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BAR Prep > Evidence > Flashcards

Evidence Flashcards

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1
Q

Hearsay that meets an exception won’t be admitted in a criminal case if

A

-Offered against a criminal defendant
-Declarant unavailable
-Hearsay was testimonial
-Accused did not have an opportunity to cross-ex the declarant prior to trial

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2
Q

Statements are testimonial if

A

the primary purpose is to establish or prove past events potentially relevant to later prosecution

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3
Q

Statements are not testimonial if

A

They are regarding an on going emergency

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4
Q

Evidence is relevant if it is

A

Material - of consequence
Probative - any tendency to make more or less likely

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5
Q

Relevant evidence is

A

Admissible unless
-Excluded
-kept out by the Court’s 403 discretion

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6
Q

FRE 403 allows relevant evidence to be excluded if

A

its probative value is substantially outweighed by
-Prejudice
-confusion of the issues
-misleading the jury
-undue delay/waste of time
-cumulative evidence

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7
Q

Evidence of a previous tort claim/accident is admissible to prove

A

-Previous false claim
-Injury to same party of their body

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8
Q

Evidence of insurance is admissible/not admissible for:

A

Admissible
-to prove ownership/control
-to impeach (ie for bias)
-as part of an admission of liability (if it can’t be severed)

Inadmissible
-To prove the def acted negligently

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9
Q

Subsequent remedial measures are admissible/inadmissible to prove

A

Admissible
-ownership or control
-rebut a claim of infeasibility
-prove that opposing party destroyed evidence

Inadmissible
-negligence
-culpable conduct
-defect
-need for warning

*Only triggered by measures taken after the incident at issue

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10
Q

Civil settlements/negotiations are inadmissible to prove ___ but the rule is only triggered if ____

A

-validity or amount of a claim
-impeach by PINS

There is a claim or threat of a claim AND dispute as to the liability or amount

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11
Q

An exception allows civil settlements/negotiations to be offered if

A

by the government when offered in a criminal case

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12
Q

Aspects of plea discussions that are inadmissible in any case:

A

-Offers to plead guilty
-Withdrawn guilty please
-Actual no contest pleas
-Statements of fact during plea discussions

Note: an actual guilty plea is generally admissible as an opposing party’s statement

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13
Q

Character evidence is allowable in civil cases only where

A

Character is directly in question - defamation, negligent hiring/entrustment, child custody

In these cases, rep/op/sp acts are admissible

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14
Q

In a criminal case, a prosecutor can’t submit character evidence until

A

the defendant introduces evidence of their good character

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15
Q

A defendant may prove their character through

A

-reputation for a pertinent trait
-Opinion

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16
Q

The prosecution can attack a defendant’s character only once ___ and through ____

A

Defendant offers evidence of good character

-Cross examination of Def’s witness as to specific acts of defendant
-Calling its own character witness to provide reputation or opinion testimony

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17
Q

A victim’s character may be attacked by the defendant through ____ only when ____

A

Reputation or opinion evidence

it is relevant to show the defendant’s innocence (such as establishing self defense)

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18
Q

A prosecution can rebut a defendant’s attack of the victim’s character through

A

Rep or Opinion testimony of
-Victim’s good character for the same trait
-Def’s bad character for the same trait

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19
Q

A prosecutor can introduce evidence for a victim’s good character for peacefulness without the defendant attacking it only in

A

A homicide case where the defendant pled self-defense

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20
Q

Evidence of a victim’s past sexual behavior or disposition is generally inadmissible except for

A

In criminal cases - if offered to prove someone other than the def is the source of the semen, injury, or other physical evidence or to prove consent

In civil cases - only if its probative value substantially outweighs the danger of harm/unfair prejudice

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21
Q

Character evidence is admissible if it is to prove something other than propensity, including:

A

MIMIC
Motive
Intent
Mistake (absence of)
Identity
Common plan

Or anything else independently relevant

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22
Q

The only instance where character evidence IS allowed to prove act in conformity is:

A

A criminal or civil case where def is accused of sexually assault or molesting a child

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23
Q

Handwriting can be authenticated by

A

-Someone familiar with the writing
-an expert who has compared
-Jury comparison

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24
Q

Ancient docs are authenticated if

A

-20+ years old
-Non-suspicious condition
-Found where likely to be kept

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25
Q

A reply letter is authenticated by evidence

A

it was written in response to a communication sent to the alleged author

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26
Q

Photographs and video are authenticated if

A

They are a fair and accurate representation

Unattended camera is authenticated if the camera was properly working

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27
Q

The best evidence rule, should be called the original document rule, requires

A

The admission of the original writing or recording IF the witness does not have personal knowledge independent of the writing or recording

