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MEE Review > Evidence > Flashcards

Evidence Flashcards

1
Q

Hearsay Exemptions (Declarant Available to Testify As Witness)

A
  1. Prior inconsistent statement (made under oath)
  2. Prior consistent statement (to rebut accusation of fabrication only if it arose prior to reason for fabrication arose)
  3. Prior identification in lineup
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2
Q

Hearsay Exemptions (Opposing Party’s Statement)

A
  1. Judicial/adoptive admissions or vicarious admissions

Adoptive admission = when person understands statement, has opportunity to deny statement, and reasonable person similarly situated would deny statement

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3
Q

Hearsay Exceptions (Declarant Unavailable)

A
  1. Former testimony (made under oath, if other party had equal opportunity and motive to examine witness)
  2. Statements against interest
  3. Dying declarations
  4. Statements of family history
  5. forfeiture by misconduct
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4
Q

Unavailable declarant

A

Cannot testify because (1) dead, (2) absent and cannot be subpoeaned, (3) privilege, i.e. 5th amendment, (4) lacks memory,

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5
Q

Dying declaration

A

Statements made when (1) witness believes they are imminently dying, (2) statements relate to cause of potential imminent death

Witness does not actually need to die for it to be a dying declaration

CA distinction!!! In CA, witness must have actually died!!

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6
Q

Statements against interest

A

(1) Statement is against witness’ penal, proprietary, or pecuniary interests + (2) would not have reasonably made unless true

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7
Q

Forfeiture by Misconduct

A

If a party caused a declarant to be unavailable, any statement offered by that declarant against the party may be used

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8
Q

Hearsay Exceptions (Declarant’s unavailability immaterial)

A
  1. Present Sense Impression
  2. Excited Utterance
  3. State of Mind
  4. Public Records
  5. Business Records
  6. Statements made for Medical Diagnosis/Treatment
  7. Previous judgments
  8. Recorded Recollection
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9
Q

Present Sense Impression

A

A statement made by a declarant describing an event while or immediately after perceiving it.

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10
Q

Excited utterance

A

A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused

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11
Q

Statement of Mental, Emotional, or Physical Condition

A

A statement of the declarant’s then-existing state of mind or emotional, sensory, or physical condition

A statement of present intent or plan can be used as evidence to prove conduct in conformity with that intent or plan

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12
Q

Statement Made for Medical Diagnosis or Treatment

A

Statements made for medical diagnosis or treatment, including statements re: cause of condition

includes statements not just to physicians, but also hospital attendants.

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13
Q

Recorded recollection

A

If witness does not recall a matter but the witness made a record immediately after the matter, the record may be shown to witness and read into evidence. Elements:

(i) the record is on a matter that the witness once knew about;
(ii) the record was made or adopted by the witness when the matter was fresh in the witness’s memory; (iii) the record accurately reflects the witness’s knowledge; and
(iv) the witness states that she cannot recall the event well enough to testify fully and accurately, even after consulting the record on the stand

Under this exception, the record, if admitted, may be read into evidence, but it may be received as an exhibit only if offered by an adverse party.

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14
Q

Business records

A

Records of regularly conducted business activities are admissible if:

(1) records are kept in course of regularly conducted business activity and was made as part of routine business practice and not in anticipation of litigation,
(3) records was made at or near the time of the matter by someone with knowledge

Evidence of absence of record is also not hearsay and may be admissible to show matter did not occur

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15
Q

Authentication of business record

A

Custodian or someone with personal knowledge of records

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16
Q

Learned treatises

A

Portion of learned treatise may be read into evidence if
(1) expert relied on it (during direct ex) or it was brought to expert’s attention during cross-ex
(2) expert verifies it as reliable

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17
Q

Judgment of previous conviction

A

Applies only if:
(1) judgment entered after guilty plea or conviction
(2) judgment was for crime punishable by death or by imprisonment for > 1 year

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18
Q

California Evidence Distinction - Spousal Testimony Privilege

A
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19
Q

California Evidence Distinction - Character Evidence (Domestic Violence)

A

In CA, a defendant’s prior commission of domestic violence is admissible character evidence in a case involving a charge for domestic violence or abuse.

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20
Q

California Evidence Distinction - Prop 8, CEC 352

A
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21
Q

California Evidence Distinction - Statement for Medical Diagnosis/Treatment

A
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22
Q

California Evidence Distinction - Dying Declaration

A
23
Q

Lay witness

A

Can testify on any matter that he or she has personal knowledge. Can testify based on opinion if opinion is
(1) rationally based on witness’ perception
(2) helpful to clear understanding of witness’ testimony or of a material fact
(3) not based on expert/specialized knowledge

24
Q

Expert witness

A

Dauber test:
(1) witness is qualified to testify as expert based on knowledge, skill, experience, or training
(2) testimony is based on sufficient facts and data
(3) testimony relies on reliable principles and methods
(4) testimony reliably applies methods to facts/data

25
Q

Authentication of voice evidence

A

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, in contrast to the rule for handwriting verification).

