MBE Evidence

may only testify to matters which he has personal knowledge of

prior sworn statements

prior consistent statements

prior out of court identification by witness at trial

admissions by party

adoptive admissions

vicarious admissions

may be admitted to show character if character is an essential element of a charge, claim, or defense

not admissible to prove liability or amount of claim if disputed as to liability or amount

to prove specific instances of sexual behavior by the alleged victim, if offered to prove that a person other than the accussed was source of physical evidence

to prove specific instances of sexual behavior by alleged victim with person accussed; if offered by accussed to prove consent or by prosecution

if exclusion of evidence would violate def's const. rights

evidence tending to make the existence of any fact more probable or less probable than it would be without the evidence

right of either spouse in criminal cases to prohibit testimony by the other

• ***all communications before & during
• divorce destroys

of a person, or routine practice of an org is admissible to show conduct on particular occassion was in conformity with

once the parties have reduced their agreement to a writing, evidence of any prior oral or written or contemporaneous oral agreements is inadmissible to alter, vary, or contradict the writing

when one party introduces part of a writing, the other party may introduce any other admissible part of the document (does not trump the hearsay rule)

admissible substantively in 3 cases:

• 1. if sworn under FRE 801(D)(1)
• 2. as an admission
• 3. if hearsay exception applies

• atty-client
• spousal (testimony privilege & confidential communication privilege)
• clergy
• psychotherapist-patient

may admit (recent convictions)-if impeaching party 1st shows probative value outweighs prejudicial effect

must-unless objecting party shows prejudicial effect of impeachment substantively outweighs the probative value of evidence

(must admit) convictions of dishonesty or false statements against any witness, as long as the conviction is within 10 yrs, so long as the conviction satisfies 403 balancing test

(may) if older than 10 yrs, only if its determined probative value outweighs prejudicial effect

not admissible to prove liability for injury

BUT admissions made in connection w/can be severed & admitted

burden of production: def must 1st present "some evidence" of insanity @ time of the offense

• burden of persuasion:
• fed crts: def must prove insanity by clear & convincing

• State crts: split
• def must prove insanity by preponderance (MPC) or
• prosecution must prove sanity beyond reasonable doubt

(civil or criminal) evidence generally inadmissible to show that an alleged victim engaged in other sexual behavior or any alleged victim's sexual predisposition

protects confidential communications made during a legally valid marriage

• applies only during marriage
• divorce does not effect (civil & criminal)

evidence of a person's character is inadmissible to prove that they acted in conformity with that character

in a criminal case, prosecution may introduce circumstantial evidence of other crimes, wrongs, or acts for very narrow purpose of proving:

• motive
• opportunity
• intent
• preparation
• plan
• knowledge
• identity
• absence of mistake
• accident

inadmissible to prove: negligence, culpable conduct, defect in a product, defect in product's design, or a need for warning or instruction

admissible to show: ownership, control, feasibility of precautionary measures, if controverted, or impeachment

party-party admission

declarant unavailable: former testimony, forfeiture by wrong doing, statement against interest, dying declaration

declarant is ANYONE: excited utterance, present sense impression, state of then-existing mental, emotional, or physical condition, statement for purpose of medical treatment or diagnosis, business & public records