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Bar Exam Class Final > Evidence > Flashcards

Evidence Flashcards

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1
Q

RELEVANCE (logical)

A

That which has any tendency to make a fact of consequence in determining the action more or less probable than it would be without the evidence

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2
Q

RELEVANCE (legal: Rule 403) - Balancing test / Exclusion

A

Excluded if
- probative value substantially outweighed by risk of
> unfair prejudice ~or~
> confusion, misleading, undue delay, wasting time, or needlessly cumulative

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3
Q

SPOUSAL PRIVILEGE: Spousal Immunity

A

No MARRIED person may be compelled to testify against their spouse in
ANY CRIMINAL proceeding
(covers events BEOFRE the marriage)

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4
Q

PRIVILEGE:

Confidential Marital Communications

A

Confidential communication made between spouses WHILE MARRIED is privileged
(both spouses hold; civil and criminal; survives termination of marriage)

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5
Q

SUBSEQUENT REMEDIAL MEASURES (Rule 407)

A

Not admissible to prove

  • Negligence, culpable conduct,
  • defective product or design,
  • need for warning
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6
Q

LIABILITY INSURANCE (Rule 411)

A

Not admissible to prove negligence, culpable conduct, defective product or design, OR need for warning

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7
Q

OFFER TO PAY MEDICAL EXPENSES (Rule 409)

A

Not admissible to prove liability for the injury

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8
Q

Present Recollection Refreshed

A

May refresh with document (or anything!) to help them remember.

  • Not into evidence
  • other party may see it
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9
Q

Relevant Evidence

A

Makes a fact more or less likely than it would be without the evidence
- all relevant evidence is admissible

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10
Q

Character Evidence - Propensity

A

Prohibited evidence that the person acted in conformity with their character

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11
Q

Character Evidence - can be proven by

A

Reputation and Opinion

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12
Q

Character Evidence - Criminal Trials ; def character

A

Prosecution = can’t introduce evidence of Bad Character
Def = Can introduce Good character of himself / reputation + opinion only
~but (Opened the Door!) ~ then Prosecution can use SPECIFIC ACTS of bad character on CROSS

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13
Q

Character Evidence - Criminal Trials ; victim character

A

Def can introduce for Self defense / reputation + opinion only
- but-
Prosecution can rebut w/ good character of Vic and bad character of Def // reputation + opinion only

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14
Q

Character Evidence - Other Purposes ..sneaky ways

A

MIMIC
> Motive
> Intent
> Mistake (crime was not likely a mistake bc it happened 3 times before. Absence of Mistake)
> Identity- MO / signature crimes (wet bandits)
> Common Plan - scheme (series of similar crimes)

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15
Q

Habit Evidence

A

Allowed to prove acted in conformity w/ habit
Must be - routine, regular, automatic
(can be a business too - opening and stamping mail)

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16
Q

Judicial Notice

A

When there is no reasonable dispute about a fact

Trenton is the capital of NJ / Pro Sports game time + place

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17
Q

Impeachment - 5 ways

A

B-I-C-C-C

  1. Bias
  2. Inconsistent Statements
  3. Capacity
  4. Character
  5. Contradiction
18
Q

How can you Impeach by Character

A

Reputation or Opinion

19
Q

When can you use Specific Acts to Impeach Character?

A

On Cross

  • Must accept the answer - no mini trial w/ evidence that they lied
  • No extrinsic evidence
20
Q

Impeachment - Character w/ Criminal Convictions

A

– Against the Witness:
1. Crimes involving Dishonesty / false statements
Ex: perjury, fraud, embezzlement
2. Felonies - Punishable by death or over a year prison Unless - the risk of Prejudice SUBSTANTIALLY outweighs the Probative value

– Against the Crim Defendant:
1. Crimes involving Dishonesty / false statements
Ex: perjury, fraud, embezzlement
2. Felonies - Punishable by death or over a year prison Only If - the Probative Value Outweighs the risk of Prejudice

21
Q

Impeachment - Prior Inconsistent Statements

A

Any + Can use Extrinsic Evidence - allow witness to explain it. (Show Police Rept - then W- “I was shaken by the accident”)

22
Q

Rehabilitate - Impeached witness

A
  • Prior Consistent Statement
  • Clarify + Explain
  • Reputation / Opinion of Character for Truthfulness
23
Q

Spousal Privilege

A

Confidential Communications

  • Communication during marriage
  • Held by both + Can prevent the other from testifying
  • Survives after marriage

