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Constitution Law Bar Prep > Evidence > Flashcards

Evidence Flashcards

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1
Q

what are some reasons for a Rule 403 relevance ruling against evidence

A

undue prejudice, misleading th ejury undue delay, cumulative evidence

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2
Q

what is the rule 403

A

allow evidence unless prejudice outweighs probative value

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3
Q

is prior accident history or filing a similar tort claim admissible

A

no, just shows carelessness

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4
Q

what’s the relevance rule for prior accidents involving D

A

generally inadmissible but if happens under similar circumstances can be used to show existence of dangerous condition 2 condition caused accident 3 D had notice of condition

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5
Q

what is habit evidence

A

frequency of particular conduct

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6
Q

what words should you look for to denote habit evidence

A

always, automatically, instinctively

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7
Q

liability insurnace

A

can show ownership, impeach, as part of an admission of liablity

cant show wrongful conduct or negligence

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8
Q

subsequent remedial efforts

A

cant use to show negligence, defect, need for warning, culpability

can show ownership, rebut non-feasability arguemnt (you can fix it), prove party destryed evidence

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9
Q

is evidence of settlement grounds for impeach on bias

A

yes, ONLY to impeach for bias

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10
Q

what is the exception to exclusion of civil and settlement negotiation

A

settlement w/ govt in civil suit can be used in criminal suit

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11
Q

plea discussions

A 
inadmissible including
offers to plead guilty
withdraw guilty please
no conest
statements of fact made during plea discussions

HOWEVER, an actual guilty plea is admissible as statement of an opposing party

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12
Q

what is admissible if accompanying an offer to pay medical expenses

A

any voluntary accompanying facts, EXCEPT an offer to settle the case. Offer to pay medical bills is not admissible!!!!

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13
Q

what is the rule for character evidence in criminal cases

A

prosecution: can’t intro evidence of D bad character UNLESS D intro evidence of good character.

D can intro opinon or reputation evidence of good character

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14
Q

is a D character at issue when they testify for themselves in a criminal case

A

No, their credibility is at issue, or if they testify to their own good character then P can rebut

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15
Q

How can P rebut D character witnesses

A

with specific “did you know” acts of bad character (shows lack of knowledge). Can include prior arrests of D

P can call own character witnesses for rep and opinion testimony

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16
Q

How can a D challenge a victims character in a criminal case

A

opinion or reputation evidence ( usually only relevant in self defense cases)

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17
Q

is character evidence admissible in civil cases

A 
no, not to show conformity
can be used to show an essential element of case in
-defamation
-negligent hiring
-child custody
all three forms admissible
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18
Q

when is character evidence relevant if independantly relevant in a civil case OR a criminal case

A

to prove

  • motive
  • intent
  • mistake
  • identity
  • common plan scheme
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19
Q

what are the method of authentication

A

opponents admission
eyewitness
verified handwriting (opinion of a lay witness is fine, jury can compare, or expert)
ancient documents (over 20 years)
photos and videos must be id by a witness saying they are fair and representative

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20
Q

how do you authenticate oral statement

A

voice id (anyone that’s heard the voice, uncluding after trial began)

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21
Q

what is the best evidence rule

A

to prove content of a writing, the orginal doc msut be produced if the terms are material

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22
Q

when does best evidence rule apply

A

when writing is legally operative or dispositive instrument OR where the knowledge of a witness converning a facet results from having read it (recorded recollection)

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23
Q

Are duplicates admissible for originals according to best evidence rule

A

yes, so long as it is not unfair to use duplicate and no genuine question raised to authenticity

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24
Q

are there valid excuses for non-production of original in best evidence rule

A

yes

  • destruction
  • can’t be obtained by judicial process
  • in poss of adversary who fails to produce
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25
Q

what are exceptions for best evidecen rule

A

voluminous records (summary fine)
collateral materials
testimony of opponent

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26
Q

how do you authnticate real evidence

A

witness testimnoy OR unbroken chain of custody

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27
Q

are witnesses presumed comptent

A

yes

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28
Q

how does a witness qualify for competence (if challenged)

A

must have personal knowledge of matter they are testifying about AND take an oath

29
Q

when can you aask leading questions on direct

A

hostile witness
prelim matters
witness needs helps responding bc loss of memory

30
Q

what is the scope of cross

A

scope of direct or matters to test witness/evidence credibility

31
Q

can a witness view a writing to refresh recollection

A

yes, dont read and not entered into evidence

32
Q

what happens when a past recollection does not refresh a witnesses memory

A

can read the record itself into evidence so long as there is a proper foundation

  • witness had insufficient recollection
  • witness has personal knowledge of the facts in the record WHEN the record was made
  • record was made by the witness or under the witnesses direction
  • the record was made when the matter was fresh in the witensses mind
  • witness must vouch for accuracy of record
  • -cant be offered as exhibit unless offered by adverse party
33
Q

what is the general rule for opinion testimony

A

inadmissible

34
Q

when is opinion testimony admissible for laywitness

A
  • rationally based on the witnesses perception
  • helpful to a clear understanding of the witnesses testimony or helpful to a fact at issue
  • not based on scientific technical or other specialized knowledge
35
Q

what are examples of acceptable laywitenss testimony

A 
general appearance
state of emotion of a person
voice/handwriting id
speed of a moving object
value of the witnesses own services
rational nature of anothers conduct
intoxication level
36
Q

what are the quals for opinion testimony of an expert witness

A
  • scientific, specialized in nature
  • based on sufficeint facts
  • product of reliable principles
  • expert reliably applied those principles to facts of case
37
Q

what provides the factual basis of an experts opinon

A

personal observation
facts made known to the expert at trial
facts supplied to the expert outside the courtrooom of a type reasonably relied upn by other experts in the field

