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bar exam > Evidence > Flashcards

Evidence Flashcards

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1
Q

What is logical relevance?

A

Evidence is relevant if it makes the existence of a consequential fact more/less probable

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2
Q

__________ law in each case determines what facts are of consequence.

A

Substantive

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3
Q

An item of evidence tends to prove the matter sought to be proved if _______________.

A

The evidence relates to the time/event/person in controversy in litigation currently before the court

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4
Q

To make a fact more/less probable, evidence only needs to __________.

A

Affect the probability of consequential fact to any degree

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5
Q

Evidence of similar occurrences is relevant to prove causation if _____________.

A

It is very similar

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6
Q

Are prior accidents/claims of a plaintiff admissible?

A

Usually irrelevant and therefore inadmissible

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7
Q

Evidence of prior claims is allowed to prove a pattern of ____________ claims.

A

Fraudulent

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8
Q

Evidence of a pre-existing condition is allowed to ____________.

A

Disprove P’s claim that the condition was caused by the later accident in question

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9
Q

Previous similar acts can be used to prove intent in the current act if there is a ____ pattern of ______.

A

Unbroken

Conduct

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10
Q

Similar circumstances can be used to rebut a defense of ____________, but only after __________.

A

Impossibility

That defense is alleged

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11
Q

Evidence of sales price of ________ assets at ________ times can be used to establish value.

A

Similar

Similar

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12
Q

Habit evidence is relevant to show _________.

A

The person acted in accordance with that habit on the occasion in question.

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13
Q

When is evidence “habit” evidence?

A

Repeated, specific conduct that is an automatic response to the same stimuli

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14
Q

What is character evidence?

A

General statement about a person that speaks to moral judgment; typically inadmissible

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15
Q

Routine business practices are relevant to show ___________.

A

Conduct was in conformity with that practice on the occasion in question

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16
Q

Industrial custom evidence is relevant to prove _______________.

A

Standard of care in a negligence case

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17
Q

The Court is not bound on evidence for _________ questions.

A

Preliminary

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18
Q

Preliminary questions to which evidence rules do not apply include:

A

Whether:
1. A witness is qualified
2. A privilege exists
3. Evidence is admissible

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19
Q

To determine whether evidence is admissible, the judge may ______________.

A

View evidence that may be inadmissible at trial

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20
Q

When will a court conduct a hearing outside the presence of a jury?

A

For evidentiary concerns that the jury shouldn’t hear unless the court decides to admit them

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21
Q

When must a hearing be conducted outside the presence of a jury to determine the admissibility of evidence?

A

Whenever the judge decides that justice so requires

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22
Q

Hearings on the admissibility of a confession shall, in all cases, be conducted _________.

A

Outside the presence of the jury

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23
Q

On a party’s motion or court determination, a court must order witnesses excluded so _________.

A

They can’t hear other witnesses’ testimony

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24
Q

Allowing exclusion of prospective witnesses so they can’t hear one another’s testimony does not authorize the exclusion of:

A

1.Party
2. Party’s representative
3. Person whose presence is essential to presenting the party’s claim/defense
4. Person authorized by statute to be present

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25
Q

If evidence is logically relevant, the court weighs _________ against other concerns.

A

Probative value of the evidence

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26
Q

The court may exclude relevant evidence if:

A
  1. Probative value is substantially outweighed by the danger of unfair prejudice
  2. Evidence risks confusion of the issue
  3. Evidence may mislead the jury
  4. Admission of the evidence would cause undue delay
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27
Q

What are the two most common types of evidence that cause unfair prejudice?

A
  1. Emotionally disturbing evidence
  2. Same evidence both admissible/inadmissible
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28
Q

What is emotionally disturbing evidence?

A

Will incline the jury to decide based on emotions instead of facts and law

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29
Q

If one item of evidence is logically relevant to prove two things, the court must ________.

A

Balance the probative value of its admissible purpose against the unfair prejudice of its inadmissible purpose

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30
Q

The standard of review for a trial court’s decision to admit/exclude evidence is __________.

A

Abuse of discretion

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31
Q

What is judicial notice?

A

Court may recognize some facts as true without any evidence being presented

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32
Q

A court may recognize as true certain facts if they are:

A
  1. Common knowledge within the jurisdiction OR
  2. Capable of being verified by sources of unquestionable accuracy
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33
Q

A court must take judicial notice if:

A
  1. Requested by a party AND
  2. The court is supplied with the necessary information
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34
Q

Can a court take judicial notice without a request?

