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Rocking the Bar Exam > Evidence > Flashcards

Evidence Flashcards

1
Q

role of judge and jury

who decides whether evidence is admissible?

A

judge - it’s a question of law

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2
Q

role of judge and jury

who decides fact-based questions that go to the admissibility of evidence?

A

judge

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3
Q

role of judge and jury

is the court bound by the Federal Rules of Evidence for preliminary factual decisions?

A

No, not bound

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4
Q

role of judge and jury

who decides the weight and credibility of evidence?

A

jury

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5
Q

role of judge and jury

when are preliminary hearings conducted outside of the presence of the jury?

A
  1. issue is admissibility of a confession in a criminal trial
  2. defendant in criminal case is a witness and makes that request
  3. interests of justice otherwise require it (unfair prejudice to a party)
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6
Q

challenge to evidence ruling

when can an evidentiary ruling be reversed on appeal?

A

only if (1) substantial right of a party has been affected (i.e., not harmless error) AND
(2) judge was notified of the mistake at trial and given a chance to correct it

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7
Q

challenge to evidence ruling

how do you request that an evidentiary ruling be reversed on appeal?

preserves an error for appeal

A

notify the court by objection OR offer of proof

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8
Q

challenge to evidence ruling

what is the plain error rule?

A

error that was obvious on its face to reviewing ct

appellate court will sometimes reverse a case to prevent a miscarriage of justice, even if no objection or offer of proof was made at trial

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9
Q

challenge to evidence ruling

when can you object?

A

if the court has admitted evidence that should have been excluded, you must object and explain why the evidence should have been excluded

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10
Q

challenge to evidence ruling

when can you provide an offer of proof?

A

if the court excluded evidence that should have been admitted, you must make an offer of proof on the record

offer of proof - explain to the court what the evidence would have been and why it should have been admitted

don’t need to discuss substance and logic of evidence if straightforward and clear on the surface

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11
Q

tip

what should I pay attn to with evidence?

A

type of evidence + purpose of that evidence

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12
Q

challenge to evidence ruling

what is limited admissibility?

Rule 105

A

evidence may be admissible for one purpose, but not another

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13
Q

challenge to evidence ruling

how do you invoke the Limited Admissibility Rule? what happens next?

Rule 105

A

objecting party gives request
ct gives jury a limiting instruction (telling them to use the evidence for one purpose, but not the illegitimate purpose)

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14
Q

challenge to evidence ruling

what is the Rule of Completeness?

Rule 106

A

if a party introduces part of a written or recorded statement, the opposing party may intro other portions of that statement that are necessary to put the admitted part into perspective

other parts may be intro even if they might otherwise be inadmissible

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15
Q

challenge to evidence ruling

when can you invoke the Rule of Completeness?

Rule 106

A

immediately, don’t need to wait for party’s turn to present its case

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16
Q

challenge to evidence ruling / Judicial Notice

what is Judicial Notice?

A

if question is not subject to reasonable dispute, ct will instruct jury to a accept that fact as proven without requiring formal proof
about adjudicative facts

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17
Q

what is an adjudicative fact?

A

facts that the jury would otherwise have to decide
relate to the parties and their activities

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18
Q

challenge to evidence ruling / Judicial Notice

what facts are not subject to reasonable dispute?

A

(1) generally known within the territorial jurisdiction of the court
OR
(2) accurately and readily determined by sources whose accuracy cannot reasonably be questioned

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19
Q

challenge to evidence ruling / Judicial Notice

what is the rule for a civil case?

A

ct will instruct the jury that it must accept the fact as proven

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20
Q

challenge to evidence ruling / Judicial Notice

what is the rule for a criminal case?

A

ct will instruct the jury that it may (but need not) find that fact

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21
Q

mode and presentation of evidence

who presents evidence first in a trial (criminal and civil)?

A

criminal: prosecution
civil: plaintiff

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22
Q

mode and presentation of evidence

who determines the order of presentation of evidence and witnesses?

A

within court’s discretion to control

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23
Q

mode and presentation of evidence

can the court call and question witnesses?

A

yes
all parties can cross-examine those witnesses
every party should have an oppy to object outside the hearing of the jury

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24
Q

mode and presentation of evidence

what is a leading question?

A

suggests the answer within the question

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25
Q

mode and presentation of evidence

when is a leading question allowed? when is it not allowed?

A
  • generally NOT permitted on direct examination
  • generally allowed in cross examination

exceptions:
* allowed to elicit preliminary background info not in dispute
* allowed when the witness has trouble communicating due to age or infirmity
* allowed when you call a hostile witness or adverse party

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26
Q

what is a hostile witness?

A

witness who presents adverse testimony

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27
Q

mode and presentation of evidence / refreshing a witness’s recollection

what is present recollection refreshed / refreshing a witness’s recollection?

A

arises when a witness is having trouble remembering
can show a witness a document (like their notes), this jogs their memory, then they put the notes aside, and proceed to testify from present memory

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28
Q

mode and presentation of evidence / refreshing a witness’s recollection

what happens to the document used to refresh the witness’s memory?

A

doesn’t become evidence
witness can’t read from it
other side is permitted to see and inspect it, and even show it to the jury

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29
Q

mode and presentation of evidence + hearsay

what is past recollection recorded?

A

arises when the witness still can’t remember after trying to refresh their memory

permits witness to read notes into evidence under a hearsay exception

requires that the (1) witness cannot remember, (2) the witness once had the knowledge, (3) the record was made when it was fresh in their memory, and (4) the record accurately reflects their memory

other side may introduce the notes to the jury

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30
Q

mode and presentation of evidence

what is the scope of cross examination?

A

scope of cross examination is the subject of direct examination
but ct can allow broader inquiry

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31
Q

mode and presentation of evidence

what are some examples of improper questions?

