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100 > E > Flashcards

E Flashcards

1
Q

LAY WITNESS

A

ANYONE CAN BE A WITNESS

TESTIFY AS TO KNOWLEDGE/ PERCEPTION

MUST TAKE OATH/AFFIRMATION

JUDGE/ JUROR MAY NOT BE A WITNESS

CHILD MAY BE A WITNESS

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2
Q

LAY WITNESS CANNOT TESTIFY AS TO

A

LEGAL CONCLUSIONS

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3
Q

EXPERT WITNESS

A

LAY FOUNDATION/QUALIFY THE EXPERT

CAN USE OUTSIDE EVIDENCE

CAN GIVE OPINION ON CONCLUSION

CANNOT GIVE OPINION ON MENTAL STATE OF DEFENDANT IF ELEMENT OF CRIME

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4
Q

CONTROL OF WITNESSES

A

THE COURT CAN TAKE STEPS TO KEEP REASONABLE CONTROL

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5
Q

LEADING QUESTIONS NOT ALLOWED ON DIRECT…EXCEPTIONS:

A

CROSS EXAMINATION
ADVERSE PARTY
SHY WITNESS/CHILD
JOG MEMORY
LAY FOUNDATION

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6
Q

REFRESHING MEMORY/RECOLLECTION

A

MAY SHOW ANYTHING TO WITNESS

BUT NOT READ INTO EVIDENCE

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7
Q

WITNESSES MUST NOT BE PRESENT IN COURTROOM

EXCEPTIONS

A

IF THEY ARE A PARTY
STATUTE ALLOWS
NEEDED

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8
Q

THE JUDGE AND THE JURY

A

JUDGE= RULES OF LAW + ADMISSIBILITY

JURY= QUESTIONS OF FACT + WEIGHT

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9
Q

OBJECTION TO ADMISSION

A

1) TIMELY
2) GROUNDS

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10
Q

OFFER OF PROOF

A

1) EVIDENCE WAS EXCLUDED
2) PRESERVES FOR APPEAL

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11
Q

BURDEN OF PRODUCTION

A

THE PLAINTIFF/PROSECUTION MUST PROVE EACH ELEMENT

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12
Q

BURDEN OF PERSUASION

A

CIVIL: PREPONDERANCE OF THE EVIDENCE (51%)

CRIMINAL: BEYOND A REASONABLE DOUBT

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13
Q

IF THE PRESUMPTION IS REBUTTED WITH EVIDENCE

A

THE JURY MAY CONCLUDE

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14
Q

IF THE PRESUMPTION IS NOT REBUTTED

A

THE JURY MUST CONCLUDE

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15
Q

CONCLUSIVE PRESUMPTION

A

NO REBUTTAL EVIDENCE MAY BE OFFERED

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16
Q

IMPEACHMENT

A

ATTACKING WITNESS CREDIBILITY

GENERALLY ADMISSIBLE

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17
Q

PRIOR FELONY CONVICTIONS

A

1) FELONY WITHIN 10 YEARS
2) PASSES THE BALANCING TEST

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18
Q

PRIOR CONVICTIONS REGARDING HONESTY/TRUTHFULNESS

A

1) FELONY OR MISDEMEANOR
2) PROVED BY REPUTATION, OPINION, OR ACTS

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19
Q

PRIOR BAD ACTS (NOT CONVICTIONS)

