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Bar Exam > Evidence > Flashcards

Evidence Flashcards

1
Q

Relevance

2 part definition

A

Any tendency to make a fact of consequence more/less probable

(1) Materiality - must be “of consequence”
(2) Probativeness - shift the probability to any degree

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2
Q

Rule 403

4 considerations

A

Court can exclude relevant evidence if prob value is substantially outweighed by one of more of following:

Unfair prejudice (emotional), confusion of the issues, misleading the jury (undue weight to evidence); efficiency (undue delay, waste of time, cumulative)

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3
Q

When is plaintiff’s accident history admissible?

A

If cause of plaintiff’s damage is at issue

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4
Q

When are similar accidents caused by same event or condition admissible (AND under substantially similar circumstances)/tests/experiments admissible?

(3 purposes)

A

For 3 purposes:

(1) Existence of dangerous condition
(2) Causation
(3) Prior notice to defendant (if other accident occurred BEFORE plaintiff’s)

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5
Q

Evidence that involves some other time, event or person other than that involved in the case, is generally:

What are some of the exceptions?

A

Irrelevant/Inadmissible

Plaintiff’s accident history, similar accidents caused by same event/condition, intent in issue, comparable sales, habit, industrial custom as standard of care

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6
Q

Can a person’s prior conduct provide inference of INTENT on later occasion?

A

Yes

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7
Q

What evidence can be used as to the VALUE OF PROPERTY at issue?

(3)

A

Selling price of other property of:

  • Similar type
  • In same general location
  • Close in time to period at issue
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8
Q

When is something HABIT (routine of a business org) & why is it admissible?

A

Depends on the:

  • Frequency
  • Particularity

As circumstantial evidence to show how a person/business acted on an occasion at issue in the litigation.

Key words: always, invariably, automatically, instinctively

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9
Q

Is CHARACTER EVIDENCE (rep or opinion) admissible to prove conduct on a particular occasion?

A

No

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10
Q

What can be used to show that a person SHOULD have acted in a particular way?

A

Industrial custom - evidence as to how others in the same trade/industry have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation should have acted

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11
Q

Public Policy Exclusions of Relevant Evidence

5

A

(1) Liability insurance
(2) Subsequent remedial measures (Defect notice not admissible)
(3) Settlements in civil cases (ONLY counts when there is a disputed claim as to validity OR amount of damages; also includes statements of fact)
(4) Plea discussion in criminal case
(5) Offer to pay medical/hospital expenses

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12
Q

When can you use liability insurance as evidence?

2

A

(1) DISPUTED Proof of ownership/control

2) Impeachment (bias

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13
Q

When can you use subsequent remedial measures as evidence?

2

A

(1) DISPUTED Proof of ownership

(2) DISPUTED Feasibility of safer conditions

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14
Q

When can you use settlements in civil cases as evidence?

1

A

Impeach ONLY on grounds of bias (not on grounds of prior inconsistent statement/contradiction)

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15
Q

Can plea of guilty NOT withdrawn be used in subsequent litigation? if so, when & why?

A

Yes

  • When the litigation is BASED ON THE SAME FACTS
  • B/c of the rule of PARTY ADMISSIONS
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16
Q

(1) What in the offer to pay medical/hospital expenses IS admissible?
(2) Does the claim have to be disputed for this exclusion to apply?

A

(1) Statements of fact made during the convos (ex. (1) Don’t worry, I will pay your bills. (2)Sorry I ran the red-light - (1) not admissible but (2) is admissible).
(2) NO

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17
Q

(1) When is evidence of defendant’s character in a criminal case provided by the prosecution admissible?
(2) What kind of character evidence can the defense provide?

A

(1) When the defense introduces evidence of relevant character trait (defendant saying he did not commit a crime is not enough to open the door)
(2) Reputation OR Opinion

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18
Q

How can the pros attack a defendant’s character on rebuttal in a criminal case?

A

(1) Cross-examining defendant’s character witnesses about specific acts of def (have you heard? did you know?) and pros must have good faith basis of believing the acts happened
* but if the person denies the specific acts, CANNOT produce extrinsic evidence to prove
(2) Calling own witness to testify about def’s reputation or opinion

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19
Q

What happens when defense claims self-defense in a CRIMINAL CASE & introduces REP or OPINION evidence of victim’s “violent” character?

A

Pros can rebutt with OPINION or REP testimony about:

  • Victim’s “peacefulness” character
  • Defendant’s “violent” character

*NO specific acts EXCEPT “prior specific acts of violence” can be used if the defendant was aware of them at the time of the alleged self-defense so this is used to prove the defendant’s state of mind

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20
Q

What can character evidence generally NOT be used for?

A

To prove conduct in conformity in criminal & civil cases

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21
Q

(1) The prosecution or defense in a CIVIL CASE can provide reputation of good character only in 3 circumstances:
(2) What kind of evidence can be used?

