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Leansheets Bar Prep > Evidence > Flashcards

Evidence Flashcards

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1
Q

objections

A

calls for narrative; unresponsive; leading questions; assumes facts not in evidence; argumentative; compound
*objections must be timely and specific or the objection is waived

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2
Q

Purpose:
logical relevance

A

if it has any tendency to make a material fact of consequence more or less probable than it would be without the evidence.

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3
Q

logical relevance: similar happenings

A

-typically irrelevant unless: used o show causation; to show a pattern in fraudulent claims or a preexisting condition; to prove intent; rebut a defense of impossibility; to show comparable sales relevant to establish value; evidence of habit; routine practice; or industrial custom

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4
Q

legal relevance

A

if the probative value of the evidence is outweighed by its prejudicial effect:
-emotionally disturbing, eg. gory photograph or evidence that is admissible for one purpose but inadmissible for another

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5
Q

policy considerations:
-liability insurance

A

inadmissible to prove culpable conduct eg. negligence, or D’s ability to pay

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6
Q

subsequent remedial measures

A

safety measures or repairs after accident are inadmissible to prove culpable conduct or, if products liability, defective design

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7
Q

settlement offers

A

not admissible to prove liability or guilt if a claim is asserted. Not severable from other statements

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8
Q

offers to pay medical expenses

A

inadmissible to prove liability or guilt, but may be severed from other statements

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9
Q

criminal pleas

A

offers to plea, and related statements are inadmissible to prove guilt

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10
Q

Character Evidence:
-civil

A

-Inadmissible to prove conduct unless character is at issue, eg. defamation, negligent entrustment, child custody.
*opinion, reputation, and specific acts can be used
*prior sexual assaults or child molestation are admissible to prove conduct

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11
Q

Character Evidence:
-criminal character evidence of D

A

-D must open the door first, unless acts of prior sexual assault or child molestation
-if D offered CE of V, P can offer evidence of D’s same trait
-P can rebut pertinent CE if D opened the door
-direct exam: only reputation and opinion
-cross exam: reputation, opinion, specific acts, but no extrinsic evidence

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12
Q

Character Evidence:
-criminal character evidence of Victim

A

-Prosecutor can’t first offer CE, unless in a homicide case where D alleges self-defense, but P can offer V’s peacefulness
-D can open the door with CE of V, and P can rebut only with D’s same character trait.
-direct exam: only reputation and opinion
-cross exam: reputation, opinion, and specific acts, but NO extrinsic evidence

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13
Q

rape shield

A

-criminal: reputation and opinion NOT allowed for V
—specific acts ok to show 3rd party source of physical evidence or prior consent between D and V
-Civil: reputation, opinion, and specific acts only if probative value substantially outweighs unfair prejudice
—if reputation, only if V put reputation at issue

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14
Q

specific acts

A

admissible to demonstrate MIMIC, but still subject to balancing
-Motive, Intent, Mistake (it wasn’t one), Identification, Common scheme/plan

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15
Q

Presentation:
-witness competency

A

-witness must have: (1) personal knowledge: first hand sensory perception; (2) Present Recollection; (3) Ability to Communicate; and (4) Sincerity: make oath or affirmation to tell the truth

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16
Q

disqualification

A

-only judges and jurors automatically DQ’d
-no DQ for insanity, religious belief or age, but may affect credibility

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17
Q

Impeachment:
-contradiction

A

a witness may be impeached by proof the witness has contradicted herself through evidence of prior acts or statements that are inconsistent with testimony given on direct examination

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18
Q

prior inconsistent statement

A

-cross exam or extrinsic evidence if not a collateral matter and W is given an opportunity to explain or deny
*must be under oath

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19
Q

bias/interest/motive

A

cross exam or extrinsic evidence if not a collateral matter

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20
Q

prior conviction

A

-felonies and misdem involving false statements always if unless over 10 years old
-felonies not involving false statements ok subject to balancing;
-misdem not involving false statements NOT admissible
*if admissible, then extrinsic evidence can be used

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21
Q

non-conviction acts

A

ok if involves lying, but no extrinsic evidence

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22
Q

reputation/opinion Re: truthfulness

A

extrinsic evidence ok of opinion of W

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23
Q

sensory deficiencies

A

Any sensory or mental deficiency that might affect a witness’s capacity to observe, recall, and relate the events about which the witness has testified is admissible to impeach that witness’s credibility.