A

Yes, they have that discretion

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35
Q

A reviewing court is required to take judicial notice of any matter that:

A

The trial court
1. Properly noticed
2. Was obliged to notice but did not

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36
Q

At what time may judicial notice be taken?

A

At any stage of the proceeding, even on appeal

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37
Q

Is judicial notice conclusive in civil cases?

A

Yes

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38
Q

Is judicial notice conclusive in criminal cases?

A

No, because the jury must decide each element beyond a reasonable doubt

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39
Q

Liability insurance is inadmissible to prove:

A
  1. Culpable conduct
  2. D’s ability to pay a judgment
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40
Q

Why should the court be cautious about admitting liability insurance?

A
  1. Don’t want to discourage people from buying liability insurance
  2. Don’t want jurors to decide cases or assess damages based on whether there is liability insurance available to pay
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41
Q

Is liability insurance always inadmissible?

A

No; only if used for culpability or ability to pay

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42
Q

After an accident, evidence of safety measures/repairs that would have made the harm less likely are inadmissible to prove:

A
  1. Culpable conduct
  2. Defective product design in product liability action
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43
Q

Evidence of safety measures taken after harm cannot be used to show culpable conduct. What is the policy reason for that?

A

Want to encourage people to:
1. Fix dangerous conditions
2. Provide warnings of potential dangers

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44
Q

Evidence of safety measures taken after harm cannot be used to show defective product design in product liability action. What is the policy reason for that?

A

Encourage people to fix dangerous products

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45
Q

For what purpose can evidence of safety measures taken after harm be used?

A

To rebut defense that there was no feasible precaution

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46
Q

Settlements and related proceedings are inadmissible for:

A
  1. Proving culpability in a civil case
  2. Proving guilt in a criminal case
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47
Q

Evidence of a settlement or compromise are inadmissible to prove culpability if:

A
  1. Claim has been asserted or implied
  2. Dispute exists as to liability/damages
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48
Q

Why is evidence of pleas inadmissible?

A

To encourage settlements to ease burden on the court

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49
Q

Evidence of payments of medical expenses are inadmissible for _______.

A

Proving liability for those injuries

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50
Q

Why is evidence of paying/offering to pay medical expenses inadmissible?

A

To encourage the payment of victim’s medical expenses

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51
Q

What are the requirements for witness competency?

A
  1. Ability to observe
  2. Ability to remember
  3. Ability to communicate
  4. Appreciation of oath obligation
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52
Q

To testify, a witness must:

A
  1. Be competent
  2. Have personal knowledge of the matter
  3. Take/appreciate the oath obligation
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53
Q

A judge cannot testify in a trial in which _________

A

The judge is sitting

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54
Q

Jurors cannot testify at trials except ________.

A

To give testimony about matters tainting the jury

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55
Q

When does a witness have personal knowledge of an occurrence?

A

Witness has
1. Observed the fact testified to
2. Present recollection

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56
Q

Observation by a witness must be based on __________.

A

Sensory perceptions

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57
Q

What is the burden of proof for finding that a witness has personal knowledge?

A

Sufficient to support a finding

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58
Q

When a witness quotes an out-of-court statement, the witness has personal knowledge, but there may be a ______ issue.

A

Hearsay

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59
Q

A witness must declare, by oath or affirmation, that she will _________.

A

Testify truthfully

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60
Q

On direct examination, what kind of questions may a lawyer ask?

A

Structured but relatively open-ended questions about foundational or relevant matters

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61
Q

Cross-examination is limited to:

A
  1. Subject matter of the direct examination
  2. Matters affecting the credibility of the witness
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62
Q

What is a call for narrative answer?

A

A question is too broad, allowing the witness to respond in a narrative fashion

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63
Q

What is an objection based on an unresponsive answer?

A

Witness’s answer goes well beyond the question or doesn’t actually respond to the question

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64
Q

What can opposing counsel do if a witness gives an unresponsive answer?

A

Move to strike

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65
Q

What is a leading question?

A

One that suggests the answer to the witness

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66
Q

No leading questions are allowed on ________.

A

Direct examination

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67
Q

When are leading questions allowed on direct examination?

A
  1. Opposing party
  2. Hostile witness
  3. Witness who needs help
  4. Unimportant matters
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68
Q

Leading questions are permitted on cross-examination as long as those questions ___________.

