Brainscape's Knowledge GenomeTM

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


See full index

Bar Exam Study > Evidence > Flashcards

Evidence Flashcards

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

List Public Policy Exceptions to Relevance

A

Liability Insurance
Subsequent Remedial Measure
Civil Settlements and Negotiations
Plea Discussion
Offers to Pay Medical Expenses

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

Liability Insurance

A

insurance or lack of insurance is inadmissible to prove negligence or wrongful conduct but can be admissible for another relevant purpose like impeachment or ownership if disputed

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

Subsequent Remedial Measures

A

evidence of repairs or precautionary measures made following an injury is inadmissible to prove negligence, culpable conduct, need for warning etc

ADMISSIBLE to rebut a claim that edit wasn’t feasible, to establish ownership/control or prove destruction

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

Civil Settlements and Negotiations

A

evidence of a compromise or offer to compromise a civil claim is inadmissible to prove/disprove validity or a claim or amount disputed AND inadmissible to impeach a witness by prior inconsistent statement

Admissible to impeach on bias

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

Plea Discussions

A

inadmissible in any criminal /civil case against D who made the plea

an actual guilty plea not withdrawn is generally admissible in the related litigation

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

Offer to Pay medical expenses

A

inadmissible to prove liability for injury, but admissions of fact accompanying the payment is admissible

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

Relevant Evidence Rule

A

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

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

All Relevant evidence is admissible unless

A

kept out by some evidence rule
OR
court uses rule 403 discretion to exclude

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Rule 403 Exclusions

A

judge has discretion to exclude evidence if its probative value is substantially outweighed by any of the following:
(1) unfair prejudice)
(2) confusion of the issues
(3) misleading the jury
(4) undue delay
(5) waste of time
(6) cumulative

NOT unfair surprise

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

Character Evidence General Rule

A

may be offered as substantive evidence if:
(1) to prove a person’s character in the rare situation where character is directly an issue or element i the crime (defamation)
(2) to circumstantially prove how the person probably acted (character in conformity)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Witness Sequestration Rule

A

upon request, the judge MUST exclude witnesses from the court room and the judge may also exclude sua sponte

(limitations)

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

Limitation to Witness Sequestration Rule

A

judge must NOT exclude
(1) party or party’s designated representative
(2) person whose presence is essential
OR
(3) perso statutorily authorized to be present

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

What are the only times you can bring something in as substantive evidence

A

(1) Prior Inconsistent Statements: admitted as substantive evidence if prior statement was made under oath
(2) Learned Treatises are admissible as substantive proof if established as a reliable authority in the field AND the excerpt is relied upon by the expert OR brought to their attention on cross
(3) (technically) Present State of Mind: statements of memory CANNOT be used to establish the truth of the statement as perceived (so technically not admitted as substantive evidence)

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

What categories are definitionally NOT hearsay (baptized)

A

(1) prior statement of a testifying witness
(2) part opponent
(3) Prior Sworn Inconsistent Statement
(4) Prior Consistent Statement to Rehabilitate the Witness

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

What types of hearsay require unavailability

A

(1) former testimony
(2) statement against interest
(3) Dying Declaration
(4) Statement of Personal or Family History

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

What are the grounds for unavailability

A

(1) Death/Illness (Physical or Mental)
(2) Privilege (exempt from testifying)
(3) Refusal to testify despite court order
(4) inability to remember the subject matter
(5) Absent and their attendance cannot be procured by process

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

Confrontation Clause Backstop

A

even if there is an exception to hearsay that would get the statement in, do not admit it if:
(1) statement is offered against a criminal defendant
(2) declarant is unavailable
(3) D did not had an opportunity to cross examine the declarant about the statement
(4) AND the statement is testimonial
(a) sworn testimony, statement made to law enforcement, or certain documents
(b) primary purpose test: if to aid in an ongoing emergency, then it is not testimonial; if statement made to provide information for a later prosecution then testimonial

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

Excited Utterance Elements

A

(1) startling event
(2) still under the stress or excitement of that event

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

Present Sense Impression

A

(1) made immediately after the declarant perceived an event or condition
(2) describing or explaining the event or condition

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

Present State of Mind

A

(1) pain emotion or intent or sensory/physical condition
(2) but NOT memory or belief

