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Bar Exam > Evidence > Flashcards

Evidence Flashcards

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1
Q

When do federal rules of evidence NOT apply?

A

State law re: privilege in diversity cases
Preliminary questions of fact relating to admissibility, grand jury proceedings, and other misc proceedings (sentencing, arrest, etc.)

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2
Q

Relevance

A

Tendency to make fact of consequence more or less probable than w/o it

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3
Q

Admissibility of evidence that a person filed past similar claims/prior accidents

A

Inadmissible to show invalidity of present claim
Admissible to show P made previous similar false claims or that P’s condition is due to a prior accident

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4
Q

Admissibility of evidence of other accidents involving D

A

Only admissible if prior accidents/injuries caused by same event under similar circumstances to prove existence of dangerous condition, cause of injury, and notice

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5
Q

Admissibility of evidence of prior conduct

A

Admissible to prove motive/intent or habit (requires frequency of conduct and particularity of circumstances)

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6
Q

Public Policy Exceptions to Admission

A

Liability insurance – Presence/lack not admissible to show negligence
Subsequent remedial measures - not admissible to show negligence, culpability, defect, or need for warning
Civil settlements/negotiations (and conduct during) - not admissible to prove/disprove validity or amount in claim or impeach a witness
Plea discussions inadmissible against D who made plea/participated, but admissible in related litigation
Payments/Offers to Pay inadmissible to prove liability

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7
Q

Character Evidence - Defined

A

A person’s general propensity or disposition (typically witness testimony)

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8
Q

Character Evidence - Offered For

A

Prove a person’s character when character is an essential element of case (RARE)
Circumstantial evidence of how person probably acted (conformity)
Evidence of witness’s bad character for truthfulness (impeachment)

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9
Q

Character Evidence - Types of Evidence

A

Evidence of specific acts, opinion testimony of witness who knows them, or testimony re reputation in community

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10
Q

Character Evidence - Criminal Ds

A

Prosecutor cannot initiate, but D can introduce good evidence (and then P can rebut with evidence of bad character or cross D’s witness with “did you know’ qs to show witness’s lack of knowledge)
No specific acts/instances

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11
Q

Character Evidence - Criminal Victims

A

D may introduce rep/opinion evidence when relevant to show D’s innocence (self defense)
P can rebut with rep/opinion about victim’s good character for same trait or D’s bad character for same trait

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12
Q

Character Evidence - Sexual Assault Victims

A

Evidence offered to prove sexual behavior/disposition > inadmissible
Criminal exceptions: semen is from someone else or consent
Civil exceptions: R403 (favors inadmissibility)

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13
Q

Character Evidence - Civil Cases

A

Character inadmissible to prove conduct in conformity unless character is directly at issue (but habit evidence allowed)

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14
Q

Using Evidence of Misconduct for Non-Character Purposes

A

MIMICO
Motive, intent, absence of mistake, identity, common plan, or opportunity
Misconduct can be shown via any evidence (subject to 403) with reasonable notice to D

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15
Q

Character Evidence - D’s Misconduct in Sex-Crime Cases

A

Evidence of D’s other sex crimes admissible if D accused of committing it again
Relevant for any purpose and may include acts, but must give D notice 15 days before trial

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16
Q

Excluding Otherwise Relevant Evidence

A

Probative value substantially outweighed by unfair prejudice (403)
Liability insurance
Remedial measures
Settlement offers
Withdrawn guilty pleas
Offers to pay medical expenses

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17
Q

Writings - Authentication

A

Requires proof that writing is what proponent claims (support jury finding it genuine)

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18
Q

Writings - Authentication - Forms of Proof

A

Pleadings, stipulation, opponent’s admission, eyewitness testimony, handwriting verification (lay person, expert, or jury), ancient docs (20+ yrs), reply letter, photos/videos (accurate portrayal of relevant facts), Xray/electrocardiograms (validity of process + custodial chain)

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19
Q

Authentication - Oral Statements

A

Voice – anyone who has heard voice, including after litigation began
Telephone – party to call testifies that they recognized other voice, speaker had particular knowledge, they called that person’s number, or they called a business and talked with the person about business

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20
Q

Authentication - Self-Authenticating Documents

A

Public docs with a seal, official publications, certified records, newspapers, trade labels, notarized docs, commercial papers, business records, and data