A

Stay within the scope/subject matter of the direct examination

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69
Q

A question cannot assume a fact to be true if ____________.

A

That fact has yet to be established by the evidence

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70
Q

What is an argumentative question?

A

One in which the lawyer argues the facts/issues of the case rather than just eliciting a direct response from the witness

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71
Q

A lawyer may not use direct examination to argue ______.

A

Facts or issues in a case

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72
Q

What is the compound question rule?

A

Can’t ask more than one question at a time

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73
Q

What is a substantive objection?

A

Calls for an answer that violates an evidence rule

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74
Q

When a witness cannot remember without the assistance of a writing, which two distinct doctrines may apply?

A
  1. Refreshing recollection with writing OR
  2. Recorded recollection hearsay exception
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75
Q

What happens when a witness’s recollection is refreshed?

A

Lawyer provides a witness with writing to read silently. Lawyer then asks if witness remembers well enough to testify based on her memory.

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76
Q

Once a witness’s memory is refreshed via writing, what must happen before the witness may testify?

A

The writing must be taken away

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77
Q

If a writing is used to refresh a witness’s uniform, the writing must not be _________.

A

Read aloud

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78
Q

A writing used to refresh a witness’s memory may only be admitted if:

A
  1. The adverse party inspects it AND
  2. offers it into the evidence
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79
Q

What is the recorded recollection hearsay exception?

A

When the witness doesn’t have sufficient memory to testify:
1. A recorded recollection may be admitted as substantive evidence AND
2. The document will be read aloud to the jury

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80
Q

When will the recorded recollection hearsay exception be used?

A

Only if reading a document silently won’t sufficiently refresh the witness’s memory

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81
Q

Lay opinion is only admissible if:

A
  1. Rationally based on witness’s perception
  2. Helpful to the trier of fact
  3. Not based on scientific or other specialized knowledge
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82
Q

What is a lay opinion usually admitted for?

A
  1. General appearance/condition of a person
  2. Voice/handwriting ID
  3. Speed of an automobile/other moving object
  4. Intoxication
  5. Sanity
  6. Emotions
  7. Value of witness’s own property/services
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83
Q

Lay opinions are traditionally inadmissible for:

A
  1. Agency or authorization
  2. Contract or agreement
  3. Other legal opinions
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84
Q

What are the requirements for expert testimony to be admitted?

A
  1. Helpful to the jury
  2. Qualified experts
  3. Proper factual basis
  4. Based on reliable principles/methods
  5. Believe opinion with reasonable certainty
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85
Q

When is an expert helpful to a jury?

A

Subject matter must be one where specialized knowledge would help the river of fact in understanding evidence or determining a fact

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86
Q

A witness isn’t just qualified based on education or training; they can also be qualified exclusively based on _______.

A

On-the-job work experience

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87
Q

An expert’s opinion must be supported by a proper factual basis. A proper factual basis may be predicated upon:

A
  1. Admitted evidence
  2. The expert witness’s personal knowledge
  3. Inadmissible evidence reasonably relied upon by the expert
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88
Q

Principles applied by scientific experts are reliable if:

A
  1. Can be/has been tested
  2. Peer reviewed/published
  3. Known error rate
  4. Existence/maintenance of standards/controls
  5. General acceptance
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89
Q

An expert witness must not state an opinion related to a defendant’s mental state if ________.

A

That mental state constitutes an element of a crime or defense

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90
Q

What is the learned treatise hearsay exception?

A

An excerpt from a learned treatise is admissible to prove anything stated in it, as long as the treatise is an accepted authority in the field

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91
Q

All books are technically ________.

A

Hearsay

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92
Q

Even if a court relies on the learned treaty hearsay exception, the publication may not _______.

A

Be read into evidence

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93
Q

Every item of non-testimonial evidence must be __________.

A

Authenticated

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94
Q

Authentication of non-testimonial evidence requires __________.

A

Proving that the evidence is what the proponent of the evidence claims it to be

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95
Q

What is the burden of proof for authenticating evidence?

A

Evidence is sufficient to sustain a finding that the item is what its proponent claims it to be

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96
Q

If there is conflicting evidence as to authenticity, what happens?

A

All of that evidence is admitted, and the jury must weigh it and decide who to believe

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97
Q

What is an admission as evidence of authenticity?

A

The party admits that a signature/writing in question is hers

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98
Q

How can the testimony of eyewitnesses provide evidence of authenticity?

