Evidence MBE

Irrelevant evidence always inadmissible, relevant evidence might be admissible
Anything that tends to (1) make the existence of any fact of consequence to the outcome of the action
(2) more/less probable than it would be without the evidence
Exception:(1) Prejudice outweighs probative value(2) Cumulative(3) Waste of time(4) Confusion of the issues

(1) Those capable of accurate and ready determination (reference)
(2) Those which are common knowledge within the jurisdiction of the court
Civil: Conclusively establishedCriminal: Prosecutions burden satisfied

(1) Mandatory for federal and state law
(2) Permissive for municipal ordinances and private acts of Congress or local legislature

Applies: When evidence offered to prove contents of a writing (any tangible data)
Exception: Voluminous documents
Type of Evidence: Originals or duplicates (unless genuine question of authenticity)
Exception: Testimony allowed when original destroyed absent bad faith

(1) someone familiar w/ the person's handwriting, gained before trial(2) expert witness(3) trier of fact(4) admission (5) eyewitness
Reply Letter Doctrine: Can authenticate w/ evidence that it was written in response to a communication sent to alleged author

(1) someone with familiarity before or for purposes of the trial(2) expert witness(3) trier of fact

inadmissible: (1) Prosecution first to offer
Exception: (1)Sexual assault/child molestation (2) Court already admitted evidence offered by D re: V's character (must be same trait)
Admissible:
(1) D opens the door, prosecution can rebut w/ pertinent character traits
(2) If D testifies he automatically puts character for truthfulness at issue Note: Specific instances ONLY allowed on cross for character (reputation, opinion OK on direct)

Inadmissible: To prove conduct generally

Admissible: (1) To prove conduct w/ sex crime
(2) Character is at issue as a result of the claim - such as defamation, negligent entrustment, child custody, loss of consortium
(3) Party testifies

Inadmissible for collateral matter (fact not material, only used to contradict)

Defined: Out of court statement offered to prove the truth of the matter asserted
Statement = assertive conduct (written/express)

Exceptions: WAKE C.(1) Animals and Machines (automatic)(2) Words of independent legal significance (acceptance, AP, gift)(3) Effect on listener (emotional effect)(4) Knowledge of facts stated(5) Circumstantial Evidence of State of mind

Requires the declarant to be testifying and subject to cross-examination
A3P(1) Admissions of Party Opponents (2) Prior sworn inconsistent statements(3) Prior consistent statements(4) Prior identifications

(1) Present sense impression (timing)(2) Excited utterance (emotion)(3) Statements concerning mental or physical condition(4) Statement made for purposes of medical diagnosis(5) Recorded recollection(6) Business records(7) Former Testimony(8) Dying declarations(9) Statement Against Interest
*Must be unavailable at time of trial

(1) Belief that death is imminent
(2) statement that concerns the cause or circumstances surrounding death
(3) declarant unavailable (death not required)
Civil Case - EverythingCriminal - Only applies to homicide

Statement concerning past or present mental/physical condition or its cause of that person OR ANY OTHER is admissible if pertinent to diagnosis or treatment
Note: Court can redact inadmissible piece

Admissible when
(1) Kept in regular course of business(2) Made contemporaneously to matter
(3) By person w/ knowledge(4) Regular practice to make the record
Note: Can be excluded if UNTRUSTWORTHY (anticipation of litigation)