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Bar Review

EVIDENCE
(Summary Flowcharts)
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BLANK
69B
 EVIDENCE

WHO’s on the stand?

WHAT’s being offered?
WHY is it being offered? (Relevance)
Objections/Result

Probative value
Logical
Materiality

Remedial measures
Insurance
Pleas
RELEVANCE Policy
Exclusions Offer to settle/pay meds
FRE
Fact admissions - Settlement
Traditional
Fact admissions - Meds

Similar Happenings
Special Problems Habit
Character
Impeachment

Probative value
Discretionary
Exclusion Prejudice, confusion, delay

Competency Direct
Witnesses Personal Knowledge Mode of exam Cross-exam
Expert - Special qualifications Redirect

FORMAL/ Authentication
FOUNDATIONAL Documents
REQUIREMENTS Best Evidence Rule

Real/Demonstrative
Authentication
Chain of Custody
Foundation
Scientific Evidence
Degree of Acceptance

69C
 Based on perception
Lay
Helpful to jury

Opinion ULTIMATE ISSUE

Proper qualification
Expert Proper subject
Proper basis

Spousal incompetency
Marital
Confidential communications
EXCLUSIONARY Privilege
RULES
Attorney - Client

Qualified
Work Product
Absolute
Doctor - Patient

Clergy - Penitent

Against self-incrimination

Hearsay

Proper subject

Judicial notice Mandatory/permissive

“SUBSTITUTES” Civil
FOR Effect
EVIDENCE Criminal
Presumptions

69D
 Neg. hiring Reputation
Opinion
In Issue Defamation
Specific Acts
Neg. Entrustment - Character in issue
- MIMIC
Loss of consortium - Impeachment during X -X

Civil
CHARACTER
Propensity
(Substantive
evidence) By )
Criminal
By prosecution

“MIMIC”

Discretionary exclusion

Who?
Extrinsic evidence
IMPEACHMENT
(After witness Prior inconsistent statements Foundation
takes stand -
credibility) 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

No specific acts
REHABILITATION
Prior consistent statements?

69E
 Statement
HEARSAY Other than testimony at hearing
Offered for truth of the matter asserted (TOMA)

Independent legal effect

Effect on/Notice to hearer
Not for TOMA
State of mind
Impeachment PIS
Not Hearsay PCS
Prior Statements
Prior ID
For TOMA, but not hearsay
FRE 801(d)
Party opponent
Express
Vicarious
Admissions Silence
Assertive
Conduct
Non-assertive

FRE
803

Necessary
Reliable
Exceptions Catch-all
Interests of justice

Notice
Oath
Former testimony ID of issues/parties
Cross examine
Similar motive/opportunity
FRE 804 - Sense of death
Declarant Dying declaration Re: cause of death
unavailable
Type proceeding

Declaration
against interest

69F
 Admission

Startling event
Excited utterance
Under stress of excitement

Describing event/condition
Spoken Present sense impression

While perceiving/immediately after

Mental/emotional/physical condition

Medical diagnosis/treatment

Past recollection recorded

Recorded recollection
Present recollection refreshed

At or near event

Written Business records Reporter’s business duty Absence of entry

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

Leading *

Argumentative

Form of the Compound *

question

Confusing

Objection Unintelligible
to the question

Assumes a fact not in evidence *

Subject matter
of the Previously asked and answered
question
Beyond the scope (of direct,
cross, re-direct, re-cross)

Insufficient foundation *

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
BLANK
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