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Bar II > Evidence > Flashcards

Evidence Flashcards

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1
Q

rule for probative evidence

A

evidence has a tendency to make a fact more or less probable

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2
Q

rule for material evidence

A

evidence is of consequence in deciding

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3
Q

when can you exclude relevant evidence

A

probative value is substantially outweighed by range of unfair prejudice

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4
Q

rule for relevance dependent on existence of fact

A

must have sufficient evidence that fact does exist and so it can be admitted on condition that the fact is later introduced

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5
Q

rule for character evidence in civil case

A

inadmissible to show person acted with accordance of a particular trait on a particular occasion

exception: trait is an element

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6
Q

rule for character evidence in criminal case

A

∆’s character
- by prosecution: not allowed to show propensity
- by defense: ∆ can put on evidence of good character using reputation or opinion – but opens the door

victim’s character
- by defense: can put on evidence but opens the door for prosecution to rebut victim’s character AND come after∆ for that same trait

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7
Q

when can you use specific bad acts

A

ONLY for non TOMA purposes:

Motive
Intent
Absence of Mistake
Identity
Common plan

can ask witness about specific bad acts on cross

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8
Q

test for witness competence

A

takes oath to tell truth
personal knowledge
knows difference between true and false

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9
Q

methods to impeach witness

A
  1. bias
  2. defects in memory/perception
  3. showing bad character for truthfulness
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10
Q

methods for impeaching a witness with bad character for truthfulness

A
  1. prior bad acts
  2. prior convictions
  3. reputation evidence
  4. prior inconsistent statements
  5. contradicting with counter proof
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11
Q

how do you use prior bad (un convicted) acts to impeach witness by showing bad character for truthfulness

A
  • can only do it on cross
  • can ask about an act that shows untruthfulness
  • but only intrinsic evidence allowed so must accept answer
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12
Q

how do you use prior convictions to impeach witness for bad character for truthfulness

A
  • must be felony or dishonest misdemeanor
  • within last 10 years
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13
Q

how do you rehab witness

A

allow witness to explain on redirect
show good character
show prior consistent

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14
Q

how do you use present recollection refreshed

A

o Establish that witness can’t remember
o Ask witness if it would be helpful to see specific document
o Show document to witness
o Confirm it helped
o Take document away and proceed
o Evidence is the testimony, not the document

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15
Q

test for if someone can be an expert witness

A

 Testimony is based on sufficient facts and data
 Testimony is product of reliable principles and methods
 Witness has applied those principles and methods

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16
Q

when can lay witness offer opinion

A

Anyone can offer opinions as long as
 Rationally based on witness’s perception
 Helpful to clear understanding or determination of fact

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17
Q

four step analysis for hearsay

A
  • is it relevant? Non TOMA purposes?
  • is it non hearsay?
  • do any hearsay exceptions apply?
  • if criminal: any 6th amendment confrontation issues?
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18
Q

what are the non TOMA purposes

A
  • Impeachment
  • Verbal act
  • Effect on listener
  • Verbal object/marker
  • Circumstantial evidence of state of mind
  • Circumstantial evidence of special knowledge
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19
Q

what is non hearsay

A

 Prior inconsistent statement by declarant witness
 Prior consistent statement by witness
 Prior statement of identification by witness
 Statement by party opponent

20
Q

what counts as statement by party opponent

A
  • His own statement
  • Statement he adopted with silence
  • Someone he authorized or his agent
  • Co conspirator
21
Q

What are the unrestricted hearsay exceptions

A
  1. present sense impression
  2. excited utterance
  3. then existing mental, physical, emotional condition
  4. medical treatment
  5. past recollection recorded
  6. business records
  7. public records
  8. learned treatise
22
Q

what are the hearsay exceptions if witness is unavailable

A
  1. former testimony
  2. dying declaration
  3. statement against interest
  4. statement of personal or family history
  5. statement by someone ∆ prevented coming to trial
23
Q

five requirements for hearsay

A
  1. out of court
  2. statement
  3. by a qualifying declarant
  4. offered for truth of the matter
  5. not prior statement by declarant witness or statement by party opponent
24
Q

how do you authenticate physical objects

A

Usually personal knowledge, distinct characteristics, chain of custody

25
Q

how do you authenticate photos

A

someone with personal knowledge

26
Q

how do you authenticate x rays

A

have to show machine was working and everything done correctly

27
Q

how do you authenticate documents

A

stipulation, eyewitnesses, handwriting

ancient: 20 years old, in place where it makes sense to be

28
Q

how do you authenticate oral statements

A

voice: anyone who has ever heard it can ID
telephone: recognize voice, speaker knew stuff, number was his, he identified self

29
Q

what is the best evidence rule

A

original document must be brought to court to prove contents of document when the CONTENTS are at issue

duplicates ok if no suspicion

original not required if destroyed/lost in good faith

30
Q

what is the parole evidence rule

A

Complete integration: no extrinsic evidence

Partial integration: evidence that adds but does not contradict is admissible

31
Q

when is parole evidence always ok

A

o Clarify ambiguity
o Prove course of dealings
o Show fraud/duress/mistake
o Show presence/absence of consideration

32
Q

describe spousal privilege

A

Don’t have to testify against spouse (Ends on divorce)

Confidential marital communications (lasts forever)
 Majority view: both spouses hold privilege and can stop the other from testifying

33
Q

define attorney client privilege and exceptions

A

Confidential communication for purpose of receiving legal advice

 Crime fraud
 Dispute
 Former co-clients now adverse

34
Q

what is the work product doctrine

A

documents prepared in anticipation of litigation are protected unless i) substantial need and ii) undue hardship

35
Q

what do we not consider as evidence due to public policy

A
  • Subsequent remedial measures
  • Compromise offers and negotiations
  • Insurance
  • Sexual conduct
36
Q

when can you discuss victim’s sexual history

A

can use to show ∆ wasn’t source of physical evidence, if character placed in issue by victim, probative value substantially outweighs prejudice

37
Q

when can you talk about ∆’s sexual conduct

A

sexual assault or diddling case

38
Q

test for if statement was testimonial

A

was the main objective emergency assistance?
o Could speaker anticipate this being told in court?

39
Q

when is sixth amendment right to confront waived

A

if declarant is unavailable because of ∆

40
Q

Rule 403 balancing test says exclude evidence if the probative value is substantially outweighed by danger of:

A
  • Unfair prejudice
  • Confusion of the issues
  • Misleading the jury
  • Undue delay/waste of time or
  • Needless presentation of cumulative evidence
41
Q

in essays, remember to always discuss ____ first

A

relevance!

Relevant if makes material fact more or less likely

Explain how that fact helps case

42
Q

expert evidence is admissible if it

A

relevant: will help trier of fact understand the evidence or determine a fact in issue AND

reliable: based on sufficient facts /data and reliable principles /methods

party seeking to admit must prove by preponderance

43
Q

when does defendant forfeit right to hearsay/confrontation clause because he made the declarant unavailable

A

when proved by preponderance of evidence that he

wrongfully caused declarant’s unavailable

did so intending to keep witness form talking

44
Q

when does a party have to object if they want to preserve the right to challenge the admission of evidence on appeal

A

at the first opportunity

and must state the grounds for the objection

45
Q
A

Bar II (16 decks)

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