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

Statements of Medical Treatment or Diagnosis

A

(1) made for medical diagnosis or treatment
(2)describing medical history, past or present sympoms, or their inception/general cause

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

Business Record Elements

A

(1) record of facts, conditions, events, opinions, or diagnosis
(2) made at or near the time of the occurrence
(3) by someone with personal knowledge or informed by someone with personal knowledge
(4) made and kept in the regular course of business

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

Former Testimony Elements

A

(1) given under oath in the same or different case
AND
(2) opportunity/motive to develop it

NOT substantive evidence

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

Statement Against Interest Elements

A

(1) statement made against pecuniary, proprietary, or penal interest
(2) when made
(3) that a reasonable person would only say if it were true
(4) personal knowledge of the facts
(5) AND be aware that what is being said is against interest at the time they’re making the statement

Note: if against penal interest then needs some corroboration

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

Dying Declaration Elements

A

(1) criminal homicide case OR in any civil case
(2) belief of imminent death
(3) statement concerns the cause or circumstances of their impending death
(4) based on personal knowledge
(5) unavailable (don’t have to die, just have to be unavailable)

traditional rule = you have to be dead

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

Family History Hearsay Exception Elements

A

(1) member of family or intimately associated with family
(2) AN based on personal knowledge of facts or reputation of the family

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

Lay Witness Testimony Admissibility

A

(1) rationally based on perception of the witness
(2) helpful to clear understanding of testimony or fact at issue
(3) requires no specialized skill or knowledge

28
Q

Habit Evidence

A

Person’s response to a specific set of circumstances being offered to prove that person acted in conformity with that habit at the date in question

29
Q

Impeachment

A

A witness’s credibility may be attacked by any party, including the party calling,

30
Q

Defendant’s Character in Criminal Case

A

prosecution cannot initiate introduction of bad character evidence to show conduct in conformity

31
Q

Victim’s Character in Criminal Case

A

D can offer evidence re victim’s character for the relevant trait when relevant to D’s innocence

P may rebut with (1) evidence of D’s own bad character for that trait OR (2) evidence of victim’s good character for that trait

32
Q

Victim’s Character Evidence in Homicide Case

A

if D claims self defense then evidence of any kind (including eyewitness) that the victim was first aggressor opens the door to evidence of victim’s peacefulness

33
Q

Victim’s Character Evidence in a Rape Case

A

generally inadmissible except
(1) criminal case to prove different source of injury or semen
(2) to establish consent based on victim’s previous interactions with D

34
Q

Victim Character Evidence in Civil Rape Case

A

generally inadmissible under the probative value of the evidence substantially outweighs the prejudicial effect/harm to victim (reverse 403)

35
Q

Non Character Purpose for Admission

A

M - Motive
I - Intent
M - Mistake (Absence of)
I - Identity (Modus Operandi)
C - Common Plan or Scheme

need sufficient evidence that D did commit the other misconduct subject to 403 balancing

36
Q

Defendant Misconduct in Sex Crime Cases

A

admissible for any purpose including propensity in criminal or civil crime involving alleged sexual assault or child molestation

37
Q

Authentication Rule

A

writing or secondary evidence of the content will not be received into evidence unless authenticated. (see methods of authenticating)

38
Q

Methods of Authenticating (Generally)

A

(1) pleadings/stipulation
(2) opponent admission
(3) eyewitness testimony
(4) handwriting verification
(5) Ancient Documents from 1998
(6) Reply Letter Doctrine
(7) Photos and Videos
(8) X Ray

39
Q

X-Ray Authentication

A

must be authenticated by process
(1) machine worked
(2) properly operated
(3) chain of custody to ensure no tampering

40
Q

Photos and Videos

A

General: someone w personal knowledge of the scene (1) portrayal of certain facts relevant to issue and (2) verified as an accurate representation of the facts

Unintended camera : (1) it was working at the time and (2) photo/video was downloaded from that camera

41
Q

Reply Letter Doctrine

A

evidence written in response to communication sent to alleged author

42
Q

Ancient Documents 1998

A

(1) at least 20 years old when offered into evidence
(2) in a condition no suspicion re authenticity
(3) was found in a place such writing would be kept

43
Q

Handwriting Verification

A

Lay Person - familiar with handwriting before litigation, no comparison, may testify re authenticity handwriting