A

Witness testifies that she saw the person sign the document in question

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99
Q

How can a handwriting expert provide authenticity?

A

By comparing a disputed writing/signature with a genuine example before declaring whether the signature is authentic

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100
Q

A layperson can authenticate someone’s handwriting and thus a document, but only if ________.

A

That layperson has prior familiarity with the person’s handwriting

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101
Q

An established example of _________ may be admitted into evidence for the purposes of authentication.

A

The signature in question

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102
Q

Authenticity of an ancient document is established if the document:

A
  1. Is 20+ years old
  2. Doesn’t present any irregularities on its face AND
  3. Is found in a place of natural custody
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103
Q

How can a photograph be authenticated?

A

A witness may testify that:
1. She took the photograph in question OR
2. The photograph fairly/accurately depicts what it purports to show

104
Q

Certified copies of ______ are self-authenticating documents

A

Public documents

105
Q

If a document’s original signature was attested before a _______, it is self-authenticating.

A

Notary

106
Q

Official _________ are self-authenticating documents

A

Publications

107
Q

Newspapers are _______ documents.

A

Self-authenticating

108
Q

________ business records are self-authenticating documents.

A

Certified

109
Q

_________ inscriptions are self-authenticating documents.

A

Trade

110
Q

In order to authenticate a non-unique item, the proponent of the evidence must ________.

A

Establish a chain of custody, demonstrating that this is the specific item the proponent claims it to be

111
Q

What is the Best Evidence Rule?

A

Where the contents of the writing are at issue, the original OR a duplicate must be admitted to prove the contents

112
Q

The ________ rule is California’s distinction from the Best Evidence Rule.

A

Secondary Evidence Rule

113
Q

What is the Secondary Evidence Rule?

A

Same as the Best Evidence Rule

114
Q

What is the exception to the Best Evidence Rule?

A

Proponent of evidence shows that the original and all duplicates have been lost/destroyed for some reason other than the proponent’s intentional misconduct

115
Q

A mechanical reproduction of a document is admissible under the Best Evidence Rule as long as __________.

A

There is no genuine question about its authenticity

116
Q

What are writings under the Best Evidence Rule?

A

Any tangible collection of data/information

117
Q

The Best Evidence Rule will often be triggered in what circumstances?

A
  1. Writing is of consequence in the matter
  2. Witness’s knowledge comes from reading a writing
  3. Witness has independent knowledge
118
Q

What is the voluminous documents exception to the best evidence rule?

A

If too numerous to bring in all the originals, a witness may be called to summarize the contents, so long as the originals are available for inspection

119
Q

In a diversity case, _______ governs privilege regarding a claim or defense for which state law supplied the rule of decision.

A

State law

120
Q

What is attorney-client privilege?

A

Any communication made in confidence between an attorney and client (or their representatives) to facilitate legal services is privileged unless the privilege is waived by the client

121
Q

What is communication under attorney-client privilege?

A

Any form of communication with a client - but not the identity of a client

122
Q

What communication is intended to be confidential under attorney-client privilege?

A

Would a reasonable person in the client’s position intend the communication to be confidential?

123
Q

Communication is never intended to be confidential under attorney-client privilege if _______.

A

3rd parties are present

124
Q

Who is a client under attorney-client privilege?

A

Any person/entity seeking professional legal services or advice

125
Q

Who is an attorney under attorney-client privilege?

A

Person authorized - or who the client reasonably believes is authorized - to practice law in any state/nation

126
Q

Who is a representative of a client for purposes of attorney-client privilege?

A

Anybody authorized to obtain legal services or to act on advice rendered by an attorney on behalf of the client

127
Q

Who is a representative of an attorney for purposes of attorney-client privilege?

A

Anybody hired by the attorney and authorized to help render legal services.

128
Q

How does attorney-client privilege affect corporate clients?

A

Applies to communications by corporate employees/agents if the corporation authorized them to communicate with the attorney.

129
Q

A corporation authorizes an agent to communicate with an attorney. Who holds the attorney-client privilege?

A

The corporation

130
Q

For a privilege to apply, a client must have made the communication in an effort to ________.

A

Facilitate professional legal services

131
Q

Informal conversations in _____ settings are not intended to facilitate professional legal services, so attorney-client privilege does not apply.

A

Social

132
Q

Who holds attorney-client privilege?

A

The client

133
Q

Attorney-client privilege survives even if:

A
  1. Attorney-client relationship is terminated
  2. The client passes away
134
Q

Who holds attorney-client privilege if the client dies?

