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MBE TOPICS > Evidence > Flashcards

Evidence Flashcards

1
Q

Impeachment is about who?

A

About the WITNESS ON THE STAND, not the Defendant

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2
Q

If a W is asked about their OWN prior conviction for impeachment purposes… Is the conviction admissible?

Can you use EE?

A

If conviction is for a crime of truthfulness/dishonesty (felony or misdemeanor)= automatically admissible (court has no discretion)

If conviction is a felony NOT related to dishonesty = court has discretion (balancing test in favor of keeping it out)

If conviction is a remote felony(more than 10 years since date of conviction or release) = not admissible

EE ALLOWED – don’t need to lay foundation, just bring in the conviction, judgment, etc.

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3
Q

If W is asked about their own prior bad act (not a conviction) for impeachment purposes… is the prior bad act admissible?

Can you use EE?

A

Bad acts = generally not admissible
BUT
If bad act relates to dishonesty, may ASK the W on the stand, but once they deny it, cannot prove it with extrinsic evidence

EE not allowed! You are stuck with the Ws answer

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4
Q

Character is about who?

A

THE DEFENDANT!

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5
Q

Character evidence is generally NOT admissible except in a civil case when…

A

When the character of the Defendant is at issue
(Defamation, Child custody, Negligent entrustment, Misrepresentation)

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6
Q

Character evidence is generally NOT admissible except in a criminal case when…

A

Either
(1) the D opens the door with good character
or
(2) To prove a MIMIC exception

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7
Q

What is MIMIC?

A

Exceptions to character evidence. Circumstantial evidence is not used to show Ds character but to prove:
M- Motive
I- Identity
M- Mistake
I- Intent
C- Common plan/Scheme

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8
Q

Is habit evidence admissible?

A

Yes as long as it is something the Defendant does all the time or every day (not once in a while)

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9
Q

Present sense impression

A

Hearsay exception!
You are relaying what you are observing, while you are observing it

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10
Q

Excited utterances

A

Hearsay exception!
Statements made while you are excited/screaming/yelling/(!)

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11
Q

Then existing state of mind

A

Hearsay exception!
Any statement made about one’s future plans (intent) or any statement involving emotion (love, hate, rage)

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12
Q

Business record

A

Hearsay exception!
A business record that is kept in the regular course of business (ALL THE TIME!)

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13
Q

Dying declaration

A

Hearsay exception!

A statement made in belief of impending death,
about why the declarant is dying,
and only applies in homicide or civil cases.

The declarant is LEGALLY UNAVAILABLE!

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14
Q

Statement against interest

A

Hearsay exception!
A statement made by a party or non-party against their own interest and the declarant in unavailable

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15
Q

Admission by party opponent

A

Not hearsay. Availability of the party is irrelevant.

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16
Q

Adoptive admission

A

In circumstances where a reasonable person would object/deny, a party’s silence is deemed an admission

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17
Q

Vicarious admissions

A

An admission by an employee, made within the scope of their employment, that is admissible against the employer

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18
Q

If the answer is either a statement against interest or an admission, what is your default answer?

A

Admission unless they tell you that declarant is unavailable, then it becomes a statement against interest

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19
Q

Attorney-client privilege

A

1) Some relationship with the attorney;
2) Anyone working for/with the lawyer on your behalf, the privilege applies;
3) The communication is confidential in nature

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20
Q

How long does a-c privilege last?

A

Forever unless it is waived

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21
Q

Does firing a lawyer mean you have waived a-c privilege?

A

No. Privilege still applies.

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22
Q

Exceptions to A-C privilege

A

1) Any dispute between client and lawyer;
2) Any communication about committing future crimes

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23
Q

Spousal communication

A

Where one spouse is being asked to disclose communications they had with their spouse, either spouse can stop the other one from testifying

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24
Q

In what cases does spousal communication apply?

A

In either civil or criminal

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25
Q

Does spousal communication survive divorce?

A

Yes. The communications that happened during the marriage are still protected and you can still prevent the ex-spouse from testifying about them.

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26
Q

Spousal testimony

A

Where one spouse is being asked to testify against another spouse, the Witness spouse holds the privilege and can decide whether or not they will testify

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27
Q

In what cases does spousal testimony apply?

A

Only in criminal cases

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28
Q

Are Subsequent Remedial measures admissible evidence?

