Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Bar Prep > Evidence > Flashcards

Evidence Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

Federal Rules don’t apply to

A
  • ct determination of a preliminary question of fact relating to admissibility
  • grand jury proceedings
    other miscellaneous proceedings (sentencing extradition, issuing arrest/ search warrant, preliminary examination in criminal case, bail, and probation )
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Relevance

A

if has tendency to make any existence of any fact of consequence to the determination of the action more or less probable than it would be without the evidence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Relevance, Material

A

proposition be of consequence in the case

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Relevance, Probative

A

has some tendency to make fact of consequence more or les likely

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Rule 403

A

relevant evidence may be deemed inadmissible at the judge’s discretion that the evidences’s probative value is substantially outweighed by its prejudicial effect

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Things that Prejudice (6)

A

unfair prejudice, confusion of issue, misleading jury, undue delay, waste of time, cumulative

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

GR: prior similar occurrences are not admissible; EXCEPTIONS (8)

A

-similar false claims
- P previously injured same part of body
- similar accidents or injuries caused by same event/condition
- prove party’s intent
- sales of comparable prop=to est prop’s value
- rebut claim of impossibility
- habit and business routine = admissible as circumstantial
- industry custom= as standard of care

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Use of similar accidents/injuries caused by same event/ condition

A
  • Exsistence of dangerous conditions
  • Dangerous condition cause of present injury
  • D had notice of dangerous condition
    - Absence of complaint admissible to show lack of D’s knowledg
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Use of habit and business routine ( similar occurrences)

A

circumstantial evidence that person/org acted in accordance with habit on occasion
- Habit= regular response to specific set of circumstances
-Frequency of response
-Particular response to a specific set of circumstances

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Public Policy Exclusions/ Inadmissible evidence (5)

A
  • party’s having/lack of insurance against liability
  • subsequent remedial measures
  • civil settlements and settlement negotiations
  • plea discussions
  • payments of and offer to pay medical expenses
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Party’s Insurance (public policy exclusion)

A

inadmissible to show party acted negligently

admissible to show: ownership/ control; Impeach witness(show bias); Part of an admission of liability ( don’t worry my insurance got it)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Subsequent remedial measures ( public policy exclusion)

A

inadmissible to prove negligence, culpable conduct, effect, or need for for a warning instruction

admissible to show ownership/control; Rebut claim that pre caution was not feasible ; Prove opposing party destroyed evidence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Civil Settlements ( public policy exclusion)

A

inadmissible to prove liability or value of claim or impeach for prior inconsistent statement or contradiction

only applies if there was a claim or indication to make a claim

admissible to show bias , civil dispute w/ gov’t authority not excluded when offered in criminal case

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Plea Discussion ( public policy exclusions)

A

inadmissible to show Offer to plead guilty ; Withdrawn guilty plea ; Actual pleas or nolo contendre; Statements of fact made in any of the above

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

payments/ offer to pay medical expenses ( public policy exclusions)

A

inadmissible to prove liability
accompanying admissions of fact is admissible

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Character Evidence ( substantive evidence to )

A

it is a person’s general propensity or disposition

used to Prove person’s character when directly in issue ; Prove how person probably acted; Impeachment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Methods to prove Character evidence

A
  • D has to open door and then Prosecution can provide

-specific acts : prosecution cross examine D’s character witness
-opinion testimony : prosecution calls on character witness
- reputation testimony

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Victims character evidence in criminal cases

A

D can offer reputation and or opinon testimony concerning victim’s character for relevant trait ( usually violence

Prosecution rebuttal : Give victim’s good character and D’s bad character for same trait

Prosecution can initate If D claims 1. self-defense 2.in a homicide case and 3. victim is said to be first aggressor (opens door to evidence of viictim’s good character for peacefulness)

Character evidence in sexual assault cases, past behavior generally inadmissible
Criminal case to prove diff source of injury or physical evidence or
show consent
In civil cases if it is not excluded by any other rule and
when its probative value substantially outweighs unfair
prejudice

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Character evidence in civil cases

A

Generally inadmissible

Admissible when directly in issue
Limited to : defamation, negligent hiring or entrustment, child custody

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Other Misconduct for non-character purpose