A
  • leading questions
  • compound questions
  • facts not in evidence
  • argumentative questions
  • questions calling for inappropriate conclusions (calls for a conclusion that the witness isn to qualified to make)
  • repetitive questions
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32
Q

mode and presentation of evidence

when can a witness be excluded from the courtroom?

A

witness must be excluded upon request of either party to prevent hte witness from hearing the testimony of others

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33
Q

mode and presentation of evidence

what type of witnesses may not be excluded from the courtroom?

A

witness who is essential to the presentation of the case
a person, such as a crime victim, who is permitted by state rule to remain in the courtroom OR
a party in the case

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34
Q

burdens and presumptions

what are the two types of burdens of proof?

A

burden of production + burden of persuasion

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35
Q

burdens and presumptions

what is the burden of production?

A

a party must produce enough evidence to get the issue to the jury

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36
Q

burdens and presumptions

what is the burden of persuasion?

A

a party must convince the jury to decide the case in its favor

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37
Q

burdens and presumptions

what is the burden of proof in a civil case?

A

preponderance of the evidence (generally)

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38
Q

burdens and presumptions

what is the burden of proof in a criminal case?

A

beyond a reasonable doubt

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39
Q

burdens and presumptions

what is the rebuttable presumption? what burden(s) does it shift?

A

shifts the burden of production on a particular issue (NOT the burden of persuasion)

useful for things that are difficult to prove directly

if counterproof is introduced, the presumption is eliminated and there is sufficient evidence for the jury to decide the issue

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40
Q

burdens and presumptions

what is the presumption for the destruction of evidence?

A

if a party destroys evidence, there is a presumption that it would have been adverse to that party

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41
Q

burdens and presumptions

what is a “conclusive or irrebuttable presumption”?

A

rule of law that just happens to use the word presumption

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42
Q

relevance

what is the rule for relevance? what is the presumption for relevance?

FRE 401, 402

A

evidence must be relevant

if irrelevant, it is inadmissible

all relevant evidence is admissible UNLESS excluded by a specific rule

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43
Q

what is the threshold question for evidence?

A

relevance!

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44
Q

relevance

what is the definition of relevance?

FRE 401, 402

A

makes the issue more likely than it would be without the evidence

think about how a particular piece of evidence makes a certain fact more likely

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45
Q

relevance

what is needed for evidence to be relevant?

A

(1) material - related to some issue in the case
AND
(2) probative - having a tendency to prove/disprove some fact

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46
Q

relevance

what is direct evidence?

A

evidence equivalent to what it is offered to prove (e.g., eyewitness testimony)

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47
Q

relevance

what is circumstantial evidence?

A

evidence from which a fact can be inferred

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48
Q

relevance

what is the Exclusion of Relevant Evidence Rule?

FRE 403

A

even if the evidence is relevant and there is no particular rule excluding it, the ct has discretion to exclude relevant evidence if certain risks substantially outweigh its probative value

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49
Q

relevance / Exclusion of Relevant Evidence Rule

what type of risks are a concern?

FRE 403

A

confusion of the issues
unfair prejudice
misleading the jury
waste of time

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50
Q

relevance / Exclusion of Relevant Evidence Rule

how is this rule weighed?

FRE 403

A

weighed in favor of admissibility

probative value must be substantially outweighed by the risks

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51
Q

relevance

What is the Relevance Conditioned on Fact Rule?

FRE 104b

A

When the relevance of evidence depends upon whether a fact exists (question for a jury), so the courts will admit the evidence on the condition that the jury will decide that preliminary fact later

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52
Q

relevance / character evidence

what is the character evidence rule? what is the rationale?

FRE 404

A

rule about the propensity argument or inference

prohibits the arg that a person acted in conformity with a particular character trait

prevents a party from proving a character trait in order to show action in conformity

PBPL: too prejudicial, not that probative of the current conduct, distracts the jury’s attn

“he’s just that kind of dude”

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53
Q

relevance / character evidence

when character evidence is admissible? how can it be proved?

FRE 404

A

only through reputation or opinion testimony
can’t be proved by specific bad acts

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54
Q

relevance / character evidence

when can character evidence be used?

FRE 404

A

if character is an actual issue in the case (e.g., child custody), then it can be proved + admissible

some other relevant purpose (like when character is at issue)

NOT to prove propensity

generally only at issue in civil cases

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55
Q

relevance / character evidence

can character evidence be used in civil cases?

FRE 404

A

almost never

EXCEPT: civil case involving child molestation or sexual assault –> plaintiff can intro evidence of defendant’s prior act of that source

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56
Q

relevance / character evidence

can character evidence be used in criminal cases? (basic rule)

FRE 404

A

prosecution is NOT allowed to intro the bad character of the defendant

defendant can raise it (opens the door for the protection)

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57
Q

relevance / character evidence

in a criminal case, can the defendant intro evidence of their character? if so, what can the prosecution do next?

FRE 404

A

defendant can intro evidence of their good character that is pertinent to the crime

defendant is limited to witnesses who will testify about opinion or reputation

this opens the door for the prosecution to rebut the defendants claims by attacking the defendant’s character

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58
Q

relevance / character evidence

in criminal cases, which side(s) can ask questions about specific acts from the past?

FRE 404

A

once the door is opened, prosecution CAN cross-examine and ask about specific acts
defendant is NOT permitted to bring up specific acts

has to be in good faith

good faith from PQs Set 1

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59
Q

relevance / character evidence

can the victim’s character be brought up?

FRE 404

A

defendant may intro evidence about victim’s character if a pertinent trait of the victim

generally only in homicide or assault cases if defendant is arguing self-defenses

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60
Q

relevance / character evidence

can evidence of the victim’s character be introduced in a sexual assault case?

FRE 404

A

no, Rape Shield Laws

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61
Q

relevance / character evidence

with the victim’s character, what can the prosecution do once the door is opened?

