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Dedicated Exclusively to the California Bar Exam

Dedicated Exclusively to the California Bar Exam Bar Review EVIDENCE (Summary Flowcharts)
Dedicated Exclusively to the California Bar Exam Bar Review EVIDENCE (Summary Flowcharts)
Dedicated Exclusively to the California Bar Exam Bar Review EVIDENCE (Summary Flowcharts)
Dedicated Exclusively to the California Bar Exam Bar Review EVIDENCE (Summary Flowcharts)

Bar Review

EVIDENCE (Summary Flowcharts)

Copyright© 2009 by BarPassers Bar Review. All rights reserved. No part of this publication may

Copyright© 2009 by BarPassers Bar Review. All rights reserved.

No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without permission in writing from the publisher.

Printed in the United States of America.

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69B

EVIDENCE

WHO’s on the stand? WHAT’s being offered? WHY is it being offered? (Relevance) Objections/Result

WHY is it being offered? (Relevance) Objections/Result Probative value Materiality Logical Policy Exclusions

Probative value

Materiality

Logical

Policy Exclusions Special Problems
Policy
Exclusions
Special Problems

Remedial measures

Insurance

Pleas

Offer to settle/pay meds

 
  FRE

FRE

Fact admissions - Settlement

Fact admissions - Meds

Traditional

- Settlement Fact admissions - Meds Traditional Similar Happenings Habit Character Impeachment Probative

Similar Happenings

Habit

Character

Impeachment

Probative value

Prejudice, confusion, delay

RELEVANCE

FORMAL/

FOUNDATIONAL

REQUIREMENTS

Discretionary

Exclusion

FOUNDATIONAL REQUIREMENTS Discretionary Exclusion Competency Direct Witnesses Personal Knowledge Mode of
Competency Direct Witnesses Personal Knowledge Mode of exam Cross-exam Expert - Special qualifications Redirect
Competency
Direct
Witnesses
Personal Knowledge
Mode of exam
Cross-exam
Expert - Special qualifications
Redirect
Authentication
Documents
Best Evidence Rule
Authentication
Real/Demonstrative
Chain of Custody
Foundation
Scientific Evidence
Degree of Acceptance

69C

69D

EXCLUSIONARY

RULES

“SUBSTITUTES”

FOR

EVIDENCE

Opinion

Privilege

Hearsay

Based on perception Lay Helpful to jury ULTIMATE ISSUE Proper qualification Expert Proper subject Proper
Based on perception
Lay
Helpful to jury
ULTIMATE ISSUE
Proper qualification
Expert
Proper subject
Proper basis

Marital

qualification Expert Proper subject Proper basis Marital Spousal incompetency Confidential communications Attorney -

Spousal incompetency

Confidential communications

Attorney - Client Work Product
Attorney - Client
Work Product

Doctor - Patient

Qualified

Absolute

Clergy - Penitent

Against self-incrimination

Absolute Clergy - Penitent Against self-incrimination Judicial notice Presumptions Proper subject

Judicial notice

Presumptions

Proper subject Mandatory/permissive Civil Effect Criminal
Proper subject
Mandatory/permissive
Civil
Effect
Criminal

CHARACTER

(Substantive

evidence)

CHARACTER (Substantive evidence) In Issue Neg. hiring Defamation Neg. Entrustment Loss of consortium Propensity Civil

In Issue

CHARACTER (Substantive evidence) In Issue Neg. hiring Defamation Neg. Entrustment Loss of consortium Propensity Civil

Neg. hiring

Defamation

Neg. Entrustment

Loss of consortium

Propensity

Defamation Neg. Entrustment Loss of consortium Propensity Civil Criminal ) By By prosecution “MIMIC”

Civil

Criminal

) By
)
By

By prosecution

“MIMIC”

Discretionary exclusion

Reputation Opinion Specific Acts

- Character in issue

- MIMIC

- Impeachment during X -X

IMPEACHMENT (After witness takes stand - credibility)

Who? Extrinsic evidence Prior inconsistent statements Foundation Evidentiary use Bias How? Competency
Who?
Extrinsic evidence
Prior inconsistent statements
Foundation
Evidentiary use
Bias
How?
Competency
Reputation/Opinion re: untruthfulness
Good faith basis
Character
Prior bad acts
No extrinsic evidence
Felony (10 years)
Prior Convictions
Misdemeanor re: dishonesty
Criminal
defendant

REHABILITATION

Misdemeanor re: dishonesty Criminal defendant REHABILITATION No specific acts Prior consistent statements? 69E

No specific acts

Prior consistent statements?

