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MBE > Evidence > Flashcards

Evidence Flashcards

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1
Q

When and how can defendant offer evidence of their good character?

A

The defendant can initiate reputation or opinion evidence of their good character for a PERTINENT trait. Can offer evidence of peacefulness when charged with violent crime, but not of truthfulness.

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2
Q

What is judicial notice?

A

The court can recognize a fact to be true without formal evidence, if it:
(1) is generally known
(2) can be accurately or readily determined

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3
Q

Are judicially noticed facts conclusive in civil cases? Criminal cases?

A

Civil cases = Yes
Criminal cases = No

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4
Q

When can judicial notice be taken? When must it be taken?

A

Judicial notice can be taken any time!

It must be taken if a party requests it

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5
Q

Who decides on the relevance and authenticity of evidence: Judge or Jury?

A

The jury

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6
Q

Who decides the level of the witness’s personal knowledge of the facts they’re testifying to: Judge or Jury?

A

The jury

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7
Q

Who decides in a breach of contract case whether one party acted as the agent of another: Judge or jury?

A

The jury

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8
Q

Who decides whether a witness is mentally competent or entitled to a privilege: The judge or the jury?

A

The judge

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9
Q

Who decides whether evidence satisfies the hearsay exception: Judge or jury?

A

The judge

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10
Q

In what cases must the judge excuse the jury when deciding preliminary questions?

A

Judge must excuse jury if:
(1) Deciding the admissibility of a confession
(2) The defendant in a criminal case requests it
(3) Justice requires

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11
Q

What are the two burdens involved in the ‘burden of proof’?

A

Burden of production - Carried by the party making the prima facie case

Burden of persuasion:
Civil = Preponderance of evidence
Criminal = Beyond a reasonable doubt

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12
Q

What is the spousal immunity privilege? When does it apply?

A

One spouse cannot be compelled to testify against the other spouse

Applies in criminal cases only

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13
Q

Does the spousal immunity privilege allow the party-spouse to prevent the witness-spouse from testifying?

A

NO. Witness-spouse gets to pick whether they testify. Nobody can make them, nobody can stop them. They are our only hope for the future.

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14
Q

Does the spousal immunity privilege survive the marriage?

A

No - spousal immunity is only during the marriage.

The spouse is immune. Not a spouse, no immunity. It’s in the name.

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15
Q

Does the spousal immunity privilege survive the marriage?

A

No - spousal immunity only exists during the marriage.

The immunity is spousal. So for spouses. Not a spouse, no immunity. It’s in the name.

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16
Q

Does the spousal immunity privilege survive the marriage?

A

No - spousal immunity only exists during the marriage.

The immunity is spousal. So for spouses. Not a spouse, no immunity. It’s in the name.

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17
Q

Does spousal immunity cover information from during or before the marriage?

A

Both - spousal immunity covers information from before or during the marriage

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18
Q

What is the confidential marital communications privilege? When does it apply?

A

Communications made in reliance on the intimacy of a marital relationship are privileged

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19
Q

Which spouse holds the confidential marital communications privilege?

A

BOTH spouses hold the privilege - They can keep each other from disclosing confidential marital communications

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20
Q

Does the confidential marital communications privilege survive the marriage?

A

Yes! The privilege protects communication made during the marriage, regardless of the state of the marriage.

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21
Q

Does the confidential communications privilege protect communications made before or after the marriage?

A

No - the privilege protects MARITAL communication. If they’re not married, the communication is not marital. It’s in the name. Reading comp!

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22
Q

In what three situations do NO marital privileges apply?

A

(1) Furtherance of future joint crime or fraud
(2) Legal actions between spouses
(3) When one spouse is charged with a crime against other spouse

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23
Q

What is the attorney-client privilege?

A

Confidential communications between attorney and client during professional consultations are excluded and privileged from disclosure

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24
Q

What makes a communication “confidential”?

A

When it’s made NOT in the known presence or earshot of a third person

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25
Q

Does attorney-client privilege apply to information, documents, or physical evidence?

