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Bar Exam > evidence > Flashcards

evidence Flashcards

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1
Q

relevance

A

tendency to make a fact more or less probable than it would be without it and

fact is of consequence in determining the action

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2
Q

403 exclusions of relevant evidence

A

court may exclude relevant evidence if its probative value is substantially outweighed by danger of unfair prejudice, confusion, misleading, undue delay, waste of time, or needlessly cumulative

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3
Q

public policy exclusions of evidence

A
  1. subsequent remedial measures are not admissible to show liability, culpability, defect, or need for warning
    * may be admissible for any other purpose, such as impeachment, control, ownership, or feasibility
  2. compromise/settlement offer are not admissible to prove liability, amount of disputed claim, or impeach prior inconsistent statement
    * must have present controversy
  3. pleas/statements made during negotiations are not admissible in subsequent criminal or civil case to show liability
  4. offers to pay medical expenses are not admissible to show liability, but any related statements or factual admissions are admissible, subj to limiting instruction/exclusion of offer to pay portion
  5. liability insurance is not admissible to show culpability but is admissible for other purpose, such as ownership, control or agency
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4
Q

authentication

A

all evidence must be authenticated before being admitted

  • physical evidence –> through witness testimony or by evidence showing it has been held in a substantially unbroken chain of custody
  • voice recordings –> by anyone who has heard the person speak and identifies the recorded person as the speaker
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5
Q

best evidence rule

A

the original writing, recording, or photo is required to prove its content unless

  1. reliable duplicate (photocopy)
  2. all originals are lost or destroyed and not by the offering party in bad faith
  3. original cannot be obtained by judicial process
  4. it was not produced after proper notice was given to the party in control and against whom it would be offered
  5. it is not closely related to a controlling issue
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6
Q

character evidence criminal cases

A

character is not admissible to prove act propensity, but is admissible for non-propensity

D character:

  • D can always offer evidence of his own character (opinion or reputation)
  • prosecution cannot offer character evidence until D opens the door
  • specific acts admissible on cross-examination

V character:

  • D can offer reputation and opinion evidence to show V character to support D defense
  • If D presents evidence of V character, P can offer evidence of V good character for same trait or D bad character for same trait

V character homicide/self-defense:
- P can show V peacefulness only if D claims V was agressor

V character rape/sex offense
- not admissible unless it is to show third-party DNA, consensual sexual relations b/t D and V (to show consent, but P may offer such evidence for any reason) OR if its exclusion violates D constitutional rights

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7
Q

character evidence civil cases

A

character evidence not admissible, but FRE will not act to keep it out if relevant

V character of sexual misconduct:

  • V sexual predisposition is admissible if its probative value outweighs danger of harm to any V and unfair prejudice to any party
  • V reputation is admissible only if the V has placed it in controversy
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8
Q

methods of proving character

A

direct examination = opinion and reputation only

cross examination = opinion, reputation, and specific acts

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9
Q

prior bad acts

A

generally not admissible to show propensity

admissible for MIMIC (motive, intent, absence of mistake, identity, common plan or scheme, opportunity, preparation)

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10
Q

foundation required for admission of prior bad acts under MIMIC

A

proponent must show that the prior act was committed by preponderance and the probative value substantially outweighs the danger of unfair prejudice

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11
Q

habit evidence defintion

A

a regular response to a repeated situation

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12
Q

habit evidence admissibility

A

admissible to show that a person acted in accordance with a specific habit or routine practice

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13
Q

prior inconsistent statements extrinsic evidence admissibility

A

admissible to impeach a witness

extrinsic evidence is admissible only if

  1. relevant to the material issue at trial (one other than witness credibility) AND
  2. proper foundation is shown (witness is given the opportunity to explain or deny the statement and an adverse party is given opportunity to examine the witness about it
    * *does not apply when extrinsic evidence of PIS is offered against party opponent
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14
Q

prior conviction admissibility impeachment purposes

A
  • felony/misdemeanor involving dishonesty: always admissible to impeach (felony = punishable by > 1 year)
  • all other misdemeanors: not admissible
  • felonies not involving dishonestly: civil & criminal cases = admissible if witness is not a criminal D (subject to rule 403)
    criminal cases only = admissible if D is witness but only if the probative value outweighs prejudice effect

10-year rule: conviction is not admissible if 10-years have passed from conviction or release from jail unless its probative value outweighs prejudicial effect and the proponent provides written notice to adverse party

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15
Q

methods of impeachment

A
  1. PIS
  2. Bias
  3. Prior criminal convictions
  4. Prior instances of conduct
  5. opinion/reputation character for dishonesty/truthfulness
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16
Q

impeachment: prior bad acts

A

witness credibility may be attacked on cross with specific instances of conduct only if conduct is probative of witness character for truthfulness or untruthfulness

extrinsic evidence never admissible to attack or support such instances of witness credibility

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17
Q

refreshing recollection

A

refreshing a witness memory using document is permitted when the W

  1. once had personal knowledge of the matter but
  2. is unable to recall it while testifying

*only opposing party may offer it into evidence unless it is admissible on other grounds

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18
Q

judicial notice

A

the court may take judicial notice of indisputable facts commonly known to the community or readily capable of certification that cannot be reasonably questioned

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19
Q

lay witness testimony

A

witness must be competent to testify and have personal knowledge of the matter

lay witness may offer opinion only if its rationally based on perception, helpful to clearly understand testimony or determine a fact and not based on scientific, technical, or other specialized knowledge

20
Q

expert witness testimony

A

permitted when

  1. witness is qualified as expert
  2. opinion is helpful
  3. expert believes opinion to a reasonable degree of certainty
  4. opinion is supported by facts or data and
  5. opinion is based on reliable principles and methods reliably applied
21
Q

expert witness reliability

A

based on publication and peer review, error rate, testability, and if it’s generally accepted in the field

