Evidence

Evidence Attack Outline

When approaching an Evidence exam, identify and analyze relevant issues systematically. Focus on articulating clear rule statements and applying them to the facts while considering the ramifications of various evidentiary decisions.

Relevance

Issue Checklist

  • ✓ Does the evidence have a tendency to make a fact more or less probable?
  • ✓ Is the evidence of consequence to the determination of the action?

Key Rules

Evidence must be relevant to be admissible (FRE 401).

Relevant evidence may be excluded if its probative value is substantially outweighed by the risk of unfair prejudice (FRE 403).

Common Issues

  • Irrelevant evidence presented.
  • Balancing probative value against prejudicial effect.
Hearsay

Issue Checklist

  • ✓ Is the statement an out-of-court statement?
  • ✓ Is the purpose of the statement to prove the truth of the matter asserted?

Key Rules

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted (FRE 801).

Hearsay is generally inadmissible unless an exception applies (FRE 802).

Common Issues

  • Determining if an exception applies.
  • Identifying non-hearsay uses of statements.
Witness Competency

Issue Checklist

  • ✓ Is the witness competent to testify?
  • ✓ Does the witness have personal knowledge of the matter?

Key Rules

A witness must be competent to testify (FRE 601).

Witnesses must have personal knowledge of the matter they testify about (FRE 602).

Common Issues

  • Challenges to witness credibility.
  • Witnesses lacking personal knowledge.
Expert Testimony

Issue Checklist

  • ✓ Is the witness qualified as an expert?
  • ✓ Is the expert's methodology reliable?

Key Rules

Experts must be qualified by knowledge, skill, experience, training, or education (FRE 702).

Expert testimony must be based on sufficient facts or data and reliable principles (FRE 702).

Common Issues

  • Lay witness vs. expert witness distinctions.
  • Reliability of expert methodology.
Prior Statements and Impeachment

Issue Checklist

  • ✓ Is the prior statement inconsistent?
  • ✓ Does the statement qualify as a prior inconsistent statement?

Key Rules

A witness can be impeached by prior inconsistent statements (FRE 613).

Extrinsic evidence of a prior inconsistent statement is admissible if the witness is given an opportunity to explain or deny it (FRE 613).

Common Issues

  • Impeachment without opportunity for the witness to respond.
  • Failure to properly authenticate a prior statement.
Authentication

Issue Checklist

  • ✓ Is there sufficient evidence to support that the item is what its proponent claims?
  • ✓ Has the evidence been properly authenticated?

Key Rules

Evidence must be authenticated before it can be admitted (FRE 901).

The standard for authentication is 'sufficient evidence' (FRE 901(a)).

Common Issues

  • Lack of foundational evidence for documents or objects.
  • Challenges to authenticity based on circumstantial evidence.
Character Evidence

Issue Checklist

  • ✓ Is the evidence being introduced for a permissible purpose?
  • ✓ Is there an applicable exception to the general rule against character evidence?

Key Rules

Character evidence is generally inadmissible to prove a person acted in conformity with that character (FRE 404).

Some exceptions allow character evidence in specific scenarios (FRE 404(a)(2)).

Common Issues

  • Improper use of character evidence in civil cases.
  • Confusion between permissible character evidence and propensity evidence.
Best Evidence Rule

Issue Checklist

  • ✓ Is the original writing, recording, or photograph available?
  • ✓ Is the evidence being offered to prove the content of the writing?

Key Rules

To prove the content of a document, the original must be produced unless an exception applies (FRE 1002).

Secondary evidence like copies may be admissible under certain conditions (FRE 1003).

Common Issues

  • Offering copies when originals are available without justification.
  • Failing to explain why secondary evidence is required.
Privileges

Issue Checklist

  • ✓ Is the evidence covered by a recognized privilege?
  • ✓ Is the privilege being asserted timely and appropriately?

Key Rules

Certain communications are protected from disclosure by social policy (e.g., attorney-client privilege).

Privileges can be waived or limited under certain conditions.

Common Issues

  • Unrecognized or misapplied privilege claims.
  • Issues of waiver through disclosure in previous communications.
Exam Approach

Structure your answer by identifying the relevant evidentiary issues presented in the question. Apply the specific rules to the facts while articulating potential arguments both for and against admissibility.

Time Management

Allocate time to outline your answers before writing. Ensure each section of your answer addresses the main issues succinctly given the time constraints.

Mnemonics
  • RELEVANT for relevance rules – Relevance, Exclusion under 403, Law, Evaluate consequences.
  • HEARSAY - Hearsay statement, Elements, Exceptions, Reliability, and Availability.
Common Pitfalls to Avoid
  • Failing to check for hearsay when examining witness statements.
  • Ignoring the impact of privilege on witness testimony.
  • Neglecting procedural requirements for evidence authentication.

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