FRE 404

A

prosecution can intro evidence that victim is not violent using reputation or opinion NOT specific acts

prosecution can intro evidence that defendant has the same trait that they accused the victim of having

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62
Q

relevance / character evidence

can evidence of the defendant’s past crimes or bad acts be introduced?

FRE 404

A

only when the evidence is used for some other purpose (like establishing a pattern of operation), not the propensity argument

MIMIC evidence
Motive
Intent
Absence of Mistake
Modus Operandi / Identity
Common plan or scheme

MIMIC are the relevant, non-character purposes

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63
Q

relevance

what is habit evidence? is it allowed?

A

something that is routine, regular, automatic
allowed to prove action in conformity with the habit
can also be habit of an organization

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64
Q

witnesses

who is competent to testify? (basic rule)

A

anyone who has (1) personal knowledge of the matter AND
(2) is willing to make an oath to tell the truth

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65
Q

witnesses

are children allowed to testify?

under FRE and some states

A

FRE: yes if they are mature enough to understand + basic rule requirements for competence

some states have minimum age

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66
Q

witnesses

can a witness testify about transactions with dead people?

A

generally no –> Dead Man’s statute (not FRE) limits the ability of witnesses to testify about transactions with people who are deceased

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67
Q

witnesses

if a federal court is using state law to decide a civil case, which set of competency rules will it use?

A

will defer to state competency rules

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68
Q

witnesses

is a judge allowed to be a witness?

A

barred from being a witness in a trial over which they are sitting

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69
Q

witnesses

is a juror allowed to be a witness?

A

may NOT testify as a witness in a trial for a jury they sit on

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70
Q

witnesses

after a verdict or indictment, what is a jury NOT allowed to testify about?

FRE 606b

A
  • any statement made during deliberations
  • any incident that occurred during deliberations OR
  • effect of anything upon any juror’s mind
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71
Q

witnesses

after a verdict or indictment, what IS a jury allowed to testify about?

FRE 606b

A
  • extraneous prejudicial info that was improperly brought to jury’s attention
  • an outside influence was properly brought to bear on a juror (e.g., bribed, threatened)
  • clerical or technical error in entering the verdict onto the verdict form OR
  • juror made a clear statement that they relied on racial stereotypes or animus in convicting
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72
Q

witnesses

what is impeachment?

A

calls into question the witness’s credibility

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73
Q

witnesses / impeachment

what are the basic ways to impeach a witness?

A
  1. show that the witness is dishonest, has a bad character for truthfulness
  2. bias
  3. sensory competence
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74
Q

witnesses / impeachment

how do you show a witness is biased? give examples

A

show that a witness has some reason to lie or shade the facts

examples
* relationship with a party (like affiliated with the other side outside of litigation)
* witness is being paid to testify
* witness has agreed to testify in return for a reduced sentence
* witness has an indirect financial interest in the outcome of the case

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75
Q

witnesses / impeachment

how do you show sensory competence for a witness? what is this?

A

witness is mistaken in some way
like they didn’t see or hear things as well as they think

“did you wear your glasses? how much did you have to drink? how far away were you?”

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76
Q

witnesses / impeachment

how do you show that a witness has a character for truthfulness or untruthfulness?

A
  • character witness testimony - may be attacked through reputation or opinion, not prior specific incidents
  • specific acts - may cross examine the witness about specific acts of dishonesty if there’s a reasonable basis for asking the question, must be probative of untruthfulness, only permitted to ask, have to take the answer
  • criminal convictions
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77
Q

witnesses / impeachment

when showing a character for truthfulness, can you show that the witness was convicted of crimes?

A

only crimes involving dishonesty or false statements (perjury, fraud, embezzlement)

special rules for felonies and old convictions (MBE Lecture Handouts, p. 13)

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78
Q

witnesses / impeachment

how do you impeach a witness for prior inconsistent statements?

A

any kind of statement
can be proven by extrinsic evidence, but only if witness is given oppy to explain or deny the evidence

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79
Q

witnesses / impeachment

what is the rule for impeachment of a hearsay document?

A

when an out of court statement comes in under a hearsay exception, declarant (person who made the statement) is acting like a witness and can be impeached

impeachment may be made by any evidence that would be admissible if the declarant had testified as a witness

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80
Q

witnesses / impeachment

if a witness is impeached, how do you rehabilitate them?

A
  1. give them a chance to clarify and explain
  2. prior consistent statement –> show a statement they made before the alleged motive arose that is consistent [if attacked for having prior inconsistent statements]
  3. intro evidence of witness’s character for truthfulness [if attached for having bad character for truthfulness]
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81
Q

witnesses / testimony

what are the types of witnesses?

A

lay witnesses + expert witnesses

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82
Q

witnesses / lay witness

what is the rule for a lay witness’s opinion to be admissible?

A

(1) based on the perception of the witness AND
(2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in the case

common sense impressions are allowed

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83
Q

witnesses / lay witness

can a lay witness’s opinion be based on prior scientific, technical, specialized knowledge?

A

nope, that’s for expert witnesses

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84
Q

witnesses / lay witness

in general, what info do we want from witnesses?

A

facts not opinions

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85
Q

witnesses / expert witness

can you have expert testimony about witness credibility?

A

courts have rejected b/c jury’s role

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86
Q

witnesses / expert witness

when can an expert witness offer opinions or conclusions?

A

if
(1) subj matter is scientific, technical, or otherwise specialized
AND
(2) it will help trier of fact understand the evidence or determine a fact in issue

87
Q

witnesses / expert witness

what is the Daubert test for expert witnesses?

A

expert is required to
1. be qualified by knowledge, skill, experience, training, or education
2. base their testimony on sufficient facts or data
3. base their testimony on reliable principles and methods
AND
4. apply the principles and methods reliably to the facts of the case

88
Q

witnesses / expert witness

can an expert express an opinion about the ultimate issue of the case?