22
Q

common non-hearsay statements

A

verbal acts of indpendent legal signficiance
to show an effect on the listener
PIS to impeach
circumstantial evidence of speakers state of mind

23
Q

statement by party opponent

A
  1. any statement offered against an opposing party and
  2. that is made by the party, adopted or believed to be true by party, made by agent in scope of duty, or made by co-conspirator
24
Q

prior statement by a witness

A

a prior statement by declarant-witness is deemed non-hearsay if
1. declarant testifies
2. subject to cross-exam and
3. prior statement was either
inconsistent with prior testimony given under oath in prior court proceeding or deposition

declarant identifies a person as someone perceived earlier or

consistent with prior testimony and is offered to either rebut that declarant is lying or rehabilitated declarant’s credibility

25
Q

co-conspirator admission

A

statement by co-conspirator is admissible when offered against another co-conspirator if conspiracy existed b/t declarant and defendant, was made during the conspiracy, in furtherance of the conspiracy and the conspiracy si proven by independent evidence (outside statement itself)

26
Q

present sense impression

A

statement describing an event made by declarant while observing the event or immediately thereafter

27
Q

excited utterance

A

statement relating to a startling event or condition made while the declarant was under the stress of excitement that the event caused

28
Q

business records

A

admissible if its a record of evenets, conditions, opinion, diagnosis
kept in the regular course of business
made at or near the time the matter described
made by person with knowledge
in regular practice of the business and
opposing party does not show lack of trustworthiness

29
Q

statements made for medical diagnosis or treatment

A

a statement made for medical diagnosis and describes medical history or symptoms

30
Q

statements of then existing state of mind

A

statement is of declarants then existing state of mind (motive, intent, or plan) or emotional, sensory, or physical condition

statements of memory or belief are NOT admissible unless it relates to validity or terms of the declarant’s will

31
Q

dying declaration

A

declarant is unavailable, statement made under sense of impending death, and statement concerns the cause that put declarant in position of impending death

only allowed in civil or homicide cases

32
Q

declarant unavailability

A 
deemed unavailable if
privilege exempts 
refuses to testify despite court order 
death or incompetency 
lack of memory 
beyond reach of court and cannot be procured w/ reasonable means
33
Q

statement against interest

A
  1. statement against declarant’s penal, proprietary, or pecuniary interest when made
  2. declarant has firsthand knowledge
  3. reasonable person in a declarant position would have made the statement only if they believed it to be true and
  4. declarant is unavailable

criminal cases –> require corroborating circumstances that clearly indicate the trustworthiness

34
Q

public records

A

records are admissible if
describes policies and practices of a public office,
observations made by someone in accordance with duties required by law unless a police officer in a criminal case or
factual findings from a legally authorized investigation in civil cases or against gov’t in a criminal case

records will not be admitted if the opponent shows a lack of trustworthiness

35
Q

past recollection recorded

A

record made on a matter the witness once knew about, but now cannot recall well enough to testify fully and accurately. admissible if

  1. witness had personal knowledge at one time
  2. writing was made or adopted by witness
  3. was made while the event was fresh in witness mind
  4. is accurate and
  5. witness can no longer remember the event

the record may be read into evidence, but can only be received as exhibit if offered by adverse party

36
Q

confrontation clause

A

gives criminal defendant the right to confront a witness
applies where a statement is testimonial, declarant is unavailable to be cross-examined at current trial and D did not have an opportunity to cross-examine declarant before trial

37
Q

right to confront witness applies when

A

the use of out of court statement even within hearsay exception violates 6A when

  1. statement is testimonial
  2. declarant unavailable to be cross-examined AND
  3. D did not have an opportunity to cross examine declarant before trial
38
Q

testimonial statement

A

statement made to grand jury, affidavit or certified report with forensic lab, or police whose primary purpose was to collect testimony to be used at later trial

statement to assist the police in ongoing emergency is not testimonial

39
Q

spousal immunity

A

witness spouse in valid marriage may refuse to testify against their spouse in a CRIMINAL CASE
only witness spouse holds this privilege and privilege ends after divorce

40
Q

confidential martial communications

A

communications b/t spouses are privileged if made during the course of valid marriage and were intended to be confidential

either spouse may assert privilege, and applies after divorce

applies to both civil and criminal cases

41
Q

spousal privilege exceptions

A

does not apply to cases b/t spouses or when spouse commits crime against the other spouse or children

42
Q

attorney-client privilege

A

protects confidential communications b/t attorney and client if intended to be confidential and made to facilitate legal services

does not apply when
legal services are sought to further crime or fraud
litigation related to breach of duty b/t attorney and client or
joint clients are later involved in civil litigation against each other

43
Q

attorney work product doctrine

A

protects from disclosure of all materials prepared by an attorney or his agents in anticipation of or during litigation

exception: party shows substantial need and substantial equivalent cannot be obtained without undue hardship

44
Q

physician patient privilege

A

federal courts do not recognize the privilege - state law governs privilege for civil cases in fed court on a claim/defense when state law supplies rule of decision

most states recognize this privilege if its confidential patient communication made to a doctor, for purpose of medical treatment

patient holds the privilege, but it may be waived when a medical condition is placed in issue

45
Q

psychotherapist patient privilege

A

all states recognize this which protects
1. confidential patient communications
2. made to psychotherapist or social worker
3. for purpose of treatment
*patient holds privilege and may waive it
exceptions:
court order examination
civil commitment proceedings to determine if hospitalization is required
when condition is placed in issue by patient
dangerous patient exception - therapist has duty to warn when he knows or should know patient poses a serious threat of violence to foreseeable victims

Bar Exam (17 decks)

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