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21
Q

Best Evidence Rule

A

If proving content of writing, the original must be produced if terms are material
Secondary evidence admissible only with a satisfactory excuse
Doesn’t apply if witness has personal knowledge of facts to be proved

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22
Q

Best Evidence Rule - Defining an Original

A

An original is the writing intended by author to have the same effect as original
Duplicates may be valid unless it is unfair or there are questions about authenticity

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23
Q

Best Evidence Rule - When Secondary Evidence is Admissible

A

Satisfactory explanation re nonproduction of OG
Valid: loss/destruction (not bad faith), cant be obtained through judicial process, possession of adversary who fails to produce

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24
Q

Best Evidence Rule - Exceptions

A

Summaries of huge records, certified public records, writing is collateral, testimony/written admission of opponent

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25
Q

Best Evidence Rule - Court vs Jury Decisions

A

Court determines admissibility of duplicates/oral testimony re contents of original
Jury determines existence of OG, whether doc is OG, and whether evidence is accurate reflection of OG

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26
Q

Real Evidence - Requirements for Use

A

Must be relevant AND authenticated (what proponent claims)

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27
Q

Real Evidence - Authentication

A

Authenticated via testimony of witness that they recognize it, or evidence of chain of possession (standard: sufficient to support jury finding)
Maps/models > faithful reproductions; demonstrations > conditions similar + no dramatization; exhibition of injuries > allowed unless 403; jury view of scene > trial judge discretion

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28
Q

Witnesses - Competence

A

Witness are generally presumed to be competent until contrary established
Must have evidence sufficient to support finding that witness has personal knowledge AND witness gives oath to testify truthfully

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29
Q

Witnesses - Competence - Children

A

Judge determines capacity/intelligence case-by-case

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30
Q

Witnesses - Competence - Insanity

A

May testify if understand must speak truth and can testify accurately

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31
Q

Witnesses - Competence - Others

A

Judge presiding MAY NOT testify
Jurors cannot testify before own jury or on matters re deliberation
Dead-Man Acts: Interested person cannot testify re personal transaction with deceased if offered against reps of deceased person

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32
Q

Witnesses - Form of Questioning - Leading Questions

A

Allowed only on cross (EXCEPTIONS: preliminary matters, help due to age/mental state, or witness is hostile/adverse party)

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33
Q

Witnesses - Form of Questioning - Scope of Cross

A

Scope of direct + reasonable inferences drawn, matters which test credibility

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34
Q

Witnesses - Using Documents to Aid - Refreshing Recollection

A

Witness may use any writing or object to refresh recollection
Requires: witness claim inability to remember
Doc is not offered into evidence, but witness just looks it over then testifies
Adverse party may have writing produced at trial, cross witness about writing, or introduce portions of writing into evidence

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35
Q

Witnesses - Form of Questioning - Improper Questions

A

Misleading, compound, argumentative, conclusionary, cumulative, harassing/embarrassing, speculation, or assume facts not in evidence

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36
Q

Witnesses - Using Documents to Aid - Past Recollection Recorded

A

Witness has insufficient memory even after consult of writing > record read into evidence with proper foundation
Record is read to the jury
Foundation requires: witness w/ insufficient recollection, witness had personal knowledge when made, record made by witness or at their direction, made when matter fresh in mind, record accurate reflection
Read into evidence and heard by jury, but not admitted into evidence unless offered by an adverse party

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37
Q

Witnesses - Opinion Testimony - Lay Opinions

A

Inadmissible unless: based on perception, helpful, w/o special knowledge

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38
Q

Witnesses - Opinion Testimony - Expert Opinions - Admissibility

A

Admissible if subject one where special knowledge would help, opinion is based on facts/data, opinion is from reliable methods, and opinion is reliable application of such methods to facts of case

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39
Q

Witnesses - Opinion Testimony - Expert Opinions - Proper Factual Basis

A

Personal, known at trial, or supplied
If facts would be inadmissible > must not disclose unless R403

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40
Q

Witnesses - Opinion Testimony - Expert Opinions - Daubert Factors Re Reliability

A

Testing of principal/method, rate of error, acceptance by experts in same discipline, peer review/publication