A

IN GENERAL- NOT ADMISSIBLE

REGARDING HONESTY/TRUTHFULNESS- ADMISSIBLE

NO EXTRINSIC EVIDENCE

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20
Q

COLLATERAL MATTER

A

NOT RELEVANT TO THE CASE

CANNOT BE USED TO IMPEACH

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21
Q

WHEN CAN YOU ADMIT FOR IMPEACHMENT AND SUBSTANTIVE EVIDENCE

A

WHEN THE STATEMENT IS ALSO NOT HEARSAY

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22
Q

RELEVANT EVIDENCE

A

ANY TENDENCY TO MAKE A FACT MORE OR LESS PROBABLE

GENERALLY ADMISSIBLE

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23
Q

RELEVANT EVIDENCE IS EXCLUDED IF

A

UNFAIRLY PREJUDICIAL

MISLEADS OR CONFUSES THE JURY

CAUSES DELAY

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24
Q

AUTHENTICATION

A

MUST SHOW THE EVIDENCE IS WHAT IT PURPORTS TO BE

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25
Q

HOW TO AUTHENTICATE

A

DIRECT TESTIMONY

SPECIAL MARKINGS

TESTIMONY W PERSONAL KNOWLEDGE

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26
Q

SELF AUTHENTICATING

A

LOOK FOR AN OFFICIAL/NOTARIZED DOCUMENT

DOES NOT REQ ADDITIONAL TESTIMONY

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27
Q

CHARACTER EVIDENCE

A

BAD THINGS THE DEFENDANT DID IN THE PAST

NOT ADMISSIBLE

TOO PREJUDICIAL

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28
Q

CHARACTER ADMISSIBLE IN CIVIL CASES WHEN AT ISSUE

A

DEFAMATION

CHILD CUSTODY

NEGLIGENT ENTRUSTMENT

MISREPRESENTATION/FRAUD

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29
Q

WHEN CHARACTER IS AT ISSUE

A

CAN B PROVEN BY REPUTATION, OPINION, AND SPECIFIC ACTS

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30
Q

CHARACTER ADMISSIBLE IN CRIMINAL CASES

A

D OPENS THE DOOR

D INTRODUCES EVIDENCE OF PERTINENT TRAIT

PROSECUTION CAN REBUT EVIDENCE OF SAME TRAIT

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31
Q

CHARACTER TO SHOW MIMIC IS ADMISSIBLE

A

MOTIVE
INTENT
MISTAKE (ABSENCE OF)
IDENTIFICATION
COMMON SCHEME OR PLAN

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32
Q

SELF DEFENSE CLAIM

A

D CAN SHOW P WAS INITIAL AGGRESSOR

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33
Q

PRIOR ACTS OF CHILD MOLESTATION

A

OTHER INSTANCES OF CHILD MOLESTATION ARE ADMISSIBLE

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34
Q

HABIT EVIDENCE

A

ROUTINE PRACTICE

ADMISSIBLE IF HABIT IS DONE ALL THE TIME

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35
Q

ATTORNEY/CLIENT PRIVILEGE

A

1) THERE MUST BE A RELATIONSHIP
2) APPLIES TO ANYONE WHO WORKS FOR THE ATTORNEY
3) LAST FOREVER
4) COMMUNICATION MUST BE CONFIDENTIAL