38
Q

what factors does a jedge consider for reliability of expert testimony

A

testing of prinicple or method
rate of error
accpetance by experts int he field
peer review/publication

39
Q

can expert opine on mental state if it is at issue in a criminal case

A

No, but can if
not at issue in criminal case
is not a criminal case

40
Q

is evidence to accredit or bolster credibility admissible

A

no, UNLESS the witness has been impeached

41
Q

who can impeach a witness

A

any party

42
Q

when can a party impeach a witness

A

cross or extrinsic evidence

43
Q

what are the methods of impeachment

A

prior inconsistent statements (facts specific to case)
bias (fsc)
sensory def (fsc)
contradiction (fsc)
opinion/rep for untruthfulness (general bad character for truthfulness)
prior convictions (gbct)
bad acts (gbct)

44
Q

what is needed for extrinsic evidence of prior inconsistent statement to impeach a witness

A

foundation
relevance to issue in case

exception: if previous statement made under oath, OR was opposing party statement
court has discretion to disregard foundation req as justice reqs

45
Q

are there foundation reqs for sensory def claims to impeach a witness, and list examples

A

no
-bad eyesight
intoxication
poor memory

46
Q

what is majority rule on impeachment by bias

A

must first be asked about bias on cross, then can intro extrinsic evidence

47
Q

can a witness be impeached by a felony not related to dishonesty

A

yes, BUT court has discretion to exclude using one of two tests:

  • for crim D, P must show prbative value outweighs prejudicial harm
  • Rule 403 for every other witness
48
Q

can party intro specifc instances of bad acts involing untruthfulness

A

yes, on cross, no extrinsic evidence permitted

49
Q

what are components of hearsay

A

an out of court statement
is made/referenced by someone during trial
to prove the truth of the matter asserted

50
Q

examples of double hearsay

A

when the accident happened, john told me Mary said she was fine

-if offered, both statements must be admissible

51
Q

what are some common non-truth purposes for non-hearsay statements

A

verbal acts or legally operative facts, statements used to show effect on listenr, statements offered as circumstantial evidence of declarants mind (almost always for knwoledge or insanity)

52
Q

what prior statements are ruled non-hearsay

A

prior statements of testifying witness during cross WHEN:

  • statement is ID of person perceived before
  • inconsistent statement
  • offered to rebut a lying charge or rehab testimony of another
53
Q

what statements are non-hearsay

A

the prior statement exceptions
statements attributable to an opposing party, an adopted statement, vicarious statements (authroized spkeman, agent/employee, co-conspirators,)

54
Q

when is silence admissible as an acquiesence

A

when declarant

  • heard and understood the statement
  • was capable of hearing the statement
  • reasonable person would have objected
55
Q

what is needed for an agent/employees out of court statement to be considered a vicarious statement

A

the agent must

  • acting within scope of employment
  • have current relationship when making the statement
56
Q

what are the exceptions to the hearsay when the declarant is unavailable

A

statement against interest, dying declaration, statements of family history, former testimony (if testimony was under oath AND party agisnt whom test is offered had a chance to challegne), statements agsint party that intentionally procured witness unavailaiblity

57
Q

what are the exceptions to hearsay when the declarants availability is immaterial

A

excited utterances, present sense impressions, present state of mind, statements for medical diagnosis, records of regualrly maintained business, official records,recorded recollection, docs affecting proeprty interest, reputation evidence

58
Q

what is a present sense impression

A

a hearsay exception when declarnat availability is immateria

-describes an event or condition while or immediately after it is perceived

59
Q

what is present state of mind

A

hearsay exception when declarnat avaaiblity is immateria
-about then-existing state of mind including
-intent
-motive
-plan
NOT memory or belief

60
Q

choice of law provision for testimonial privilege

A

when federal question: federal common law

when diversity: state law

61
Q

federal common law privilege

A 
attorney client
spousal
confidential martial comms
psycho/social worker - client
clergy/pentitetn
govt privilege
62
Q

AC privilege for corps

A

covers any employee auth to make or directed to make statements

63
Q

when does AC privilege end

A

never; perpetual

64
Q

spousal privilege and con marital comms

A

spusal: can’t call spouse to testify against other spouse in a criminal trial (must be married at time of trial)

con marital comms: all comms made durign marriage are confidential. anything before or after marriage is not

65
Q

when do neither marriage privileges work

A

when joint crime/fraud, legal actions b/w spouse, children and spuse is testifying

66
Q

what preliminary facts does the judge determine

A

anyting with competency of evidence (if it is admissible

67
Q

what preliminayr facts does the jury determine

A

relevance of evidence

68
Q

req for an interpreter

A

needs to be qualified as expert

needs to take oath to translate truthfully

69
Q

ruling on existence of preliminary fact

A

judge
MAY be excercised in front of jury
must allow both parties to make case

Constitution Law Bar Prep (16 decks)

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