A

they may in most situations

but not allowed to testify about whether a criminal defendant had the requisite mental state of any element of a crime or defense

89
Q

witnesses / expert witness

what can an expert base their opinion on?

what type of info

A
  • personal observation
  • evidence presented at trial
    OR
  • info reasonably relied upon by experts in that particular field –> if standard in the industry, then can use facts that are otherwise inadmissible
90
Q

witnesses / expert witness

can the court appoint an expert?

A

yes
must let each party know what the witness found
each party can dispose and cross-examine

91
Q

tangible evidence

what is the basic rule for tangible evidence?

A

FIRST: must be authenticated

evidence must be sufficient to support a finding that the thing is what the party claims it is

  • does not mean that the court must find the doc or thing authentic
  • jury will decide this fact question
92
Q

tangible evidence

what are the main categories of tangible evidence?

A
  1. real evidence
  2. documentary evidence
  3. oral statements
93
Q

tangible evidence

how do you authenticate real evidence?

A
  1. personal knowledge (witness testimony)
  2. distinctive features or markings
  3. chain of custody
94
Q

tangible evidence / documentary evidence

how do you authenticate documentary evidence?

A
  1. stipulation of the parties
  2. eyewitness testimony + distinctive features
  3. ancient documents
  4. reply letter doctrine
  5. handwriting certification
  6. self-authenticating documents
95
Q

tangible evidence / documentary evidence

what is the reply letter doctrine?

A

authenticated by evidence that it was written in response to another letter

96
Q

tangible evidence / documentary evidence

what is the rule for ancient documents?

A
  1. at least 20 years old
  2. in a condition unlikely to create suspicion AND
  3. was found in a place where such docs would be if they were authentic
97
Q

tangible evidence / documentary evidence

what is the rule for handwriting verification?

A
  1. expert or jury compares it to a known sample OR
  2. lay witness with personal knowledge of the handwriting from before the current litigation
98
Q

tangible evidence / documentary evidence

what are examples of self-authenticating documents?

FRE 902

A
  • public docs with govt seal
  • certified copies of public records
  • official publications issued by public authority
  • trade inscriptions (labels)
  • notarized docs
  • commercial paper
  • newspapers, periodicals, official publications
99
Q

tangible evidence

how do you authenticate oral statements?

A

need to identify the speaker

voice identification - can be authenticated by any person who has heard the voice at any time

phone convos - caller recognized speaker’s voice; speaker knew facts only a particular person would know; caller dialed speakers number and speaker ID’d themself when answering

100
Q

whether a witness meets the qualifications to offer expert testimony is what type of question?

PQs Set 1

A

preliminary question for the court (not jury)
not bound by FRE

101
Q

How can a criminal defendant introduce evidence that their character is inconsistent with the crime charged?

PQs Set 1

A

only through reputation or opinion testimony—not specific acts of conduct

102
Q

can a witness be impeached with evidence of a prior conviction?

PQs Set 1

A

can be impeached with evidence of a prior conviction for a crime involving dishonesty (e.g., embezzlement) if the conviction occurred within the previous 10 years

103
Q

when is evidence of a remedial measure admissible?

PQs Set 1

A

inadmissible if it was undertaken by the defendant after the plaintiff was injured

if undertaken before, it is not subj to exclusion

104
Q

tangible evidence / Best Evidence Rule

what is the Best Evidence Rule? (most basic version)

A

you can’t describe the documents (witness testimony) instead of showing them unless you really need to

limits the ability to present other evidence of the contents of a document, film, recording, etc. when the contents are an issue

“just show us the real doc instead of talking around it”

105
Q

tangible evidence / Best Evidence Rule

are duplicates allowed?

A

okay unless
(1) there is a genuine question about the authenticity of the original
OR
(2) the OG doc should be provided in fairness

106
Q

tangible evidence / Best Evidence Rule

what does it mean that the contents are “at issue”?

A
  • document is used as proof of an event
  • document has actual legal effect (like a contract or will)
  • witness is testifying based on facts only learned from the doc
107
Q

tangible evidence / Best Evidence Rule

a witness actually saw what happens and there is a recording too. is this a Best Evidence Rule problem?

A

no because the witness can describe their personal knowledge of what happened

108
Q

tangible evidence / Best Evidence Rule

what are the exceptions? (list them)

A
  1. unavailable
  2. public records (can use certified copy instead of OG)
  3. voluminous writings (can use a summary / chart)
  4. admission by a party
109
Q

tangible evidence / Best Evidence Rule

can you intro evidence if the contents are unavailable?

A

yes if
1. OG has been lost or destroyed
2. OG can’t be obtained by any judicial process OR
3. party against whom the doc is introduced had control of the OG + knew it was going to be an issue at trial

110
Q

tangible evidence / Best Evidence Rule

what is the rule for testimony of a party against whom the evidence is introduced?

A

testimony (in court or deposition) or a written statement is an exception to Best Evidence Rule

if the statement is out of court, then Rule applies

111
Q

tangible evidence / Best Evidence Rule

are the contents of a document on a collateral matter allowed?

A

yes

collateral matter isn’t closely related to the issue in the case

112
Q

privileges

what is the general principle on privileges under FRE?

A

no specific, codified privileges

113
Q

privileges

what should federal courts do when privilege comes up?

A
  1. defer to general principles of federal common law for most privileges AND
  2. apply state law on privileges when deciding state law issues in diversity jurisdiction
114
Q

privileges / Attorney-Client Privilege

what is Attorney-Client Privilege? (basic rule)

A

protects a (1) confidential (2) communication (3) b/t a client an lawyer (4) if the communication was for the purposes of securing legal advice

115
Q

privileges / Attorney-Client Privilege

who can be forced to testify about the communication?