Expert Opinion - comparison of handwriting

Jury - comparison of handwriting

44
Q

Voice Identification

A

identified by
(1) any person who has heard the voice at any time (Even after the start of litigation)

45
Q

Telephone Conversation

A

can be authenticated by any party to the call who testifies that:
(1) person recognizes voice
(2) speaker had knowledge of certain facts only they would have
(3) called certain number and they answered as that person/residence
(4) called business and talked w person who answered about relevant business

46
Q

Self Authenticating Documents

A

(1) Domestic public documents w the seal
(2) official publications and government pamphlet
(3) Certified copies of public record or private files on record at public office
(4) newspapers and periodicals
(5) trade inscriptions/labels
(6) notarized/acknowledged docs
(7) commercial paper, including signatures and related documents
(8) Business records and electronically generated records w certification

47
Q

The Best Evidence Rule

A

to prove the content of a writing, recording, or photograph, the original must be produced if the terms of the writing were material.

48
Q

proving the contents of a writing where:

A

(1) the writing is legally operative (Creates rights or obligations)
(2) knowledge of witness from having read the writing/seen the thing

49
Q

Best evidence rule Original

A

the writing itself or any counterpart (includes negative of picture or any printouts)

50
Q

Real Evidence

A

must be authenticated and in substantially the same condition

51
Q

Refreshing Recollection

A

after witness says they don’t remember, you can hand them memorandum to read over, then take it back and have them testify aloudR

52
Q

Recorded Recollections

A

Gets read (not submitted) into evidence if:
(1) witness insufficient recollection to testify
(2) witness had personal knowledge of the facts in the record when made
(3) record was made by the witness or under their direction or adopted by witness
(4) record was made when the matter was fresh in witness’s mind AND
(5) record accurately reflects witness knowledge (witness vouches)

53
Q

Expert Opinion - Admissible if

A

(1) Helpful
(2) Opinion Based on Sufficient Facts or Data
(3) Reliable Application of principles
(4) Witness qualified as an expert

54
Q

Expert Testimony - Proper Factual Basis for Opinions

A

Facts based on own observation
Facts made known to expert at trial
Facts not known but personally supplied and reasonably relied upon

55
Q

Reasonable Probability - Expert Opinion

A

Daubert Factors
T - Tested
R - Rate of Error
A - Accepted
P - Peer Reviewed

56
Q

Prior Inconsistent Evidence

A

witness has on another occasion made statements inconsistent w present testimony.

Impeach if: (foundation + relevant)
(1) witness opportunity to explain or deny
(2) adverse party opportunity to examine witness
(see exceptions)

Substantive Evidence if: Under Oath

57
Q

Prior Inconsistent Statements Foundation Exception

A

(1) party opponent
(2) hearsay declarant
(3) where justice requires

58
Q

Bias Impeachment

A

Evidence that witness is biased, can permit extrinsic evidence even if witness admits the bias

59
Q

Sensory Deficiencies

A

impeached by showing faculties of perception or recollection are faulty such that it’s doubtful they could’ve perceived what they claim to have perceived

60
Q

Contradiction Impeachment

A

if witness admits a mistake or lie, they’re impeached
Extrinsic evidence only if major point

61
Q

Spousal Testimonial Privilege

A

Criminal Cases Only
Prevents D spouse from testifying during marriage, even if the event took place before, witness spouse holds and waives the privilege

62
Q

Confidential Marital Communications

A
  1. Civil OR Criminal
  2. During valid marriage, must exist when communication is made, nothing terminates re things said in marriage
    either spouse can prevent the other from testifying
  3. Threats/Abuse not protected
  4. statements made in presence of third party not privilege (except young children)
63
Q

Physician-Patient Privilege

A

State Only
Professional relationship existed
the info acquired for purpose of diagnosis or treatment

EXCEPT patient puts physical condition in issue

64
Q

Judicial Notice

A

the court recognizing a fact as true without formal presentation of evidence. can take notice of fact not subject to reasonable dispute because
(1) generally known within trial court’s jurisdiction
OR
(2) can be accurately and readily determined from sources that cannot reasonably be questioned (scientific facts and principles)

65
Q

Judicial Notice Effect

A

Conclusive in civil but not criminal case
Civil Case: jury must accept as true
Criminal Case: jury told they may but don’t have to accept

66
Q
A

Bar Exam Study (11 decks)

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