Evidence Flashcards
(96 cards)
1
Q
How to define the competence of a child to testify
A
The competence of a child depends on his intelligence, his ability to differentiate between truth and falsehood, and his understanding of the importance of telling the truth.
2
Q
Hearsay rule
A
Hearsay is a statement that the declarant makes at a time other than while testifying at the current trial or hearing (i.e., an out-of-court statement) that is offered to prove the truth of the matter asserted.
3
Q
Present sense impression
A
A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it is not excluded as hearsay.
4
Q
Then existing state of mind
A
to show the declarant’s present intent, motive, or plan
5
Q
Limitations on waiver of attorney-client privilege & work product doctrine
A
6
Q
Admissibility of expert testimony
A
Must prove reliable by a preponderance of the evidence
7
Q
Best evidence rule
A
8
Q
Authenticating Physical Objects
A
Show by sufficient evidence
9
Q
Forfeiture of hearsay & confrontation objections
A
10
Q
Preserving evidentiary rulings for appeal
A
11
Q
Lay witness vs expert
A
12
Q
Hearsay Exceptions
A
13
Q
Witness’s prior inconsistent statement
A
14
Q
What is privileged between Attorney-client
A
15
Q
Impeachment Evidence
A
16
Q
Self-authenticating evidence
A
17
Q
Can lay person testify on first hand experience even when other evidence could be used to established the same fact?
A
Yes, uncertainty only affect the weight not the admissibility
18
Q
Exceptions of Attorney- client privilege
A
19
Q
What is in admissible settlement discussion
A
20
Q
What are the common uses of hypothetical questions
A
Cannot omit undisputed material facts
21
Q
What is the then existing state of mind hearsay exception
A
21
Q
What are the factors to determine the probative value of evidence
A
22
Q
When is a presumption instruction not proper
A
A presumption is a conclusion that the trier of fact is required to draw upon a party’s proof of an underlying set of facts. Here, if a party established that a letter is properly stamped, addressed, and mailed, there is a presumption that the letter has been received. However, in a criminal case, the prosecution is responsible for proving every element of a crime, and whether the victims received the letters is an element of the crime. Therefore, the judge’s jury instruction was not proper, because it shifted the burden of disproving an element to the criminal defendant
23
Q
The best evidence rule applies when
A
(i) the document is used as proof of the happening of an event; (ii) the document has a legal effect, such as with a contract or a will; or (iii) the witness is testifying based on facts learned from the writing.
23
How can extrinsic evidence be used to impeach a witness
Although a witness’s character for truthfulness or untruthfulness is always relevant, it can only be proved by either opinion or reputation evidence. Extrinsic evidence (including another witness’s testimony) of specific instances of conduct is inadmissible to prove a witness’s character for untruthfulness. Note that character witnesses may be cross-examined about specific instances of conduct, but no extrinsic evidence is permissible.
24
Present recollection refreshment
A witness may examine any item (e.g., writing, photograph) to “refresh” the witness’s present recollection. The witness’s testimony must be based on the witness’s refreshed recollection, not on the item itself.
25
Confidential marital communications privilege applies when
Communications made between spouses while they were married is privileged if the communications were made in reliance on the sanctity of marriage. The majority view is that the privilege is held by both spouses. Under the majority view, either spouse may assert the privilege and refuse to testify about the communication or prevent the other spouse from testifying. The time for asserting this privilege extends beyond the termination of the marriage. Thus, either party may assert the privilege – by refusing to testify or by preventing the other party from doing so – at any time, even after divorce or the death of one spouse.
26
Prior testimony exception
If a declarant is unable to testify due to death, testimony that he gave as witness at a trial, hearing, or lawful deposition is not excluded as hearsay if the party against whom the testimony is being offered had an opportunity and similar motive to develop the testimony by direct examination, redirect examination, or cross-examination.
27
Excite utterance exception
An excited utterance is a statement made about a startling event or condition while the declarant is under the stress of excitement that it caused. Excited utterances are not excluded from evidence, despite being hearsay. The event must shock or excite the declarant, and the statement must relate to the event.
28
What is a curative admission
When a court erroneously admits evidence, the court may permit the introduction of additional inadmissible evidence to rebut the previously admitted evidence. Known as a curative admission, such additional evidence can be admitted in the court’s discretion when necessary to remove unfair prejudice.
29
Can a victim be party opponent in crim trial
No
29
Character evidence's use in civil cases
In a civil case, evidence of a person’s character (or character trait) generally is inadmissible to prove that the person acted in accordance with that character (or character trait) on a particular occasion.
30
When can a prior inconsistent statement be used substantively for its truth
A prior inconsistent statement made under penalty of perjury at a trial, hearing, or other proceeding, or in a deposition may be admissible to impeach the declarant’s credibility and as substantive evidence.
31
Can a previous out-of court identification be admitted
A previous out-of-court identification of a person after perceiving that person (e.g., a lineup or photo array) is not hearsay and may be admissible as substantive evidence. Even if the witness has no memory of the prior identification, it will be admissible because the witness is subject to cross-examination about the prior identification. Therefore, the victim's prior identification is an issue of personal knowledge of a witness, subject to cross-examination based on the credibility or trustworthiness of that identification.