A

NO - it only applies to communications

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26
Q

Are disclosures made before the attorney decides whether to take the case protected by the attorney-client privilege?

A

Yes - it is crucial as an attorney to not run your mouth. Everything is a secret.

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27
Q

Are corporate clients, employees of clients, and agents of client or attorney protected by attorney-client privilege?

A

Corporations = Yes
Employees = Yes, if they’re authorized to make the statements
Agents = Yes

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28
Q

How long does the attorney-client privilege last?

A

FOREVER. Post mortem. Literally after death. When I die, put my money in the grave!

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29
Q

Is there attorney-client privilege in disputes between attorney and client where (a) legal services or at issue or (b) there’s an alleged breach of duty?

A

No! There’s no attorney-client privilege in disputes between the attorney and the client

30
Q

Is there attorney-client privilege where client uses services for crime or fraud?

A

No! There’s no attorney-client privilege for crime, tristemente

31
Q

Is there attorney-client privilege when the parties are claiming through the same deceased client?

A

No

32
Q

Is there attorney-client privilege when joint parties against a third party turn against each other?

A

No - and I hope I’ll be able to recognize this soap opera ass hypo.

33
Q

Is attorney work product protected by attorney-client privilege?

A

No; BUT work product is still usually not subject to discovery, unless necessary

34
Q

What is waiver of the work product privilege? Does it apply to disclosed or undisclosed material?

A

Waiver = Voluntary disclosure of privileged material.

Applies only to DISCLOSED work product or communications.

35
Q

When is privileged, undisclosed work product material subject to waiver?

A

Undisclosed material is only subject to waiver if:
(1) the waiver was intentional
(2) the disclosed and undisclosed material are on the same subject
(3) the material should be considered together to avoid unfairness

36
Q

Is there waiver for accidental, inadvertent disclosures?

A

No! Everybody makes mistakes, everybody has those days. No waiver if it was a whoopsie.

37
Q

What is the physician-patient privilege?

A

Confidential information acquired by physician is privileged if:
(1) professional relationship between doc + patient
(2) info was acquired for purpose of diagnosis or treatment, AND
(3) info was necessary for diagnosis or treatment

38
Q

In what 4 situations is there no physician-patient privilege?

A

(1) Disputes between patient + doc, or where physical conditions is at issue
(2) doctor’s assistance was sought to aid wrongdoing
(3) Patient waived privilege by contract
(4) It’s a federal case applying federal law

39
Q

What is the clergy-penitent privilege?

A

Same thing as attorney-client, but for communications made to clergymen in their capacity as clergymen

40
Q

What is the privilege against self-incrimination?

A

Exactly what you think it is. The witness does not have to testify against themselves.

41
Q

What is the governmental privilege?

A

Unless voluntarily disclosed, information is privileged if it is:
(1) official information not otherwise open to the public
(2) the identify of an informant

42
Q

Which privileges are only at the state level?

A

(1) Physician-patient
(2) Accountant-client
(3) Professional Journalist privilege

43
Q

Is it a constitutional right for journalists to protect their sources?

A

No! But it is a state-level privilege against disclosure in some places

44
Q

Are opposing party statements EXCLUSIONS or EXCEPTIONS to the hearsay rule?

A

Opposing party statement are exclusions - they are NOT hearsay!

45
Q

What types of opposing party statements are admissible nonhearsay?

A

(1) Judicial and extrajudicial statements
(2) Adoptive statements
(3) Vicarious statements

46
Q

What is an opposing party adoptive statement?

A

(1) Statements expressly adopted (“ya jon i agree i’m gonna adopt that statement as my own” i guess)

(2) Statements adopted via silence if the party could have denied it, and a regular person would have, but they didn’t

47
Q

What are the 5 types of vicarious opposing party statements?

A

(1) Authorized spokespersons
(2) Business partners on statements related to business matters
(3) Co-conspirators on statements in furtherance of a conspiracy
(4) Joint tenants and privies in title
(5) Employee statements sometimes

48
Q

When can employee statements be an opposing party’s vicarious statement?