26
Q

Logical Relevance

A

Has a tendency to make a material fact more or less likely

27
Q

Rule 403 - unfair prejudice

A

confusing the issues

needlessly cumulative

misleading jury

undue delay

28
Q

Narrative

A

A question cannot call for narrative (open-ended and lacks scope).

Example - cannot say “tell the jury everything that happened”

29
Q

Public records - exception to hearsay

A

Records which are created by public agency which (1) describe scope of activities of agency, (2) observations of an on-duty employee of the agency, or (3) factual findings from a legal investigation conducted by the agency

30
Q

Offers to pay medical expenses

A

Evidence of the payment, offer to pay, or promise to pay medical expenses resulting from an injury is not admissible to prove liability for the injury.

But conduct and statements that accompany payment or offer of payment are OK

CA distinction!! Statements and offer are both inadmissible

31
Q

Liability insurance

A

Evidence that a person did not have insurance cannot be admitted for the purposes of showing that the defendant acted negligently or wrongfully

BUT, it can be used to show bias or ownership

32
Q

Plea Negotiations

A

Cannot admit (1) withdrawn guilty pleas, (2) Pleas of no contest, (3) statements made while negotiating plea or in a plea proceeding

33
Q

Compromise offers

A

Compromise offers + associated conducts/statements are inadmissible to prove validity of disputed claim or for impeachment

CANNOT BE USED FOR IMPEACHMENT

34
Q

Leading question

A

A leading question is one that suggests an answer within the question itself.

35
Q

Subsequent remedial measures

A

When measures are taken that would have made an earlier injury less likely to occur (e.g., repairing an area where a customer slipped), evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, or strict products liability.

Can be used to show impeachment

36
Q

Public policy exceptions

A
  1. Subsequent remedial measures
    - can use to impeach or show ownership/control
  2. compromise offers (for validity of disputed claim)
    - CANNOT use to impeach via PIS but can use for bias
    - associated conduct/statements NOT admissible
    - BUT NOTE - if claim is not disputed, statements are admissible
    - negotiations with gov. agency can be admitted in subsequent criminal trial
  3. Plea negotiations
  4. offers to pay medical expenses
    - associated conduct/statements ARE admissible
  5. liability insurance
    - can be used to impeach or show ownership/control
37
Q

Leading question

A

A leading question is one that suggests an answer in the question itself. A leading question is generally not permissible on direct examination unless (1) the attorney is examining a hostile witness, (2) the questions are necessary to develop the witness’ testimony, or (3) a witness has difficulty communicating due to age or infirmity.

38
Q

Assumes facts not in evidence

A

A question cannot assume facts which have not yet been established as true. To establish a fact as true, a proper foundation must first be laid for that fact.

39
Q

Improper questions

A

Leading questions
Assumes facts not in evidence
Narrative
Compound

40
Q

CA distinction - impeachment (character for untruthfulness)

A

In CA, specific instances of conduct may not be used to impeach a witness’ character for truthfulness in a CIVIL case. In a CRIMINAL case, specific instances of conduct may be used to impeach a witness, and such evidence may be introduced intrinsically or extrinsically (where as under FRE, it can only be introduced intrinsically)

41
Q

CA distinction - present sense impression

A

In CA, present sense impression is known as Contemporaneous Statement

42
Q

CA distinction - excited utterance

A

In CA, excited utterance is known as Spontaneous Statement

43
Q

Statement by party opponent

A

A statement by a party-opponent is a statement that was made by a party to the litigation. However, such statement is only excluded from hearsay if offered by the opposing party.

44
Q

CA distinction - statement of mental, emotion, physical condition

A

In CA, declarant must be unavailable

45
Q

Authentication

A

All tangible evidence needs to be authenticated to be admissible. Authentication requires producing sufficient evidence to show that the evidence is what it is claimed to be

46
Q

Best Evidence Rule (known as Secondary Evidence Rule in CA)

A

Original document or reliable duplicate must be produced when (1) contents are at issue, or when (2) the witness’ testimony is reliant on the contents of the document.

47
Q

present recollection refreshed

A

A witness may examine any item (e.g., writing) 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 (e.g., the witness cannot read from the refreshing document).

When the recollection-refreshing item is a writing, the adverse party is entitled to have the document produced, to inspect the document, to cross-examine the witness about it, and to introduce any relevant portion into evidence. The item is generally not admitted into evidence.

48
Q

CA distinction - Prior Bad Acts

A

Only admissible in criminal cases not civil cases. But may be proven with extrinsic evidence

49
Q

CA distinction - Frye Test

A

FRE uses Daubert test, CA uses Frye test

50
Q

CA distinction - Ancient Document Rule

A

FRE - 20 years old, CAL - 30 years old

51
Q

CA distinction - subsequent remedial measures

A

CAL - does not apply in strict products liability cases

52
Q

CA distinction - PIS

A

Under CA rules, all prior inconsistent statements are admissible for their truth and for impeachment purposes (do not have to have been said under oath)

53
Q

CA distinction - Statements for Medical Diagnosis or Treatment

A

In CA, does not generally cover statements regarding source of injury

MEE Review (15 decks)

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