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Bar Prep > Evidence > Flashcards

Evidence Flashcards

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1
Q

When is evidence Relevant?

A
  1. When it has any tendency to make a fact more or less probable than it would be without the evidence;

AND

  1. The fact is of consequence in determining the action.

Priority: HIGH

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2
Q

Rule 403 Exclusions

A court may exclude evidence if its probative

value is outweighed by a danger of what?

A
  • Unfair prejudice;
  • Confusing the issues;
  • Misleading the jury;
  • Undue delay;
  • Wasting time; OR
  • Being needlessly cumulative.

Priority: HIGH

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3
Q

When is evidence Unfairly Prejudicial?

A

When the evidence is:

  1. Unnecessary;
    * *AND**
  2. Might cause the jury to improperly sympathize or dislike a party.

Priority: HIGH

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4
Q

When is evidence of Subsequent Remedial Measures NOT admissible?

A

To prove:

  • Negligence;
  • Culpable conduct;
  • A defect in product or design; OR
  • A need for a warning or instruction.

*But, it may be admissible to impeach or prove a disputed issue of ownership, control, or feasibility of precautionary measures.

Priority: HIGH

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5
Q

When are Settlement Offers and statements made during Settlement Negotiations NOT admissible?

A
  • To prove the validity or amount of a disputed claim (claim must be filed or threatened); OR
  • To impeach by a prior inconsistent statement or contradiction.

*It may be admitted to: prove bias/prejudice of a witness, negate a contention of undue delay, or prove obstruction in a criminal matter.

Priority: Medium

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6
Q

What Pleas and Plea Negotiations are NOT admissible in a subsequent civil or criminal case?

A
  1. Statements made during plea discussions.
  2. A nolo contendere plea.
  3. A defendant’s guilty plea that was later withdrawn.

Priority: Medium

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7
Q

Evidence of paying or promising/offering to pay for medical expenses or bills is NOT admissible to prove what?

A

Liability

(even if there is no disputed claim)

*However, any related statements or factual admissions ARE admissible.

Priority: Medium

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8
Q

Evidence of Life Insurance is NOT admissible to prove what?

A

Culpability

(that a person acted negligently of wrongfully)

*However, a court may admit it for another purpose (i.e. proving bias/prejudice of witness or proving agency/ownership/control).

Priority: Medium

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9
Q

Physical evidence may be Authenticated through what means?

A
  • Witness testimony; OR
  • By evidence that shows it has been held in a substantially unbroken chain of custody.

Priority: Medium

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10
Q

Voice recordings may be Authenticated by whom?

A

By anyone who:

  1. Has heard the person speak (either firsthand or electronically);
    * *AND**
  2. Identified the recorded person as the speaker.

Priority: Medium

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11
Q

What is the Best Evidence Rule?

A

The original writing, recording, or photograph is required to prove its content, unless:

  • It is a reliable duplicate;
  • All of the originals are lost or destroyed (not by the proponent acting in bad faith);
  • An original cannot be obtained by judicial process;
  • It was not produced after proper notice was given; OR
  • It is not closely related to a controlling issue.

Priority: Medium

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12
Q

Character Evidence

Character evidence may be offered as circumstantial evidence to prove propensity (that a person acted in conformity with the character trait) in what limited circumstances?

A
  1. Criminal cases – by defendant OR by prosecution if the defendant “opens the door”.
  2. Victim’s character (except in rape cases) – to prove defendant’s innocence.
  3. Homicide cases – if defendant claims victim was the aggressor, the prosecution may offer evidence of the victim’s character for peacefulness.
  4. Sex offense cases – not admissible, unless exceptions apply.
  5. Civil cases – only if sex offense cases exception applies.

Priority: HIGH

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13
Q

Character Evidence

What are the exceptions in Sex Offense Cases that allow character evidence (to prove a victim’s sexual behavior or predisposition) to be admissible?

A
  1. Civil cases: If its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party. (Evidence of the victim’s reputation is admitted only if the victim placed it in controversy).
  2. Criminal cases: If offered to prove the defendant was not involved in the sex crime, to prove consent, if offered by the prosecution, OR if exclusion would violate the defendant’s Constitutional rights.

