Read the summary and the most important questions on (15) MBE: Evidence

• Evidence Lectures I + II (June 13 + 14)

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• Overview: The "Big 3" Topics (80% of MBE)

  1. Relevance 
  2. Witnesses 
  3. Hearsay 

• Overview: The "Little 3" Topics (20% of MBE)

  1. Authentication of Writings 
  2. BER 
  3. Privileges 

• (I) Relevance - (A) Basic Principle 1: Relevance

  Evidence is relevant if it has any tendency to make a fact of consequence more/less probable than would be the case without the evidence. 2 requirements: (1) Materiality; (2) Probativeness

• (I) Relevance - (A) Basic Principle 1: Relevance - (a) Materiality

  Focuses on the proposition that the evidence proves (which must be "of consequence)

• (I) Relevance - (A) Basic Principle 2: Irrelevance

  All irrelevant evidence is inadmissible

• (I) Relevance - (A) Basic Principle 3: Admissibility of Relevant Evidence: Pragmatic Consideration (2): Confusion of the issues

  Evidence that tends to create some side issue

• (I) Relevance - (A) Basic Principle 3: Admissibility of Relevant Evidence: Pragmatic Consideration (4)-(6): Undue delay; Waste of time; Unduly cumulative

  These all essentially speak to the idea that the evidence does not add anything to help the jury. It is more trouble than it is worth.

• (I) Relevance - (A) Basic Principle 3: Admissibility of Relevant Evidence: Pragmatic Considerations: Unfair Surprise

  Note that unfair surprise is not one of the pragmatic considerations upon which to exclude  relevant evidence.

• (I) Relevance -  (A) Basic Principle 3: Admissibility of Relevant Evidence--TX Rules of Evidence (TXRE)

  All relevant evidence is admissible, UNLESS (A) some specific exclusionary rule is applicable or (B) the court makes a discretionary determination that the probative value of the evidence is substantially outweighed by pragmatic considerations: (1) Danger of unfair prejudice; (2) confusion of the issues; (3) misleading the jury; (4) Undue delay; (5)unduly cumulative.

• (I) Relevance - (B) Similar Occurrences: General Rule

  In general, if evidence concerns some time, event, or person other than that involved in the case at hand, the evidence is inadmissible. . . Idea: Probative value is usually outweighed by pragmatic considerations (e.g., weak relevance, danger of confusion, misleading the jury, time consideration). . . BUT: Some recurring situations have produced concrete rules that may permit admissibility: (1) P's accident history; (2) Similar accidents caused by same event/condition; (3) intent in issue; (4) Comparable sales on issue of value; (5) Habit; (6) Industrial custom as standard of care.