A

The client’s estate

135
Q

What are the exceptions to attorney-client privilege?

A
  1. Legal services are sought to further crime/fraud
  2. There is an alleged breach of duty between the attorney or client
  3. The parties are both clients in a matter of common interest
  4. Evidence to show competency/intention of a client
136
Q

What is the rule of confidential marital communications?

A

All communications are privileged that are:
1. Made during a valid marriage AND
2. Intended to be confidential between the spouses

137
Q

To what kinds of cases do confidential marital communications apply?

A

Both criminal and civil cases

138
Q

The Confidential Marital Communications doctrine applies to all communications made during marriage, even if the marriage has _______.

A

Has ended by the time of trial

139
Q

Who holds privilege under the confidential marital communications rule?

A

Both spouses - one spouse may prevent another from testifying

140
Q

Are non-verbal communications privileged under the confidential marital communications rule?

A

Not under the majority view

141
Q

What effect does divorce have on communications during marriage?

A

Still privileged

142
Q

What are the exceptions to the Confidential Marital Communications doctrine?

A
  1. Civil action between spouses
  2. One spouse charged with crime against other spouse or children
  3. Both spouses jointly participate in criminal acts
143
Q

What is spousal testimonial privilege in a criminal case?

A

A spouse may refuse to testify against her spouse as to anything, period. Only in criminal cases.

144
Q

For spousal testimonial privilege to be used in a criminal case, when must the marriage must be legally valid?

A

At the time of the trial

145
Q

Who holds spousal testimonial privilege in a criminal case?

A

The federal view: witness spouse

In some states: D spouse

146
Q

Spousal testimonial privilege applies to all testimony in a criminal matter, including ______ testimony.

A

Grand jury

147
Q

What are the exceptions to spousal testimonial privilege in criminal cases?

A
  1. Civil actions between spouses
  2. One spouse charged with crime against spouse/children
148
Q

What jurisdiction has adopted doctor-patient privilege?

A

Most states

149
Q

What is the rule for doctor-patient privilege?

A

Patient has the privilege to prevent disclosure of any communication to a physician that is:

  1. Intended by the patient to be confidential
  2. Conveyed for the purpose for receiving medical diagnosis/treatment

And the information conveyed was pertinent to medical diagnosis/treatment

150
Q

What standard is applied to determine whether information communicated by a patient to a doctor was meant to be confidential?

A

Objective reasonable person standard

151
Q

Communications with doctors who _____________ are not privileged.

A

Will serve as expert witnesses

152
Q

What are the exceptions to patient-doctor confidentiality?

A
  1. Patient’s physical/mental condiition is in issue
  2. Services sought to aid in crime/fraud or to escape capture after crime/tort
  3. Alleged breach of duty between doctor and patient
153
Q

What is psychotherapist-patient and social worker-client privilege?

A

Protects communication that is:
1. Intended by a client to be confidential AND 2. Made to facilitate professional psychological services

154
Q

What are the exceptions to psychotherapist-patient privilege?

A
  1. Patient’s mental/physical condition in issue
  2. Services sought to aid in crime/fraud or to escape capture after crime/tort
  3. Alleged breach of duty between psychotherapist and client
155
Q

What is the privilege against self-incrimination?

A

Witness cannot be compelled to reveal information (in civil or criminal cases) that could subject her to criminal prosecution

156
Q

Character evidence is not admissible for the purpose of proving _________.

A

That a given action is in conformity with that character on a particular occasion

157
Q

Character evidence may be used where ______ is an ultimate issue in the case.

A

Character

158
Q

Character evidence may be introduced to _____ or _____ the credibility of a witness

A

Impeach

Support

159
Q

What is reputation character evidence?

A

Testimony regarding the person’s general reputation in the community

160
Q

What is opinion character evidence?

A

Witnesses who know the person testify as to their opinion of that person’s character

161
Q

What is specific instance character evidence?

A

Evidence of specific acts of the person in question that demonstrate her character

162
Q

Give examples of civil cases in which character itself is an issue in the case

A
  1. Defamation of character
  2. Negligent entrustment
  3. Child custody dispute
163
Q

Where character is at issue in the case, what types of character evidence are admissible?

A

All

164
Q

Character evidence is inadmissible to prove _____ in a civil case.

A

Conduct

165
Q

In what civil cases can character evidence be admitted to prove conduct?