41
Q

Witnesses - Opinion Testimony - Expert Opinions - Treatises

A

Treatises may be used to impeach experts or establish reliability

42
Q

Witnesses - Opinion Testimony - Expert Opinions - Ultimate Issues

A

Expert generally permitted to render opinion re ultimate issue in case UNLESS criminal case where mental state is element of crime

43
Q

Witnesses - Exclusion/Sequestration

A

Upon party request, judge must order witnesses excluded
Judge may not exclude party (or officer), person whose presence is essential to claim/defense, or person authorized to be there via statute

44
Q

Witnesses - Impeachment

A

Witness may be impeached by any party, including party who called them
Party is not permitted to bolster a witness until they have been impeached

45
Q

Witnesses - Impeachment Methods - Prior Inconsistent Statements

A

Statement inconsistent w/ present testimony
Extrinsic evidence requires proper foundation unless of opposing party, hearsay declarant, or as justice requires
Admissible only for impeachment purposes UNLESS statement was under oath + opportunity for cross

46
Q

Witnesses - Impeachment Methods - Bias

A

Evidence that witness is biased/has interest > motive to lie
Foundation: must be asked about the facts that show bias/interest on cross

47
Q

Witnesses - Impeachment Methods - Sensory Deficiencies

A

Showing (cross/extrinsic) that perception/recollection were impaired so they could not have perceived those facts (or had no knowledge to begin with)
No foundation requirement

48
Q

Witnesses - Impeachment Methods - Contradiction

A

Cross: can try to make witness admit they lied/mistaken re a fact on direct
If witness admits: impeached by contradiction
If witness doesn’t, extrinsic evidence allowed unless fact is irrelevant

49
Q

Witnesses - Impeachment Methods - Character for Untruthfulness - Op/Rep

A

Opinion/reputation evidence: allowed to suggest person does not tell truth; Character witnesses may testify re reputation or opinion, but not specific acts

50
Q

Witnesses - Impeachment Methods - Character for Untruthfulness - Prior Convictions

A

Crimes involving dishonesty
Felony not involving dishonesty: criminal D > exclude if R403; civil D > admit unless 403
Remote convictions over 10+ years are inadmissible > can admit in extraordinary circumstances if R403 and notice
No foundation requirements
Conviction cant be used if pardoned (and based on rehab w/no relapse or innocence)

51
Q

Witnesses - Impeachment Methods - Prior bad acts involving untruthfulness

A

Witness may be crossed re act of misconduct probative of truthfulness
Extrinsic evidence is NOT permitted, but can refer to consequences
May not inquire into arrests

52
Q

Witnesses - Impeachment Methods - Hearsay Declarant

A

Can be attacked/supported by evidence admissible if they had testified
Party against whom statement is offered may call declarant & cross
Inconsistent statement of declarant may be offered into evidence

53
Q

Witnesses - Impeachment Methods - Rehabilitation of Impeached Witness

A

Explanation on redirect
Rep/opinion of good character for truthfulness
Prior Consistent Statement (before alleged motive)

54
Q

Hearsay - Defined

A

Statement made out of court offered to prove the truth asserted
Statement is an oral/written assertion or conduct intended as one
Excluded bc lack of opportunity for contemporaneous cross-examination and memory is faulty

55
Q

Hearsay - Non Truth Purposes

A

Verbal acts/legally operative facts (“I heard David say, ‘I accept’”)
Show effect on reader (“I heard them tell the manager”)
Circumstantial evidence of state of mind (“I plan to work from home”)

56
Q

Hearsay - Non-Hearsay Under Federal Rules (EXEMPTIONS)

A

Prior Statements of Testifying Witnesses
Statements by Opposing Party

57
Q

Hearsay - Non-Hearsay Under Federal Rules - Prior Statement of Testifying Witness

A

Admissible if prior statement by testifying witness subject to cross AND is (1) prior identification, (2) inconsistent with testimony and under oath, or (3) statement rebuts charge of lying bc motive or rehabilitates impeached witness credibility

58
Q

Hearsay - Non-Hearsay Under Federal Rules - Opposing Party Statement

A

Admissions of a party-opponent
Judicial statements: formal > cannot contradict; informal > explained at trial
Adoptive statements: party adopts statement, silence may count if reasonable person would deny (UNLESS POLICE ASKING)
Vicarious statements: attributable through relationship (spokespersons, agents/employees within scope and during relationship, partners, co-conspirators in furtherance)