A

Yes but NOT TO PROVE FAULT. Only may be offered to:
- show ownership or control, if disputed;
- rebut a claim that precaution wasn’t feasible; or
- to prove other party destroyed evidence

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29
Q

Why are subsequent remedial measures inadmissible to prove negligence or liability?

A

Public Policy–we want people to fix things that cause accidents/injury

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30
Q

Are statements made as an offer to settle admissible?

A

NOT admissible to show liability

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31
Q

If there is an admission + offer to settle at the same time, are the statements admissible?

A

BOTH statements are inadmissible; they are not severable

32
Q

What must there be before statements made as offer to settle rule applies?

A

There must be a legal dispute (but don’t need to actually file suit)

33
Q

Are statements made as an offer to pay medical bills admissible evidence?

A

NOT admissible to show fault

34
Q

If there is an admission + offer to pay medical expenses, are the statements admissible?

A

ONLY the admission is admissible; offer to pay medical expenses is inadmissible–these statements are severable

35
Q

Evidence of prior accidents or injuries caused by the same event or condition and occurring under substantially similar circumstances is admissible to prove:

A

(1) the existence of a dangerous condition;
(2) that the dangerous condition was the cause of the present injury; and
(3) that the defendant had notice of the dangerous condition (if the other accident occurred before the Ps accident)

36
Q

Is evidence of the absence of complaints admissible?

A

Yes to show the Defendant’s lack of knowledge of the danger

37
Q

Evidence of a party’s insurance against liability. Admissible?

A

Not admissible to show whether the party is at fault but may be admissible to prove
- ownership/control if disputed;
- to impeach a W (showing bias);
- as part of an admission of liability

38
Q

Conduct or statements made during compromise negotiations regarding a civil dispute with gov authority. Admissible?

A

YES in a criminal case

39
Q

An actual guilty plea (not withdrawn), is it admissible?

A

Yes admissible as an admission against opposing party

40
Q

In any criminal or civil case against a D who made the plea or participated in the discussions:

A

PLEA DISCUSSIONS ARE INADMISSIBLE

41
Q

If a D opens the door to character in a criminal case, a W can testify as to the Ds character by…

A

Opinion or reputation. NO SPECIFIC ACTS!!!!

42
Q

If the Ds character is at issue in a civil case, a W may testify as to the Ds character by

A

Opinion, reputation, or specific acts!! Specific acts only if character is at issue in civil case (Defamation, Child Custody, Negligent Misrepresentation, etc.)

43
Q

If a D claims self-defense and argues victim was first aggressor, can the D introduce character evidence of the victim?

A

Yes by reputation or opinion ONLY because relevant for self-defense claim (DOESNT APPLY TO SEXUAL ASSAULT CASES)

44
Q

Once the D has introduced evidence of a victim’s bad character for a pertinent trait, the prosecution may rebut with:

A

OPINION OR REPUTATION EVIDENCE OF:
- the victim’s good character for that trait; or
- the Ds bad character for that trait

45
Q

In a homicide case where the D pleads self defense…what can prosecution offer?

A

the prosecution can offer evidence of a victim’s good character for peacefulness (to rebut the self-defense claim by the D)

46
Q

In a criminal sexual misconduct case, specific instances of a victim’s sexual behavior are admissible only if:

A
  • to prove it was someone other than the D
  • to prove consent bc D and victim have had other specific sexual instances
47
Q

In a civil case involving sexual misconduct, the victim’s sexual behavior is …admissible or inadmissible ?

A

admissible ONLY if probative value substantially outweighs (balancing test favors keeping out the evidence!!!)

48
Q

In a criminal case, if there is evidence of misconduct the prosecutor intends to offer at trial…

A

the prosecutor MUST provide reasonable notice of any evidence

49
Q

Best Evidence Rule

A

To prove the content of a document, the original writing must be produced if the terms of the writing are material

50
Q

The best evidence rule applies when either:

A

1) the writing is a legally operative instrument; or
2) the knowledge of a W is from having read the document

51
Q

Duplicates are admissible to the same extent as original unless:

A

1) circumstances make it unfair to admit the duplicate;
2) a genuine question is raised about the authenticity of the original

52
Q

Can the contents of a writing be proved by any type of secondary evidence?

