The ABCs of: Evidence

Here is a collection of 26 important concepts, from A to Z, you need to know about Evidence for the bar exam:

A – Admissibility: Evidence must meet specific standards to be admissible, including relevance and compliance with exclusionary rules. The court determines admissibility based on rules of evidence.

BONUS: A – Authentication: To admit a piece of evidence, it must be authenticated, meaning proof must establish that the item is what it claims to be (e.g., documents, recordings, or real evidence).

B – Best Evidence Rule: When a party seeks to prove the contents of a writing, recording, or photograph, the original document is generally required, unless an exception applies (e.g., lost or destroyed originals).

BONUS: B – Burden of Proof: The burden of proof includes both the burden of production (providing sufficient evidence) and the burden of persuasion (convincing the trier of fact). In criminal cases, the prosecution must prove guilt beyond a reasonable doubt.

BONUS: B – Business Records Exception: The business records exception allows for the admissibility of records made in the regular course of business, at or near the time of the event, by someone with knowledge. The proponent must lay a proper foundation, and the record must be trustworthy and not prepared for litigation purposes.

C – Character Evidence: Character evidence is generally inadmissible to prove a person acted in conformity with their character on a particular occasion. Exceptions exist for criminal cases where the defendant introduces evidence of their good character.

BONUS: C – Competency: All witnesses are presumed competent to testify unless disqualified for specific reasons, such as lack of personal knowledge or inability to understand the obligation to testify truthfully.

BONUS: C – Compromise Offers and Negotiations: Evidence of offers to compromise or settle a claim is generally inadmissible to prove liability or the amount of a disputed claim. This rule encourages parties to negotiate and resolve disputes without fear that their settlement discussions will be used against them in court. However, such evidence may be admissible for other purposes, such as proving bias or prejudice of a witness.

BONUS: C – Confrontation Clause: The Confrontation Clause of the Sixth Amendment guarantees criminal defendants the right to confront witnesses against them. This generally prohibits the use of testimonial hearsay unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination.

BONUS: C – Convictions: Prior criminal convictions may be used to impeach a witness’s credibility, especially if the crime involved dishonesty or false statements. However, the admissibility depends on factors such as the type of crime, its relevance to truthfulness, and how long ago it occurred.

D – Direct and Circumstantial Evidence: Direct evidence directly proves a fact without inference, while circumstantial evidence requires inference to connect it to a conclusion of fact.

BONUS: D – Documentary Evidence: Documents must meet authentication requirements and comply with the Best Evidence Rule to be admitted.

BONUS: D – Duplicates: Duplicates, such as photocopies or electronic reproductions, are generally admissible to the same extent as originals unless there is a genuine question about the authenticity of the original or it would be unfair to admit the duplicate.

BONUS: D – Dying Declarations: A dying declaration is a statement made by a declarant who believes their death is imminent, concerning the cause or circumstances of what they believe to be their impending death. The declarant need not actually die, but this exception applies only in homicide prosecutions or civil cases.

E – Exclusionary Rules: Relevant evidence may be excluded if its probative value is substantially outweighed by the risk of unfair prejudice, confusion, or waste of time.

BONUS: E – Exclusions vs. Exceptions: Hearsay exclusions refer to statements that are not considered hearsay under the Federal Rules of Evidence, such as prior consistent statements and admissions by a party opponent. Hearsay exceptions, on the other hand, apply to hearsay statements that are admissible despite being hearsay, such as excited utterances, present sense impressions, and statements against interest. Understanding this distinction is key to analyzing hearsay issues.

BONUS: E – Expert Witnesses: Experts may testify if their knowledge will assist the trier of fact, and their opinions must be based on sufficient facts, reliable principles, and methods applied reliably to the case.

F – Federal Rules of Evidence: These rules govern the admissibility of evidence in federal courts, providing a comprehensive framework for trial procedures.

BONUS: F – Former Testimony: Former testimony is admissible as a hearsay exception if the witness is unavailable, and the testimony was given under oath at a prior proceeding where the opposing party had an opportunity and similar motive to cross-examine the witness.

BONUS: F – Foundation: Laying a proper foundation is required to admit evidence, ensuring relevance, authenticity, and compliance with evidentiary rules.