A
  1. Sexual assault
  2. Child molestation
166
Q

What are rape shield statutes?

A

In rape and sexual assault civil cases, character evidence may only be admitted to prove consent

167
Q

In order to use reputation evidence to show consent in a civil rape/sexual assault case, what must be true?

A
  1. Victim put her own reputation at issue AND
  2. Probative value substantially outweighs unfair prejudice or harm to any victim
168
Q

In order to use opinion evidence & specific instances to show consent in a civil rape/sexual assault case, what must be true?

A

Probative value substantially outweighs unfair prejudice or harm to any victim

169
Q

Any character evidence offered in a criminal case will be offered to prove ________, because ________ is never the issue.

A

Conduct

Character itself

170
Q

Which party cannot introduce character evidence first in a criminal case?

A

Prosecution; they can only rebut

171
Q

In a criminal case, prosecution may introduce character evidence if:

A
  1. Sexual assault or child molestation (prior acts)
  2. Evidence of victim’s character has been offered by D (evidence of same trait)
172
Q

In a criminal case, D is given the privilege of offering pertinent character evidence to prove ________.

A

She didn’t commit the crime

173
Q

In a criminal case, if D offers character evidence, P’s rebuttal is limited to __________.

A

That specific pertinent character evidence

174
Q

On direct examination of D, what character evidence is admissible?

A

Reputation and opinion evidence only

175
Q

On direct examination, what character evidence is admissible?

A

Reputation and opinion evidence only

176
Q

On cross-examination, what forms of character evidence are allowed?

A

Any

177
Q

Which party can introduce character evidence about a victim?

A

Defendant; prosecution can rebut

178
Q

In a homicide case, defendant can use character evidence to show ________.

A

Victim attacked first

179
Q

If a defendant uses character evidence to show that victim attacked first, prosecution can rebut with __________.

A

Evidence of the victim’s peaceful character

180
Q

In criminal cases, rape shield statutes allow character evidence to prove victim’s consent. Under these statutes, specific instances are admissible when offered to prove:

A
  1. Third-party cause of semen/injury
  2. Prior acts of consensual intercourse between D and alleged victim
181
Q

What is “mimic” evidence?

A

Specific instances of D’s prior bad conduct are offered to prove anything relevant other than character

182
Q

What is the burden of proof for admission of “mimic” evidence?

A

Court must find that a jury could reasonably find that:
1. the act was committed AND
2. D was responsible for the act

183
Q

________ is not required under the burden of proof for admitting “mimic” evidence

A

Conviction

184
Q

Before admitting “mimic” evidence, the court must balance ________ against ________.

A

Probative value of evidence

Potential unfair prejudice of evidence

185
Q

What does the “MIMIC” in “mimic evidence” stand for?

A

Motive
Intent
absence of Mistake or accident
Identity
Common plan or scheme

These are the purposes for which “mimic” evidence may be admitted.

186
Q

Evidence of prior misconduct that connects D to the crime in question is admissible if:

A
  1. Similar
  2. Uniqueness in modus operandi
187
Q

Use of “mimic” evidence requires _________ by the prosecutor.

A

Notice

188
Q

Evidence of ______________ cannot be used to bolster a witness’s credibility until the witness’s credibility is attacked.

A

Prior consistent statements

189
Q

Evidence of timely complaint can be used to bolster credibility for alleged victims of:

A
  1. Rape
  2. Sexual assault
  3. Coerced confession
190
Q

Prior consistent statements of _______ are generally admissible.

A

Identification

191
Q

Prior consistent statements are admissible for all purposes if made before:

A
  1. Bribe OR
  2. Inconsistent statement
192
Q

Extrinsic evidence of a prior inconsistent statement is inadmissible for impeachment on ____________.

A

A collateral matter

193
Q

What is a collateral matter?

A

A fact not material to the issues in the case that just purely contradicts the witness

194
Q

A prior inconsistent statement made out-of-court is only admissible to ________.

A

Impeach a witness

195
Q

A prior inconsistent statement is admissible to prove anything if __________.

A

It is given under oath

196
Q

What is the extrinsic evidence foundation requirement?