A

neither the attorney nor client

116
Q

privileges / Attorney-Client Privilege

what does it mean for a communication to be confidential?

A

client must have made reasonable efforts to keep the communication confidential
can’t be in the presence of unnecessary 3p (necessary 3p are okay)
unknown secret eavesdropper does NOT destroy the privilege

117
Q

privileges / Attorney-Client Privilege

what qualifies as a communication?

A

only the communication, not the underlying facts/evidence that client knows/has, is privileged
does NOT protect pre-existing docs
must have been made for the purposes of securing legal advice

118
Q

privileges / Attorney-Client Privilege

who holds the privilege?

A

client!

they have the right to decide whether to disclose the communication (waive the privilege)

119
Q

privileges / Attorney-Client Privilege

what is a waiver?

A

failure to assert privilege in a timely manner
voluntarily disclosure of the info
express waiver, even by contract
filature to take precautions by the lawyer

120
Q

privileges / Attorney-Client Privilege

who is the client for a corporation?

A

federal courts - focus on nature of communications
statement by employee within scope f employment for purposes of seeking legal advice qualifies even if they aren’t a member of the “control group”

some courts - “control group” –> C-suite + BOD basically

121
Q

privileges / Attorney-Client Privilege

what is the crime-fraud exception?

A

if a client communicates to a lawyer for the purposes of getting help with the client knows or should know is a crime or fraud, the communication is NOT privileged

122
Q

privileges / Attorney-Client Privilege

does this privilege apply to disputes b/t lawyer and the client?

A

nope

123
Q

privileges

what is the work product doctrine?

A

docs prepared by lawyer in anticipation of litigation are NOT privileged, but are PROTECTED

124
Q

privileges

what type of work product cannot be obtained?

A

mental impression work product (core work product)

125
Q

privileges

when can you obtain work product from the other side?

A

if party can (1) demonstrate a substantial need for that info AND (2) show that it cannot otherwise be obtained without undue hardship

126
Q

privileges

what are the main categories of privileges we discussed?

A
  • attorney-client
  • physician-patient
  • psychotherapist-patient
  • 5th Amendment
  • spousal - confidentiality marital comms + spousal immunity
127
Q

privileges

what is physician-patient privilege?

A

statements made by patient to a doctor for purpose of obtaining medical treatment

not recognized under federal law, but some states

EXCEPTIONS:

  • info for reasons other than treatment
  • communication was made for some illegal purpose
  • dispute exists b/t dr and patient
  • patient agreed to waive it
128
Q

privileges

what is psychotherapist-patient privilege?

A

confidential communications b/t patient and psychotherapist, psychologist, licensed social worker for purposes of treatment

recognized in federal courts and most jurisdictions

EXCEPTIONS:

  • communication was result of court-ordered exam
  • taken as part of a commitment proceeding (like being committed to mental health facility)
129
Q

privileges

what is the Fifth Amendment protection?

A

prevents witness form being required to give incriminating testimony
applies only to people (not corporations)
applies only to current statements (not prior)
doesn’t apply to blood samples, breathalyzers, etc.
if no risk of criminal trouble, no privilege (like with guaranteed immunity)

130
Q

privileges / spousal

what are the two types of spousal privileges?

A
  1. confidential marriage communications
  2. spousal immunity
131
Q

privileges / spousal

what are confidential marital communications?

A

protects communications made b/t spouses in confidence in reliance on the sanctity of marriage
held by both spouses
survives after marriage

132
Q

privileges / spousal

what is spousal immunity?

A

gives a spouse the right to refuse to testify in a criminal case against their spouse
only applies to currently married spouses not exes
covers testimony about anything, but only applies when currently married
witness spouse holds the privilege

133
Q

privileges / spousal

when do spousal privileges NOT apply?

A
  • one spouse is suing the other
  • one spouse is charged with a crime against the other spouse or their children
134
Q

admissibility of evidence / other categories

Is liability insurance admissible?

A

evidence that a person was/wasn’t insured against liability is NOT admissible to prove negligence or wrongdoing

EXCEPT when evidence of insurance coverage is relevant for some other purpose

135
Q

admissibility of evidence / other categories

are subsequent remedial measures admissible?

A

evidence of repairs or changes made after an accident is NOT admissible to prove negligence, culpable conduct, defective product or design, or inadequate warning

EXCEPT when evidence of subsequent remedial measures is relevant for some other purpose (ownership, control, feasibility)

136
Q

admissibility of evidence / other categories

are settlement offers or negotiations admissible?

A

settlement offer made by any party is NOT admissible to prove validity OR amount of a disputed claim

applies to settlement offers AND conduct or statements made during settlement negotiations

can’t be used as prior inconsistent statement to impeach

EXCEPT may be admissible if it serves another purpose (e.g., bias)

can’t be unilaterally waived by either party

137
Q

admissibility of evidence / other categories

is the victim’s past sexual conduct admissible?

A

in general, NOT admissible in criminal proceeding involving sexual conduct

exceptions in criminal case
admissible to (1) show that defendant was/wasn’t the source of physical evidence (semen, bruises)
(2) show victim’s past sexual induct with defendant to show consent OR
(3) exclusion would be too unconstitutional / unfair to the defendant

exceptions in civil cases
admissible only if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party
evidence of reputation is admissible only if victim brings it up

138
Q

admissibility of evidence / other categories

are offers to pay medical expenses admissible?

A

NOT admissible to prove liability for injuries

statements made or conduct accompanying offer may be admissible

139
Q

admissibility of evidence / other categories

are plea negotiations admissible?

A

NOT admissible in civil or criminal case

incl. withdrawn guilt pleas, nolo contendere pleas, offers to plead guilty, statements made while negotiating a plea

140
Q

admissibility of evidence / other categories

is defendant’s past sexual conduct admissible?