G – General Admissibility of Relevant Evidence: Relevant evidence is admissible unless excluded by specific rules, statutes, or constitutional provisions.

BONUS: G – Good Faith Exception: Under certain circumstances, evidence obtained unlawfully may be admissible if law enforcement acted in good faith.

BONUS: G – Guilty Pleas and Withdrawn Pleas: Evidence of guilty pleas that are later withdrawn, offers to plead guilty, and statements made during plea negotiations are generally inadmissible in subsequent proceedings. This rule encourages open and honest plea discussions between parties without fear of prejudicing future cases.

H – Hearsay: An out-of-court statement offered to prove the truth of the matter asserted is generally inadmissible unless an exception or exclusion applies.

BONUS: H – Habit Evidence: Evidence of a person’s habit or an organization’s routine practice is admissible to prove conduct consistent with the habit or routine practice.

I – Impeachment: A witness’s credibility may be challenged through impeachment by prior inconsistent statements, bias, criminal convictions, or sensory deficiencies.

BONUS: I – Identification: Testimony regarding pretrial identification procedures must comply with due process requirements to avoid being excluded as unduly suggestive.

BONUS: I – Insurance: Evidence of liability insurance is generally inadmissible to prove negligence or wrongful action. However, it may be admissible for other purposes, such as proving ownership, control, or bias of a witness.

J – Judicial Notice: A court may recognize facts as true without requiring formal proof if they are generally known or can be accurately and readily determined from reliable sources. In criminal cases, the jury must determine whether the notice substantially affects the defendant’s rights, while in civil cases, judicially noticed facts are typically conclusive. court may recognize facts as true without requiring formal proof if they are generally known or can be accurately and readily determined from reliable sources.

K – Knowledge: Witnesses must have personal knowledge of the matter about which they testify. This requirement ensures the reliability of testimonial evidence.

L – Lay Opinion: Lay witnesses may offer opinions if they are rationally based on their perception and helpful to understanding their testimony or determining a fact in issue.

BONUS: L – Leading Questions: Leading questions, which suggest the desired answer, are generally not allowed on direct examination but may be permitted during cross–examination or when questioning a hostile or adverse witness.

BONUS: L – Limited Admissibility: Evidence admissible for one purpose or party may be limited by instruction to the jury to avoid misuse.

M – Materiality: Evidence must relate to a fact of consequence to the determination of the action to be considered material.

BONUS: M – Marital Privileges: There are two key marital privileges. Spousal immunity prevents one spouse from being compelled to testify against the other in a criminal case while they are married. The marital privilege for confidential communications protects private communications made during the marriage, even after the marriage ends. These privileges aim to protect the sanctity of marital relationships but differ in scope and applicability.

BONUS: M – Medical Diagnosis or Treatment Exception: Statements made for the purpose of medical diagnosis or treatment, describing medical history, symptoms, or the cause of the condition, are admissible as a hearsay exception because they are inherently reliable and necessary for effective medical care.

BONUS: M – MIMIC: This acronym stands for Motive, Intent, Mistake (absence of), Identity, and Common Plan or Scheme. It represents exceptions to the general rule that character evidence is inadmissible to prove conduct, as these purposes are permissible to show specific aspects of a person's behavior. 

N – Non-Hearsay: Certain out-of-court statements are deemed non-hearsay, such as prior statements by a witness and admissions by a party opponent.

BONUS: N – Neutrality: Judges must remain neutral arbiters and avoid actions or comments that suggest bias.

O – Objections: Timely objections are necessary to preserve issues for appeal. Common objections include relevance, hearsay, and lack of foundation.

BONUS: O – Offers to Pay Medical and Similar Expenses: Evidence of offers to pay medical or similar expenses is generally inadmissible to prove liability for an injury. This rule encourages parties to assist injured persons without fear that their actions will be used against them in court. However, accompanying statements of fact made during the offer may still be admissible if relevant and not otherwise excluded by the rules of evidence.

P – Privileges: Certain communications are privileged, such as attorney-client, doctor-patient, and spousal privileges, protecting them from disclosure in court.

BONUS: P – Presumptions: Presumptions shift the burden of production to the opposing party and may be rebuttable or conclusive, depending on the law.