A

yes, so long as there is a valid excuse:
- loss or destruction;
- og cannot be obtained by any available judicial process;
- og is in the possession of adversary who doesn’t produce it after being notified

53
Q

an object must be authenticated by:

A

1) W testimony that they recognize it;
2) unbroken chain of custody

54
Q

Who is competent to testify?

A

Generally anyone!

55
Q

Dead Man Acts

A

statutes that prohibits, in a civil case, an interested party from testifying about conversations with a deceased person

56
Q

Can a W testify if they have an interest in the outcome of the litigation?

A

GENERALLY YES under the FRE.
If jurisdiction has a Dead Mans Act, then no.

57
Q

Refreshing recollection

A

When a witness uses a writing or object to refresh their recollection but they
- do not read from the writing while testifying, - the writing is not authenticated,
- the writing is not in evidence

58
Q

Recorded Recollection

A

Hearsay exception! W can’t remember even after looking at the doc, they can read the doc into evidence if a proper foundation has been laid

59
Q

Is a recorded recollection document entered into evidence?

A

NOT ADMITTED INTO EVIDENCE UNLESS OFFERED BY AN ADVERSE PARTY

60
Q

Lay Witness Opinion

A

Admissible when its based on the W’s perception, helpful to understand their testimony, and not based on specialized knowledge

61
Q

What is proper factual basis for expert opinion?

A
  • personal observation;
  • facts made known at trial;
  • facts reasonably relied upon by other experts in the field that do not need to be admissible as evidence
62
Q

Factors court use to determine the reliability of an expert witness’s methodologies?

A

Daubert factors (TRAP)
T- testing of methodology
R - rate of error
A - Acceptance by experts in same field
P - peer review and publication

63
Q

Learned treatise

A

can be used to impeach experts and to prove that the treatise is true (aka a hearsay exception) if:
- its established as a reliable authority
- used in the context of expert testimony
- read into evidence (but not an exhibit)

64
Q

can an expert render an opinion as to the ultimate issue in the case?

A

yes EXCEPT in a criminal case in which the Ds mental state is an element of the crime, the expert cannot state an opinion as to whether D did or did not have the mental state in issue

65
Q

prior inconsistent statements

A

can impeach on cross or with extrinsic evidence (if proper foundation is laid)

66
Q

If you are impeaching W with prior inconsistent statements, what is the proper foundation for extrinsic evidence ?

A

at some point the W must be given
- opportunity to explain or deny the statement; and
- adverse party is given opportunity to cross the W about the statement

67
Q

If you are impeaching a W with bias, what is the foundation for extrinsic evidence?

A

W must first be asked about the facts that show bias on cross.
NOTE: Evidence that is otherwise inadmissible can be introduced if relevant to show bias and proper foundation is laid

68
Q

If impeaching with sensory deficiencies, what is the foundation for EE?

A

NO foundation requirement. Do not need to confront the W with the impeaching fact.

69
Q

If impeaching a W with contradiction, can you use EE?

A

Yes so long as it is not collateral.
If it is collateral = not relevant to issue or W’s credibility

70
Q

A conviction cannot be used to impeach a W if the conviction was subject to pardon and either:

A
  • the pardon was based on rehabilitation and the W has not been convicted of a subsequent felony; or
  • the pardon was based on innocence
71
Q

W that has been impeached may be rehabilitated by:

A
  • explanation on redirect
  • reputation or opinion testimony for truthfulness
  • prior consistent statement (if attacked as liar, motive, inconsistency, or faulty memory)
72
Q

Hearsay and the confrontation clause

A

Hearsay statement will not be admitted EVEN IF IT FALLS UNDER AN EXCEPTION if:
- offered against D in a criminal case;
- Declarant is unavailable;
- Statement is testimonial;
- No opportunity to cross-x the declarant

73
Q

Jurors may not testify about

A
  1. anything from jury deliberations
  2. the effect of anything on that juror or another juror’s vote
  3. juror’s mental process concerning the verdict
74
Q

When can the juror testify?

A

When it is about EXTRANEOUS PREJUDICIAL INFORMATION OR IMPROPER OUTSIDE INFLUENCES

75
Q

relevant evidence may be excluded if the probative value is susbtantially outweighed by

A

the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidece

76
Q

hearsay exceptions where declarant must be UNAVAILABLE

A

STD

Statement against interest
(Former) Testimony
Dying Declaration

MBE TOPICS (8 decks)

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