**PRIVILEGE IS HELD BY THE CLIENT

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36
Q

WORK PRODUCT

A

GENERALLY PROTECTED BY ATTORNEY/CLIENT PRIVILEGE

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37
Q

EXCEPTIONS TO ATTORNEY/CLIENT PRIVILEGE

A

GETTING ADVICE ON HOW TO COMMIT A CRIME

DISPUTE B/W ATTORNEY AND CLIENT

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38
Q

DOCTOR/PATIENT PRIVILEGE

A

STATEMENTS ABOUT TREATMENT OR DIAGNOSIS

OTHER CAN BE PRESENT TO ASSIST DOCTOR/PATIENT

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39
Q

EXCEPTIONS TO DOCTOR/PATIENT PRIVILEGE

A

1) PATIENT PUTS HIS CONDITION AT ISSUE

2) DISPUTE B/W DOCTOR AND PATIENT

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40
Q

SPOUSAL COMMUNICATION PRIVILEGE

A

PROTECTS CONFIDENTIAL INFORMATION DISCLOSED DURING MARRIAGE

41
Q

COMMUNICATION PRIVILEGE APPLIES

A

CIVIL OR CRIMINAL

SURVIVES DIVORCE

EITHER SPOUSE MAY EXERT PRIVILEGE

BOTH SPOUSES MUST WAIVE

42
Q

SPOUSAL TESTIMONIAL PRIVILEGE

A

PREVENTS A SPOUSE FROM TESTIFYING

43
Q

TESTIMONIAL PRIVILEGE APPLIES

A

CRIMINAL CASE ONLY

MUST BE LEGALLY MARRIED AT TRIAL

COVERS EVENTS BEFORE/DURING MARRIAGE

ENDS WITH DIVORCE

WITNESS SPOUSE HOLDS THE PRIVILEGE

44
Q

EXCEPTIONS TO SPOUSAL PRIVILEGES

A

1) STATEMENTS ABOUT FUTURE CRIMES

2) STATEMENTS ABOUT CHILD OR SPOUSAL ABUSE

45
Q

JUDICIAL NOTICE

A

ANY EVIDENCE NOT SUBJECT TO DISPUTE

NO OPINIONS

**DAY OF THE WEEK/ ITS SUNNY OUTSIDE

46
Q

WHEN TO TAKE JUDICIAL NOTICE

A

JUDGE MAY- WHETHER REQUESTED OR NOT

JUDGE MUST- IF REQUESTED BY A PARTY

47
Q

JUDICIAL NOTICE OF LAW

A

MUST - FED OR STATE LAW

MAY- FOREIGN LAW OR MUNICIPAL ORDINANCE

48
Q

JURY INSTRUCTIONS FOR JUDICIAL NOTICE

CIVIL CASE

A

JURY MUST ACCEPT AS CONCLUSIVE

49
Q

JURY INSTRUCTIONS FOR JUDICIAL NOTICE

CRIMINAL CASE

A

JURY MAY ACCEPT AS CONCLUSIVE

50
Q

SUBSEQUENT REMEDIAL MEASURES

A

EVIDENCE THT SOMETHING WAS FIXED AFTER AN ACCIDENT

NOT ADMISSIBLE TO SHWO NEGLIGENCE

PUBLIC POLICY RULE

51
Q

EXCEPTION- SUBSEQUENT REMEDIAL MEASURES

A

ADMISSIBLE TO SHOW OWNERSHIP/CONTROL

52
Q

LIABILITY INSURANCE

A

NOT ADMISSIBLE TO SHOW NEGLIGENCE

MAY BE ADMISSIBLE TO SHOW BIAS

53
Q

OFFER TO COMPROMISE/SETTLE

A

NOT ADMISSIBLE FOR PUBLIC POLICY

MUST BE A DISPUTE B/W PARTIES

54
Q

OFFER TO COMPROMISE+ ADMISSION

A

THE WHOLE STATEMENT IS NOT ADMISSIBLE

55
Q

OFFER TO PAY MEDICAL EXPENSES

A

NOT ADMISSIBLE FOR PUBLIC POLICY

56
Q

OFFER TO PAY MEDICAL EXPENSES + ADMISSION

A

ONLY THE ADMISSION IS ADMISSIBLE

57
Q

PLEA NEGOTIATIONS

A

NOT ADMISSIBLE

ADMISSIBLE WITH AN ADMISSIBLE STATEMENT + FAIR

EX: NO CONTEST, GUILTY PLEA LATER WITHDRAWN, ANY STATEMENT ABOUT GUILTY PLEA

58
Q

PAST SEXUAL CONDUCT OF VICTIM

A

NOT ADMISSIBLE TO SHOW OTHER SEXUAL BEHAVIOR OR SEXUAL PREDISPOSITION

59
Q

EXCEPTION- PAST SEXUAL CONDUCT OF VICTIM IN A CRIMINAL CASE

A

1) SHOW CONSENT
2) PROTECTS D’S CONSTITUTIONAL RIGHTS
3) THE SOURCE OF ANY PHYSICAL EVIDENCE

60
Q

EXCEPTION- PAST SEXUAL CONDUCT OF VICTIM; IN A CIVIL CASE

A

ONLY IF THE PROBATIVE VALUE OUTWEIGHS THE PREJUDICIAL EFFECT

61
Q

BEST EVIDENCE- GENERAL RULE

A

THE BEST EVIDENCE IS CONSIDERED THE ORIGINAL

THE BEST EVIDENCE RULE DOES NOT APPLY TO OBJECTS

62
Q

THE BEST EVIDENCE RULE EXCEPTION

A

IF THE ORIGINAL ITEM IS LOST OR DESTROYED, YOU MAY USE A COPY IF IT IS AUTHENTICATED

63
Q

AUTHENTIC

A

NO EVIDENCE OF TAMPERING

START W PREMISE THE DOCUMENT IS AUTHENTIC

Examples:
Authentic
o Copy of contract or warranty deed from
courthouse
o Copy with no evidence of tampering
Not Authentic
o Warranty deed with sharpie marks demonstrates
tampering

