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Bar Exam > EVIDENCE > Flashcards

EVIDENCE Flashcards

1
Q

What is the purpose of offering a statement as evidence?

A

To prove it was said (nonhearsay) or to prove it is true

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2
Q

What is nonhearsay?

A

Verbal act or legally operative words, state of mind, effect on listener or reader, prior statements of a trial witness

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3
Q

What are verbal acts?

A

Words that show contract formation or defamation

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4
Q

What is the state of mind evidence?

A

Statements like ‘I’m the Queen of England’ to show the declarant’s mental state

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5
Q

What is the effect on listener or reader used for?

A

Usually offered to prove motive or intent

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6
Q

What are prior statements of a trial witness?

A

Must be testifying at trial for these to apply

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7
Q

What is a prior inconsistent statement?

A

Made under oath and subject to cross-examination

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8
Q

What is a prior consistent statement used for?

A

To rebut a charge of recent fabrication of improper motive/influence

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9
Q

What is an opposing party’s statement?

A

Any statement made by the opposing party that is offered against that party

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10
Q

What are adoptive admissions?

A

Statements a person adopts through silence

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11
Q

What are agent/employee statements?

A

Statements made by the agent/employee offered against the principal during the relationship

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12
Q

What are statements by co-conspirators?

A

Made during the course of and in furtherance of the conspiracy

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13
Q

What is the requirement for hearsay exceptions?

A

Declarant must be unavailable

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14
Q

What constitutes forfeiture by wrongdoing?

A

A party engages in wrongdoing to make a witness unavailable for trial

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15
Q

What is a dying declaration?

A

Statement made while believing death is impending, concerning cause or circumstances of death

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16
Q

What is a statement against interest?

A

Declarant is unavailable and made a statement against his interest

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17
Q

What is the Sixth Amendment Confrontation Clause?

A

In criminal cases, testimonial statements are generally not admitted if the declarant is unavailable and not cross-examined

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18
Q

What is a present sense impression?

A

Declarant describes or explains an event as it is happening or immediately thereafter

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19
Q

What is an excited utterance?

A

Statement made while under stress of excitement related to a startling event

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20
Q

What is a statement for medical treatment or diagnosis?

A

Declarant makes a statement about symptoms or causes for diagnosis or treatment

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21
Q

What are business records?

A

Records made in the regular course of business containing information observed by employees

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22
Q

What is the best-evidence rule?

A

One only needs to present documentary evidence to prove the contents of a writing

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23
Q

What does the completeness rule state?

A

When part of a writing is introduced, the rest may be introduced for fairness

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24
Q

What is character evidence generally used for?

A

Inadmissible to prove someone acted in accordance with character

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25
Q

In what cases is character evidence admissible in civil cases?

A

Negligent entrustment or hiring, defamation, and child custody

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26
Q

What is habit or routine practice evidence?

A

Admissible to prove that a person or organization acted in accordance with their habit or routine practice

27
Q

What does MIMIC stand for?

A

Motive, Intent, Lack of Mistake, Identity, Common Scheme or Plan

28
Q

What is refreshing recollection?

A

Showing a document to jog a witness’s memory

29
Q

What is judicial notice?

A

Court may notice a fact not subject to reasonable dispute

30
Q

What is limited admissibility?

A

Evidence may be admissible for one purpose and not another, with a limiting instruction provided

31
Q

What is the role of the judge in evidence presentation?

A

The judge decides if evidence is admissible

32
Q

What is the role of the jury in evidence presentation?

A

Decides issues of authentication and credibility

33
Q

What does the acronym MIMIC stand for in admissible evidence?

A

Motive, Intent, Lack of Mistake, Identity, Common Scheme or Plan

34
Q

In self-defense cases, what type of evidence may a criminal defendant offer regarding the victim?

A

Reputation or opinion evidence

35
Q

What can the prosecution do in response to a defendant’s evidence of a victim’s violent character?

A

Introduce reputation or opinion evidence of the victim’s or defendant’s character

36
Q

When can prior sexual misconduct of a defendant be admitted in court?

A

If accused of sexual assault or child molestation

37
Q

In a criminal case, what can specific instances of a victim’s prior sexual misconduct be used to prove?

A
  • Source of semen
  • Injury
  • Consent
  • Violation of defendant’s constitutional rights
38
Q

In a civil case, when is evidence of a victim’s prior sexual misconduct admissible?

A

When the probative value substantially outweighs the danger of harm or unfair prejudice

39
Q

What is required for extrinsic evidence to be permitted?

A

The witness must be given an opportunity to explain or deny the statement

40
Q

What type of bias can be suggested regarding a witness?

A

If the witness is a family member, friend, enemy, paid by a party, granted immunity, or shows other circumstances of bias

41
Q

What types of convictions are allowed into evidence under the federal rules?

A
  • Felony or misdemeanor convictions involving dishonesty
  • Felony convictions meeting a balancing test
42
Q

What is the time limit for admitting evidence of a conviction after 10 years?

A

Generally not admissible

43
Q

Can specific instances of misconduct be used to impeach a witness?

A

Yes, but only if they are probative of truthfulness

44
Q

What conditions allow for the impeachment of a witness due to contradiction?

A

If the witness made a mistake or lied during direct examination

45
Q

What is required for a party to call a character witness for truthfulness?

A

The witness must have a bad reputation for truthfulness or be opinionated that the witness is not truthful

46
Q

When can evidence of a witness’s truthful character be admitted?

A

Only after the witness’s truthfulness is attacked

47
Q

What qualifies a witness as an expert?

A

Knowledge, skill, experience, training, or education

48
Q

What are the bases on which an expert may base their opinion?

A
  • Personal knowledge
  • Facts in the record
  • Facts not in the record that other experts rely on
49
Q

What must an expert witness not state in a criminal case regarding the defendant?

A

Whether the defendant had the requisite mens rea

50
Q

What are the requirements for a lay witness’s opinion to be admissible?

A
  • Rationally based on perception
  • Helpful to determining a fact
  • Not based on scientific or specialized knowledge
51
Q

What is required for a court to exclude a nonparty witness?

A

A party’s request

52
Q

What must a proponent produce to authenticate an item?

A

Evidence sufficient to support a finding that the item is what the proponent claims it is

53
Q

Who can authenticate handwriting?

A
  • A lay witness familiar with the handwriting
  • An expert witness
  • The trier of fact
54
Q

Who can authenticate a voice?

A

Anyone, including a lay person

55
Q

Who can authenticate a photograph?

A

Anyone with personal knowledge of the scene in the photograph

56
Q

What are the conditions for spousal immunity in a criminal trial?

A
  • Applies in a criminal trial
  • Held by the witness spouse
  • Parties must be married at the time of trial
57
Q

What are the conditions for confidential communications between spouses?

A
  • Applies in civil or criminal trials
  • Held by both spouses
  • Communication was confidential
  • Made during the marriage
58
Q

What does attorney-client privilege protect?

A

Confidential communications for obtaining legal advice

59
Q

What does the psychotherapist-patient privilege protect?

A

Confidential communications for diagnosis or treatment

60
Q

Under what conditions can work-product doctrine materials be discovered?

A

Absent a showing of a ‘substantial need’ and ‘undue hardship’

61
Q

Is insurance coverage admissible to prove negligence?

A

No, but may be used for other purposes

62
Q

Are subsequent remedial measures admissible to show negligence?

A

No, but may be used for impeachment or other purposes

63
Q

Is a guilty plea admissible?

A

Yes

64
Q

Are statements made during negotiations that did not result in a guilty plea admissible?

A

No

Bar Exam (14 decks)

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