59
Q

Hearsay - Exceptions - Declarant Unavailable - Unavailability

A

Unavailable due to: death, privilege, refusal, doesn’t remember, absent
DOESN’T COUNT if proponent caused unavailability

60
Q

Hearsay - Exceptions - Declarant Unavailable - List

A

Former Testimony
Statement Against Interest
Dying Declaration
Statement of Personal/Family History
Statement Offered Against Party Procuring Declarant’s Unavailability

61
Q

Hearsay - Exceptions - Declarant Unavailable - Former Testimony

A

Testimony under oath in case AND party against whom it is offered had opportunity/motive to direct/cross/examine declarant

62
Q

Hearsay - Exceptions - Declarant Unavailable - Statement Against Interest

A

Statement against a person’s monetary, property, or criminal interest such that a person wouldn’t have made unless believed true

63
Q

Hearsay - Exceptions - Declarant Unavailable - Dying Declarations

A

Homicide or civil > if declarant believed death was imminent and statement was re cause/circumstances of impending death

64
Q

Hearsay - Exceptions - Declarant Unavailable - Statement of Personal/Family History

A

Member of family/intimately associated AND based on personal knowledge of facts or family reputation

65
Q

Hearsay - Exceptions - Declarant Unavailable - Statement Offered Against Party Procuring Declarant’s Unavailability

A

Statement of declarant always admissible

66
Q

Hearsay - Exceptions - Declarant’s Availability Immaterial - List

A

Excited Utterance
Present Sense Impression
Present State of Mind
Statement Made for Medical Diagnosis/Treatment
Business Records
Official Records/Writings
Recorded Recollection
Learned Treatises
Ancient Docs
Documents Affecting Property Interests
Reputation
Family Records

67
Q

Hearsay - Exceptions - Declarant’s Availability Immaterial - Excited Utterance

A

Out-of-court statements on startling events (under stress)

68
Q

Hearsay - Exceptions - Declarant’s Availability Immaterial - Present Sense Impression

A

Statement describing/explaining event/condition made while or immediately after declarant perceives (no time to lie)

69
Q

Hearsay - Exceptions - Declarant’s Availability Immaterial - Present State of Mind

A

Statement of then-present state of mind or experience
Motive, intent, plan / emotion, sensory, or condition

70
Q

Hearsay - Exceptions - Declarant’s Availability Immaterial - Business Records

A

Made as a memo if business, made in course of business (business regularly does), made at/near time of event, and personal knowledge (of entrant or someone with duty to transmit info to entrant)

71
Q

Hearsay - Exceptions - Declarant’s Availability Immaterial - Statement Made for Medical Diagnosis/Treatment

A

Describing medical history, symptoms, or cause (past or present) made for purposes of medical diagnosis or treatment

72
Q

Hearsay - Exceptions - Declarant’s Availability Immaterial - Official Records/Writings

A

Records re activities of office, observations (not police)
Factual findings from legal investigation not admissible against criminal D
Judgements always admissible to prove entered (prior civil judgements and crim acquittals are excluded)

73
Q

Hearsay - Exceptions - Declarant’s Availability Immaterial - Recorded Recollection

A

Only read into evidence, not admitted

74
Q

Hearsay - Exceptions - Declarant’s Availability Immaterial - Learned Treatises

A

If treatise established as reliable authority and relied upon by expert

75
Q

Hearsay - Exceptions - Declarant’s Availability Immaterial - Documents Affecting Property Interests

A

If statement is relevant to document’s purpose
DOESN’T APPLY if later dealings are inconsistent

76
Q

Hearsay - Exceptions - Declarant’s Availability Immaterial - Catch All Exception

A

If statement is not covered, may be admitted if: possesses sufficient guarantees of trustworthiness (totality of circumstances + evidence) and is strictly necessary (more probative than anything else) + give notice to adversary
Notice includes substance and name of declarant

77
Q

Hearsay - Won’t be Admitted Even with Exception

A

Offered against accused in criminal case, declarant is unavailable, statement was testimonial (sworn, to law enforcement in non-emergencies, affidavits), and accused can’t cross them pre-trial

