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Bar Prep > 07. Evidence > Flashcards

07. Evidence Flashcards

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1
Q

What does a jury decide?

A

Questions of fact

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2
Q

What does a judge decide?

A

Questions of law

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3
Q

What type of question is whether or not a piece of evidence gets in?

A

A question of law

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4
Q

What is the implication of admissibility being a question of law?

A

The judge decides whether evidence is admissible

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5
Q

Who decides whether there is a privilege?

A

The judge

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6
Q

Who decides whether witnesses are qualified?

A

The judge

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7
Q

T or F: The court is bound by the Federal Rules of Evidence with regard to preliminary factual decisions

A

False

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8
Q

What types of questions of fact will a judge decide?

A

Fact questions that go to the admissibility of evidence (i.e., preliminary questions)

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9
Q

When may a preliminary hearing be conducted outside the presence of the jury?

A

1) Confession = When the issue is the admissibility of a confession in a criminal trial
2) Defendant-Witness = When the defendant in a criminal case is a witness and makes that request
3) Justice = When the interests of justice otherwise require (e.g., unfair prejudice to a party)

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10
Q

Who decides the weight and credibility of evidence?

A

The jury

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11
Q

What is required to reverse evidentiary rulings on appeal?

A

1) A substantial right of a party has been affected (i.e., NOT harmless error); AND
2) The judge was notified of the mistake at trial and given a chance to correct it

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12
Q

How would a moving party notify the court of an evidentiary mistake and preserve it for appeal?

A

1) Objection
2) Offer of Proof

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13
Q

When may an appellate court reverse without preservation or notification?

A

To prevent a miscarriage of justice in the face of plain error, even if no objection or offer of proof was made at trial

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14
Q

What is plain error?

A

Error that was obvious on its face

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15
Q

When may you make an objection to evidence?

A

If the court has admitted evidence that should have been excluded (must also explain WHY evidence should be excluded)

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16
Q

When may you make an offer of proof?

A

If the court refuses to admit evidence that should have been admitted

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17
Q

What is an offer of proof?

A

An explanation to the court what the evidence would have been and why it should have been admitted

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18
Q

When is an explanation for the offer of proof not necessary?

A

If the substance and logic of the evidence is straightforward and clear on the surface

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19
Q

What is required for a prosecutor to ask about a defendant’s specific acts to impeach the defendant’s character evidence?

A

The question about the specific act must be asked in good faith = the prosecutor must have knowledge of the specific act, and not just ask a question based on a hunch (even if the hunch is true)

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20
Q

What subject of juror testimony is admissible post-trial?

A

1) Extraneous prejudicial information brought to the jury’s attention;
2) An outside influence improperly brought to bear on a juror; OR
3) A mistake made in entering the verdict onto the verdict form

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20
Q

What is required to show that a child is competent to testify at trial?

A

1) Intelligence
2) Ability to differentiate between truth and falsehood
3) Understanding the importance of telling the truth
4) Personal knowledge

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20
Q

When is evidence of a remedial measure inadmissible?

A

If the remedial measure was undertaken by the defendant AFTER the plaintiff’s damages.

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21
Q

When is evidence of a remedial measure admissible?

A

If the remedial measure was undertaken before the plaintiff suffered damages

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22
Q

What types of statements are NOT admissible against a defendant from pleas, plea discussions, and related statements

A

FRE 410

1) Withdrawn guilty plea
2) Nolo contendere (i.e., no contest) plea
3) Statements made during proceeding on above pleas
4) Statements made during plea discussions with prosecuting attorney

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23
Q

When is silence considered an adoptive admission?

A

1) The party was present and heard and understood the statement;
2) The party had the ability and opportunity to deny the statement; AND
3) A reasonable person similarly situated would have denied the statement

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24
Q

When is evidence of a juvenile conviction admissible in a civil case to attack a witness’s character for truthfulness?

A

NEVER

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25
Q

What does the attorney-client privilege protect?

A

Communications between an attorney and client that were:
1) Made to obtain legal advice or representation; AND
2) Intended to be kept confidential

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26
Q

When will attorney-client privilege NOT apply?