Priority: HIGH

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14
Q

Character Evidence

How may character evidence be proven?

A

On direct examination, by opinion testimony or testimony of the reputation in the community.

On cross examination of the character witness, by opinion, reputation, or specific acts.

*If character is an essential element of a charge, claim, or defense, it may also be proven by specific instances of a person’s conduct.

Priority: HIGH

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15
Q

Prior Bad Acts may be admissible for NON-PROPENSITY purposes, such as?

A

Proving:

  • Motive;
  • Identity;
  • Absence of mistake or accident;
  • Intent;
  • A common plan or scheme;
  • Opportunity; OR
  • Preparation.

Priority: HIGH

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16
Q

What must a proponent show in order to offer Prior Bad Acts as evidence?

A
  1. That the prior act was committed by a preponderance of the evidence (vague references are insufficient).
    * *AND**
  2. That its probative value substantially outweighs the danger of unfair prejudice.

Priority: HIGH

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17
Q

When is evidence of a person’s Habit or an organization’s Routine Practice admissible?

A

To prove that on a particular occasion the party acted in accordance with the habit or routine practice.

*This may be admitted regardless of corroboration or eyewitnesses.

Priority: HIGH

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18
Q

Extrinsic Evidence of Prior Inconsistent Statements are only admissible to impeach, if it’s what?

A
  1. Relevant to a material issue at trial (other than the witness’s credibility);
    * *AND**
  2. A proper foundation is shown (witness is given a chance to explain/deny, and the adverse party is given a chance to examine the witness about it).

*BUT, the above limitation is NOT applicable to statements by a party opponent.

Priority: Medium

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19
Q

Evidence of prior convictions may be admissible to attack a witness’s character for truthfulness in which instances?

A
  1. Prior felony or misdemeanor convictions involving dishonesty – a dishonest act or false statement.
  2. In Felonies that DO NOT involve dishonesty when:
    • The witness is not a criminal defendant (criminal/civil);
    • In a criminal case where the witness IS a defendant, BUT the probative value outweighs the prejudicial effect.

*A felony is a crime punishable by death or imprisonment over 1-year.

*Evidence of a conviction is NOT admissible if it has been pardoned/annulled on a finding of innocence.

Priority: HIGH

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20
Q

In what circumstance may a witness’s credibility be attacked on cross-examination with specific instances of conduct (i.e. prior bad acts)?

A

Only when:

The conduct is probative of the witness’s character for truthfulness or untruthfulness.

**BUT, extrinsic evidence is NEVER admissible to attack/support such instances of a witness’s credibility.

Priority: HIGH

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21
Q

How can a witness’s Character for Truthfulness (credibility) be attacked or supported?

A

By:

  • Reputation testimony about the witness’s character for truthfulness or untruthfulness in the community; OR
  • Opinion testimony about the witness’s character.

**Evidence of truthful character is only admissible AFTER the witness’s character for truthfulness has been attacked.

Priority: Medium

22
Q

May a witness’s ability to observe, remember, or relate facts accurately be attacked on impeachment?

A

YES, a witness may be impeached on these issues on:

  • cross-examination; OR
  • with extrinsic evidence.

Priority: Medium

23
Q

How may a hearsay declarant’s credibility be impeached (when a hearsay statement has been admitted into evidence)?

A

By any evidence that would be admissible if the declarant had testified as a witness.

*A court may admit evidence of inconsistent statements/conduct regardless of when the statement occurred or if the declarant had the opportunity to explain or deny it.

Priority: Medium

24
Q

When is Refreshing a Witness’s Recollection using a document permitted?

A

When:

  1. The witness once had a personal knowledge of the matter,
  2. But is unable to recall the matter when testifying.

**Only the opposing party may offer the document into evidence.

Priority: HIGH

25
Q

When may a court take Judicial Notice?

A

When indisputable facts are either:

  • Commonly known in the community; OR
  • Readily capable of verification and cannot be reasonably questioned.

Priority: Medium

26
Q

What is a Lay Witness?

When is Lay Witness testimony admissible?

A

Any person who gives testimony in a case that is NOT called as an expert. Their testimony is admissible if they are competent to testify (competency is presumed under the FRE).