32
When can a subsequent change be admitted
Rule 407 provides that evidence of a subsequent change may be admitted for the limited purpose of showing the practicability of making a change.
33
Can a withdrawn or amended pleading or petition be admitted under party opponent
A statement made by a party in a pleading filed in another action can be admissible against the party in the current action as an opposing party’s statement. Although the statement in the pleading of another action is not conclusive evidence of the truth of the matter asserted in the statement, it is nevertheless generally admissible as evidence of the truth of the matter asserted in the pleading.
the subsequent withdrawal or amendment of a pleading does not prevent its use in another proceeding as an opposing party’s statement. It is left up to the party to explain why the pleading was withdrawn or amended.
33
When will evidence of a final judgment of conviction not excluded as hearsay
Evidence of a final judgment of conviction is not excluded as hearsay if the judgment was entered after a trial or guilty plea, the conviction was for a crime punishable by death or imprisonment for more than one year, and the evidence is offered to prove any fact essential to sustain the judgment.
34
Unfair prejudice under Rule 403
Under Rule 403, evidence that is relevant may nevertheless be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
35
can demonstrations and experiments to be performed in the courtroom?
Science experiments are permitted but may be excluded if they will result in an undue waste of time or confusion of the issues.
36
Statement against interest
The general rule for statements against interest made by an unavailable declarant is that a statement qualifies as a hearsay exception if, at the time it was made, (i) it was against the declarant’s pecuniary, proprietary, civil, or penal interest, and (ii) the statement was of a nature such that a reasonable person would not have made it unless she believed it to be true.
a statement that could subject the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement,
37
Does identification of controlled substance require expert with formal training
no, lay witness of personal knowledge
38
Admissibility of previous criminal conviction or bad act
39
Learned treatise hearsay exception
40
Unavailable declarant and confrontation clause analysis
41
Dual use of prior inconsistent statement
42
Then existing physical condition
43
Adoption of statement
But can't be included as an exhibit unless offered by the opposing party
44
Refreshed recollection vl Recorded recollection
45
When does the dead man's statute apply
prevents a surviving party to a contract from serving as a witness regarding any matter occurring before the death of another party to the contract, the defendant is not seeking to testify regarding that contract, but instead is seeking to introduce into evidence a written statement made by the decedent.
46
Rule of completeness
The rule of completeness (i.e., Federal Rule 106) permits a party to compel the introduction of a statement that in fairness should be considered at the same time as an admitted writing or recorded statement. Consequently, if fairness does not require the immediate introduction of the prior letter, the defendant will have to wait until the defendant can present evidence in order to introduce this letter.
47
Can a judge question a witness?
a judge is permitted to examine a witness and may do so in order to clarify a witness’s testimony
48
Hostile witness
Leading questions generally are inadmissible on direct examination. However, the federal rules allow leading questions on direct examination in certain situations when it is necessary to develop testimony, such as when the witness is a child, has difficulty communicating due to age or a physical or mental problem, is hostile, is an adverse party, or is associated with an adverse party.
49
Sequestrian rule
At a party’s request, the court must order the exclusion of a witness from the courtroom so that the party cannot hear the testimony of the other witnesses, unless an exception applies. There is an exception for an officer or employee of a party who is not a natural person, and this exception has frequently been applied to the police officer in charge of investigating a criminal case.
Factual witnesses must be excluded upon request
50
Character evidence in civil action
Evidence of a defendant’s character is inadmissible in a civil case to prove that the defendant acted in conformity with that character trait unless the defendant’s character is an essential element of a claim or defense. Since the defendant’s character for peacefulness is not an element of either battery or self-defense, the principal’s testimony is not admissible. There is an exception allowing a party to introduce evidence of his peaceful character in cases in which the defendant is claiming self-defense, but only when there is a dispute as to who was the initial aggressor.
But if admissible all three forms are ok
51
If an evidence is admitted can further evidence be presented about this evidence?
Even though a judge has decided that evidence, such as a confession, is admissible, a party may nevertheless introduce other evidence that is relevant to the weight and credibility of the admitted evidence.
52
How can defendant open the door to character evidence
criminal defendant may introduce evidence of the victim’s character when it is relevant to the defense asserted. If the defendant does so, the prosecution may offer rebuttal evidence of the victim’s good character regarding that trait, and evidence of the defendant’s bad character for the same trait.
53
Impeachment by extrinsic evidence
The adverse party may cross-examine the witness about the conduct, but must take his answer as he gives it.
54
Use immunity vs transaction immunity
It prevents the prosecution from using the witness's statements ("use") or any evidence derived from those statements ("derivative use") against the witness in a criminal prosecution
“Use” immunity prohibits only the use of the compelled testimony against the witness. If the government does prosecute the witness in such a case, the government has the burden to show that the compelled testimony did not provide an investigatory lead that was helpful to the prosecution.
However, can be used for civil court
transaction full immunity
55
Dying declaration
A dying declaration only qualifies as a hearsay exception if (i) the statement is made by an individual who believes she is dying, (ii) the individual believes that her death is imminent, and (iii) the statement pertains to the cause or circumstance of her death. The statement made by this victim likely would meet this standard. However, under the Federal Rules, a dying declaration is admissible only in homicide prosecutions and civil actions.