A

The privilege does not apply to communications in which a client seeks advice in furtherance of an ongoing or future crime or fraud

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27
Q

What is the hearsay exception for absent public records?

A

Testimony by a public official that a diligent search failed to disclose a public record is admissible to prove that the record does not exist - if the public office regularly kept records for a matter of that kind

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28
Q

What does it mean if something is collateral?

A

It mean it is undisputed

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29
Q

Under the majority rule, which spouse may assert the marital-communications privilege?

A

Either spouse (even after termination of the marriage) by:
1) Refusing to testify about the communication; OR
2) Preventing the other spouse from testifying

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30
Q

What is the marital-communications privilege?

A

A privilege that protects confidential communications between spouses during the marriage

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31
Q

When does the best evidence rule require production of an original or reliable duplicate of a document?

A

When its contents are at issue, such as:
1) The document is used to prove the happening of an event;
2) The document has a legal effect; OR
3) The witness is testifying based on facts learned from the document

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32
Q

Is an arrest qualify as a bad act that is admissible to attack a witness’s character for truthfulness?

A

No; the specific act offered would need to be a conviction or other bad acts, but an arrest does not qualify

33
Q

What does Rule 105 provide for?

A

Limiting instructions

34
Q

When are limiting instructions provided?

A

At the request of the objecting party

35
Q

What is a limiting instruction?

A

Instructions to the jury stating that evidence can only be used for one purpose, but not another illegitimate purpose

36
Q

What is Rule 106?

A

The Rule of Completeness

37
Q

What is the Rule of Completeness?

A

If a party introduces part of a written statement, the opposing party may introduce other portions of that statement that are necessary to put the admitting portion into perspective

38
Q

When may a statement be introduced under the Rule of Completeness?

A

Immediately; there is no need to wait for the party’s turn to present its case

39
Q

May otherwise inadmissible evidence be introduced under the Rule of Completeness?

A

Yes; other portions may be introduced even if they might otherwise be inadmissible

40
Q

What is judicial notice?

A

The court’s acceptance of a fact as true without requiring formal proof

41
Q

What types of facts is judicial notice concerned with?

A

Adjudicative facts = facts that the jury would otherwise have to decide

42
Q

When may the court take judicial notice of a fact?

A

If it is not subject to reasonable dispute

43
Q

What is required for courts to take judicial notice?

A

1) The fact is generally known within the territorial jurisdiction of the court; OR
2) The fact can be accurately and readily determined by sources whose accuracy cannot reasonably be questioned

44
Q

What is the difference for judicial notice in a civil case versus a criminal case?

A
  • Civil Case = court will instruct the jury that is MUST accept the fact as proven
  • Criminal Case = court will instruct the jury that it MAY (but need not) find the fact as proven
45
Q

What proof is required to authenticate an item of evidence that is a physical representation of something that could not otherwise be seen?

A

1) The process for creating the evidence was accurate;
2) The machine that produced the evidence was working properly; AND
3) The operator of the machine was qualified to operate it

46
Q

What is the general trial process?

A

1) Plaintiff (civil) or prosecution (criminal) introduces its case first
2) Defendant presents its case

47
Q

How is the order of presentation of evidence and witnesses determined?

A

At the court’s discretion to control

48
Q

May the court call and question witnesses?

A

Yes (but this is rare)

49
Q

What happens if the court calls its own witnesses?

A
  • All parties can cross-examine those witnesses
  • Every party should have an opportunity to object outside the hearing of the jury
50
Q

What is a leading question?

A

A question that suggests the answer within the question

51
Q

When are leading questions generally NOT permitted?

A

On direct examination

52
Q

When may leading questions be permitted on direct examination?

A

1) To elicit preliminary background information not in dispute;
2) The witness has trouble communicating due to age or infirmity; OR
3) When you call a hostile witness or adverse party

53
Q

When may you want to refresh a witness’s recollection?

A

When a witness is having trouble remembering

54
Q

How do you refresh a witness’s recollection?

A

Help the witness remember by showing them a document (or something else), typically a person’s notes

55
Q

What does “present recollection refreshed” mean?

A

The witness looks at the notes, remembers, puts the notes aside, and proceeds to testify from present memory

56
Q

What happens to the document used to refresh a witness’s recollection?