BONUS: P – Prior Statements: Non-hearsay prior statements include prior consistent statements to rebut charges of recent fabrication, prior inconsistent statements made under oath in a prior proceeding, and prior statements of identification made after perceiving someone. These are admissible because they carry sufficient indicia of reliability.

Q – Quantum of Proof: The standard of proof varies depending on the case, ranging from preponderance of the evidence (civil cases) to beyond a reasonable doubt (criminal cases).

R – Relevance: Evidence must be relevant to be admissible, meaning it must have any tendency to make a fact more or less probable than it would be without the evidence.

BONUS: R – Recollection Recorded: Recollection recorded occurs when a witness cannot recall the information even after consulting a document or other aid. If the document was made or adopted by the witness when the event was fresh in their memory and accurately reflected their knowledge at the time, the document itself may be introduced as evidence.

BONUS: R – Refreshing Recollection: Refreshing recollection allows a witness to consult a document or other aid to jog their memory while testifying. The item used is not introduced into evidence, but opposing counsel has the right to inspect it and cross-examine the witness about it.

S – Spoliation: The destruction or alteration of evidence may result in adverse inferences or sanctions against the party responsible.

BONUS: S – Statement Against Interest and Statement by an Opposing Party: Statements against interest are admissible as an exception to hearsay if the declarant is unavailable and the statement was so contrary to their interest that a reasonable person would not have made it unless it was true. Statements by an opposing party, also known as party admissions, are non-hearsay and admissible if offered against the party who made the statement, regardless of the declarant's availability.

BONUS: S – Subsequent Remedial Measures: Evidence of repairs or changes made after an injury is inadmissible to prove negligence but may be admissible for other purposes, such as ownership or feasibility of precautionary measures.

T – Testimonial Evidence: Testimonial evidence refers to statements made under circumstances that would lead an objective witness to believe they would be used in a later trial. Under the Confrontation Clause, such evidence is generally inadmissible unless the declarant is unavailable and the defendant had a prior opportunity to cross–examine the declarant.

BONUS: T – Timely Objection: Failing to object in a timely manner may result in waiver of the objection.

U – Unfair Prejudice: Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

BONUS: U – Unavailability: For certain hearsay exceptions to apply, the declarant must be unavailable. Examples include statements against interest, dying declarations, and former testimony offered under specific circumstances.

V – Voir Dire: The process of questioning prospective jurors to assess their qualifications and potential biases.

BONUS: V – Voluntary Confessions: Confessions must be voluntary to be admissible, and any evidence obtained through coercion is inadmissible.

W – Witnesses: Witnesses must be competent and credible. The rules of evidence provide specific guidelines for examination and cross–examination.

BONUS: W – Within (Hearsay within Hearsay): Hearsay within hearsay refers to a situation where a statement contains another out–of–court statement. Both layers of hearsay must independently meet an exception or exclusion under the hearsay rules to be admissible.

BONUS: W – Written Statements: Written statements offered as evidence must satisfy authentication and hearsay rules to be admissible.

X – X-Ray Evidence: X-rays and similar evidence must be properly authenticated and shown to be accurate representations of the subject matter.

BONUS: X – Excited Utterance: An excited utterance is a statement made regarding a startling event or condition while the declarant is still under the stress of excitement caused by the event. It is admissible as an exception to the hearsay rule because the stress of excitement reduces the likelihood of fabrication.

BONUS: X – Extrinsic Evidence: Extrinsic evidence may not be used to impeach a witness on collateral matters but can be used for substantive issues like proving bias, interest, or a prior inconsistent statement under the proper circumstances.

Y – Young Witnesses: Children may testify if they understand the obligation to tell the truth and possess sufficient cognitive ability to perceive and recall facts.

Z – Zones of Privacy: Privileges and exclusionary rules protect certain areas of privacy, such as confidential communications and proprietary information. Commonly tested privileges include attorney-client privilege, which protects confidential communications between a lawyer and their client; doctor-patient privilege, which safeguards medical discussions in jurisdictions recognizing this privilege; spousal privilege, which prevents one spouse from testifying against the other in certain circumstances; and clergy-penitent privilege, which covers confessions made in a religious context. Each privilege has exceptions, such as the crime-fraud exception to attorney-client privilege.