A

When the statement is:
(1) Regarding a matter within the scope of employment, AND
(2) Made during the existence of employment

49
Q

Can statements made by co-parties be vicarious opposing party statements?

A

No! One co-party never speaks for another co-party

50
Q

When and how can a witness’s former testimony be admitted?

A

A witness’s former testimony can be admitted as a hearsay EXCEPTION when the declarant is unavailable to testify.

51
Q

Whom can a witness’s former testimony be offered against?

A

A witness’s former testimony is admissible against a party who (1) had the opportunity and motive to develop the declarant’s testimony (2) under oath (3) at a prior proceeding

52
Q

When and how are statements against interest admissible?

A

When a declarant is unavailable, their statements against their interests are admissible as hearsay EXCEPTIONS

53
Q

To be admissible, a statement against a party’s interests needs to be against one of which three kinds of interests?

A

The statement must be against either the party’s:
(1) monetary interests
(2) property interests
(3) penal interests

54
Q

Must statements against a party’s interests be corroborated to be admissible?

A

CRIMINAL cases = YES
Civil cases = No

55
Q

Are statements against someone’s social or reputational interests admissible under the statements against interests exception?

A

No! Only money, property, penal

56
Q

When a declarant makes a statement against their interest among other surrounding remarks, are the surrounding remarks also admissible?

A

Nope! Just the statement against interest

57
Q

When and how are dying declarations admissible?

A

A declarant’s dying declarations are admissible as hearsay exceptions when the declarant is unable to testify

58
Q

What are the requirements for a dying declaration to be admissible?

A

(1) Declarant thought they were dying
(2) The remark is about the cause or circumstances of the impending death

BUT they don’t have to actually die!

59
Q

When and how are statements of personal or family history admissible?

A

When the declarant is unavailable to testify, as an exception to hearsay

60
Q

What happens if a defendant wrongfully causes a witness to be unavailable and absent from trial?

A

That witness’s statements are admissible against the defendant as an exception to the hearsay rule

61
Q

What are the 5 hearsay exceptions for when the declarant is unavailable?

A

(1) Former testimony
(2) Statement against interests
(3) Dying declaration
(4) Statements of family or personal history
(5) Statements offered against party who wrongfully procured declarant’s absence

62
Q

What are the 5 situations that make a declarant unavailable to testify?

A

(1) Death or illness
(2) Privileged from testifying
(3) Refusal to testify
(4) No memory of subject
(5) Absent and can’t procure testimony by other means (like depositions)

63
Q

Are prior statements of testifying witnesses considered hearsay?

A

NO - these statements are hearsay EXCLUSIONS. Not statements that would be admissible as exceptions.

64
Q

What prior inconsistent statements are admissible?

A

Those given under oath at prior proceedings

65
Q

When are prior consistent statements admissible?

A

Prior consistent statements are admissible to rebut:
(1) accusations of lying for motive
(2) impeached credibility

66
Q

What 3 types of prior statements of the testifying witness are admissible?

A

(1) Prior identification of someone the witness perceived earlier (even if they can’t remember making the identification)
(2) Prior inconsistent statements
(3) Prior consistent statements in rebuttal

67
Q

What are verbal acts? What are legally operative facts? Are these hearsay? How come?

A

Verbal acts = Word crimes like defamation

Legally operative facts = Binding words like words of contract

NOT hearsay because NOT offered for the truth of the matter asserted

68
Q

Are statements offered to show the effect on the listener (or reader) admissible? How come?

A

YES, they are admissible because they are not offered for the truth of the matter asserted.

69
Q

Are statements offered as circumstantial evidence of the declarant’s state of mind admissible? How come?

A

Yes, because they are not offered for the truth of the matter asserted

70
Q

What are you usually trying to show when offering evidence of declarant’s state of mind?

A

(A) Trying to show that someone is insane

(B) Trying to show someone’s knowledge

MBE (8 decks)

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