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24
Q

Presentation: Document Reliability
-authentication

A

-signatures: admission, eyewitness testimony, expert opinion, lay opinion by someone familiar with the signature, circumstantial evidence, genuine exemplar (a known signature compared to the signature admitted)

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25
Q

self authentiating

A

-certified public docs, acknowledged docs, official pubs, newspapers, periodicals, business records, trade inscriptions

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26
Q

photos

A

must fairly and accurately depict what it is purporting to show at the time of event

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27
Q

non-unique items

A

chain of custody

28
Q

best evidence rule

A

-evidence is being offered to prove contents of a writing
-originals and duplicates ok
-testimony ok only if original was lost or destroyed, unless bad faith by proponent of the testimony

29
Q

Opinion Testimony:
-lay opinion

A

-admissible if based on W’s perceptions and helpful to the trier of fact.
-Ok to show speed of auto, sanity, intoxication, emotions, value of W’s property
-NO legal or scientific opinions requiring specialized knowledge

30
Q

expert opinion

A

Hot Quiznos For Cold Penguins: requirements:
-Helpful to the jury; Qualified; supported by proper Factual basis; reasonable degree of Certainty; based on reliable Principles that were reliably applied
*Fed/Daubert standard: Peer reviewed and published scientific journals; tested and subject to retesting; low error rate; reasonable level of acceptance

31
Q

judicial notice

A

-generally known in the jurisdiction OR capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned
-civil: judicial notice is conclusive
-crim: jury may but doesn’t need to accept

32
Q

burdens of proof

A

-criminal: beyond a reasonable doubt
-civil: preponderance of the evidence
*presumptions: shifts the burden to the party against whom the presumption is asserted

33
Q

Hearsay: definition

A

-an out of court statement offered to prove the truth of the matter asserted in the statement
*usually inadmissible

34
Q

Hearsay Exemptions: (admissible bc not hearsay)
-facts of independent legal significance

A

-If the words in the statement have some legal meaning, for example, they would form a contract or create a basis for a legal claim, like defamation.

35
Q

effect of the listener

A

knowledge or notice

36
Q

speaker’s knowledge of facts

A

-maybe that a party’s statement is admissible even if they don’t have personal knowledge of the facts stated therein? Not sure

37
Q

circumstantial evidence of state of mind

A

admissible bc not hearsay: it permits someone else to testify to the declarant’s statements and those statements are offered for the truth of the assertions made

38
Q

admission by party opponent

A

not subject to personal knowledge requirements or the opinion rule

39
Q

vicarious party admission

A

-employee: if authorized spokesperson OR within the scope of employment and during employment relationship
*authorization can be express or implied

40
Q

adoptive admission

A

-silence is admission IF:
-the party heard and understood, was physically and mentally able to deny, reasonable person would have denied

41
Q

prior consistent statement to rebut the charge of lying

A

if made before bribe or inconsistent statement as substantive proof or to bolster credibility

42
Q

prior inconsistent statement under oath

A

used for impeachment and substantive proof

43
Q

prior statement of ID

A

ID made after perceiving him

44
Q

Exceptions: (hearsay but still admissible): Exceptions Requiring Unavailability:

A

-requires privilege; death/illness; proponent cannot procure by process or other reasonable means
-refusal to testify despite court order; failure of memory

45
Q

former testimony

A

-party against whom the evidence is offered had an opportunity and motive to conduct the exam
*in civil: party must have close privity-like relationship with earlier party, eg. predecessor in interest

