Evidence Flashcards
If a witness uses a writing to refresh their memory before testifying, what may the opposing party do?
If the witness does refresh their memory with the writing before testifying, the imposing party may be allowed to inspect the document if justice so requires
Evidence of prior crimes are bad acts and are generally improper character evidence and inadmissible unless
They are relevant non-character purposes, such as absence of mistake or accident
Testimony, deposition or written statement of a party opponent without accounting for the original documents absence is an exception to what rule
The best evidence rule
The fifth amendment privilege against self-incrimination prohibits the government from compelling a defendant to provide incriminating testimonial communications - not real or physical evidence. Does a request to have a defendant walk to evidence limping violated the fifth amendment?
NOPE
At a jury trial, when factual conditions are established (all originals are lost of destroyed), the jury determines what?
Whether:
1) an asserted document ever existed
2) another document produced at a hearing or trial is the original
OR
3) other evidence of content accurately reflects the content
True or False: Evidence of a withdrawn guilty plea can be used against a Defendant.
False. Evidence of statements made during settlement or plea negotiations are generally inadmissible against a defendant - this includes a guilty plea that is later withdrawn.
Fed. R. Evid. 410(a)(1)
A party may be impeached by establishing a bias or self-interest motivating
The witness to testify falsely.
(This applies even in a molestation of a child case)
When are attorney-client communications not privileged
1) this there is a third party present
2) relevant to an ongoing dispute between the attorney and the client
3) crime-fraud
4) deceased client
When state substantive law is determinative of the existence of a claim or defense under the Erie doctrin, state law also governs
the effect of a presumption related to a claim or defense
Can illegal documents (ledger of drug activity) be business records?
Yes.
What is a business record?
an exception to hearsay for records of regularly conducted business activity and are:
1) made at or near the time of the recorded event (or act, condition, opinion, or diagnosis)
2) made by or based on information from someone with personal knowledge of that event and
3) made and kept as a regular practice in the course of regularly conducted business activities.
Fill in the Blanks
A trial court has __________ ___________ to exercise ___________ __________ over the mode and order of ________ ____ and __________ __________.
a trial court has broad discretion to excerise reasonable control over the mode and order of examining witnesses and presenting evidence.
True or False
the rules of evidence apply in grand jury proceedings
FALSE
Under FRE 408 compromise offers and negotiations made in a civil dispute and ____________ in a subsequent criminal procceeding.
Inadmissible, unless the negotiations involved a government regulatory, investigative or enforcement agency
Do the rules of evidence apply in probation revocation proceedings?
NOPE
Does the statement against interest exception apply to available witnesses?
NO - it is only for declarants who are unavailable.
What are non-hearsy statements?
1) prior statements: declarant must be available and can be inconsistent, consistent, or indefication statements
2) opposing party statement - made by a party to current litigation and can be judicial admission, adoptive admission, vicarious statements
What hearsay exceptions require the witness to be unavailable
1) statements by witness who is unavailable through wrong doing of propenant
2) former testimony in which party against whom the testimony is offered had an oppurtunity and similar motive to develop testimony
3) dying declaration (believes death is imminent and pertains to cause/circumstances of death, does not acutally need ot die, only for homicide and civil cases)
4) Statement against interest - against pecuniary interest at time made and reasonable person would not have made it unless true
5) Statement of personal/family history
6) Statement against party that caused declarant’s unavailability
What are the hearsay exceptions in which availability is immaterial?
1) present sense impression
2) excited utterance
3) Statement of mental, emotional, or physical condition
4) Statement made for medical diagnosis/treatment
5) Recorded recollection
6) Business records
7) public records
8) learned treatises
9) judgmeent of previous conviction
What is the Residual exception
catchall exception for statement not otherwise covered by the FRE.
Statement must be (1) supported by sufficient guarantees of trustworthiness, and (2) more probative than any other evidence that the proponent can obtain through reasonable efforts
What is the difference between intrinsic v extrinsic evidence?
Intrinsic - testimony used to discredit witness elicited only from that witness
Extrinsic - Evidence used to discredit witness from any source other than witness’s own testimony
What kind of evidence can be used to impeach a witness’s testiomny on a material issue with a prior inconsistent statement?
Intrinsic - examining the witness about the statement
Extrinsic - if (1) witness has the oppurtunity to explain or deny and the opposing party can question the witness about the statement, or (2) just so requires
Rule 407 provides that evidence of a subsequent change may be admitted for the limited purpose of
shoing the practicability of making a change
Can counsel object as to a leading question counsel as part of their case-in-chief called the opposing party who after direct exam was then subject to cross-exam by their own counsel?
Yes.
Does attorney client privilege apply when two defendants (co-clients) are now adverse to each other?
So maybe no it if was for a third party hired by the attorney such as a stenographer
Themis MBE Evidence question 7504
Does the former testimony (prior inconsistent statements) exception apply if the former testimony was in front of a grand jury?
NOPE
Does prior identification of a defendant/person require a witness to testify?
YES
Does the marital communication doctrine apply even after divorce
In a majority jurisdiction, yes
Are public records self-authenticating?
No
How do you authenticate a public record?
through evidence that the document
1) was recorded or filed in a public office as authorized by law or
2) is from the office where items of that kind are kept
Evidence of a victim’s other sexual behavior or predisposition is inadmissible in a criminal case unless:
1) the behavior is offered to prove another was a perpetrator
2) it was with respect to and is offered by the defendant to prove consent or by the proescutor and/or
3) exclusion would violate the defendant’s constitutional rights
Can a defendant agree to waive the evidentiary rule against the admissibility of plea negotiations?
Yes, if the waiver is knowingly and voluntarily agreed too
Does the character evidence exception allowing a criminal defendant to introduce testimony regarding a pertinent character trait apply in civil cases?
No, character evidence may only be offered after it has been attacked
Does a finding that a witness is an expert preclude opposing party from inquiring into matters that affect the weight of the witness’s testimony?
NO
Can reputation in the community be appropriate character evidence?
Yes