FRE 413-15

A

evidence that the defend committed any other sexual assault or child molestation is admissible to prove any relevant matter

criminal or civil case where defendant is accused of an act of sexual assault or child molestation

admissible for any relevant purpose, including propensity

141
Q

hearsay / definition

what is the definition of hearsay?

A

out of court statement offered to prove the truth of the matter asserted

declarant is being treated like a witness (like a source of info)

142
Q

privileges / spousal

what type of spousal privilege can one spouse prevent the other from using?

A

confidential marital communications

143
Q

hearsay / definition

what is an out of court statement?

A
  • spoken or written
  • can include assertive nonverbal conduct (pointing)
144
Q

hearsay / definition

what do you call the person who made the out of court statement?

A

declarant

145
Q

hearsay / definition

what does “offered to prove the truth of the matter asserted” mean?

A

when the declarant is acting like a witness –> hearsay rule applies

if witness = declarant –> out of court statement may still be hearsay

if statement is used for some other purpose –> not hearsay

146
Q

hearsay / definition

is a verbal act or legally operative facts hearsay?

A

not hearsay

statement offered to prove that the statement was made –> verbal conduct not hearsay

147
Q

hearsay / definition

is the effect on the listener hearsay?

A

not hearsay

statement offered to show the effect on the person who heard it

148
Q

hearsay / definition

is the state of mind hearsay?

A

not hearsay

statement offered as circumstantial evidence of the declarant’s mental state

circumstantial evidence can be used to show knowledge

149
Q

tip

what steps should I follow for a hearsay problem?

A
  1. is there an out of court statement?
  2. is the statement being used to prove the truth of the matter asserted? (conduct has to be assertive)
    so it is hearsay by definition
  3. does it fall within the definition of non-hearsay?
  4. determine whether the declarant is unavailable –> check those hearsay exceptions
  5. check the rest of exceptions that might allow admission of the hearsay statement
150
Q

hearsay / definition

how do you handle multiple levels of hearsay?

ex. witness reads a letter from their brother and the letter mentions a convo with the mom

A

need an exception or exclusion for each level of hearsay for the statement to be admissible

151
Q

hearsay / non-hearsay

what are the two big categories that are excluded from the definition of hearsay?

A
  1. certain prior statements of testifying witnesses
  2. admissions of a party opponent
152
Q

hearsay / non-hearsay / certain prior statements of testifying witness

what is the threshold question for these statements?

A

declarant (1) must testify as a witness and (2) be subject to cross-examination for these exclusions to apply to (3) their earlier statements

153
Q

hearsay / non-hearsay / certain prior statements of testifying witness

what are the three types of these statements?

A
  1. prior inconsistent statements
  2. prior consistent statements
  3. prior statements of identification
154
Q

hearsay / non-hearsay / certain prior statements of testifying witness

what is the rule for prior inconsistent statements? how can they be used?

A

only prior inconsistent statements that were (1) made under oath (2) at a trial, hearing, or deposition

are admissible as substantive evidence

155
Q

hearsay / non-hearsay / certain prior statements of testifying witness

can a prior inconsistent be used to impeach?

A

yes b/c impeachment is a non-hearsay purpose

156
Q

hearsay / non-hearsay / certain prior statements of testifying witness

what is the rule for prior consistent statements? how can they be used?

A

can be used to rehabilitate a witness when accused of recent fabrication or improper motive

can be used as substantive evidence

157
Q

what is substantive evidence?

A

used as proof of the truth of the matter asserted

158
Q

hearsay / non-hearsay / certain prior statements of testifying witness

how can prior statements of identification be used?

A

previous out of court ID of a person after perceiving that person is admissible

ex. police line-up

still requires the the declarant testify as a witness + be subject to cross examination

159
Q

hearsay / non-hearsay / admissions of a party opponent

what is the general rule?

A

if the statement that is being introduced against a party is the party’s own prior statement, then it is NOT hearsay

applies to anything a party said

must be offered by the opposing party

160
Q

hearsay / non-hearsay / admissions of a party opponent

what are adoptive admissions?

A

a statement made by someone else, which is then expressly or impliedly adopted

I ask FP to tell our meet cute story and I agree and correct it in real time.

161
Q

hearsay / non-hearsay / admissions of a party opponent

can you adopt a statement by silence?

A

yes if
(1) party heard the statement and understood it
(2) party had the ability to respond AND
(3) reasonable person similarly situated would have denied the statement

162
Q

hearsay / non-hearsay / admissions of a party opponent

Is an adoptive admission hearsay?

A

no

163
Q

hearsay / non-hearsay / admissions of a party opponent

what is a vicarious admission?

A

statements made by persons authorize to speak on a party’s behalf (e.g., PR reps, lawyers)
statements made by agents or employees made within the scope of employment

164
Q

hearsay / non-hearsay / admissions of a party opponent

is a vicarious admission hearsay?

A

not hearsay

165
Q

hearsay / non-hearsay / admissions of a party opponent

are statements of co-conspirators admissible?

A

statements made by co-conspirators during and in furtherance of a conspiracy are admissible against other co-conspirators

166
Q

hearsay / non-hearsay / admissions of a party opponent

what are the preliminary questions for a court to ask?

A

in deciding whether there was a conspiracy or an agency relationship –> ct can’t base its finding solely on the contents of the statement itself

pure “boot-strapping” is not permitted
must be some other evidence to support the finding

167
Q

hearsay / exceptions

what are the categories to the hearsay exceptions

A
  1. declarant unavailable as witness
  2. declarant’s availability as a witness immaterial
168
Q

hearsay / exceptions / declarant unavailable

what is the threshold requirements exceptions when the declarant is unavailable?