46
Q

dying declaration

A

only in civil and homicide cases by one believing he is about to die and describing cause or circumstance leading to injury

47
Q

statement against interest

A

-at the time made, against the person’s pecuniary, penal, or proprietary interest.
-if use to exculpate, must have corroborating evidence

48
Q

personal/family history

A

declarant must be family member or close associate
*requires personal knowledge

49
Q

statement offered against the person procuring declarant unavailable

A

only if the person offered against has engaged or acquiesced in intentional wrongdoing

50
Q

Exceptions: Unavailability is Immaterial
(PAPERS PBJ)

A

-present sense; ancient; excited; recorded; state of mind; public record; biz record; judgment previous conviction; learned treatises; misc

51
Q

present sense impression

A

made while percieving the event or immediately thereafter

52
Q

ancient docs

A

more than 20 years old

53
Q

past physical condition for medical diagnosis

A

if made to medical professional to assist in diagnosis or treatment
*only statements re: cause or source

54
Q

excited utterance

A

during or soon after the startling event; while under the stress of excitement of the event

55
Q

recorded recollection

A

-W once had personal knowledge; the doc was made by W under W’s direction or adopted; written or adopted when memory was fresh; accurate when made; W now doesn’t remember

56
Q

state of mind

A

-present mental, emotional, sensation or physical condition
-only if state of mind is directly at issue and material OR to establish intent (circum. evidence that intent was carried out)

57
Q

public record

A

-record describing activity of the office, describing the matter observed pursuant by duty imposed by law
-record contains factual findings from investigation made pursuant to authority granted by law
*prosecution can’t use

58
Q

business record

A

-record of event, condition, opinion or diagnosis kept in the regular course of business, made at or near the time of the matter described

59
Q

judgment of previous conviction

A

-judgment of felony conviction (eg. copy of judgment of conviction) admissible in both civil and crim case to prove any fact essential to the judgement
-BUT when offered by prosecution for purposes other than impeachment, judgments against person other than the accused are inadmissible

60
Q

learned treatises

A

standard scientific treatise or authoritative work if relied on by expert in direct or called to the attention of expert on cross

61
Q

Misc

A

-vital stats, prop interest docs, family records, market reports

62
Q

federal catch-all

A

guarantees of trustworthiness; strictly necessary; and notice given to adversary as to nature of the statement

63
Q

constitutional issues:

A

-even if not admissible bc hearsay, confrontation clause can make the statement inadmissible against D in a crim case
-testimonial statements are inadmissible unless the declarant is unavailable AND the D had an opportunity to cross the declarant when the statement was made
*only in crim cases and only when the prosecution is offering the evidence

64
Q

privileges:
-attorney / client

A

-communication between the attorney and client, or representation intended by the client to be confidential and made to facilitate legal services, is privileged, unless waived by client
-purpose must be to procure professional legal service
-cannot be made in the presence of a 3rd party, unless unknown eavesdropper.
-applies to communications from employee/agent if the corporation authorizes them to communicate
-privilege extends beyond client’s death
*not applicable to malpractice action

65
Q

psychotherapist-Social worker / client

A

-communications between the patient and psych, intended by the client to be confidential, and made to facilitate rendition of professional psych services, is privileged, unless waived by patient

66
Q

Dr. / patient

A

-doesn’t apply if the patient puts physical condition in issue, physician’s services sought to aid crime, or case alleges breach of duty arising out of relationship

67
Q

spousal privilege

A

-testimonial: in crim cases, W may refuse to testify against spouse
—can be waived by testifying spouse
—doesn’t apply in crim case where spouse is charged with crime against the spouse or kids
—requires legal marriage at the time of the trial
-Confidential communication: protects all communications during marriage
—requires legal marriage at the time of communication
—both spouses hold the privilege and can prevent testimony of the other

Leansheets Bar Prep (15 decks)

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