A

Person’s other misconduct generally inadmissible if offered solely to prove conduct in conformity/propensity

admissible if offered for relevant purpose MIMIC prosecution must give notice of intent to use
Motive
Intent
Mistake
Identity
Common scheme/plan

Evidence of D’s other acts of sexual assault or child molestation is admissible in criminal or civil cases where D accused of sexual assault or child molestation disclose intended use of this type of evidence w/i 15 days

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Authentication of acient document

A

at least 20 years olld; in condition that creates no suspicion as to authenticity; found in place where writing likely kept

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

authentication of photograph and video

A

identified by witnes as a portrayal of certain facts relevant to the issue and verified by the witness as a fair and accurate representation of those facts

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

authetication of unattended camera

A

Proper operation of camera at relevant time and potoograph or video downloaded from that camera

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

authentication of Xray pictures

A

Show process used is accurate, machine working order, operator was qualified to operate it , custodial chain must be est

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

authentication of oral statements

A

Voice ID : by anyone who has heard voice at any time

Telephone convo : Any party to call who testifies : they recognized other parties voice, speaker had knowledge of certain fact that only particular person would have , they called particular person number and boice answered as person/residence , called business and talked

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Self authenticating documents (8)

A

Domestic public docs bearing seal
Official pub
Certified copies of public/private record on file at public office
Newspapers
Trade inscriptions nd labels
Notarized doc
Commercial paper
Business records

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Best evidence Rule ( original document rule)

A

Prove content of writing recoding or photo

Secondary evidence of writing (oral testimony) is admissible only if the proponent provides a satisfactory excuse for the original’s absence

Applies when
- Writing legally operative or dispositive instrument (Writing
creates rights and obligations)
- Where knowledge of witness results from having read it in
writing

Doesn’t Apply
- Where witness has personal knowledge of the fact to be proved even if fact happens to also be recorded in a writing

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Best evidence excuses for non production

A

Loss or destruction ( unless in bad faith)
Cannot be obtained by any available judicial process
In possession of an adversary who after notice fails to produce

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Exceptions to Best Evidence Rule

A

Writing is collateral to litigated issue ( minor importance )
Testimony or written admission of opponent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Real evidence

A

actual physical evidence adressed directly to the trier of fact

may be direct. cicumstantial, original, or demonstrative

Condition of object : must be shown to be in substantially the same condition at trial

Demonstrations : must be performed under conditions that are substantially similar to those attending the original event

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Witnesses competency

A
  1. must be evidence sufficient to support finding that witness has personal knowledge of matter about which they are to testiffy AND
  2. witness must give an oath or affirmation to testigy truthfully

children= depend on capacity and intelligence

Insanity : show understand obligation to speak truthfully and have capacity to testify accurately

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

Juror may testify Only as to

A
  • Extraneous prejudicial info brought to attention
  • Outside influence brought to bear on any juror
  • Mistake on verdict forom
  • Juror made clear statement they relied on racial sterotypes or animus to convict a criminal D
    -Ct myst find racial animus was a significant
    motivating factor in the juror’s vote to convict
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

Dead mans act

A

in civil case, an interested person is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased

person is interested if they stand to gain or lose by judgment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

leading questions

A

allowed only on cross examination, generally not permitted on direct

Allowed on direct if:
- Elicit preliminary or introductory matter
- Witness needs help responding because of loss of memory
immaturity or physical or mental weakness
- Witness hostile

35
Q

Refreshing Recollection

A

GR: can’t read testimony from a prepared memo

  • Writing used to refresh WHILE ON STAND the adverse party
    can have writing produced at trial , cross examine witness
    about writing, and introduce portions of the writing relating
    to the witness’s testimony into evidence
  • If refreshed BEFORE ON STAND only above options if ct
    decides justice requires
  • Failure to produce or deliver writing = judge must strike
    witness’s testimony and if justice requires declare a mistrial
36
Q

Recorded Recollection proper foundation

A
  • Witness has insufficient recollection to testify fully and accurately

-Witness had personal knowledge of facts when record made

  • Record was made by the witness or under their direction , or adopted by witness
  • Record was made when matter was fresh
  • Record accurately reflects the witness’s knowledge

ADVERSE PARTY CAN HAVE MEMO INTRODUCED INTO EVIDENCE

37
Q

Lay witness opinion testimony (8)