56
Double hearsay
57
Psychotherapist-patient privilege
58
Identification of voice
a voice can be identified by any person who has heard the voice at any time, including one made familiar solely for the purposes of litigation.
59
Impeachment through juvenile adjudication
The defendant in a criminal case who testifies on his own behalf may not be impeached by a juvenile adjudication to show that the defendant is untruthful.
60
Statement against interest only applies when
declarant unavailable
61
Under Federal Rule of Evidence 801(d), a prior statement of identification, which otherwise would qualify as hearsay, is treated as non-hearsay. Under Rule 801(d)(1)(C), a previous out-of-court identification of a person after perceiving that person is admissible as substantive evidence, but only if
the witness testifies at the present trial or hearing and is subject to cross-examination concerning the identification.
62
What happens after the defendant opens the door to character
Although the prosecution generally cannot introduce evidence of a defendant’s bad character, the defendant can make his character an issue in the case by offering evidence of his good character. When the defendant “opens the door” in this way, the prosecution is free to rebut the defendant’s claims by attacking the defendant’s character. In introducing evidence as to the defendant’s character, the prosecution is generally limited to the same type of evidence that the defendant offers. However, on cross-examination, the prosecution may question a defendant’s character witness about specific instances of the defendant’s conduct.
63
Impeaching a witness with prior convictions?
A witness may be impeached with evidence of a conviction for a felony that is less than 10 years old. If the crime does not involve dishonesty or false statement, the conviction of a witness who is not a criminal defendant will be excluded only if the party objecting to the impeachment shows that its probative value is substantially outweighed by its prejudicial effect. I
64
Self authenticating documents
The court will consider a number of items of evidence to be self-authenticating, meaning that they do not require extrinsic evidence of authenticity in order to be admitted. These include certified copies of public records, trade inscriptions (e.g., labels affixed in the course of business that indicate ownership), and business records. Generally, the proponent of a self-authenticating document is not required to give an adverse party advance notice of the intent to introduce the document. The proponent of a business record must, however, give an adverse party reasonable written notice prior to the trial or hearing of the intent to offer the record and must make the record available for inspection so that the party has a fair opportunity to challenge it.
64
the victim’s past sexual behavior
The Federal Rules establish a privilege that protects victims of sexual offenses. The rule states that evidence offered to prove that an alleged victim engaged in other sexual behavior and evidence offered to prove an alleged victim’s sexual predisposition is not admissible, subject to certain exceptions
One of the exceptions to the general rule stated above is that in a criminal case, evidence of a victim’s past sexual conduct is admissible to show the victim’s past sexual behavior with the defendant in order to prove consent. The victim’s past sexual behavior in general cannot be used to prove consent; only the victim’s past behavior with the defendant is relevant.
(i) to prove an alternate source of semen or injury, (ii) when the constitutional rights of the defendant require admission of the evidence, (iii) in civil cases, when the probative value substantially outweighs danger of harm to the victim, and (iv) in civil cases, when the victim herself has placed her reputation in controversy.
65
bases of expert's opinion testimony and their admissibility
66
Family records excepted from hearsay
67
can the court considered privileged evidence in making its ruling about admissibility？
In determining a preliminary question, such as the existence of a privilege, although the court is not generally bound by the rules of evidence, the court cannot consider privileged evidence.
68
Prior consistent statement admission
A prior consistent statement may be admissible in two situations. First, a prior consistent statement made before the declarant had reason to fabricate the statement may be admissible to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in testifying. Second, a prior consistent statement may be admitted to rehabilitate the declarant's credibility as a witness when attacked on another ground.
69
Impeachment evidence pardoned crime
70
Exception to the psychotherapist-patient privilege
71
compromise offers & negotiations
72
Judicial notice of adjudicative facts
73
Test for competency of witnesses
74
Does the business records exception apply to illegal actvities?
75
court's control over witness examination & presentation of evidence
75
FRE doesn't apply
76
Routine practice
77
ADA accommodation under fair housing act
Do not apply if less than 4 units
78
Void deed and then BFP
79
Right to remove fixtures v. chattels
80
Does a deed in lieu eliminate junior interest?
No
81
Title insurance transfer
82
Real estate broker's duty to disclose
83
Fair notice of the defense’s intent to introduce the stuff to evidence to the prosecution required?
t. The prosecution must provide reasonable notice of the general nature of such evidence that the prosecution intends to offer at trial. The defense is not required to give the prosecution the same notice.
84
Compelling a spouse to testify?
The general rule is that the spouse of a criminal defendant may not be called as a witness by the prosecution. A married person may not be compelled to testify against her spouse in any criminal proceeding, regardless of who is the defendant. However, there is an exception when one spouse is charged with a crime against the other spouse or the children of either.
85
Impeachment with inconsistent statements
86
Expert opinion on ultimate issue
87
Common scheme arises after some of the lots have been sold
88
Methods of impeaching witnesses
89
Preservation of error
90
Statements in learned treatises hearsay exception
