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July 2021 Bar Exam > Evidence > Flashcards

Evidence Flashcards

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1
Q

Relevant Evidence

A

All relevant evidence is admissible if it is competent, i.e. it does not violate an exclusionary rule

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2
Q

Liability Insurance

A

Rule: Inadmissible to prove negligence or ability to pay

Exception: Admissible to prove (1) ownership or control, (2) impeachment, or (3) as part of an admission of liability

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3
Q

Subsequent Remedial Measures

A

Rule: Inadmissible to prove negligence, culpable conduct, defect

Exception: Admissible to prove (1) ownership or control, (2) feasibility of the repair, or (3) destruction of evidence

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4
Q

Settlement Offers and Accompanying Admissions of Fact

A

Rule: Inadmissible to prove or disprove validity or amount of disputed claim, or to impeach by prior inconsistent statement or contradiction

Exception – preexisting information not protected

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5
Q

Payments or Offers to Pay Medical Expenses

A

Rule: Payments or offers to pay medical expenses are inadmissible to prove liability

Note: Accompanying statements of fact ARE admissible (unlike rule for settlement negotiations)

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6
Q

Withdrawn Guilty Pleas and Accompanying Statements

A

Rule: Withdrawn guilty pleas and statements made in negotiating these please are generally inadmissible

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7
Q

Discretionary Relevance - Rule 403 Balancing Test

A 
Judges have broad discretion to exclude relevant evidence if its probative value is substantially outweighed by 
o	Unfair prejudice 
o	Confusion of Issues 
o	Misleading the Jury 
o	Undue Consumption of Time
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8
Q

Types of Policy Based Relevance

A
  1. Liability Insurance
  2. Subsequent Remedial Measures
  3. Settlement Offers and Accompanying Admissions of Fact
  4. Payments or Offers to Pay Medical Expenses
  5. Withdrawn Guilty Pleas and Accompanying Statements
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9
Q

Character Evidence - Permitted Methods

A
  1. Reputation Testimony
  2. Opinion Testimony
  3. Specific Acts
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10
Q

Specific Acts

A

Usually not permitted unless character is directly at issue in the case (rare), sexual assault or child molestation, or when the act is independently relevant (i.e. relevant to an issue other than D’s character)

MIMIC

  1. Motive
  2. Intent
  3. Mistake (or absence of)
  4. Identity
  5. Common Plan or Scheme
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11
Q

MIMIC

A

When an act is independently relevant (i.e. relevant to an issue other than D’s character) - regarding Specific Acts

  1. Motive
  2. Intent
  3. Mistake (or absence of)
  4. Identity
  5. Common Plan or Scheme
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12
Q

Federal Common Law Privileges - Types of Testimonial Privileges

A

Always Seeing My Psycho Cousin Gilbert

Attorney-client privilege 
Spousal immunity 
Marital communications privilege 
Psychotherapist/ social worker-client privilege 
Clergy-penitent privilege 
Governmental privileges
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13
Q

Contradiction

A

Rule: Extrinsic evidence is not allowed for the purpose of contradiction if the fact at issue is collateral. A fact is collateral if it has no significant relevance to the
case or to the witness’s credibility.

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14
Q

Method of Proof for Criminal Convictions

A

(1) As witness to admit prior conviction, OR (2) introduce record of conviction (extrinsic).

Not required to confront witness prior to introduction
of record of conviction

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15
Q

Prior Bad Acts Involving Untruthfulness

A

General Rule: For prior bad acts involving untruthfulness, confrontation on cross-examination is the only permissible means, and no extrinsic evidence is permitted

Cross-examiner must have good-faith basis, and ability
to inquire lies in court’s discretion

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16
Q

Impeachment of Hearsay Declarant

A

General Rule: Opponent may use any of the impeachment methods to attack the credibility of a hearsay declarant

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17
Q

Rehabilitation

A

Method of bolstering witness’s credibility after is has been attacked

  • Showing Witness’s Good Character for
    Truthfulness
  • Prior Consistent Statements
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18
Q

Rehabilitation Method - Prior Consistent Statements

A

Prior Consistent Statements
When allowed:
• Witness is charged with fabrication based on a
recent motive or improper influence, and the statement was made before the motive arose; OR
• The statement rehabilitates a witness impeached
on another ground, such as prior inconsistent
statement or faulty memory

Bonus: Prior consistent statements admissible to rehabilitate are also admissible as substantive evidence;
i.e., for truth of matter asserted (hearsay exclusion)

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19
Q

Rehabilitation Method - Showing Witness’s Good Character for

Truthfulness

A

Showing Witness’s Good Character for
Truthfulness
When allowed: Opponent used methods of attacking
witness’s general bad character (bad reputation or
opinion; convictions; bad acts).
How: Character witness provides reputation or opinion
testimony about witness’s good character for truthfulness.

20
Q

Recorded Recollection Exception

A

General Rule: Under the “recorded recollection” exception to the hearsay rule, where a witness’s memory of an event cannot be revived by reviewing a memorandum or other record made by the witness at or near the time of the event, a party may introduce the record into evidence by reading it aloud to the jury.

21
Q

Present Recollection Revived/ Refreshed

A

General Rule: A witness may use any writing or thing for the purpose of refreshing her present recollection (not authenticated or in evidence)

If a writing is used to refresh the recollection of a witness, the opposing party has a right to introduce the document into evidence

22
Q

Impeachment - Prior Inconsistent Statements

A

General Rule: Prior inconsistent statements can be used to impeach witnesses, effectively discrediting their testimony. To do so, witness can be cross-examined to show the presence of statements contrary to that of current testimony.