A

must show the declarant is unavailable to testify as a witness

unavailability alone doesn’t make a declarant’s out of court statement admissible

169
Q

hearsay / exceptions / declarant unavailable

what is the declarant unavailable?

when do they qualify as unavailable

A
  • exempted from testifying on the grounds of privilege
  • refuses to testify
  • lacks memory of the subject matter
  • dead or too ill
  • absent and can’t be subpoenaed or otherwise made available
  • NOT considered unavailable if party wrongfully renders the declarant unavailable for the purpose of preventing testimony
170
Q

hearsay / exceptions / declarant unavailable

what is the list of exceptions?

A
  1. former testimony
  2. dying declarations
  3. statements against interest
  4. statements of personal or family history
  5. forfeiture by misconduct / declarant unavailable due to party’s wrongdoing
171
Q

hearsay / exceptions / declarant unavailable

what is required for the former testimony exception?

A

given by unavailable witness who gave testimony at a prior hearing or deposition

admissible in a subsequent trial if the party against whom the testimony is being offered (1) had an opportunity and (2) similar motive to develop the testimony by direct or cross at prior trial, deposition, or hearing

172
Q

hearsay / exceptions / declarant unavailable

what is required for the statements of personal or family history exception?

A

statements concerning the unavailable declarant’s own birth, adoption, marriage, etc.

NOT excluded as hearsay, admissible

173
Q

hearsay / exceptions / declarant unavailable

what is required for the dying declarations exception?

A
  1. individual believes they’re dying
  2. individual believes death is imminent AND
  3. statement relates to the cause or circumstances of death

admissible in homicide or civil case

declarant doesn’t actually have to die

174
Q

hearsay / exceptions / declarant unavailable

what is required for the statements against interest exception?

A

(1) at the time it was made, statement was against the (2) declarant’s pecuniary, proprietary, civil, or penal interest (3) such that a reasonable person would not have made the statement (4) UNLESS it were true

statements that would subject the declarant to CRIMINAL liability are NOT admissible UNLESS corroborating circumstances clearly indicate the trustworthiness of the statement

175
Q

hearsay / exceptions / declarant unavailable

what is required for forfeiture by misconduct / declarant unavailable due to party’s wrongdoing?

A

(1) if party engages in wrongdoing for the purpose of making the declarant unavailable to testify, (2) and renders the declarant unavailable,
THEN (3) party cannot claim the declarant is unavailable AND
(4) door is open to use anything the declarant said against the party

176
Q

hearsay / exceptions / declarant’s availability immaterial

what is the full list of exceptions where the declarant’s availability is immaterial?

A
  • present sense impression
  • excited utterance
  • state of mind
  • statements made for the purposes of medical diagnosis or treatment
  • past recollection recorded
  • business records
  • public records
  • learned treatises
  • judgment of previous conviction
  • records of vital stats
  • statements in ancient docs
  • market reports and commercial publications
  • marriage and baptism certificates
    etc.
177
Q

hearsay / exceptions / declarant’s availability immaterial

what is Present Sense Impression?

A

statement made while declarant was perceiving the event or immediately after, describes or explains the event

NOT excluded as hearsay

like narrating what’s happening in real time to someone on the phone

178
Q

hearsay / exceptions / declarant’s availability immaterial

what is Excited Utterance?

A

statement relating to a startling event or condition while the declarant is still under the stress of excitement caused by teh event or condition

NOT excluded as hearsay

179
Q

hearsay / exceptions / declarant’s availability immaterial

what is the State of Mind (mental, emotional, physical condition) exception?

A

statement of a declarant’s then-existing physical, mental, emotional condition is ADMISSIBLE to prove the existence of that condition

statement of intent can be used to prove action in conformity with that intent

NOT excluded as hearsay

180
Q

hearsay / exceptions / declarant’s availability immaterial

what is the rule for statements made for the purposes of medical diagnosis or treatment?

A

describe a declarant’s medical history or past/present symptoms or even cause of an injury

if pertinent to treatment or diagnosis –> NOT excluded as hearsay

doesn’t need to be made directly to the doctor or made by the patient

181
Q

hearsay / exceptions / declarant’s availability immaterial

what is the rule for business records?

A

any record or writing of an act or event made in the course of a regularly conducted business activity

admissible if record was made
1. at or near the event it records
2. by a person with knowledge of the event and under a duty to report it (or transmitted by such a person) AND
3. as part of the regular practice of the business to make that kind of records

does NOT include records in anticipation of litigation

courts have discretion to exclude if source of info or method or circumstances indicate lack of trustworthiness

182
Q

hearsay / exceptions / declarant’s availability immaterial

what is the rule for public records? (general)

A

ADMISSIBLE if relate to
1. activities
2. observations AND
3. factual findings and conclusions

183
Q

hearsay / exceptions / declarant’s availability immaterial

what is the rule for public records of law enforcement?

A

can only introduce activities, not what was observed or concluded

PBPL: want officer to actually testify and be subject to cross examination

184
Q

hearsay / exceptions / declarant’s availability immaterial

what is the rule for learned treatises (historical, scientific, or medical)?

A

may be used to impeach expert witnesses

may be used as substantive evidence once it is established as a reliable authority, an expert relied on it, or it was used to cross-examine an expert

185
Q

hearsay / exceptions / declarant’s availability immaterial

what is the rule for judgment of a previous conviction?

A

admissible to prove any fact that was essential to the judgment

186
Q

hearsay / exceptions / declarant’s availability immaterial

what is the rule for reputation?

A

hearsay exception for reputation or character of a person

only narrow circumstances when reputation/character evidence is admissible

187
Q

hearsay / Constitutional limits

what is the Confrontation Clause (6th Amendment)?

A
  • criminal defendants have the right to be confronted with the witnesses against them
  • witnesses must testify in front of the accused (face-to-face preferred)
  • out of court statements that are testimonial give rise to Confrontation Clause problems
188
Q

what is a testimonial statement?