A

If a prior inconsistent statement is admitted, the witness must have an opportunity to explain/deny the inconsistency; confrontation is required

197
Q

If a person is impeached via evidence of a prior conviction, it needs to be a conviction for:

A
  1. Felony OR
  2. Any crime for which an element is “dishonest act/false statement.”
198
Q

Felonies that don’t involve false statements can be admitted as character evidence in civil and (against witnesses) criminal cases unless ________

A

Probative value is substantially outweighed by the danger of unfair prejudice

199
Q

D’s prior conviction can be used against them in a criminal case if __________

A

Probative value outweighs the danger of unfair prejudice.

“outweighs,” not “substantially outweighs”

200
Q

Conviction evidence regarding crimes that involve false statements is admissible even if ________ is pending.

A

An appeal of the underlying conviction

201
Q

Convictions of crimes that involve false statements are generally inadmissible if they are __________ old.

A

10 years old

This can be overcome with “substantial probative value”

202
Q

Acts of misconduct by a witness that didn’t result in conviction are admissible to impeach if those acts involved _______.

A

Lying

203
Q

Reputation/opinion evidence regarding a witness’s truthfulness is admissible for impeachment through either ______ or _______.

A

Cross-examination

Extrinsic evidence

204
Q

Impeachment by sensory deficiencies can take the form of either ______ or ______

A

Defects in capacity

Lack of knowledge

205
Q

Defects in capacity that qualify as sensory deficiencies include:

A
  1. Perceptive disabilities
  2. Lack of memory
  3. Lack of capacity
206
Q

Lack of knowledge that qualifies as sensory deficiency includes:

A

Knowledge base of the following witness is too limited:
1. Expert witness
2. Opinion witness
3. Character witness

207
Q

How can an impeached witness be rehabilitated?

A
  1. Explanation on redirect
  2. Prior consistent statement
  3. Good reputation/opinion for truthfulness
208
Q

Evidence of good reputation/opinion for truthfulness may not be admitted to rehabilitate a witness if made before:

A
  1. The alleged bribe of the witness
  2. Alleged inconsistent statement
209
Q

What is hearsay?

A

An out-of-court statement offered to prove the truth of the matter asserted in that statement

210
Q

What is a statement?

A

Verbal or written expression of a person, or assertive conduct that is intended to communicate

211
Q

What is assertive conduct?

A

Conduct that substitutes for a statement - nodding, pointing, etc.

212
Q

Hearsay statements are made out of court, but specifically, that means out of ____________.

A

This specific court

213
Q

Is hearsay generally admissible or inadmissible?

A

Inadmissible

214
Q

Why is hearsay generally inadmissible?

A

Speaker cannot be cross-examined, making it hard for the fact-finder to assess whether speaker is lying/mistaken

215
Q

Is it still hearsay when an in-court witness quotes her own out-of-court statements?

A

Yes

216
Q

How should courts handle multiple hearsay?

A

Hearsay included within hearsay may be admissible only if each “level” of hearsay in the combined statement satisfies a hearsay exception/exemption

217
Q

When merely uttering certain words/phrases has a ____ effect, the utterance is not hearsay.

A

Legal

218
Q

Give examples of utterances that have legal effect.

A
  1. Contracts
  2. Defamation
  3. Adverse possession
  4. Dispute over ownership of personal property
  5. Criminal utterances
219
Q

A statement offered to show ___________ or ___________ is not hearsay.

A
  1. Effect on listener
  2. Knowledge of the stated facts
220
Q

Statements offered as circumstantial evidence of ___________ are not hearsay.

A

Speaker’s state of mind

221
Q

What are the hearsay exemptions? (not hearsay)

A
  1. Opposing party statements/admissions
  2. Certain prior statements of a witness
222
Q

What statements by an opposing party are admissible under hearsay exemptions?

A

Any statement

223
Q

For purposes of hearsay exemptions, statements of another will be treated as if made by the party if:

A
  1. Speaker is an authorized spokesperson
  2. Speaker is an employee acting in the scope of their employment
  3. Party indicates she believes nonparty’s statement
  4. Co-conspirator’s statement in furtherance of conspiracy
224
Q

What prior statements of witnesses fall under hearsay exemptions (and thus are not hearsay)?

A
  1. Prior inconsistent statements given under oath
  2. Prior consistent statements
  3. Prior statements of identification
225
Q

What is the difference between a hearsay exception and exemption?

A

Exemptions are not hearsay; exceptions are hearsay but are allowed anyway

226
Q

If a declarant is _______, then hearsay is admissible

A

Unavailable

227
Q

A declarant will be unavailable if exempted from testifying due to the court’s recognition of __________.