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28
Q

Refreshing recollection is allowed, but the writing may not be ____ and the opposing party is allowed to ____

A

admitted

-Have the writing produced at trial
-Cross ex the witness on it
-Introduce portions relating to the testimony

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29
Q

A past recollection recorded allows

A

A record to be READ into evidence ONLY if after being refreshed
-the witness has insufficient recollection
-it was made when they had personal knowledge
-it was made, under the direction of, or adopted by the witness
-it was made when it was fresh
-the witness vouches for the accuracy

Only the opposing party can seek admission of the evidence as an exhibit

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30
Q

Lay testimony is valid if

A

-Rationally based on the witness’s perception
-Helpful to the trier of fact
-not based on specialized knowledge

(Being in an individual’s presence may allow a witness to testify to their perception of the individual’s mental state)

31
Q

Expert opinion is admissible if

A

-The subject requires specialized knowledge
-The opinion is based on sufficient facts or data
-The opinion is the product of reliable principles
-The expert reliably applied the principals

32
Q

An expert opinion can be based on

A

-reasonable probability
-based on facts reasonably relied upon by other experts (even if not admissible)

33
Q

The Daubert factors for a judge determination of expert reliability are:

A

TRAP
-Testing
-Rate of error
-Acceptance by experts in that discipline
-Peer review

34
Q

A learned treaty may be used by an expert if

A

-Established as reliable authority
-Used for expert testimony
-Read into evidence (not admitted)

It canNOT be read into evidence UNLESS offered during examination of the expert

35
Q

In terms of impeachment, accrediting or bolstering is not allowed until

A

the witness has been impeached

36
Q

___ party may impeach

A

Any

37
Q

The methods of impeachment are:

A

Case specific
-PINS
-Bias
-Sensory Defect
-Contradiction

General bad character for truth
-op/rep evidence of untruth
-prior convictions
-bad acts

38
Q

PINS are admissible as substantive evidence only if

A

given under oath

39
Q

The foundation for extrinsic evidence to prove PINS requires:

A

-Witness given opportunity to explain or deny
-Adverse party is given an opportunity to examine the witness
-Unless justice requires dispensing with the requirements

40
Q

Prior convictions that are automatically admissible as impeachment are

A

prior crimes involving dishonesty or false statement that are within 10 years of confinement or release

the court has no discretion to deny

41
Q

Prior convictions that may be admitted include:

A

Felonies less than 10 years old, not involving dishonesty:
-Against witness who is a criminal def - only admitted if probative value outweighs the prejudice
-Against any other witness - admitted unless probative value is substantially outweighed by prejudicial effect

Convictions 11+ years old from release or confinement are only admitted if:
probative value substantially outweighs prejudice AND notice is provided of intent to use it

42
Q

A pardon bars admission of prior convictions if

A

Based on rehab and no repeat offense
OR
Pardon based on innocence

43
Q

Bad acts of untruthfulness may be admitted through

A

Cross-ex - can’t refer to any consequences and arrests don’t count as bad acts

Extrinsic evidence is not admissible for bad acts for untruthfulness

44
Q

If hearsay is admitted, the declarant is subject to _____ impeachment

A

any methods of, without the opportunity to explain/deny

45
Q

A witness who has been impeached can be rehabilitated through

A

-Explanation on redirect
-Rep/op testimony of good character for truth (proportionate to attack)
-Prior consistent statement to rebut charge of lying or inconsistency

46
Q

Double hearsay is only admissible if

A

both statements fall into an exception

47
Q

Hearsay is an

A

-out of court statement (made by a human, can be a gesture intended as an assertion)
-Offered for TOTMA

48
Q

Non-truth purposes for statements that render them not hearsay:

A

-legally operative verbal acts
-statement for effect (ie notice)
-circumstantial evidence of state of mind (ie to prove insanity or knowledge)

49
Q

Statements that are excluded from hearsay definition include:

A

-Prior statement of testifying witness (ID, inconsistency under oath, consistency pre motive)
-Opposing party statements

50
Q

Prior statements of testifying witnesses are excluded from being hearsay if

A

Made by a witness who IS subject to cross-ex AND
-is one of identification
-is inconsistent with in-court testimony and the prior statement was made under oath
-is consistent with in court testimony and offered to rebut charge of lying, inconsistency, or faulty memory

51
Q

Opposing party statements include:

A

-Judicial statements - conclusive, can’t be contradicted
-Any OOC statements - can be explained, not conclusive
-Adoptive statement
-Vicarious statements

