aggressor

    • Proper Method:

      • Character may testify to victim's reputation for violence and may give opinion

    • Prosecution Rebuttal:

      • Evidence of victim's good character (reputation/opinion) (OK ONLY THIS)

        • Under FRE: prosecution can prove defendant violent character, but not in OK

• Victim's Character- Sexual Misconduct Case

  • Under Fed "rape shield law', in both criminal & civil cases, where defendant alleged to have engaged in sexual misconduct, the following evidence about victim normally inadmissible

    • Opinion or reputation about victim sexual propensity, or

    • Evidence of specific sexual behavior of victim

  • Exceptions

    • Specific sex behavior of victim to prove that someone other than defendant the source of semen or injury to victim;

    • Victim's sexual activity w/ defendant in defense of consent asserted; or

    • Where exclusion would violate defendant's right of Due Process

  • OK RAPE SHIELD DISTINCTIONS

    • Applies only in criminal cases

    • Victims prior false allegations of sex offenses admissible

    • Sexual acts w/ others in presence of accused at time of alleged offense admissible

• Civil Cases

  • Character evidence generally INADMISSIBLE to prove Conduct in Conformity

  • Evidence of person's character is ADMISSIBLE in civil action where such character is a material element of the claim or defense (reputation, opinion, & specific act evidence)

    • Negligent Hiring or Entrustment cases

    • Defamation

• Defendant's Other Crimes for Non-Character Purpose

  • General Rule: other crimes or specific acts of defendant not admissible

  • BUT: if defendant's other crimes or bad acts show SOMETHING SPECIFIC ABOUT THE CRIME CHARGED- more than bad character- then may be ADMISSIBLE as evidence bearing on guilty

    • MIMIC

      • Motive

      • Intent

      • Mistake or Accident, Absence of

      • Identity

      • Common Scheme or Plan

    • Method of Proof of MIMIC-purpose crimes:

      • By conviction, or

      • By evidence (witnesses) that proves the crime occurred: conditional relevancy standard

        • Prosecution only need produce sufficient evidence from which reasonable juror could conclude D committed the other crime

      • If relevant, MIMIC evidence can also be used in civil cases, such as tort actions for fraud or assault

    • Court must ensure defendant actually contesting the issue to which MIMIC crime is addressed

    • If MIMIC category is satisfied, prosecution may use other-crime evidence as part of case-in-chief

• Other Sexual Misconduct to Show Propensity in Sex-Crime Prosecution

  • Prior Specific Sexual Misconduct of defendant ADMISSIBLE as part of case in chief for any relevant purpose, including to show D's PROPENSITY FOR SEX CRIMES

WITNESSES

• Competency of Witness

  • Basics

    • Personal Knowledge

    • Oath or Affirmation

  • Juror as Witness- juror may not testify:

    • In same case in which sitting as a juror as to any matter; or

    • In any other case as to statements during deliberations; or

      • Effect anything had on jurors minds or emotions

    • But may testify as to any OUTSIDE INFLUENCE and EXTRANEOUS PREJUDICIAL INFO

• Dead Man's Statute

  • Not in OK or FRE, just multistate

  • In General

    • In civil action, an interested party is incompetent to testify in support of her own interest against the estate of a decedent concerning communications or transactions between the interested party and the decedent

• Leading Questions

  • Form of question suggests the answer (eg. "Isnt it a fact that…", or unevenly balanced alternatives)

    • Generally NOT ALLOWED on DIRECT

    • Generally ALLOWED on CROSS

    • ALLOWED on DIRECT IF

      • Preliminary matters

      • Youthful or Forgetful witness

      • Hostile Witness

      • Adverse Party

• Writings in Aid of Oral Testimony

  • Refreshing Recollection

    • Basic Rule:

      • Witness may not read from prepared memo; must testify on basis of current recollection

      • BUT if witness's memory fails him, he may be shown a memorandum (or any other tangible item) to jog his memory

    • Safeguards against abuse: Adversary has right;

      • To inspect the memory-refresher

      • To use it on cross x

      • To introduce into evidence

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