Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Bar Prep > Evidence > Flashcards

Evidence Flashcards

1
Q

What is relevance?

A

Any tendency of a fact to make it more or less probable that a cause of action did or did not occur. (Material and Probative).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What does Rule 403 say?

A

The court has discretion to exclude relevant evidence if its probative value is substantially outweighed by prejudicial value.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What are 4 common reasons to exclude relevant evidence under Rule 403?

A

Waste of time
Emotionally disturbing
Repetitive
Confusing

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Generally, will evidence of some time, event, or person, other than the that involved in the current case, (similar occurrences) be admissible?

A

No

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What 2 times can P’s prior similar accidents be used against them as evidence?

A

To prove a pattern of making false claims,
to prove a prior existing injury.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Other than prior accidents at times, what can prior similar occurrences be used as evidence to prove?

A

Causation, Intent, Values $, Business routine, Industry custom, To rebut a defense of impossibility.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

When can habit evidence be used?

A

To prove that one acted in accordance with the habit on the occasion in question.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What are the 2 requirements to establish a habit?

A

Frequency of conduct,
Particularity of circumstances.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What are the 4 main public policy grounds for excluding certain relevant evidence?

A

Liability insurance,
Subsequent remedial measures,
Settlements and plea bargains,
Payments/offers to pay medical expenses

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What is character evidence?

A

Evidence used to show that a person’s general propensity or disposition conforms to a certain conduct.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What are the 6 times a prosecutor can use character evidence?

A

If D has opened the door (him or victim).
In sexual assault cases.
When character is essential element.
Impeachment.
MIMIC
If D claims self-defense in homicide.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

If a criminal defendant is using character evidence for himself, what is the requirement?

A

The character trait must be pertinent to the crime charged.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What are the 3 types of character evidence?

A

Specific acts.
Opinion.
General reputation.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

When character evidence is allowed in a criminal trial, what kind can be used on direct exam?

A

Opinion or general reputation.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What does MIMIC stand for?

A

Motive
Intent
Mistake
Identity
Common plan or scheme

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

What are the 4 times character evidence can be used against a defendant in a civil trial??

A

Character is essential element.
Sexual assault cases.
Impeachment
MIMIC

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

When is the only time a defendant can use a victim’s prior sexual acts against her in a civil trial?

A

When the probative value outweighs unfair prejudice.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

When are the only 2 times a defendant can use a victim’s prior sexual acts against her in a criminal trial?

A

To prove different source of injury or DNA.
To prove prior consensual relationship between D and P.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What are the 3 common cases where character evidence is an essential element?

A

Defamation
Negligent hiring/entrustment
Child custody

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

How many days before trial does a prosecutor need to disclose that he will use defendant’s prior sexual bad acts in the trial, without good cause?

A

15 days

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

When can a prosecutor use specific bad acts as character evidence?

A

Only to rebut the defendant’s own character witness’ testimony, otherwise it must be opinion/reputation evidence to rebut from someone else.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

To use specific examples of a prior act for MIMIC reasons, what is the special requirement?

A

There must be sufficient evidence for the jury to believe that the prior specific act occurred.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

An ‘ancient document’ need not be authenticated when what 3 elements are met?

A

At least 20 years old.
In condition of no suspicion.
In place where such writing would likely be kept.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

What are the 3 ways of authenticating handwriting?

A

Opinion of lay witness familiar.
Handwriting expert.
Jury comparison.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

What is the ‘reply letter doctrine’ regarding authentication?

A

A writing can be authenticated by evidence that it was written as a response to a communication.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

What kind of evidence does the ‘best evidence rule’ apply to?

A

Writings, recordings, and photos.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

What is the ‘best evidence rule’?

A

Absent a satisfactory excuse, the original must be produced if its terms are material to the case.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

What 2 situations does the ‘best evidence rule’ apply?

A

The writing itself creates rights/obligations.
Witness knowledge results from seeing the writing.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

When are duplicates not allowed to replace an original?

A

Circumstances make it unfair OR authenticity of original is in question.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

What can a witness use on the stand to refresh their recollection?

A

Any writing or object.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Who can introduce a memory recollection writing into evidence?

A

Only opposing counsel IF it was used to refresh your witness’ recollection.

32
Q

What can be done if a witness is still unable to recollect something even after reviewing a memory recollection document?

A

Have it read into evidence after laying a proper foundation.

33
Q

What are 3 requirements to lay a foundation for a memory recollection record?

A

Witness has personal knowledge of facts in record, Record made or adopted by witness, Record made when the matter was fresh.

34
Q

What are the 4 requirements for expert testimony?

A

Specialized knowledge needed for trier of facts.
Opinion based on sufficient data.
Opinion based on reliable methods.
Opinion reflects reliable application of methods to the facts.

35
Q

What are the 4 Daubert factors that courts use to for expert reliability?

A

Testing of methods,
Rate of error,
Acceptance by other experts in field,
Peer review/publications

36
Q

What is an expert witness NOT allowed to give an opinion about in a criminal case?

A

Defendant’s mental state when it’s an element of the crime.

37
Q

What are the 2 methods for exposing a witness’ prior inconsistent statement?

A

Cross-exam,
Extrinsic evidence

38
Q

When trying to introduce extrinsic evidence to establish an inconsistent statement, it will only be allowed if it is…?

A

material…not collateral.

39
Q

When crimes can be used to impeach a witness?

A

If convicted of a felony or other crime involving dishonesty.

40
Q

When is a court required to allow a conviction to be introduced to impeach a witness?

A

When it involves a crime of dishonesty.

41
Q

When does a court have discretion to allow a conviction to be introduced to impeach a witness?

A

When it was a felony.

42
Q

When can a prior consistent statement be used in court?

A

When used to rebut an impeachment of the witness.

43
Q

What is the 2 requirements to use a witness’ prior bad act, not constituting a conviction, to impeach them as dishonest?

A

Prior bad act involved dishonesty,
AND there’s a good faith basis to believe it happened.

44
Q

What is a ‘statement’ for hearsay purposes?

A

Any oral or written assertion, or nonverbal conduct intended to be an assertion.

45
Q

An out of court statement used for its truth, made by a current testifying witness, is not considered hearsay in these 3 situations:

A

Identification purposes,
prior inconsistent statement under oath,
prior consistent statement when used to rehabilitate.

46
Q

What are the 2 broad categories of out of court statements used for their truth that are considered non-hearsay?

A

Prior statements of those currently testifying-sometimes,
Statements by opposing parties.

47
Q

When can silence mean acquiescence of a statement-3 elements?

A

When the party heard and understood,
were capable of denying,
reasonable person would have denied.

48
Q

A non-hearsay statement by an agent/employee are admissible if-2 elements?

A

Concerned matter within scope of agency,
Made during existence of agency.

49
Q

When can a co-conspirator non-hearsay statement be used?

A

When the co-conspirator made the statement in furtherance of the conspiracy,
AND when the court establishes by preponderance a conspiracy and participation.

50
Q

Can the out of court statement, alone, be enough to establish a representative relationship for hearsay purposes?

A

No-there must be independent evidence.

51
Q

What 4 ways is a witness unavailable for testimony?

A

death/serious illness
privilege
refusal/can’t remember
Absent beyond reach of court

52
Q

What are the 5 exceptions to the hearsay rule for witnesses who are unavailable?

A

Former testimony,
Dying declarations,
Statements against interest,
Family History,
Statements by party procuring unavailability.

53
Q

What is a statement against interest?

A

when it’s against your pecuniary, proprietary, or penal interests.

54
Q

What is the special rule for statements against interest when it comes to criminal cases?

A

The statement must be corroborated by someone else.

55
Q

In what kinds of cases does the dying declaration exception apply?

A

Civil or homicide only.

56
Q

What is required for a statement to be a dying declaration?

A

Declarant believed their death was imminent,
Statement involves 1st hand knowledge of cause of death.

57
Q

Is a party opponent statement non-hearsay if offer by the declarant himself?

A

No-it must be the party opponent who introduces it.

58
Q

What is an excited utterance?

A

A statement relating to a startling event made while still under the stress of the event.

59
Q

What is a present sense impression?

A

A statement that describes an event or condition during or immediately after the event or condition.

60
Q

What is a present state of mind statement?

A

A statement made about one’s intent, motive, plan, or personal condition at the time of making the statement.

61
Q

What statements fall under the ‘medical diagnosis’ exception to hearsay?

A

Only the statements regarding diagnosis and useful for treatment…not blame.

62
Q

What are the 4 elements for statement to be a business record?

A

It’s a business,
Made in course of regular business,
made near time of event,
by someone with knowledge or duty to inform.

63
Q

When can a court refuse to allow a business record as an exception to hearsay?

A

If opponent shows it lacks trustworthiness.

64
Q

What is the date of age for a document to fall under the ‘ancient documents’ exception to hearsay?

A

January 1, 1998

65
Q

What law do privileges fall under for FQ cases…diversity cases?

A

FQ-Federal common law,
Diversity-State law

66
Q

What is the most common privilege that does NOT fall under federal common law?

A

Medical doctor-Patient privilege

67
Q

What are the 4 exceptions to the physician-patient privilege?

A

No privilege by contract,
Patient puts physical condition at issue in trial,
Physician aided in wrongdoing,
Physician and patient are in dispute case.

68
Q

What kind of cases does spousal immunity privilege apply?

A

Criminal cases only

69
Q

What kind of cases does the Confidential Marital Communications privilege apply?

A

Any case

70
Q

What is the main requirement to invoke spousal immunity privilege?

A

Must be married at the time of trial.

71
Q

Who holds the spousal immunity privilege?

A

The witness spouse

72
Q

What is the main requirement to invoke the privilege for Marital Communications?

A

The communication was made while married.

73
Q

Who can invoke the Marital Communication privilege?

A

Either spouse

74
Q

When does spousal communication privilege terminate?

A

Never

75
Q

When do the spousal privileges not apply 3 times?

A

spouses are opponents,
spouse charged with family violence,
joint crimes

Bar Prep (11 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2025 Bold Learning Solutions. Terms and Conditions