A

(1) negligent hiring or entrustment (2) defamation (libel or slander) (3) child custody
* self-defense is NOT an exception to this rule
(2) reputation, opinion & specific conduct

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22
Q

When CAN & CAN’T a defendant’s other crimes or acts being admitted in a criminal/civil case?

A

(1) CANNOT to suggest that b/c of defendant’s bad character that he is more likely to have committed the crime currently charged of
(2) CAN for MIMIC:

M:otive 
Intent 
M:istake/accident (absence of) 
I:dentity 
C:ommon scheme or plan
  • Defendant need not introduce favorable character evidence first BUT the MIMIC issue must be in dispute
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23
Q

(1) How can admissible other crimes or acts of the defendant be proved? (2)
(2) What is the standard of relevance needed to admit this evidence?
(3) Does prosecution need to provide notice?

A

(1) (1) By conviction (2) By other evidence (witnesses etc.) that proves that the crime/act happened
(2) Conditional Relevancy Standard (sufficient evidence from which reasonable juror could conclude that defendant committed the other crime)
(3) In criminal cases but not in civil cases

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24
Q

When are specific, prior other acts of sexual misconduct to show propensity in criminal or civil sex-crime case admissible?

A

Does NOT need a MIMIC reason - admissible in a criminal or civil case on behalf of plaintiff for any relevant purposes, including propensity for sex crimes

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25
Q

What are the 3 issues to consider with WRITINGS?

A

(1) Authenticity (2) BER (3) Hearsay

26
Q

(1) Standard for Authentication of Writings

2) Methods of Proving Author of a Doc (4

A

(1) Conditional Relevancy Standard
(2)
- Witness’ personal observation

  • Proof of Handwriting:
    (a) Lay opinion: cannot become familiar for the sole purpose of testifying (diff from voice identifications)(b) expert comparison opinion
    (c) Jury comparison
  • Ancient document rule: 20 yrs; facially free of suspicion; location of natural custody
  • Solicited reply doctrine: by evidence that document was received in response to a prior communication to the alleged author (ex. P mails X a contract offer to X, properly addressed, and later received an acceptance purportedly signed by X).
27
Q

How to authenticate a photo?

A

Witness can testify on personal knowledge - does not have to be the person taking the photo

28
Q

What documents self-authenticate? (don’t need foundational testimony) (6)

A

NO CATCC:

N:ewspapers/periodicals
O:fficial pubs (government pubs)

C:ommercial paper
A:cknowledged docs (notary)
T:rade inspection & labels
C:ertified business records (need notice to adverse party)
C:ertified copies of public or private records on file in public office

29
Q

BER - def & what does it apply to?

A

Original Writings Rule: must either produce the OW or provide an acceptable excuse

Applies to writings, records & photos

30
Q

When does BER apply? (2)

A

(1) Legally operative document (contract)

(2) Witness is testifying to facts that she learned solely from reading about them in a writing

31
Q

What qualifies as Original Writing?

2

A

(1) Writing itself (or counterpart - like the negative of a film, or computer print out)
(2) Duplicate - produced by mechanical means (photocopy) - unless fuzzy/unfair in another way

32
Q

What are the excuses for non-production of original? (3)

What are the functional exceptions? (3)

What standard of proof is needed? (1)

A

(1) Lost/cannot be found with due diligence; Destroyed w/out bad faith; Cannot be obtained legally
(2) Voluminous records; certified copies of public records; collateral documents (not that important to the case)
(3) Preponderance of the Evidence

33
Q

When is witness competent? (2)

A

(1) personal knowledge & (2) oath/affirmation

34
Q

Dead Man Statute

A

Exception to the general rule of witness with a personal stake in the outcome.

Not part of the FRE, but when in effect:

  • Civil action; an interested party NOT competent in support of her own interest against the estate of a decedent (dead man) concerning communication between the interested party & decedent
35
Q

Is a witness incompetent b/c he has a direct legal stake in the outcome of the litigation?

A

No (but see Dead Man’s Statute)

36
Q

When can leading questions be used during Direct examination?

A

Preliminary/introductory (you are a police officer); forgetful witness; hostile witness; adverse party

37
Q

What subject-matter can be questioned during cross-exam? (2)

A

(1) matters within scope of direct examination

(2) matters that test the witness’s credibility

38
Q

(1) When can a witness read from a prepared memorandum & can the party using it, introduce it into evidence?
(2) When witness reads from the memorandum, what rights does the other party have? does the opposing part have the same rights when the refreshing happens PRIOR TO trial?