Spousal Immunity
- Criminal - right to refuse to testify
- currently married
- covers anything before or during marriage
- Only Married couples
> Exceptions - 1 sues other // crimes where 1 = actor vs other victim

24
Q

Hearsay - def

A

An Out of Court statement offered for the truth of the matter asserted

25
Q

Other Uses that are Not Hearsay

A
  • Prove the statement was said (def made a statement)
  • Effect on the Listener (the ins co had notice)
  • State of Mind (speech in French - he’s fluent )
26
Q

Not Hearsay - TESTIFYING Available Witness (3)

A
  1. Prior Inconsistent Statements under Oath
  2. Prior Consistent Statements
  3. Prior ID Statements (line up)
27
Q

Not Hearsay - Party Opponent Statement (3)

A
  1. Party Admission - introduced against party (anything they said )
  2. Adoptive Admission - by statement (Did you rob the bank? Yes) ~or~
    Silence (reasonable Person would have denied said something and denied)
  3. Vicarious Admission - other people authorized to speak on their behalf = lawyer, employee in the scope, co-conspirator, (must be evidence of employment or conspiracy)
28
Q

Unavailable Declarant - (5)

A
  1. Exempted by a Privilege - spousal / attorney client
  2. Refuses
  3. Lacks Memory
  4. Dead or too Ill
  5. Can’t be subpoenaed or found
  6. NOT where the party made them unavailable ..DUH!
29
Q

Unavailable Declarant - Hearsay Exceptions (5)

A
  1. Former Testimony - IF - Other party had opportunity and similar motive to examine at previous trial
  2. Dying Declaration - believe dying, death impenitent, statement relates to the cause of death,
  3. Statement Against Interest - Reasonable person wouldn’t have made the statement (exonerating must have other evidence - suspicious ..my dead friend did it )
  4. Family History - he’s dad
  5. Made Unavailable by the party - anything in
30
Q

Hearsay Exceptions - People (5)

A
  1. Present Sense Impression
  2. Excited Utterance
  3. State of Mind - emotional, physical, mental ~ Can be used to show action in conformance with the intent to do something (I’m going to grandma’s ..intent to go + went)
  4. Medical Diagnosis / Treatment statements
  5. Past Recollection Recorded - can’t remember , wrote when fresh, personal knowledge ~ can be read, not given to jury, Opp party can introduce
31
Q

Hearsay Exceptions - Records (5)

A
  1. Business Records
  2. Public Records
  3. Learned Treatises - scientific stuff by experts, etc
  4. Other legit records, marriage, vital stats, ancient docs
32
Q

Confrontation Clause -

A

Out of Court “TESTIMONIAL” Statement
- NOT ALLOWED
- Unless Either =
Made available for Cross ~or~ Prior Opportunity to Cross

33
Q

Impeachment of Witness - collateral Issue

A

Cannot use extrinsic evidence

- including another person testifying about that person being untruthful-

34
Q

Confrontation Clause

A

To Admit an out-of-court testimonial statement of a declarant against a criminal Def:
1) declarant must be UNAVAILABLE
~ and ~
2) D must have had opportunity to cross-examine declarant

testimonial stmt: requires objective analysis of the circumstances, rather than the subjective purpose of the participants

35
Q

Writing to refresh witness - Inspection by other party

Before Testimony vs Testifying

A

Used Before = May allow

Used While = Must allow

36
Q

Defendant claims he did something Accidentally

- Witness testifies to rebut that several times he did something close (Character) …yes or no ?

A

Yes - Shows he did it INTENTIONALLY –
-Absence of Mistake
MIMIC = Motive, Intent, Mistake (absence), Identity (MO) , Common Plan

37
Q

Past Recollection Recorded -

A
  • CAN be Played if Tape or Read if Document
  • Only admit by other party
    • Personal Knowledge, Made Fresh, Forgets, Accurate
38
Q

Impeach by asking WITESS about His Own Untruthful Act

A
  • Allowed b/c INTRINSIC ~ from his own mouth
  • Asking someone else about the same act would be EXTRINSIC ..not allowed ~ only allowed extrinsic by reputation or opinion
39
Q

Impeachment by Bias - Witness or the out of court Declarant

A
  • Always allowed to Show Bias -
    “Didn’t the Declarant beat up the Defendant the other day?”
    > shows that friend / declarant might not like the Defendant and would lie about him
40
Q

Specific Acts for Character - when essential Element of a Crime or ..Defense (Self Defense)

A

By Specific Instances of Conduct.- the character or trait may also be proved by relevant specific instances of the person’s conduct.

Bar Exam Class Final (7 decks)

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