78
Q

Privileged Testimony

A

Permits person to refuse to disclose and prohibit others from disclosing
If under fed substantive law > fed common law; diversity > state law

79
Q

Privileged Testimony - Waiver

A

Failure to claim, voluntary disclosure, or contractual provision waiving

80
Q

Privileged Testimony - Attorney-Client

A

Confidential communication between atty & client during legal consult
Only client can waive it, atty claims on their behalf
Exceptions: crime/fraud, legal services at issue, breach of duty

81
Q

Privileged Testimony - Attorney-Client - Work Product

A

Not privileged, but not subject to discovery unless necessary

82
Q

Privileged Testimony - Spousal Immunity

A

Married person can’t be called to testify against spouse who is Defendant (or against spouse’s legal interest)
Must be valid marriage, privilege lasts during marriage
Privilege belongs to witness-spouse, who can choose to testify
NOT: for crime/fraud, legal actions, or crimes against witness spouse/child

83
Q

Privileged Testimony - Confidential Marital Communications

A

Confidential communications during valid marriage are privileged
Either spouse can invoke & prevent other from disclosing
Marital relationship must have existed when communication was made
NOT: threats/abusive language, crime/fraud, legal actions, crime against

84
Q

Privileged Testimony - Therapist/Social Worker/Clergy

A

Similar to atty-client
Must have intended communication to be confidential
No privilege if patient puts their mental condition at issue

85
Q

Privileged Testimony - Governmental

A

Info not open to public may be privileged

86
Q

Privileged Testimony - Physician/Patient

A

Only state privilege
Confidential if professional relationship for medical treatment, info was for purpose of diagnosis/treatment, and was necessary for that
Exceptions: physical condition at issue, sought to aid in wrongdoing, relevant for breach of duty, patient waived by contract

87
Q

Procedural Questions - Burden of Production

A

Typically same as party w/ burden of pleading
Sufficient to made out a prima facie case

88
Q

Procedural Questions - Burden of Persuasion

A

Proof required
Civil > preponderance; criminal > beyond reasonable doubt

89
Q

Procedural Questions - Preliminary Questions - Jury

A

Prelim facts regarding whether evidence is relevant (authenticity, knowledge)

90
Q

Procedural Questions - Preliminary Questions - Judge

A

Facts on competency/admissibility of evidence (competency, privilege, hearsay exceptions)
Judge can consider any non-privileged evidence even if not admissible

91
Q

Procedural Questions - Judicial Notice of Fact

A

Recognition a fact is true w/o formal evidence
Because generally known OR accurately/readily determined
Conclusive in civil case, but not criminal

92
Q

Procedural Questions - Presumptions

A

Rule that requires inference be drawn from facts (substitute for proof)
Shift burden of production to party against whom presumption operates
Examples: mail delivery, death if absent 7+ years, against suicide, legitimacy, sanity, driver as owner of car, proper performance of duties, continued existence, solvent, marriage, bailee’s negligence

93
Q

Procedural Questions - Judicial Notice of Law

A

Federal and State Law, municipal, Congress, etc.

94
Q

Procedural Questions - Rule of Completeness

A

When introducing party of statement, adverse party can require evidence of any other part (or related statements) that should be considered too (fairness)

95
Q

Procedural Questions - Limited Availability

A

Evidence may only be admissible for specific purpose, so court can instruct jury
Limiting instruction if it would be sufficient
If limiting instruction insufficient, can exclude if 403

96
Q

Procedural Questions - Rulings on Evidence

A

Appeal: Party may claim error if it affects substantive right of party; if evidence is admitted, party had to make timely motion
Court can take notice of plain error even if not properly preserved

97
Q

Rule 403 Balancing Test

A

Court may exclude relevant evidence ONLY if probative value is substantially outweighed by danger of unfair prejudice, confusion of issues, misleading jury, undue delay, waste of time, repetitive evidence
Favors admission

98
Q

Reverse Rule 403 Balancing Test

A

Court may admit relevant evidence ONLY IF probative value substantially outweighs danger of unfair prejudice, confusion of issues, misleading jury, undue delay, waste of time, repetitive evidence
Favors exclusion

Bar Exam (8 decks)

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