64
Q

BEST EVIDENCE RULE APPLIES IN 2 SCENARIOS

A

1) TO PROVE CONTENTS OF THE DOCUMENT

Examples:
o Copy of contract or warranty deed from courthouse
o Copy with no evidence of tampering

2) TO PROVE THE TESTIMONY BEING GIVEN

Exception:
If other evidence can prove testimony

65
Q

COMPLETENESS RULE

A

When admitting a portion, the whole
document may be admitted for fairness

66
Q

HEARSAY

A

GENERALLY INADMISSIBLE

START W THE PREMISE THT HEARSAY IS INADMISSIBLE UNLESS IT MEETS AN EXCEPTION

67
Q

HEARSAY DEFINITION

A

Hearsay is an out-of-court statement offered to
prove the truth of the matter asserted

68
Q

STATEMENTS NOT OFFERED FOR TRUTH

A
  • Words of Offer & Acceptance
  • Libel or Slander
  • Verbal Acts to show motive/notice
69
Q

HEARSAY EXCEPTIONS; PRESENT SENSE IMPRESSION

A

STATEMENT MADE WHILE OBSERVING FACT

NON EMOTIONAL OBSERVATION

70
Q

HEARSAY EXCEPTIONS; EXCITED UTTERANCE

A

STATEMENT MADE WHILE EXCITED

LOOK FOR !!!!!!!!!!!!

71
Q

HEARSAY EXCEPTIONS; THEN EXISTING MENTAL, EMOTIONAL, PHYSICAL STATE OF MIND

A

STATEMENTS OF INTENT, EMOTION, OR PHYSICAL STATE

Example:
o “I couldn’t have killed her, I loved her”
o “I was going to New Yorkͧ
o “I was on my way to L.A.”
o “I’m suffering pain right now”

72
Q

HEARSAY EXCEPTIONS; BUSINESS RECORD

A

RECORD MADE IN THE ORDINARY COURSE OF THE BUSINESS

Example:
Business Record
o President signed an invoice or piece of paper
on ABC Inc. letterhead
o Time sheet
Not Business Record
o Christmas gift for clients on law firm letterhead

73
Q

HEARSAY EXCEPTION; STATEMENT FOR MEDICAL DIAGNOSIS OR TREATMENT

A

STATEMENT RELATED TO PAST OR PRESENT SYMPTOMS

ABOUT THE TREATMENT OR DIAGNOSIS

74
Q

HEARSAY EXCEPTIONS; RECORDED RECOLLECTION

A

1) WITNESS ON THE STAND CANNOT REMEMBER

2) DOCUMENT MADE/ADOPTED BY WITNESS

3) CAN BE READ INTO EVIDENCE

75
Q

HEARSAY EXCEPTIONS; PUBLIC RECORD

A

RECORD OR STATEMENT OF A PUBLIC OFFICE/ AGENCY

OBSERVATIONS BY SOMEONE W A DUTY TO REPORT

EX: POLICE REPORT

76
Q

HEARSAY EXCEPTIONS; ABSENCE OF BUSINESS RECORD OR PUBLIC RECORD

A

LOOK FOR FACTS TO INDICATE THERE WAS NO RECORD

77
Q

HEARSAY EXCEPTION; LEARNED TREATISE

A

ADMISSIBLE WHEN AN EXPERT WITNESS IS RELYING ON THE TREATISE

78
Q

HEARSAY EXCEPTION; ANCIENT DOCUMENT

A

AUTHENTICATION; DOCUMENT MUST BE MORE THAN 20 YEARS OLD

FRE HEARSAY EXCEPTION: DOCUMENT MUST HAVE BEEN PREPARED BEFORE 1998

79
Q

CATCH ALL EXCEPTION

A

1) MATERIAL
2) TRUSTWORTHY
3) IN THE INT OF JUSTICE

80
Q

HEARSAY EXCEPTIONS- UNAVAILABILITY REQ

DYING DECLARATION

A

1) Unavailability
2) Belief of impending death
3) About cause of death
4) Homicide or civil case