A

GR: inadmissible

Requirements:
- Rationally based on witness’s perception
- Helpful to a clear understanding of testimony or
determination of fact finder
- Not based on scientific technical or other specialized
knowledge

Admissible if:
General appearance/ condition of person
State of emotion of a person
Matters involving sense recognition
Voice or handwriting identification
Speed of moving object
Value of witness’s own services or prop
Rational or irrational nature of another’s conduct
Person’s intoxication

38
Q

Expert Testimony

A

To be admissible
Subject matter must be one where specialized knowledge would assist the trier of fact
Opinion must be based on sufficient facts or data
Opinion must be product of reliable principles and methods
Expert must have reliably applied the principles and methods
to the facts

expert must possess reasonable probability regarding their opinion. mere guess or speculation not sufficient

opinion on ultimate issue Generally permitted, except testimony concerning D’s mental state in criminal case

39
Q

Source of Facts for Expert testimony

A

Facts based on expert’s own observation
Facts made known to expert at trial
Facts supplied to expert outside courtroom that are of a type
reasonably relied upon by other experts in the field

40
Q

Expert Reliability/ Daubeter factors (TRAP)

A

Testing of principle or methodology
Rate of error
Acceptance by other experts in same discipline
Peer review and publication

41
Q

learned treatise

A

scholarly treatise, periodical, or pamphlet

Can be used to impeach expert and Admissible as substantive evidence

Statements from learned treatise can be offered for their truth under hearsay exception if
- Treatise est as reliable authority
-Treatise called to expert’s attention on cross or relied
upon by expert on direct and
- Excerpt read into evidence

42
Q

Types of Witnesses Judge’s cannot exclude

A

Generally Upon request, judge MUST exclude witnesses from courtroom

can’t exclude
Party or party’s designated representative
Person whose presence is essential
Person statutorily authorized to be present

43
Q

Impeachment

A

the process of discrediting a witness

Forms: cross examination , extrinsic evidence (calling other witnesses or introducing doc thst prove the impeaching facts)

44
Q

Impeachment methods

A

fact specific to the current case
- prior inconsistent statements
- bias
- sensory deficiencies
- contradiction

general bad character for truthfulness
- opinion or reputation evidence of untruthfulness
- prior convictions
- bad acts

45
Q

Prior inconsistent statements foundation for extrinsic evidence

A
  • witness opportunity to explain or deny
  • adverse party opportunity to examine witness about statement
46
Q

When prior inconsistent statement used as substantive evidence

A

testifying witness’s prior inconsistent statement made UNDER OATH at a prior proceeding, it is admissible nonnhearsay

rationale: was under oath, and now subject to cross

47
Q

Bias

A

has an interest in the outcome of a case tends to show that the witness has a motive to lie

Foundation of extrincsic: must first be asked about the fact that show bias or interest on cross examination

48
Q

sensory deficiencies

A

Admissible on cross examination or by extrinsic evidence that their perception and recollection were so impaired

49
Q

Prior conviction ( Type, Remoteness, effect of pardon)

A

Arrest or indictment or pending review/ appeal doesn’t apply

Types:
- Any crime involving dishonesty or false statement : ct has no
discretion to exclude
- Felony not involving dishonesty or false statement:

Remote conviction not admissible
- More than 10 years have passed since date of conviction or
release from confinement whichever is late
- Ct may admit older conviction if its probative value
substantially outweighs its prejudicial effect AND the
proponent gives the adverse party reasonable written
notice of their intent to use it

Pardon
- Conviction cant be used to impeach if pardon was based on
rehabilitation and the witness has not been convicted of a
subsequent felony or
-The pardon was based on innocence

50
Q

(Specific) Bad Acts

A

Extrinsic evidence prohibited : only brought out on cross examination

Cross examiner cannot refer to any consequences the witnes may have suffered as a result of their bad act

51
Q

impeachment of Hearsay Declarant

A
  • impeached to same extent as in court witness
  • Need not be given opportunity to explain or deny prior inconsistent statement
52
Q

