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Bar Prep Questions + Rule of Law > Evidence > Flashcards

Evidence Flashcards

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1
Q

What is relevant evidence?

A

evidence that makes an existence of any fact more probable

  • court can exclude if:
    • probative value is outweighed by the danger of unfair prejudice
    • confusion of the issues
    • misleading the jury
    • undue delay, waste of time
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2
Q

Can a prior similar event that does not relate be admitted?

A

YES!

  • causation
  • similar accidents or injuries caused by the same
    event
  • similar acts used to prove:
    • intent
    • habit
    • industrial custom
    • routine
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3
Q

name exceptions of evidence not relating to the particular event that are policy based

A

liability insurance

  • used to prove:
    • ownership or control

subsequent remedial measures

  • used to prove:
    • ownership or control
    • destruction of evidence

Settlement offers

withdrawn guilty pleas

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4
Q

Character evidence during a criminal case on direct examination can….

A

be intimated by the defense NOT the prosecution

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5
Q

Character evidence during a criminal case during cross examination of a party can be

A

introduced by defendant used to show good character and prove innocence

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6
Q

character evidence during a criminal case during cross-examination of both a party and a witness can be

A

used for impeachment

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7
Q

Character evidence during a civil case during direct examination…

A

not admissible UNLESS character is DIRECTLY in issue

child custody
defamation

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8
Q

character evidence during a civil case during cross examination for a party or witness

A

can only be used for impeachment

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9
Q

hearsay

A

an out of court statement made to offer the truth of the mater asserted.

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10
Q

how are hearsay exceptions divided?

A

declarant unavailable
vs
all others

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11
Q

what does a declarant’s unavailabilty result from?

A 
privilege 
refusing to testify 
lack of memory
death or physical mental illness 
absent beyond the reach of the court's subpoena power and the proponent of the statement has been unable to procure attendant or testimony
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12
Q

what hearsay exceptions require the declarant to be unavailable?

A

former testimony

statement against interest

dying declarations

statement of personal or family history

statement offered against party procuring declarant’s unavailability

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13
Q

former testimony exception

A

given as witness at a trial, hearing or lawful deposition

offered against a party who had an opportunity and similar motive to develop it by direct cross or redirect examination

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14
Q

statements against interest exception

A

reasonable person in the declarant’s position would have made only if the person believed it to be true

contrary to declarant’s proprietary or pecuniary interest

supported by corroborating circumstances that clearly indicate its trustworthiness

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15
Q

dying declaration exception

A

statement made by declarant believing that declarant’s death was imminent

statement about its cause or circumstances

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16
Q

what are the hearsay exceptions that do not require the declarant to be unavailable?

A

present state of mind or physical condition

excited utterance

present sense impressions

business records

public records

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17
Q

present state of mind or physical condition exception

A

must be then-existing state of mind or emotional, sensory, or physical conditions

not including a statement of memory or belief

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18
Q

excited utterance exception

A

statement relating to a startling event or condition

made while under the stress of excitement that it caused

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19
Q

present sense impressions exception

A

statement describing or explaining an event or condition

made while or immediately after the declarant perceived it

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20
Q

business records exception

A

made at or near the time by someone with knowledge

kept in the course of a regularly conducted activity of a business or organization

making the record was a regular practice of that activity

shown by a custodian’s testimony or by certification

the source nor the method of preparation indicate lack of trustworthiness

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21
Q

public records exception

A

records sets out the offices activities

observed while under a legal duty to report

neither the source of information nor other circumstances indicate a lack of truth-worthiness

22
Q

past recollection recorded exception

A

a record that:

is on a mater the witness once knew about but nw cannot recall

was made or adopted by the witness when the matter was fresh in the witness’s memory
AND
accurately reflects the witness’s knowledge

May be read into evidence

may only be received as an exhibit if offered by an adverse party

23
Q

mindmap for documents

A

is it relevant

has it been authenticated?

best evidence rule?

hearsay?

24
Q

authentication

A

the document is what the proponent claims it to be

25
Q

is a testimonial speaker needed with writings?

A

yes, to prove that the writing was made, signed or adopted by the particular relevant person.

26
Q

is a testimonial speaker needed with photos?

A

yes, they must be ID’d by a witness as both a portrayal of relevant facts and a correct representation of facts

the witness needs to be familiar with the scene or object depicted

27
Q

what documents are self-authenticating?

