Evidence Relevance - MBE

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  1. What does relevant evidence mean?
    evidence which tends to make the existence of a fact more or less likely then it would be w/o that evidence
  2. What is meant when it is said that evidence must have logical relevance?
    must have some logical tendency to prove or disprove a fact of consequence - very low standard
  3. What is it meant when said that evidence must have legal relevance?
    it must actually be helpful in deciding the case
  4. All relevant evidence is admissible under FRE 402 unless what?
    excluded by the constitution, act of congress, FRE, or by other rules prescribed by the USSC pursuant to statutory authority
  5. Is irrelevant evidence admissible under FRE 402?
  6. Relevant evidence may be excluded under FRE 403 if the PV is substantially outweighed by what 6 things?
    • (1) risk of unfair prejudice
    • (2) confusion of the issues
    • (3) misleading the jury
    • (4) considerations of undue delay
    • (5) waste of time
    • (6) needless presentation of cumulative evidence
  7. Is unfair surprise a proper 403 objection?
  8. Are most 403 objections properly overruled?
  9. Does the 403 balancing test favor admission?
  10. What is the 403 balancing test?
    PV << PE
  11. In negligence and product liability cases, evidence of prior or subsequent accidents may be relevant to prove what?
    liabiity if the accidents occurred in substantially similar conditions
  12. Absence of similar accidents may be used to prove what?
    product condition is safe provided the conditions are substantially similar on both occassions
  13. What is consciousness of guilt relevant to show?
    a guilty mind
  14. What are the 3 different types of evidence?
    • (1) direct evidence
    • (2) circumstantial evidence
    • (3) real evidence
  15. What is direct evidence?
    evidence which if believed immediately compels the conclusion that the party offering it wants the jury to draw
  16. What is circumstantial evidence?
    proof of one fact from which we infer the truth of another fact logically
  17. Is circumstantial evidence as significant as direct evidence?
    yes it just depends on the strength of inferences made
  18. What is real evidence?
    actual items that played some role in the dispute
  19. In civil cases under FRE 404(a) character evidence is inadmissible to prove what?
    conduct in conformity therewith
  20. What is the exception to FRE 404(a) which states that character evidence is inadmissible to prove conduct in conformity therewith?
    where character itself is at issue in the case, is an element to a claim or defense in a CoA
  21. What are the 3 forms of character evidence?
    • (1) opinion
    • (2) reputation
    • (3) specific acts
  22. When proving character under 405 what forms of character evidence are admissible?
    opinion or reputation
  23. If using reputation evidence, what must the W establish?
    that he is aware of the relevant community
  24. If using opinion evidence what must the W establish?
    that she has sufficient knowledge to form an opinion about the particular trait
  25. If character is an essential element of the trait may specific instances of that person's conduct be offered as well?
  26. What are some specific CoA where character is an issue?
    • (1) defamation
    • (2) child custody cases
    • (3) negligent entrustment/hiring
    • (4) misrepresentation
    • (5) deceit
  27. When the D claims self-defense, may the character of the alleged V come in?
    yes but only under a very specific rule
  28. In what criminal case doe you really have to worry about whether character is an element?
  29. Under FRE 404(a)(1) may the P initially introduce evidence of D's bad character?
  30. What forms of character evidence may be used to show a pertinent trait of the D regarding his good character under FRE 404(a)?
    opinion or reputation only
  31. When the D has put on W to testify about a pertinent trait of his good character, may the P cross examine those W about specific acts involving the D?
    yes if there was a good faith basis for asking the questions and the judge advises the jury that the purpose is to explore the credibility and reliability of the character W
  32. When the D has opened the door to character evidence, the P may do what?
    rebut with reputation or opinion evidence
  33. Under FRE 404(a)(2) the testimony about a pertinent trait or character of a V bad character may be offered in what forms?
    reputation or opinion only
  34. If the D offers evidence of V's character for violence, what may the P do?
    rebut with reputation or opinion evidence regarding his character for peacefulness
  35. In a homicide case, if the D suggests the V was the first aggressor what may the P do?
    P can call W to testify that the V was peaceful
  36. By attacking the V's character for violence, the D opens the door to what?
    an attack on his own character for that same character trait
  37. In what 2 ways may the D open the door for bad character for the P?
    • (1) introducing evidence of his good character
    • (2) introducing evidence of V bad character
  38. Under FRE 404(b) MIMIC rule circumstantial evidence of other crimes, wrongs, or acts is generally inadmissible, but may be offered to prove what?