Methods of Rehabilitation

A
  • Explanation on redirect
  • Good character for truthfulness ( reputation or opinion
    testimony)
  • Prior consistent statement
    -When witness attacked with charge of lying or
    exaggerating because of some motive, and statement
    predates motive
    -When witness impeached on other non-character
    ground ( inconsistency/ faulty memory) prior
    consistent statemnet that is admissible to
    rehabilitate a witness’s credibility also is admissible as
    substantive evidence if truth of its contents
53
Q

Hearsay

A

An out of court statement offered for the truth of the matter asserted

statement= oral or written assertion, nonverbal conduct intended as assertion

out of court = statement not made by the declarant at the current trial or hearing

54
Q

common non-truth purposes

A

Verbal acts/legally operative facts (contract/ defamatory
words)
Effect on listener or reader ( prove notice in a negligence case)
Circumstantial evidence of declarant’s state of mind ( party
trying to prove someone’s insanity or knowledge)

55
Q

Prior statements by testify witness (exception to hearsay)

A

GR: witness own prior out of court statement is hearsay and is inadmissible unless an exception applies

Exceptions:
One of identification
Is inconsist and made under oath
Is consistent statement

56
Q

Statement by Opposing party ( exception to hearsay)

A

Gr:any statement by a party is admissible against that party= PARTY OPPONENT ADMISSION

Whether in the party’s interest or against it
Formal statements ( pleadings , stipulations) are conclusive
Informal judicial admissions (such as during testimony or from a diff case) can be explained

57
Q

adoptive statements (exception to hearsay)

A

party’s express or implied adoption of another’s statement can be used against them. Remaining silent in face of accusation can be used against them if …..

Party heard and understood it
Party was capable of denying it
Reasonable person would have denied it

58
Q

Types of vicarious statements by opposing party

A

authorized spokesperson
employee/agent= w/i scope of employment, made
during existence of relationship
partner = relating to matters w/i scope of partnership
co-conspirator= statement made in furtherance of conspiracy to commit crime at time when declarant participating in the consipracy are admissible against co-conspirators

Privies in title and joint tenants ( state ct only)

59
Q

Declarant unavailable - Heasay exceptions (5)

A

Death or illness
Privilege
Refusal to testify despite ct order
Inability to remember subject matter
Absent and attendance cannot be procured

60
Q

former testimony ( declarant unavailable)

A

the testimony of a non-unavailable witness is admissible if

Testimony was given under oath
Party against whom testimony now being offered had opportunity and similar motive to develop testimony by direct, cross, or redirect

61
Q

statements against interest ( declarant unavailable)

A

Statement against unavailable declarant’s pecuniary (money), proprietary(prop), or penal (criminal) interest when made , such that a reasonable person in the declarant’s position would have made it only if they believed it to be true

Must have personal knowledge of facts
Must been aware against their interest
Against penal interest must be corroborate

62
Q

Dying Declaration ( declarant unavailable)

A

Unavailable declarant
Homicide prosecution or any civil case
Declarant believed death iminent
Statement concerned cause or circumstances

63
Q

statements of personal of family history (unavailable declarant)

A

admissible if:

  • Declarant is member of or intimately associated with family
  • Statements are based on declarant’s personal knowledge of
    facts or family’s reputation
64
Q

Statement offered against party procuring declarant’s unavailability

A

Unavailable declarant’s statement admissible against party who intentionally caused declarant to be unavailable

Meets exception only if the party’s motivation was to prevent the declarant from testifying

65
Q

Excited utterance

A

Out of ct statement relating to a startling event, made while under the stress of the excitement from the event , is admissible

66
Q

Present sense Impression

A

Describes or explains event or condition
Statement must be made while or immediately after perceiving the event oor condition

67
Q

Present state of mind

A

Includes statements of then existing motive, intent, plan, and
emotional, sensory, and physical condition

Does not include statements of memory or belief

State of mind incllues statement about the declarant’s intent
to do something in the future

Includes statement about their current physical condition

68
Q

Statements made for medical diagnosis or treatment

A

Statements describing medical history, past or present symptoms, or their inception or general cause
Must be made for and reasonably pertinent to medical diagnosis or treatment

69
Q

Business Record

A

Record of act, event, condition, opinion, or diagnosis admissible if

  • Business: business, org occupation or calling
  • Entry made in regular course of business
  • business regularly keep such records
  • Entry made at or near time of event
  • Consists of matters within personal knowledge of entrant (or
    someone else who had duty to transmit information to
    entrant)