52
Q

An opponent’s silence acts as adoption of a statement, rendering it admissible under a hearsay exclusion, if:

A

-The party heard and understood the statement
-They were capable of denying it
-A reasonable person would have denied it

53
Q

Hearsay exceptions that require the declarant to be unavailable include:

A

-Dying declaration
-former testimony under oath
-Statements against interest
-Statement of personal or family history
-Statement offered against party procuring declarant’s unavailability

54
Q

A declarant is unavailable if:

A

-Dead or ill
-Asserting privilege
-Doesn’t remember
-Absent despite court’s best effort

UNLESS declarant’s unavailability was caused by proponent to prevent them from testifying

55
Q

Former testimony exception to hearsay applies if

A

-Declarant unavailable
-Gave testimony under oath
-Party against whom it is offered had an opportunity and similar motive to develop that testimony

56
Q

The statement against interest exception to hearsay applies if

A

-Declarant unavailable
-The statement was against their pecuniary, proprietary, or penal interests when they made it
-They knew it was against their interests when they made it
-A reasonable person wouldn’t have made it unless true

57
Q

Dying declaration exception to hearsay applies if

A

ONLY in homicide or civl case IF
-Declarant unavailable
-A statement was made under belief of imminent death
-The statement concerns the cause or circumstance
-The declarant’s statement is supported by personal knowledge (not a suspicion)

Traditionally, the witness had to die and it could not be used in civil cases

NOTE: Attempted homicide doesn’t qualify for Dying Dec

58
Q

Hearsay exceptions where the declarant’s availability is immaterial include:

A

-Excited utterance
-Present sense impression
-Present state of mind
-Medical diagnosis/treatment
-Business records
-Official records
-Recorded recollection
-Catch all

59
Q

To qualify as an exception to hearsay, an excited utterance must

A

-be about a startling event
-made under stress from that event

60
Q

To qualify as an exception to hearsay, a present sense impression must

A

-Describe an event or condition (doesn’t have to be startling)
-Made while or right after perceiving it

61
Q

To qualify as an exception to hearsay, a present state of mind statement must

A

indicate declarant’s then existing state of mind such as motive, intent, or plan
OR
concern their emotional, sensory, or physical condition

62
Q

To qualify as an exception to hearsay, a medical diagnosis or treatment statement must

A

be made for and pertinent to medical diagnosis, detailing past or present symptoms and their general cause

This includes past conditions and applies even if treatment was sought for litigation purposes

63
Q

To qualify as an exception to hearsay, a business record must

A

-Be made by a business
-In the regular course of business
-Near or at time of event
-By someone with personal knowledge

May be used to prove nonoccurrence if recordation was the regular practice

64
Q

To qualify as an exception to hearsay, official records include

A

-Records of the activities of the office or agency
-Recordings made under duty imposed by law (doesn’t include police reports)
-Findings of an investigation (in civil cases and against the gov in criminal cases)

65
Q

To qualify as an exception to hearsay, ancient documents must be

A

prepared before January 1, 1998

66
Q

The catch all exception to hearsay allows admission if

A

-The statement bears sufficient guarantees of trustworthiness
-The statement is more probative than any other evidence
-Reasonable notice is given

67
Q

The confrontation clause requires hearsay statements to be denied even if falling within a hearsay exception if:

A

-Offered against the accused in a criminal trial
-The declarant is unavailable
-The statement is testimonial (for future prosecution, not present emergency)
-The accused had not opportunity to develop the statement

68
Q

The federal privileges barring admission of evidence or testimony include:

A

-Attorney client
-Spousal immunity
-Confidential spousal communications
-Psychotherapist patient
-Clergy penitent
-Government privileges

69
Q

Spousal Immunity applies

A

-only in criminal Cases
-only if married at the time of trial
-can only be asserted by the witness-spouse
-covers info learned before and during the marriage

70
Q

Confidential marital communications applies

A

-in criminal or civil cases
-to communications
-each spouse has the right to prevent disclosure
-the privilege applies even after divorce, but only protects communications during the marriage

71
Q

Judicial notice can be taken of facts that are ____ and has the effect of:

A

Generally known or can be accurately and readily determined

-Civil case - conclusively proving the fact
-Criminal case - allowing, but not requiring, a jury to accept it as conclusive

72
Q

Impeachment evidence is all focused on _____ and only interested in the traits _____

A

The witness on the stand

Credibility or character for truthfulness or untruthfulness

73
Q

Character evidence is focused on ____ and interested in _____

A

The parties to the action

their disposition or propensity OR other acts if offered for MIMICO purposes

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