    • (1) motive
    • (2) intent
    • (3) absence of mistake
    • (4) identity
    • (5) knowledge
    • (6) opportunity
    • (7) preparation
    • (8) plan or scheme
  39. Under FRE 404(b) independently relevant circumstantial evidence is genally offered when and by whom?
    in a criminal case by the prosecution on rebuttal
  40. In relation to the trial, MIMIC evidence may have occurred when?
    before, during, or after the event that is on trial
  41. Under FRE 406 evidence of the habit of a person or routine practice of an organization is relevant to prove what?
    conduct in conformity of the habit
  42. Must habit evidence be corroborated or be done in the presence of an eyewitness to be admissible under FRE 406?
  43. What is a habit under FRE 406?
    a repeated response to a particular situation
  44. Habit evidence under FRE 406 is admissible in what forms?
    opinion or specific acts
  45. When trying to decide if you are dealing with habit evidence, what kinds of words should you look for?
    always, invariably, automatically, instinctively, w/o fail
  46. When trying to decide if you are dealing with habit evidence, what kinds of words shouldn't you look for?
    frequently, often, usually, generally
  47. Is negative habit evidence admissible under FRE 406?
  48. Evidence of subsequent remedial measures under FRE 407 is inadmissible to prove what?
    negligence, culpable conduct, a defect in a product, a defect in product design, or a need for warning/instruction
  49. Under FRE 407 SRM can be used to show what?
    ownership, control, or the feasibility of precautionary measures
  50. SRM under FRE 407 must have taken place when to be inadmissible?
    after the incident in question
  51. What is the public policy reason behind excluding SRM under FRE 407?
    want to encourage SRM b/c want safe products
  52. If a D claims a different design wasn't feasible to prevent an accident, evidence that the D did make subsequent changes to make the design safer are admissible to show what?
    admissible to show that different design was feasible
  53. Under FRe 408 evidence of an offer to settle a claim, which is disputed either as to validity or amount, is inadmissible to prove what?
  54. What is the public policy reason behind excluding compromises and offers to compromise under FRE 408?
    want ppl to settle cases out of court whenever possible
  55. May evidence of an offer to compromise be used to impeach with a prior inconsistent statement under FRE 408?
  56. Under FRE 408 compromises and offers to compromise may be used to do what?
    • (1) prove bias or prejudice on the part of the W
    • (2) negate a contention of undue delay
    • (3) prove an effort to obstruct a criminal investigation or prosecution
  57. For FRE 408 to exclude compromises and offers to compromise, there must be a dispute as to what?
    liability or the amount of damages owed
  58. Who determines whether compromise negotiations existed?
    the judge
  59. Under FRE 409 evidence of offering or promising to pay medical, hospital, or similar expenses resulting from an injury is inadmissible to prove what?
    liability for the injury however contemporaneous statements are admissible
  60. Under FRE 410 pleas, plea discussions, and related statements are inadmissible against whom?
    criminal D if they were made during a plea or plea discussions with a prosecuting attorney
  61. What does the rule regarding the inadmissibility of pleas, plea discussions, and related statements apply to?
    • (1) pleas of guilty later w/drawn
    • (2) pleas of nolo contendere (no contest)
    • (3) offers to plead guilty
  62. FRE 410 regarding the inadmissibility of pleas, plea discussions, and related statements doesn't apply to what?
    statements made to LEOs unless there is an attorney for the government is present
  63. If a D pleads guilty, the guilty plea may be admitted substantively as an admission in what?
    subsequent civil or criminal cases or to impeach if D testifies
  64. Under FRE 411 evidence that a person was or wasn't insured against liability is inadmissible to prove what?
    whether the person acted negligently or otherwise wrongfully
  65. When may evidence of insurance against liability be admitted?
    • (1) to prove W bias or prejudice
    • (2) to prove agency, ownership, or control
  66. Are the limits of insurance coverage ever admissible?
  67. Is pretrial discovery of insurance coverage usually allowed?
  68. Under the Rape Shield Law in FRE 412 in any civil or criminal proceeding involving alleged sexual misconduct, reputation and opinion evidence is generally inadmissible to prove what?
    • (1) that a V engaged in other sexual behavior
    • (2) V's sexual predisposition
  69. What does sexual behavior as described in FRE 412 include?
    actual sexual physical conduct as well as the use of contraceptives, fanatsies, and any activities that imply sexual activity
  70. What does sexual predisposition include in the context of FRE 412?
    how a person dresses, lifestyle choices, and speech
  71. Under the Rape Shield Law of FRE 412 evidence that V engaged in other sexual behavior or a V sexual predisposition isn't admissible unless what?
    • (1) notice is given to the opposing party
    • (2) the evidence is reviewed in camera by the judge; and
    • (3) the evidence alleges sexual misconduct
  72. In a criminal case, specific acts are admissible under FRE 412 in what 3 cases?
    • (1) offered to prove that someone other than the D was the source of semen, injury, or other physical evidence
    • (2) with respect to the person accused of the sexual misconduct if offered by D to prove consent or if offered by the P
    • (3) evidence of V's other sexual conduct whose exclusoin would violate the D's constitutional rights
  73. In civil cases a balancing test is used where evidence offered to prove the sexual behavior or sexual predisposition of any alleged V is admissible if what?
    the probative value substantailly outweighs the harm to the V or the danger of unfair prejudice to any party
  74. Does the Rape Shield Law of FRE 412 apply just to the alleged V in a particular case?
    no it can be any W who is an alleged V of sexual misconduct
  75. In a criminal case in which the D is accused of child molestation or sexual assault may the court admit evidence that the D committed any other sexual assault or child molestation?
  76. In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of sexual assault or child molestation may a court admit evidence that the party committed any other sexual assault or child molestation?
  77. Evidence of similar crimes in sexual assault and child molestation cases may be considered on what?
    any matter to which it is relevant
  78. when will evidence of similar crimes in sexual assault and child molestation cases be excluded or limited?
    if the evidence would be too inflammatory or otherwise explosive or cumulative
  79. Do the prior acts used in criminal cases regarding similar crimes of sexual assault and child molestation cases need to have been tried?
    no they must simply meet the requirement that the jury could find by PoE that other acts occurred
Card Set
Evidence Relevance - MBE
evidence relevancy for MBE
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