They must take an oath to tell truth and only testify to matters of personal knowledge.

Priority: HIGH

27
Q

When may a Lay Witness offer an opinion?

A

If it is:

  1. Rationally based on the witness’s perception;
  2. Helpful to clearly understand the testimony or to determine a fact in issue;
    * *AND**
  3. Not based on scientific, technical, or other specialized knowledge.

Priority: HIGH

28
Q

When is Expert Witness testimony permitted?

A

When the:

  1. Witness is qualified as an expert;
  2. Opinion is helpful to the jury;
  3. Witness believes in the opinion to a reasonable degree of certainty;
  4. Opinion is supported by sufficient facts/data;
    * *AND**
  5. Opinion is based on reliable principles/methods that were reliably applied.

Priority: Medium

29
Q

Expert Testimony

What is reliability based on?

A

On the methodology’s:

  1. Publication and peer review;
  2. Error rate;
  3. Testability;
    * *AND**
  4. Whether it is generally accepted in the field.

Priority: Medium

30
Q

What is Hearsay?

A
  1. An out of court statement,
  2. That is offered to prove the truth of the matter asserted.

*Hearsay is ONLY admissible if it falls under an exception.

*A statement is an oral/written assertion or nonverbal conduct if intended as an assertion (it MUST assert something).

Priority: HIGH

31
Q

What is Non-Hearsay?

A

An out of court statement that is offered to prove something other than the truth of the statement. It IS admissible.

Non-Hearsay includes:

  1. Verbal acts of independent legal significance.
  2. Statements to show the effect on the listener.
  3. A prior inconsistent statement used to impeach.
  4. Circumstantial evidence of the speaker’s state of mind.

Priority: HIGH

32
Q

What is a Statement by a Party Opponent?

(deemed non-hearsay under the FRE)

A
  1. Any statement offered against an opposing party,
  2. That either:
    • Was made by the party in an individual or representative capacity;
    • Is adopted or believed to be true;
    • Was made by an authorized person;
    • Was made by the party’s agent or employee; OR
    • Was made by the party’s co-conspirator in furtherance of the conspiracy.

Priority: HIGH

33
Q

When are Prior Statements by a declarant witness deemed Non-Hearsay?

A
  1. If the declarant testifies;
  2. If the declarant is subject to cross examination; AND
  3. If the prior statement was:
    • Inconsistent with their testimony and given under penalty of perjury;
    • Identifies a person as someone they perceived earlier; OR
    • Is consistent with the declarant’s testimony and is offered to rebut that they are lying or to rehabilitate their credibility when attacked.

Priority: HIGH

34
Q

Hearsay Exceptions

What is a Present Sense Impression?

A

A statement describing an event made by the declarant;

  • While observing the event; OR
  • Immediately thereafter.

Priority: HIGH

35
Q

Hearsay Exceptions

What is an Excited Utterance?

A

A statement:

  1. Relating to a startling event or condition,
  2. Made while the declarant was under the stress of excitement that the event/condition caused.

Priority: HIGH

36
Q

Hearsay Exceptions

Business Records are an exception to the Hearsay rule. When are they admissible?

A

If it is:

  1. A record of events, conditions, opinions, or diagnoses;
  2. Kept in the regular course of business;
  3. Made at or near the time of the matter described;
  4. Made by a person with knowledge of the matter;
  5. The regular practice of the business to make the record;
    * *AND**
  6. The opponent party does not show a lack of trustworthiness in making the record.

Priority: HIGH

37
Q

Hearsay Exceptions

Are Statements made for Medical Diagnosis or Treatment an exception to Hearsay rule?

A

YES, when:

  1. It’s made for and reasonably pertinent to a medical diagnosis, AND
  2. It describes medical history or symptoms (past or present).

Priority: HIGH

38
Q

Hearsay Exceptions

Are Statements of Mental, Emotional, or Physical Conditions an exception to the Hearsay rule?

A

Yes, the declarant’s then existing state of mind (motive, intent, or plan) OR their emotional, sensory, or physical condition are exceptions to the Hearsay rule.