23
Q

Lay Witnesses

A

General Rule: A lay witness’s testimony as to the general appearance or condition of a person is admissible, but testimony that a person is suffering from a specific disease or a specific injury is inadmissible because it usually requires the knowledge of an expert.

Testimony involving sense recognition (e.g., an object was heavy and bulky ), a state of emotion (e.g., a person seemed cheerful), and whether a person was intoxicated are admissible because they are based on the perception of the witness rather than on specialized knowledge

24
Q

Expert Testimony

A

Under Federal Rule 702, expert opinion testimony is admissible if the subject matter is one where scientific, technical, or other specialized knowledge would help the trier of fact understand the evidence or determine a fact in issue. This test of assistance to the trier of fact subdivides into two requirements:
(i) The opinion must be relevant, and (ii) The methodology underlying the opinion must be reliable.

The expert must possess reasonable certainty or probability regarding his opinion. If the opinion of the expert is a mere guess or speculation, it is inadmissible.

25
Q

Prior Bad Acts - Extrinsic Evidence

A

Rule: Extrinsic evidence of “bad acts” is not permitted, even where the witness denies committing the act on cross-examination.

If the prior bad act also helps establish bias, the courts have held that extrinsic evidence also will be admissible.

26
Q

Impeachment - Prior Specific Acts

A

Under the Federal Rules, a witness may be impeached on cross-examination with her prior specific acts of misconduct that are probative of truthfulness. Specific “bad acts” that show the witness unworthy of belief (i.e., acts of deceit or lying) are probative of truthfulness.

Must be presented in the form of an inquiry

27
Q

Judicial Notice

A

Rule: The court recognizing that the fact is true, without a formal presentation, is not subject to reasonable dispute

  • common knowledge
  • capable of verification (i.e. a date is on a Tuesday)
28
Q

Presumption

A

Rule: Requires a particular inference be drawn from a certain set of ascertained facts

Presumption destroyed when adversary produces evidence that rebuts the presumption

29
Q

Limited Admissibility

A

Rule: Allows the court to be admissible for one purpose but not for another

Court must give a limiting instruction to the jury

30
Q

Preliminary Issues of Admissibility

A

Rule: Judicial discretion

31
Q

Leading Questions

A

Rule: Leading questions, permitted on cross examinations, are generally not permitted if they are asked on direct examination of a disinterested eyewitness

Exceptions: Exceptions generally made for children and permitted to be asked on preliminary matters that do not require testimony about the facts at issue

32
Q

Authentication of Handwriting

A

Although a lay witness can offer an opinion to identify and authenticate handwriting, a non-expert who familiarized themselves with D’s signature in preparation for trial is not allowed to authenticate

33
Q

Character Evidence in Civil Cases

A

Rule: Generally inadmissible

34
Q

Instances for Unavailability of a Witness (PRISM)

A

Rule: Declarant must be unavailable for the exceptions to apply

Privilege (assertion of)
Refusal to testify 
Incapacity 
Subpoena (failure to comply)
Memory (lack of)
35
Q

PRISM Exceptions

A
  1. Former Testimony
  2. Dying declaration (only civil and criminal homicide)
  3. Declaration against interest
36
Q

Reputation/ Opinion Evidence in Sexual Assault Cases

A

Rule: In sexual assault cases, D may NOT introduce reputation or opinion evidence of a bad character trait of the alleged crime victim

37
Q

Specific Instances in Criminal Sexual Assault Cases

A

Rule: Specific acts are admissible only to prove (1) that someone other than D is the source of semen, injury, or other physical evidence and (2) specific instances of sexual behavior b/w victim and the accused to prove consent

38
Q

Specific Instances in Civil Sexual Assault Cases

A

Rule: Sexual behavior of victims are admissible if (1) its probative value substantially outweighs the danger of harm to the victim
(2) and only if it has been placed in controversy by the victim

39
Q

Judicial Notice of Law

A

Rule: Courts must take judicial notice of federal and state law and official regulation of the forum state and the federal government

Exception: Courts MAY take judicial notice of municipal ordinances and private acts or resolutions of Congress or of the local state legislature. Laws of foreign countries may also be judicially noticed

40
Q

Opinion Testimony

A

Rule: Opinions by lay witnesses are generally inadmissible

Exception: Cases where no better evidence can be obtained (1) rationally based on witness’s perception (2) helpful to a clear understanding of his testimony or helpful the the determination of a fact in issue and (3) not based on scientific, technical, or other specialized knowledge

41
Q

State Law Privileges (Unrecognized by Federal Law)

A

Physician-Patient
Accountant-Client
Professional Journalist

42
Q

Specific Presumptions

A 
Legitimacy 
Against Suicide 
Sanity 
Death from Absence (continuous period of seven years)
Ownership of Car 
Chastity 
Regularity 
Continuance 
Mail Delivery 
Solvency 
Bailee's Negligence
Marriage
43
Q

Double Hearsay

A

Rule: Double hearsay is admissible, only if both the hearsay statement AND the inner hearsay statement fall within an exception (ex. hospital record containing victim’s statement)

44
Q

Admission of Hearsay Statements - Impeachment

A

Rule: When a hearsay statement is admitted, the party against whom it is offered may impeach the declarant’s credibility by evidence that would be admissible had the declarant testified

45
Q

Marital Privilege - marital communications

A

Rule: Provides that either spouse has a privilege not to testify as to a confidential communication made between spouses during the marriage, and the communication must be in reliance upon the intimacy of the marital relationship

Note: Death does not sever this privilege

Exception: The privilege does not apply if the communication is revealed to a third party

July 2021 Bar Exam (8 decks)

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