A

made with the primary purpose of ascertaining past criminal conduct

does not include statements for the purpose of getting emergency help

189
Q

hearsay / Constitutional limits

when can testimonial statements be admitted under Confrontation Clause (6th)?

A

only be admitted against a criminal defendant IF
1. declarant is now unavailable AND
2. declarant had a prior oppy to cross examine that declarant

190
Q

hearsay / Constitutional limits

who has the burden of the Confrontation Clause (6th)?

A

separate hurdle for prosecutors

191
Q

hearsay / Constitutional limits

Due Process (14th)

A

if evidence rules restrict a criminal defendant’s ability to mount a defense, rules might violate DP

192
Q

hearsay

does the hearsay general rule apply to statements made by a machine?

UWorld

A

nope, only those from people

193
Q

when one side uses a writing (or other evidence) to refresh a witnesses’s memory, is the other side entitled to inspect it?

UWorld

A

if evidence is used while testifying –> court must allow other side to inspect, cross-examine, and intro any relevant part into evidence

if evidence is used before testifying –> ct may allow opposing party

194
Q

who can authenticate a photo?

UWorld

A

any witness with the requisite personal knowledge

not just the photog

195
Q

are the client’s legal fees protected under attorney-client privilege?

UWorld

A

not privileged

merely incidental to providing legal assistance

196
Q

hearsay

what is the hearsay exception for absent public records?

PQs Set 2

A

testimony by a public official that a diligent search failed to disclose a public record is admissible to prove that the record does not exist—if the public office regularly kept records for a matter of that kind

197
Q

can a witness be impeached by evidence that directly contradicts the witness’s testimony on a material issue?

PQs Set 2

A

yes, using intrinsic or extrinsic evidence

198
Q

under the rule of completeness, can you introduce another document?

PQs Set 2

A

party may introduce any part of a previously admitted writing or recorded statement, or any other writing or recorded statement, that in fairness should be considered at the same time

true even if the additional evidence is otherwise inadmissible

199
Q

when is character evidence admissible?

PQs Set 2

A

if a person’s character is an essential element of a civil claim, criminal charge, or asserted defense

200
Q

what are the ways to attack a witness’s character for truthfulness?

PQs Set 2

A

(1) reputation or opinion testimony OR (2) specific instances of conduct that are probative

(2) can be (a) convictions for a felony or crime of dishonesty or (b) other bad acts (mere arrest doesn’t qualify)

201
Q

what does it mean to sustain and overrule objections?

A

overruled - objection is rejected, evidence is admitted

sustained - objection is accepted, evidence is excluded

202
Q

When state law supplies the rule of decision for a claim or defense, what law should the court apply?

PQs Set 2

A

court should also apply state law to determine the effect of a presumption on the claim or defense

203
Q

can prior crimes and acts be shown to prove a person’s character?

UWorld

A

no, can’t be used to show a person’s propensity to behave in a certain manner

204
Q

does the Best Evidence Rule apply to real or physical evidence?

PQs Set 3

A

no, not subject to the Rule

205
Q

can a D waive the protection of statements during plea negotiations (these are generally inadmissible)?

PQs Set 3

A

yes if waiver is made knowingly and voluntarily

206
Q

when is a prior inconsistent statement admissible nonhearsay?

PQs Set 3

A

substantively
(1) it was given under penalty of perjury at a trial, hearing, deposition, or other proceeding AND
(2) the declarant testifies and is subject to cross-examination

impeachment
extrinsically for impeachment purposes if the witness has the opportunity to explain or deny, and the adverse party can examine the witness about, the statement

207
Q

what is the bursting bubble approach under FRE?

PQs Set 3

A

rebuttable presumption “bursts” when the opposing party in a civil case produces sufficient evidence to contradict the presumed fact

The fact finder must then weigh the evidence to decide the issue

208
Q

what is the burden and which party has it when introducing evidence for convictions for felonies not involving dishonesty?

PQs Set 3

A

Convictions for felonies not involving dishonesty that are no more than 10 years old are admissible against a civil witness UNLESS the party opposing the introduction of the conviction shows that its probative value is substantially outweighed by its prejudicial effect

209
Q

how do you authenticate an item of evidence that is a physical representation of something that could not have otherwise been seen?

ex. x-ray image

PQs Set 3

A

proof of
1. process for creating the evidence was accurate
2. machine that produced the evidence was working properly
AND
3. operator of the machine was qualified to operate it

210
Q

are compromise offers (and acceptances) + statements made during these negotiations generally admissible?

PQs Set 3

A

generally inadmissible to (1) prove/disprove the validity or amount of a disputed claim or (2) impeach by a prior inconsistent statement or contradiction

211
Q

what is the doctrine of curative admission?

PQs Set 4

A

when inadmissible evidence is improperly admitted against a party, the court may permit that party to introduce additional inadmissible evidence for the purpose of rebuttal

meant to remedy the prejudicial effect caused by the previously admitted evidence

212
Q

if a party is using secondary evidence (testimony) to prove a document’s content when the doc in unavailable, what is the role of the judge vs. jury?

best evidence rule

PQs Set 4

A
  • court determines whether a party has fulfilled the factual conditions to admit other evidence to prove the content of a document
  • jury determines any issue of whether (1) an asserted document ever existed, (2) another document is the original, or (3) other evidence of content accurately reflects the content.
213
Q

what is the federal inadvertent-waiver rule?

PQs Set 4

A

an inadvertent disclosure of protected information does NOT waive the attorney-client privilege or the attorney work-product doctrine
IF
(1) the disclosure was in a federal proceeding or to a federal agency AND (2) the privilege holder attempted to prevent disclosure and promptly tried to rectify the error

214
Q

tip

If I’m dealing with evidence, what should I think about?

A

is the evidence even relevant!

Rocking the Bar Exam (15 decks)

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