81
Q

UNAVAILABLE

A

Unavailable witness means not currently
at the trial

Example:
o Missing
o In coma
o Pleaded the Fifth
o Witness Protection Program

82
Q

HEARSAY EXCEPTIONS- UNAVAILABILITY REQ

STATEMENT AGAINST INTEREST

A

1) Unavailability
2) Makes declarant look liable/guilty
3) Generally made by non-party

83
Q

HEARSAY EXCEPTIONS-
UNAVAILABILITY REQ

FORMER TESTIMONY

A

1) Unavailability
2) Opponent was a party to former case
3) Former case about same subject
4) Made under oath
5) Opportunity to cross-examine

84
Q

NON HEARSAY

A
  • Not an exception
  • Admissible substantively
85
Q

NON HEARSAY; ADMISSIONS

A

STATEMENT MADE BY A PARTY

ADMISSIBLE AS NON HEARSAY

86
Q

NON HEARSAY; VICARIOUS ADMISSIONS

A

STATEMENTS MADE BY EMPLOYEES ABOUT COMPANY

Example:
o A worker in the company saying, “We don’t fix the
brakes”
o A worker in the company saying, “We are usually
drunk when we drive”

87
Q

NON HEARSAY; ADOPTIVE ADMISSIONS

A

PARTY DOES NOT RESPOND WHEN A REASONABLE PERSON WOULD OBJECT

88
Q

NON HEARSAY; PRIOR CONSISTENT STATEMENT

A

1) PRIOR STATEMENT BY DECLARANT

2) THE SAME AS CURRENT TESTIMONY

3) TO REFUTE CHARGE OF FABRICATION OR MOTIVE

89
Q

NON HEARSAY; PRIOR SWORN INCONSISTENT STATEMENT

A

1) PRIOR STATEMENT BY DECLARANT

2) MADE UNDER OATH

3) INCONSISTENT W CURRENT TESTIMONY

90
Q

NON HEARSAY; PRIOR IDENTIFICATION

A

DECLARANT TESTIFYING ABOUT AN EARLIER IDENTIFICATION

91
Q

RIGHT TO CONFRONTATION

A

Right to confront a witness concerning an
out-of-court statement depends on if the
statement is TESTIMONIAL

92
Q

NONTESTIMONIAL

A
  • Statement made to police during an emergency
  • Admissible
93
Q

TESTIMONIAL

A
  • Statement not made during an emergency
  • Not Admissible
94
Q

PHYSICAL AND DEMONSTRATIVE EVIDENCE

A

GENERALLY ADMISSIBLE

EX: SHOW SCAR, DEMONSTRATE LIMP

95
Q

DOUBLE HEARSAY

A

TWO DIFF STATEMENTS
NOT ADMISSIBLE UNLESS BOTH MEET AN EXCEPTION OR EXEMPTION TO THE RULE

96
Q

A WAIVER OF PRIVILEGE EXTENDS TO AN UNDISCLOSED COMM OR INFO ONLY IF THE WAIVER IS

A

intentional;

the disclosed or undisclosed communications or
information concern the same subject matter; and

they ought in fairness be considered together.

97
Q

AN OBJECTION RAISED ONLY AFTER A WITNESS HAS LEFT THE STAND IS

A

NOT TIMELY

98
Q

THE DEFENSE MAY OFFER EXTRINSIC EVIDENCE OF A WITNESS’S PRIOR INCONSISTENT STATEMENT FOR THE LIMITED NON HEARSAY PURPOSE OF

A

IMPEACHMENT AFTER THE W HAS BEEN GIVEN AN OPP TO EXPLAIN OR DENY THE STATEMENT

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