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Evidence Bar Exam Outline

Law Outlines > Oklahoma Bar Bundle Outlines

This is an extract of our Evidence Bar Exam document, which we sell as part of our Oklahoma Bar Bundle Outlines collection written by the top tier of Oklahoma City University School Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Oklahoma Bar Bundle Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Evidence RELEVANCE

* Basic Principal o 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 o All IRRELEVANT evidence is INADMISSIBLE o 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 prejudiceConfusion of the issuesMisleading the juryUndue delayWaste of Time ( NOT OKLAHOMA)Unduly cumulativeUnfair & 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 o 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

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Prior Notice to D

*?Intent in Issue Comparable Sales on Issue of Value Habit

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Habit= a repetitive response to a particular set of circumstances

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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 o Relevant but not admissible o

o

o

o

Liability Insurance

*
Inadmissible to Prove Fault or Absence of Fault

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

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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 isINADMISSIBLE 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: o Person's character is a MATRIAL element in the Case (Rare) o 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 o Witness's bad character for truthfulness to IMPEACH CREDIBILITY

*
Propensity to lie or tell truth on witness stand

* Criminal Cases o Defendant's Character

*
Generally Evidence of defendant's character to prove conduct in conformityo

o

o

is NOT ADMISSIBLE DURING PROSECUTION"S CASE-IN-CHIEF BUT, DEFENDANT, during defense, MAY INTRODUCEEVIDENCE 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/ "Haveyour 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/ORCalling own reputation or opinion witnesses to contradictdefendant'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 o Character evidence generally INADMISSIBLE to prove Conduct in Conformity o 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 o

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

o

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 o Basics

*
Personal Knowledge

*
Oath or Affirmation o 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 o Not in OK or FRE, just multistate o 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 o 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

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ALLOWED on DIRECT IF Preliminary mattersYouthful or Forgetful witnessHostile WitnessAdverse Party* Writings in Aid of Oral Testimony o Refreshing Recollection

*
Basic Rule: Witness may not read from prepared memo; must testify on basis*

o

of current recollection BUT if witness's memory fails him, he may be shown amemorandum (or any other tangible item) to jog his memory Safeguards against abuse: Adversary has right; To inspect the memory-refresherTo use it on cross xTo introduce into evidencePast Recollection Recorded (Hearsay Exception)

*
Foundation for admissibility of contents of writing
? Showing the writing to witness fails job memory (trigger)
? Witness had personal knowledge at former time
? Writing was either made by witness, or adopted by witness
? Making or adoption occurred when even was fresh in witness's memory
? Witness can vouch for accuracy of writing when made or adopted

*
Witness just reads the writing into evidence, not admit it to jury

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