69E

Not Hearsay

Not Hearsay HEARSAY Statement Other than testimony at hearing Offered for truth of the matter asserted

HEARSAY

Not Hearsay HEARSAY Statement Other than testimony at hearing Offered for truth of the matter asserted

Statement

Other than testimony at hearing

Offered for truth of the matter asserted (TOMA)

at hearing Offered for truth of the matter asserted (TOMA) Independent legal effect Effect on/Notice to

Independent legal effect

Effect on/Notice to hearer

State of mind

Impeachment

Not for TOMA

 
  PIS

PIS

Prior Statements

PCS

Prior ID

 
  Express

Express

  Express

Admissions

Silence

Conduct

Conduct
ID   Express Admissions Silence Conduct For TOMA, but not hearsay FRE 801(d) FRE Party opponent

For TOMA, but not hearsay FRE 801(d)

FRE

Party opponent

Vicarious

Assertive

Non-assertive

Exceptions

69F

803 Necessary Reliable Catch-all Interests of justice Notice Former testimony FRE 804 - Declarant unavailable
803
Necessary
Reliable
Catch-all
Interests of justice
Notice
Former testimony
FRE 804 -
Declarant
unavailable
Dying declaration
Declaration

against interest

Oath unavailable Dying declaration Declaration against interest Cross examine Type proceeding Sense of death Re: cause of

Cross examine

declaration Declaration against interest Oath Cross examine Type proceeding Sense of death Re: cause of death

Type proceedingdeclaration Declaration against interest Oath Cross examine Sense of death Re: cause of death ID of

Sense of death

Re: cause of death

ID of issues/parties

Similar motive/opportunity

Spoken Written Admission Excited utterance Startling event Under stress of excitement Present sense impression Describing
Spoken Written Admission Excited utterance Startling event Under stress of excitement Present sense impression Describing

Spoken

Written

Admission

Excited utterance

Spoken Written Admission Excited utterance Startling event Under stress of excitement Present sense impression Describing

Startling event

Under stress of excitement

Present sense impression

event Under stress of excitement Present sense impression Describing event/condition While perceiving/immediately

Describing event/condition

While perceiving/immediately after

Mental/emotional/physical condition

Medical diagnosis/treatment

Recorded recollection Past recollection recorded Present recollection refreshed At or near event Absence of entry
Recorded recollection
Past recollection recorded
Present recollection refreshed
At or near event
Absence of entry
Business records
Reporter’s business duty
Regular business activity
Public records
Family records
Ancient documents
Other
Learned treatises
Reputation
Previous conviction

69G

TRIAL OBJECTIONS

Use this approach to transcript-style Evidence essays

Objection to the question

Form of the question Subject matter of the question
Form of the
question
Subject matter
of the
question

Leading *

Argumentative

Compound *

Confusing

Unintelligible

Assumes a fact not in evidence *

Previously asked and answered

Beyond the scope (of direct, cross, re-direct, re-cross)

Insufficient foundation *

See Evidence overview chart* (Relevance, Formal/Foundational Requirements, Exclusionary Rules [Opinion, Privilege,
See Evidence overview chart*
(Relevance, Formal/Foundational Requirements,
Exclusionary Rules [Opinion, Privilege, Hearsay],
“Substitutes” for Evid)
Objection
to the
question/answer
Document speaks for itself
Objections
Non-responsive*
to the
answer

* These objections have appeared on the California Bar Exam.

69H

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