A

OIL CANS

official publications- issued by a public authority

instruments- negotiable and commercial paper

label, tag, trademark affixed on item in regular course of business

certified public documents-m by clerk or court that had custody

acknowledged documents signed before a notary, sworn to truth, content, and execution (except wills)

newspapers and periodicals with reasonable wide circulation

sealed documents (government certified)

28
Q

best evidence rule

A

ONLY applies to documents

requires the “original writing, recording or photograph o prove its content”

ONLY applies if the contents of the writing are at issue

29
Q

mind map for witnesses

A

competency

relevance

opinion

  • lay witness
  • expert witness

character

impeachment

privileges

hearsay

30
Q

competency

A 
a witness must have the capacity to: 
observe, 
recollect
communicate
appreciate he obligation to speak truthfully
31
Q

witness must have….

A

personal knowledge
AND
must declare they will testify truthfully

32
Q

what are the two different kinds of opinion evidence?

A

lay and expert

33
Q

lay opinion testimony

A

generally inadmissible

may be allowed if no better evidence exists

must be:
based on the witness’s perception
helpful for a clear understanding of act at issue
AND
not based on scientific, technical, or other specialized knowledge

34
Q

expert testimony

A

subject matter:
scientific
technical
other specializations

witness qualities as an expert

opinion backed with reasonable certainty

opinion supported by a proper factual basis:

  • personal knowledge
  • facts made known at trial
  • facts made known outside of court
    • need not to be admissible in court
    • of the kind that are reasonably relied upon by experts in the field
35
Q

character evidence

A

Criminal Trials:

  • not allowed to prove conformity with the party’s character
  • allowed for other purposes:
    • motive
    • opportunity
    • intent
    • preparation
    • common scheme/ plan
    • knowledge identity
    • absence of mistake or accident

Civil Trials:

  • not allowed unless character is at issue
    • ex: child custody
36
Q

impeachment

A

to cast an adverse reflection on a witness’s truthfulness

37
Q

two methods of impeachment

A

cross-examination

extrinsic evidence

38
Q

how can you impeach a witness through cross-exaimination?

A

prior inconsistent statements
bias or interest
criminal convictions

39
Q

how can you impeach a witness through extrinsic evidence?

A

admissible only if the witness has the chance to explain the statement and an adverse party has he chance to examine the witness about it or if justice requires

40
Q

crimes involving dishonesty

A

fraud or perjury

no time limitation on how old the crime is

the court has no discretion to exclude these crimes

41
Q

felonies not involving dishonesty

A

the court does have discretion to exclude the conviction

must not be too remote 
- generally over 10 years since: 
  - the date of conviction 
OR 
  - release from confinement imposed for the conviction 
  - the conviction is excluded
42
Q

what is the balancing test that the court must weigh?

A

the government must show the probative value as impeachment is not out-weighed by its prejudicial effect

43
Q

extrinsic evidence:

prior bad acts

A

interrogation about prior bad acts is admissibe within the court’s discretion

must be probative of truthfulness

44
Q

what happens if a witness denies the prior bad act used in extrinsic evidence?

A

the cross-examiner CANNOT refute the testimony by calling other witnesses or by producing other evidence

45
Q

extrinsic evidence:

reputation evidence

A

a witness may be impeached by showing poor reputation for truthfulness

DONE BY: calling another witness from the community where the impeached witness lives or from business circle

the impeaching witness may also state their personal opinion based on their relationship with the witness

46
Q

TRUE OR FALSE:

impeachment IS ALLOWED on a collateral matter, but impeachment is NOT allowed of a hearsay declarant

A

FALSE

impeachment is NOT allowed on a collateral matter BUT impeachment IS allowed of a hearsay declarant

47
Q

extrinsic evidence

real evidence

A

must be relevant

object must be authenticated that it is what the proponent claims it to be

48
Q

attorney-client privilege

A

CLIENT MAY REFUSE TO DISCLOSE AND TO PREVENT ANY OTHER PERSON from disclosing confidential communications made for the purpose of rendition of professional legal services to the client

includes the attorney and its representatives

only the client can waive the privilege

49
Q

physician, psychotherapist or social worker-patient privilege

A

confidential communications made for the purpose of diagnosis or treatment of the patient’s physical, mental or emotional condition

50
Q

what are the two types of spousal privilege?

A

marital communication

spousal testimony

51
Q

marital communication privilege

A

provides that EITHER spouse has a privilege to refuse to disclose and to prevent her spouse from disclosing a confidential communication made between spouses while they were husband and wife

52
Q

spousal testimony privilege

A

a SPOUSE MAY NOT BE CALLED AS A WITNESS by the prosecution against his spouse in a criminal case and may not be compelled to testify against his spouse in any criminal proceeding including those where the spouse is not the defendant

Bar Prep Questions + Rule of Law (15 decks)

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