Nonexsistence can be used to show it was the regular practice of the business to record all such matters

70
Q

records of public office/ agency admissible

A
  • activities of office or agency ( payroll)
  • matter observed pursuant to duty but not including police
    reports
  • records of factual finding against govt in criminal cases and both govt and D in civil actions
71
Q

police reports

A

GR: admitted under public records exception even officer’s opinions and factual conclusions
Not admissible against defendant in criminal case

72
Q

Confrontation Clause

A

Hearsay inadmissible if
- Offered against criminal D
- Declarant unavailable
- Accused had no opportunity to cross- examine declarant
about statement
- Statement is testimonial

73
Q

Nontestimonial statements made to LE

A

aid in ongoing emergency

Factors : nature if the disput, whether perpetrator is still at large, scope of the treat to victim/public, type of weapon involved

74
Q

Testimonial Statements made to LE

A

to provide information for later prosecution

Ex: affidavits, certificates, or other written reports that summarize findings of forensic analysis and have effect of accusing target are testimonial

75
Q

Federal CL Privileges (6)

A

attorney-client
spousal immunity
confidential marital communication
psychotherapist/ socila worker - client
clergy-pentinent
governmental

Physician -patient, accountant-client, professional journalist not a part

76
Q

Attorney- client privillege

A

Applies to confidential communication , b/n atty and client, made during professional legal consultation, unless the privilege is waived or an exception is applicable

Communications made in known presence and hearing od a stranger ar not privileged , representatives of atty or client may be present w/o destroying the privilege

Disclosure made before atty accept or declines case are covered by the privilege

Communication b/n client and doctor during an examination made at atty’s request protected under this privilege

When joint clients have common interest, their communication with attty are not privileged if they sue each other

77
Q

Attorney- client privilege exceptions

A
  • Atty’s services sought to aid in crime or fraud

Client put legal services at issue in the case

For communication relevant to an issue of breach of duty in a dispute b/n atty and client

No privilege regarding communication relevant to an issue b/n parties claiming through the same deceased client

78
Q

Spousal testimony

A

Applies in criminal cases only
Prevents D’s spouse from testifying against D in criminal case
Must be a valid marriage

Privilege last only during marriage
-Must be married at time of trial
-Witness-spouse holds privilege
-Can’t be compelled to testify, spouse do so voluntarily

Exceptions:
Joint crime fraud
Legal actions b/n spouses
Spouse charged with crime against other spouse or either spouse’s children

79
Q

Privelege for confidential marital communications

A

Applies in any civil or criminal case
Either spouse can claim privilege
Spouse must have been married at time of communication
-Privilege remains if they divorce

Communication must have been confidential in nature
-Threats or abuse not privilege or if made in presence of
third party not privileged

Exceptions:
Joint crime fraud
Legal actions b/n spouses
Spouse charged with crime against other spouse or either spouse’s children

80
Q

Governmental privilege

A

Official info not otherwise open to public may be privileged
Gov’t holds privilege that protects the identity of an informer
Privileged is waived if informer voluntarily waives

81
Q

Burdens of proof

A

Burden of producing or going fwd with evidence
-Usually who has burden of pleading
-Making out a prima facile case
Burden of persuasion
-Civil cases: usually by preponderance of the evidence (
sometimes clear and convincing evidence)
-Criminal cases- beyond a reasonable doubt

82
Q

Judicial NOtice

A

The ct recognizing a fact as true w/o formal presentation of evidence

Mandatory if party formally requests it and provides necessary information

Conclusive in civil case, nut not in criminal cases

Facts appropriate for judicial notice are those not subject to reasonable dispute
-Generally known within trial ct’s jurisdiction, or
-Can be accurately and readily determined from sources
that cannot reasonably be questioned

Cts MUST take judicial notice of federal and state law and the official reg or the forum state and the federal gov’t

Cts MAY take judicial notice of municipal oridinances and private acts or resolutions of congress or of the local state leg

83
Q

Rule of completeness

A

When some or all of writing or recorded statement is admitted, adverse party may require proponent to introduce any other part, or any related writing or recorded statement, that ought in fairness be considered at the same time

Bar Prep (14 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions