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BAR FLASHCARDS MEE SUBJECTS > Evidence > Flashcards

Evidence Flashcards

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1
Q

Relevance - Evidence is relevant if:

A

(1) it has any tendency to make a fact more or less probable than it would be without it;

AND

(2) the fact is of consequence in determining the action.

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2
Q

Rule 403 Exclusions

A

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of:

a) unfair prejudice;
b) confusing issues;
c) misleading the jury;
d) undue delay;
e) wasting time; OR
f) being needlessly cumulative.

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3
Q

Subsequent Remedial Measures - Not admissible to prove:

A

a) negligence;
b) culpable conduct;
c) a defect in a product design; OR
d) a need for a warning or instruction.

BUT, such evidence may be admitted for other purposes.

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4
Q

Statements made during settlement negotiations are NOT admissible to:

A

a) prove the validity or amount of a disputed claim;

OR

b) impeach by prior inconsistent statements.

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5
Q

Pleas & Plea Negotiations - The following are NOT admissible in a subsequent civil or criminal case:

A

a) statements made during plea discussions;
b) a nolo contendere plea; OR
c) guilty plea that is later withdrawn.

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6
Q

Paying or Offering to Pay Medical Expenses

A

NOT admissible to prove liability, BUT any related statements or factual admissions are admissible.

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7
Q

Liability Insurance

A

NOT admissible to prove liability, BUT admissible for other purposes (i.e. ownership and control).

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8
Q

Authentication of Evidence

A

All evidence must be authenticated before being admitted.

Physical evidence – through witness testimony or by evidence that shows it has been held in a substantially unbroken chain of custody.

Voice recordings – by anyone who has heard the person speak and have identified the recorded person as the speaker.

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9
Q

Best Evidence Rule

A

A party must provide the original document (or reliable duplicate) when a witness:

a) testifies to the content of a writing; OR

b) testified to knowledge gained solely from a writing.

  • The original document NOT required if:
    a) there is a reliable duplicate (a photocopy);
    b) all the originals are lost or destroyed;
    c) an original cannot be obtained by judicial process;
    d) it was not produced after proper notice was given
    to the party in control and against whom it would
    be offered against; OR
    e) not closely related to a controlling issue.
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10
Q

Character Evidence

A
  • Generally, character evidence is NOT admissible to prove propensity (that a person acted in conformity with a character trait on a particular occasion).
  • But, character evidence is generally allowed for non-propensity purposes (i.e. when character is an ultimate issue in the case -defamation).
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11
Q

Character Evidence (Criminal Case)

A

– D can always offer evidence of his own character.

– P not allowed to prove D acted in accordance with D’s
character trait unless D opens the door.

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12
Q

Character Evidence (Criminal Case) Victim’s character (not involving rape)

A

– D can offer reputation and opinion evidence to show
victim’s character to show D’s innocence.
– If D presents evidence of victim’s character, P can offer evidence:
(a) D possesses same character trait; or
(b)victim’s good character trait.

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13
Q

Victim’s character (involving rape)

A

– Not admissible – victim’s sexual behavior/ predisposition

– Admissible – (a) if offered to prove D was not involved in the sex crime; (b) sexual relations between D and V; (c) if exclusion violates D’s constitutional rights.

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14
Q

Victim’s character (homicide case)

A

Admissible only if D claims victim was the aggressor, P can show V’s peacefulness.

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15
Q

Character Evidence (Civil Case)

A

Character evidence to prove propensity is generally NOT admissible in a civil case

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16
Q

Victim’s character (alleged sexual misconduct)

A

– Admissible if probative value substantially outweighs the danger of harm to any victim and unfair prejudice to any party.

– Victim’s sexual behavior/ predisposition admissible only if the victim has placed it in controversy.

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17
Q

Character Evidence (FRE)

A

(1) direct examination-> reputation, opinion.

(2) cross-examination-> opinion, reputation, specific acts.

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18
Q

Specific Bad Acts

A

generally NOT admissible to show propensity.

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19
Q

Specific Bad Acts: Admissible to show:

A

Motive,
Identity,
Absence of
Mistake or Accident,
Intent,
Common Plan or Scheme,
Opportunity, or Preparation

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20
Q

Habit or Routine Practice

A
  • Admissible to show the person acted in accordance with their habit or routine practice.
  • Habit = regular response to a repeated situation.
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21
Q

Impeachment -

A
  • Prior felony/ misdemeanor involving dishonesty = always admissible to impeach unless expunged.
  • Other misdemeanors = NOT admissible

Felonies that DO NOT involve dishonesty:
* Civil/Criminal Cases:
o Admissible if witness is not the defendant (subject to Rule 403 exclusions);

  • Criminal Cases:
    o Admissible if defendant is the witness but only if probative value outweighs
    prejudicial effect.
22
Q

Prior Convictions 10-Year Exception

A

If 10-years have passed (from
conviction or release from jail; whichever is later), conviction is inadmissible unless probative value outweighs prejudice

23
Q

Impeachment - Specific Instances of Conduct

A

Witness’s credibility may be attacked on cross-examination with specific instances of conduct (prior bad acts) only if the conduct is probative of the witness’s character for untruthfulness.

  • Extrinsic evidence NEVER admissible to attack or
    support a witness’s credibility.
24
Q

Impeachment - Prior Inconsistent Statements

A

Admissible to impeach a witness

Extrinsic evidence of the statement is allowed ONLY IF:
1) Relevant to a material issue at trial (one other
than the witness’s credibility); AND

2) Proper foundation is shown (witness is first
given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it). BUT, the above requirements DO NOT apply when extrinsic evidence is offered against a Party Opponent.

BUT, the above requirements DO NOT apply when extrinsic evidence is offered against a Party Opponent.

25
Q

Impeachment - Character for Truthfulness

A
  • Witness’s credibility may be attacked or supported by:

a) testimony about reputation for having character of untruthfulness/truthfulness;

OR

b) testimony in the form of opinion.

  • BUT, evidence of truthful character is admissible only
    after attacked.
  • Extrinsic evidence is NOT admissible.
26
Q

Impeachment - Memory Loss

A
  • A witness’s ability to observe, remember, or relate facts accurately may be attacked on impeachment.
  • Extrinsic evidence is admissible for this purpose.
27
Q

Refreshing Recollection

A
  • A document may be used to help refresh a witness’s recollection when the witness once had personal knowledge of the matter, but is unable to recall it.
  • Only the opposing party may offer into evidence the item used.
28
Q

Judicial Notice

A

A court may take judicial notice of indisputable facts:

a) commonly known in the community; OR

b) readily capable of verification and cannot be reasonably questioned.

29
Q

Judicial Notice - Criminal Cases

A

Court must instruct jury that it may or may not accept the noticed fact as conclusive.

30
Q

Judicial Notice - Civil Cases

A

fact is dispositive – court must instruct jury to accept notice fact as conclusive

31
Q

Lay Witness + Admissibility

A

Any person who gives testimony in a case that is not called an expert

-Testimony is admissible if witness: (1) is competent to
testify (competency is presumed under FRE); AND (2) has personal knowledge of the matter.

  • May offer an Opinion if: (1) rationally based on perception; (2) helpful to the jury (not legal conclusion);
    AND (3) not based on scientific, technical, other
    specialized knowledge.
32
Q

Expert testimony is permitted when:

A

1) qualified as an expert;

2) helpful to jury;

3) expert believes in the opinion to a reasonable degree of certainty;

4) supported by sufficient facts or data; AND

5) based on reliable principles that were reliably applied.

33
Q

Daubert

A

Reliability is based on (1) publication and peer review, (2) error rate, (3) testability, AND (4) generally accepted in the field.

34
Q

Hearsay

A

Hearsay is an out of court statement that is offered to prove the truth of the matter asserted.

  • Admissible ONLY IF it falls under an exception.
  • Nonverbal act can be statement if intended as an
    assertion.
  • Multiple hearsay – each level of hearsay must fall within
    an exception.
35
Q

Non-Hearsay

A

admissible if offered to prove something other than the truth of the statement.

Common non-hearsay statements:
(1) verbal acts of independent legal significance;

(2) to show the effect on the listener;

(3) prior inconsistent statement used to impeach; and

(4) circumstantial evidence of the speaker’s state of
mind.

36
Q

Deemed Non-Hearsay (under FRE):

A

Admission by party opponent – any statement offered against a party which is made by that party (or their
agents).

Prior statement of identification – declarant identifies a person as someone they perceived earlier.

Judicial and extrajudicial admissions

Prior statements made under oath – admissible if: (1) declarant testifies; (2) declarant was subject to cross-examination; AND (3) prior inconsistent statement was given under oath.

37
Q

Present Sense Impression

A

Hearsay Exception

Statement describing an event made by the declarant while observing the event immediately thereafter (Few minutes = ok)

38
Q

Excited Utterance

A

Hearsay Exception
Statement concerning an exciting/startling event, made while the declarant is still under the stress of the event (slight delay = ok)

39
Q

Business Records – Admissible if:

A

Hearsay Exception

(1) records of events, conditions, opinions, diagnoses;

(2) kept in the regular course of business;

(3) made at or near the time of matter described;

(4) made by person with knowledge;

(5) regular practice of the businesses; AND

(6) opponent party does not show lack of trustworthiness

40
Q

Statements Made for Medical Diagnoses/Treatment

A

Hearsay Exception

Not excluded by hearsay rule if statement:

(1) made for medical diagnosis or treatment;

AND

(2) Describes medical history or symptoms

41
Q

Statements of Mental, Emotional, or Physical Condition

A

Hearsay Exception

Admissible if statement of then-existing state of mind (motive, intent, plan) or emotional or physical condition. BUT, statements of memory or belief are NOT admissible unless it relates to validity or terms of the declarant’s will

42
Q

Dying Declaration

A

Hearsay Exception

Can only be used in civil case or criminal homicide case.

Elements to be admissible:
(1) declarant unavailable; (2)
statement made under a sense of impending death; AND (3) statement concerned the circumstances or cause that put the declarant in the position of impending death.

– A statement against own
penal, proprietary, or pecuniary interest is admissible if the
declarant is unavailable.
- If offered in a criminal case, it must be supported by
corroborating circumstances that clearly indicate its
trustworthiness.

43
Q

Statement Against Interest

A

HEARSAY EXCEPTION

– A statement against own penal, proprietary, or pecuniary interest is admissible if the declarant is unavailable.

  • If offered in a criminal case, it must be supported by corroborating circumstances that clearly indicate its trustworthiness.
44
Q

Past Recollection Recorded

A

HEARSAY EXCEPTION

Is record made on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately.

  • Is admissible if:
    (1) witness had personal
    knowledge at one time;

(2) writing was made or adopted by witness;

(3) was made while the event was still fresh in the witness’s mind;

(4) accurate;

AND

(5) witness can no longer remember the event.

  • The record can be read into evidence, BUT can only
    exhibit offered by an adverse party.
45
Q

Declarant Unavailable Requirement

A

Unavailable if witness – (a) is exempt due to privilege;

(b) refuses to testify despite a court order;

(c) does not remember;

(d) cannot be present because of death or illness; OR

(e) is beyond the reach of a court’s subpoena and cannot be procured by reasonable means.

46
Q

6th Amendment Right to Confront Witnesses

A
  • Gives a criminal defendant the right to confront witnesses against him.
  • The use of an out-of-court statement (even if a hearsay
    exception) violates 6th Amend. when:

1) Statement is testimonial;

2) declarant is unavailable to be cross-examined at trial;

AND

3) D did not have opportunity to cross-examine the declarant before trial.

47
Q

Testimonial – The following statements are testimonial:

A

(a) made to grand juries;

OR

(b) to police whose primary purpose was to collect testimony to be used at a later trial.

  • A statement to assist the police in an ongoing emergency is NOT testimonial.
48
Q

Spousal Immunity

A

– A witness-spouse in valid marriage may refuse to testify
against spouse in a criminal case.

  • Only the witness-spouse holds this privilege – but it ends after divorce.
  • Spousal immunity DOES NOT apply in civil cases.
49
Q

Confidential Marital Communications

Communications between spouses are privileged if:

A

1) made during course of a valid marriage;

AND

2) intended to be confidential.

  • The privilege DOES NOT apply: (a) in cases between
    spouses; OR (b) when spouse commits crime against the other spouse or their children.
  • Either spouse may assert privilege – it applies after
    divorce.
  • Privilege applies in both civil and criminal cases.
50
Q

Attorney-Client Privilege

A

Protects confidential communications between and
attorney and client if:

1) intended to be confidential

2) made to facilitate legal services

  • The client holds the privilege, and may waive it by disclosing info to a 3rd party (but not waived through inadvertent disclosure).
  • Privilege DOES NOT apply when: (a) sought to further a
    crime or fraud; (b) litigation related to breach of duty between attorney and client; OR (c) joint clients are later involved in civil litigation against each other.
51
Q

Attorney Work Product Doctrine

A

Protects from disclosure all materials prepared by an attorney (or his agents) in anticipation of or during litigation.

Exception: A party shows (1) a substantial need for the materials exists; AND (2) a substantial equivalent cannot be obtained without undue hardship.

52
Q

Physician-Patient Privilege

A
  • Most states recognize the privilege if: (1) confidential
    patient communication, (2) made to physician, (3) for purpose of medical diagnosis or treatment.
  • Federal courts DO NOT recognize the privilege. However, state law governs privilege for civil cases in federal court on a claim/defense when state law supplies the rule of decision.

BAR FLASHCARDS MEE SUBJECTS (5 decks)

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