A

(1) ONLY to refresh recollection & NO

(2) Inspect the doc; use it on cross; introduce it into evidence & NO - but judge has discretion to allow it

39
Q

When can a recorded recollection be read into evidence (not entered as an exhibit) as a hearsay exception? (4)

A
  • Fails to jog memory
  • Witness had personal knowledge
  • Made/adopted by witness when event was fresh in memory
  • Witness can vouch for accuracy
  • not possible when declarant is unavailable
40
Q

Requirements for a Lay Witness (3)

A

(1) Rationally based on witness’ personal knowledge/perception (ex. drunk, sober, insane, emotions of another person, handwriting)
* When agency or authorization is in issue, a lay witness generally may not state a conclusion as to her authorization. Thus, a lay witness cannot testify that her employer directly authorized her to enter into a contract where that is at issue in the case.
(2) Helpful to jury
(3) Not based Jon specialized knowledge

41
Q

Requirements for an Expert Witness (4)

A

(1) Qualified
(2) Helpful
(3) Basis for opinion
(4) Reliable

42
Q

When does an expert opinion have a correct basis? (2)

A
  • Based on a reasonable degree of certainty

- Permissible data sources

43
Q

What are the permissible data sources for an expert? (3)

A

(1) personal knowledge
(2) other evidence in the trial record
(3) facts outside of the record if the type reasonably relied upon by experts in the particular field in forming opinions

44
Q

How to judge if the methods/principles used by expert are reliable:

A

TRAP

T: esting of principles/methodology
R: ate of error
A: acceptance (by experts in same discipline)
P: eer review and publication

45
Q

When can a learned treatise be used in aid of expert testimony?

A
  • On Direct - can be read into evidence as substantive evidence (for its truth)
  • On Cross - to impeach & as substantive evidence
  • in neither situation can the learned treatise be introduced as an exhibit
46
Q

Can opinion testimony address an ultimate issue?

A

Yes, in civil/criminal, BUT can be an objection if expert seek to give opinion that defendant in a CRIMINAL CASE had a particular mental state

47
Q

When is bolstering a witness allowed & what is the exception?

A

After witness’ credibility has been attacked - but witness can provide a prior identification of a person (exclusion to hearsay)

48
Q

Can you impeach your own witness?

A

Always

49
Q

How can you impeach a witness? (6)

A

SOBITC

Sensory 
On stand contradiction 
Bias 
Inconsistent, prior statements
Truthfulness (specific acts, reputation, opinion) 
Criminal convictions
50
Q

(1) When can PIS be admitted? (2 ways)
(2) Can extrinsic evidence be used?
(3) Exception to the confrontation requirement

A

(1) Always for impeachment; Sometimes as substantive evidence - when the statements are made UNDER OATH & as part of a FORMAL HEARING
(2) Yes & if so, then witness must be given chance at some point after to return to the stand to explain or deny but not necessarily before proof with extrinsic evidence
(3) No confrontation/opp to explain when the witness is the OPPOSING PARTY

51
Q

(1) When presenting bias evidence, must the witness be confronted with the alleged bias on the stand?
(2) IF confrontation requirement is met, can the bias be proven by EE?

A

(1) Court’s discretion

(2) Yes - court has discretion to admit EE EVEN IF the witness admits the bias

52
Q

When sensory deficiency evidence is offered, what are the EE and confrontation requirements?

A
  • Extrinsic evidence is allowed

- Confrontation is not required

53
Q

What is extrinsic evidence?

A

Another witness or documentary

54
Q

When is contradiction evidence allowed?

A

NOT allowed for collateral issues; It is allowed for non-collateral matters

55
Q

For bad rep/opinion about witness’ truthfulness permissible, what the are confrontation and EE requirements?

A

Confrontation? No

EE? Yes

56
Q

What type of CRIMINAL CONVICTIONS can be offered against a witness & what kind can’t?

A
  • ANY crime involving dishonesty/false testimony - court does NOT have discretion to admit & Felonies that do not involve dishonesty but this IS the court’s discretion
  • within 10 years (unless court overrules)
  • Misdemeanors that do not go to truth/honesty are NOT admissible
57
Q

How can CRIMINAL CONVICTIONS be used to impeach a witness?

A
  • Ask the witness

- Provide extrinsic evidence - does not need to have opp to contradict before being introduced

58
Q

How can PRIOR BAD ACTS involving untruthfulness be admitted for impeachment? Is extrinsic evidence allowed?

A
  • Only through cross-exam at court’s discretion

- Extrinsic evidence NOT permissible

59
Q

How can a hearsay declarant be impeached?

A

A hearsay declarant can be impeached by using any of the impeachment methods

60
Q

When can a witness’ good character (rep/opinion) be used to rehab the witness?

A

When the witness’ character has been attacked in any way

61
Q

When can prior consistent statements be used to rehab a witness? (2)

A

(1) witness allegedly fabricated testimony based on motive & the PCS was made BEFORE the motive arose
(2) statement rehabs a witness impeached on one of the other grounds (inconsistent statement, faulty memory etc.)
* BONUS: these are also admissible as substantive statements

62
Q

What is hearsay? (2 part)

A

(1) Out-of-court statement

(2) Made for the truth of the matter asserted

Bar Exam (2 decks)

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