A

Privilege

228
Q

A declarant is unavailable if they cannot testify due to:

A
  1. Death
  2. Serious physical/mental illness
229
Q

A declarant is unavailable if they cannot be procured by:

A
  1. Process
  2. Other reasonable means
230
Q

A declarant is unavailable due to refusal if ___________.

A

She refuses to testify despite court order

231
Q

A declarant is unavailable if she has a _____ failure.

A

Mmeory

232
Q

What is the former testimony exception?

A

Former testimony is offered against:
1. Someone with similar motives who had an opportunity to examine OR
2. Predecessor in interest (civil cases only)

233
Q

Hearsay statements are admissible if, at the time made, the unavailable speaker knew/reasonably believed the statement was either:

A
  1. Against speaker’s interests
  2. Would subject speaker to criminal liability
234
Q

To admit a statement against interest that exposes D to criminal liability in a criminal case, the statement must have _________.

A

Corroborating circumstances that clearly indicate the trustworthiness of the declarant’s statement

235
Q

The dying declaration hearsay exception applies to ______

A

Statements made when speaker believes she. is dying that describes the cause/circumstances leading to her impending death

236
Q

Dying declarations do not require _______, only that ________.

A

Speaker die

Speaker is unavailable

237
Q

Dying declarations are not hearsay exceptions in _____ cases.

A

Non-homicide criminal cases

238
Q

If a speaker is unavailable because the other party ________, their statements are admissible.

A

Deliberately acted to make them unavailable

239
Q

Excited utterances are admissible hearsay if:

A
  1. Related to a startling event/condition AND
  2. Declaration is made under stress of excitement
240
Q

Present sense impressions are admissible hearsay if:

A
  1. Statement describes/explains an event/condition AND
  2. Made while/immediately after speaker was perceiving event/condition
241
Q

A hearsay statement of the declarant’s _________ state of mind is admissible to show that ________.

A

State of mind

242
Q

State of mind is equivalent to _______, but not to ____ or _____.

A

Intention

Memory or belief

243
Q

Statements of past/present mental/physical conditions are admissible if ____________.

A

made for/pertinent to medical diagnosis/treatment

244
Q

Records of regularly conducted activity are admissible hearsay if:

A
  1. Kept in ordinary course of business
  2. By person with duty to record
  3. By person with knowledge of the information on the record
  4. Made at/near the time of matters described AND
  5. Not shown to be untrustworthy
245
Q

Public records are admissible hearsay as long as they:

A
  1. Describe activities of the office
  2. Describe matters observed pursuant to a legal duty to report
  3. Contain factual findings resulting from legally authorized investigations
246
Q

Even under the public records hearsay exception, facts in police reports and authorized investigations may NOT be used if _______.

A

Used against D in a criminal trial

247
Q

Statements in learned treatises are admissible hearsay if:

A
  1. Used by expert witness AND
  2. Established as a reliable authority
248
Q

If a statement in a learned treatise is ruled to be admissible hearsay, how is it presented to the court?

A

Read aloud only; no exhibit

249
Q

Any previous _____ is admissible hearsay to prove any fact essential to the judgment

A

Felony conviction

250
Q

What are the requirements of the recorded recollection exception?

A
  1. Witness once had knowledge of the facts
  2. Document was created by the witness, under her direction, or adopted by the witness
  3. Written/adopted at time when facts were fresh in witness’s memory
  4. Accurate when made AND
  5. Current recollection insufficient to testify to matters contained in the document
251
Q

A statement not specifically covered by the hearsay exceptions under the FRE is not excluded by the hearsay rule if:

A
  1. Sufficient guarantees of trustworthiness
  2. Statement is more probative on the point for which it is offered than any other evidence AND
  3. Advance notice to adverse party
252
Q

What is the confrontation clause?

A

6th Amendment provides D with right to confront witnesses

253
Q

What is the confrontation clause?

A

6th Amendment provides D with right to confront witnesses

254
Q

Even if hearsay rules would make it admissible, the Confrontation Clause excludes an out-of-court statement if:

A
  1. Speaker doesn’t testify at trial
  2. Speaker is now unavailable
  3. Statement was testimonial when made AND
  4. D had no opportunity to cross-examine speaker about statement when made
255
Q

When is a statement testimonial?

A
  1. Statements made in court
  2. Statements made to further a police investigation
256
Q

Statements to the police for _________ are not testimonial.

A

Dealing with an ongoing emergency

bar exam (15 decks)

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