HOWEVER:

Statements of memory or belief offered to prove a fact believed or remembered are NOT admissible, unless it relates to the validity/terms of the declarants will.

Priority: HIGH

39
Q

Hearsay Exceptions

What is a Dying Declaration?

In what cases may it be offered?

A

It is a Hearsay exception, and is admissible when:

  1. The declarant is unavailable;
  2. The declaration was made under a sense of impending death;
    * *AND**
  3. Was about the circumstances that put the declarant in the position of impending death.

It may be used in civil cases and criminal homicide cases.

Priority: Medium

40
Q

Hearsay Exceptions

When is a declarant deemed Unavailable?

A

If he:

  • Is exempted due to privilege;
  • Refuses to testify despite a court order;
  • Testifies that he doesn’t remember the matter;
  • Can’t be present to testify due to death or illness; OR
  • He is beyond the reach of the court’s subpoena.

Priority: Medium

41
Q

Hearsay Exceptions

What records are admissible under the Government or Public Records hearsay exception?

A
  1. Policies and practices of a public office.
  2. Observations in accordance with duties by law (except police reports in criminal cases).
  3. Factual findings from a legally authorized investigation, BUT only in:
    • Civil cases; and
    • Against the government in criminal cases.

Priority: Medium

42
Q

Hearsay Exceptions

When is a Past Recollection Recorded admissible?

A

If:

  1. The witness had personal knowledge of the events at one time;
  2. The writing was made/adopted by the witness;
  3. The writing was made while the events were still fresh;
  4. The writing is accurate;
    * *AND**
  5. The witness can no longer remember the event.

Priority: Medium

43
Q

Right to Confront Witnesses

When does an out-of-court statement violate a Defendant’s 6th Amendment rights?

A

When:

  1. The statement is testimonial;
  2. The declarant is unavailable to be cross-examined at trial;
    * *AND**
  3. The defendant didn’t have an opportunity to cross-examine the declarant before trial.

**Exceptions: dying declarations, wrongdoing by a defendant.

Priority: HIGH

44
Q

What types of statements are testimonial in nature?

A
  1. Statements made to grand juries;
  2. Affidavit or Certified Report with forensic lab results; AND
  3. Statements made to police whose primary purpose is to collect testimony to be used at a later trial.

(It is NOT testimonial if used to assist police in an emergency.)

Priority: HIGH

45
Q

What is Spousal Immunity?

A

A witness-spouse in a valid marriage may refuse to testify against his/her spouse in a criminal case.

*Spousal Immunity DOES NOT apply in civil cases.

Priority: Medium

46
Q

What is the privilege of Confidential Marital Communications?

A

Communications between spouses are privileged if:

  1. Made during the course of a valid marriage; AND
  2. Were intended to be confidential.

*Applies in both civil and criminal cases.

Priority: Medium

47
Q

In what circumstances do the Spousal Privileges (spousal immunity and confidential marital communications) NOT apply?

A
  1. In cases between the spouses.
  2. When a spouse commits a crime against the other spouse or their children.

Priority: Medium

48
Q

What is the Attorney-Client Privilege?

A

It protects confidential communications between an Attorney and Client from disclosure if the communication:

  1. Was confidential; AND
  2. Made to facilitate legal services.

*The client holds the privilege.

Priority: Medium

49
Q

When does the Attorney-Client Privilege NOT apply?

A

When:

  • Legal services are sought to further a crime or fraud;
  • There is litigation related to the breach of duty between attorney and client; OR
  • Jointly represented clients are subsequently involved in a civil litigation against each other.

Priority: Medium

50
Q

What is the Physician-Patient Privilege?

A

It protects confidential communications between a Physician and Patient from disclosure if the communication:

  1. Was confidential; AND
  2. Made for the purpose of medical diagnosis or treatment.

*The patient holds the privilege (not the physician).

Priority: HIGH

51
Q

When is the Physician-Patient Privilege recognized?

(state vs. federal)

A

Most States: DO recognize the privilege

Federal Courts: DO NOT recognize the privilege

*Exception: Federal courts will recognize it when:

  1. it’s a civil case;
  2. a claim/defense is based on state law; AND
  3. state law recognizes a physician-patient privilege.

Priority: HIGH

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