Black Letter Law Flashcards
Dead Man Acts generally provide that a person or party interested in the event is incompetent to testify to a personal transaction or communication with:
The deceased, when offered against the representative or successors in interest of the deceased.
The following are all factors in determining the relevance of evidence:
materiality (whether the disputed fact is at issue in the case); probativeness (whether the evidence makes the existence of the fact more probable or less probable than it would be without the evidence); proximity in time to the events in question
Dead Man Acts apply to:
civil cases only
A publication may be established as reliable by:
(i) the direct testimony or cross-examination admission of the expert
(ii) the testimony of another expert
(iii) Judicial notice
Under the Federal Rules, the jury decides questions of ____.
relevancy of evidence
Under the Federal Rules, the judge decides questions of ____.
the competency of relevant evidence
A jury may decide certain preliminary facts regarding ____ as this issue goes to relevancy.
authenticity (whether a document was signed by the defendant or by a forger, if disputed)
The traditional rule was that a party could impeach his own witness only if the witness:
(i) was an adverse party
(ii) was hostile
(iii) was one required to be called by law
(iv) gave damaging surprise testimony
A court will take judicial notice of:
(i) matters of common knowledge within the community (notorious facts)
(ii) matters easily verified by resorting to well-established, easily accessible sources (manifest facts)
Prior statements by a witness that are consistent with the witness’s testimony at trial are sometimes admissible to ____.
rehabilitate a witness who has been impeached
In a civil case involving sexual assault, evidence offered to prove the sexual disposition or alleged behavior of the victim will be admissible only if:
It is otherwise admissible under the Federal Rules and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party.
Evidence offered to prove the sexual disposition or behavior of the alleged victim may be admissible in criminal cases only in specific instances, such as where evidence of:
specific instances of sexual behavior by the victim is offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence, or when specific instances of sexual behavior between the victim and the accused are admissible to prove consent
All of the following can qualify as a “statement” for purposes of the hearsay rule:
(a) oral declarations
(b) writings
(c) assertive conduct
Impeachment of a witness with a prior conviction is likely admissible if it is a ____ from ____ years ago.
felony not involving dishonesty; seven
Unlike felonies, only misdemeanors involving ____ may be used for impeachment purposes.
dishonesty or a false statement
In most jurisdictions and under the Federal Rules, opinion testimony by lay witnesses is admissible when:
(i) rationally based on the perception of the witness
(ii) helpful to have a clear understanding of her testimony or to the determination of a fact in issue
(iii) not based on scientific, technical, or other specialized knowledge.
Information in treatises can be read into evidence if the treatise is:
(i) relied upon by the expert or is called to his attention during cross-examination
(ii) established as reliable by the witness, another expert, or judicial notice
The treatise itself is not admitted into evidence, but rather ____.
the relevant section is read in
All statements made by the ____ in judicial proceedings are absolutely privileged.
judge, jurors, counsel, witnesses, or parties
Before a writing or any secondary evidence of its content may be received in evidence, the writing must be ____.
authenticated by proof showing that the writing is what the proponent claims it is
To qualify as an exception to the hearsay rule, a statement against interest must meet the following requirements:
(i) statement must have been against pecuniary, proprietary, or penal interest when made, such that a reasonable person in the declarant’s position would have made it only if she believed it to be true
(ii) declarant must have had personal knowledge of the facts
(iii) declarant must have been aware that the statement is against her interest and she must have had no motive to misrepresent when she made the statement
(iv) declarant must be unavailable as a witness
If the burden of persuasion for an insanity defense is on the defendant, the standard of proof will usually be either by ____ or ____.
a preponderance of the evidence; by clear and convincing evidence
If the crime did not involve dishonesty or false statement, the court has discretion to ____.
exclude the conviction under the general Rule 403 balancing test
(note that a stricter balancing test applies when the witness is the defendant in a criminal case)
Under the Federal Rules, the dying declaration exception to the hearsay rule applies only in ____ and ____.
civil actions; homicide prosecutions
The United States Supreme Court recognizes a federal privilege for communications between a ____.
licensed social worker and his client or a psychotherapist (psychiatrist or psychologist) and his client
The best evidence rule does not apply to facts such as ____. These facts may be proved ____, although certificates evidencing these facts are in existence.
birth, marriage, and death; orally
What is the difference, if any, between business routine and industrial custom?
Business routine is specific to the business and event in question, and is admissible only to show that a particular event occurred.
Industrial custom is admissible to prove the actions of other persons in the same industry.
The best evidence rule applies:
(i) where the writing is a legally operative or dispositive instrument such as a contract, deed, will, or divorce decree
(ii) where the knowledge of a witness concerning a fact results from having read it in the document
Dead Man Acts exist to ____.
protect estates from perjured claims
The Confrontation Clause prohibits the admission of certain testimonial evidence against a criminal defendant. If the primary purpose of police interrogation is to ____, statements made in the course of the interrogation are nontestimonial.
enable the police to help in an ongoing emergency
Testimony regarding the defendant’s attempt to bribe the witness is admissible as ____.
substantive evidence against the defendant
Generally, a party may not bolster the credibility of her own witness unless the witness has already been impeached. The two exceptions to this rule are when the bolstering is relevant to show:
timely complaint; prior identification
Under the Federal Rules, what is the limitation applied to the dying declaration exception to the hearsay rule?
limited to statements about the cause and circumstances surrounding what the declarant believes to be his impending death