A

The document does NOT become evidence and the witness does NOT read from it

57
Q

What is the opposing party allowed to do with the document used to refresh a witness’s recollection?

A

The opposing party is permitted to see and inspect the document, and even show it to the jury

58
Q

What is the scope of cross-examination?

A

Courts limit the scope of cross-examination to the subject of direct examination, though courts are allowed to permit broader inquiry

59
Q

What are 5 types of improper questions that should be objected to?

A

1) Compound questions = a question that asks for several answers
2) Facts not in evidence = a question that assumes facts not in evidence
3) Argumentative questions = not really a question; just intended to bother or harass the witness
4) Questions calling for inappropriate conclusions = call for a conclusion that the witness is not qualified to make
5) Repetitive questions = have already been asked and answered

60
Q

When may a witness be excluded from the courtroom?

A

Upon request of either party to prevent the witness from hearing the testimony of others

61
Q

Which types of witnesses may NOT be excluded from the courtroom?

A

1) A witness who is essential to the presentation of the case;
2) A person, such as a crime victim, who is permitted by state rule to remain in the courtroom; OR
3) A party in the case

62
Q

What are the components of burden of proof?

A

1) Burden of production
2) Burden of persuasion

63
Q

What is the burden of production?

A

A party must produce enough evidence to get the issue to the jury

64
Q

What is the burden of persuasion?

A

A party must convince the jury to decide the case in its favor

65
Q

What is the usual standard for conviction in a civil case?

A

Usually, the standard is a preponderance of the evidence (more likely than not)

66
Q

What is the usual standard for conviction in a criminal case?

A

Beyond a reasonable doubt

67
Q

What is a rebuttable presumption?

A

Something that shifts the burden of production on a particular issue, but not the burden of persuasion

68
Q

What happens if counterproof to a rebuttable presumption is presented?

A

The presumption is eliminated (the bubble bursts) and there is sufficient evidence for the jury to decide the issue

69
Q

What happens if a party destroys evidence?

A

AKA: Spoliation

If a party destroys evidence, there is a presumption that it would have been adverse to that party

70
Q

What is the federal inadvertent-waiver rule?

A

An inadvertent disclosure of protected information does NOT waive the attorney-client privilege or the attorney work-product doctrine IF:
1) The disclosure was in a federal proceeding or to a federal agency; AND
2) The privilege holder attempted to prevent disclosure and promptly tried to rectify the error

71
Q

What is relevance?

A

Makes the fact in issue more likely that it would be without the evidence

72
Q

When is evidence relevant?

A

When it is both:
1) Material = related to some issue in the case
2) Probative = having a tendency to prove or disprove some fact

73
Q

What is direct evidence?

A

Equivalent to what it is offered to prove (e.g., eyewitness testimony)

74
Q

What is circumstantial evidence?

A

Evidence from which a fact can be inferred

75
Q

What is the exclusion of relevant evidence rule?

A

FRE 403

Even if the evidence is relevant and there is no particular rule excluding it, the court has discretion to exclude relevant evidence if certain risks substantially outweigh its probative value

76
Q

What risks are we concerned about with FRE 403?

A

1) Confusion of the issues
2) Unfair prejudice
3) Misleading the jury
4) Waste of time

77
Q

What happens if relevance is conditioned on some fact that is best for the jury to decide?

A

FRE 104(b)

Courts will simply admit the evidence on the condition that the jury will decide that preliminary fact later

78
Q

What is the character evidence rule?

A
  • Rule about the propensity argument or inference
  • Prohibits the argument that a person acted in conformity with a particular character trait
  • Prevents a party from providing a character trait in order to show action in conformity
  • Rationale = too prejudicial, not that probative of the current conduct, and it distracts the jury’s attention
79
Q

What methods may be used to prove character?

A

1) Reputation OR
2) Opinion testimony

80
Q

What method CANNOT be used to prove character?

A

Specific bad acts

81
Q

What are some other relevant uses for character evidence?

A

1) When character is at issue
2) If character is an actual issue or essential element in the case, then it can be proved

NOTE: Character is generally only at issue in civil cases

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