EVIDENCE Flashcards
What is the requirement for evidence to be admissible?
Evidence must be relevant in order to be admissible.
What makes evidence relevant?
Evidence is relevant if it is probative and material.
What does probative mean?
Probative means it has any tendency to make a fact more or less probable than it would be without the evidence.
What does material mean?
Material means it is a fact of consequence in determining the outcome of the action.
Who determines the relevance of evidence in a jury trial?
The jury determines whether the offered evidence is relevant to the issues in the case.
What is the judge’s role regarding evidence?
The judge determines whether the evidence is competent to be admitted at all.
What is the standard of proof in civil cases?
The standard of proof in civil cases is the preponderance of evidence.
What is the standard of proof in criminal cases?
The standard of proof in criminal cases is beyond a reasonable doubt.
What can the court do under Rule 403?
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or being needlessly cumulative.
Are subsequent remedial measures admissible to prove negligence?
No, evidence of remedial measures is not admissible to prove negligence or culpable conduct.
Can settlement offers be used to prove the validity of a claim?
No, settlement offers or negotiations are not admissible to prove or disprove the validity of a claim.
What is the rule regarding plea discussions?
Plea discussions are not admissible against the defendant to show withdrawn guilty pleas or no contest pleas.
Is liability insurance admissible to prove negligence?
No, liability insurance is not admissible to show whether a party acted negligently or wrongfully.
Is character evidence admissible to prove propensity?
Character evidence is not admissible to prove propensity.
When is character evidence allowed?
Character evidence is allowed for non-propensity purposes or when character is an essential element of charge or defense.
What are the methods of proving character?
Character can be proven through reputation, opinion, or specific instances.
What is the admissibility of character evidence in civil cases?
In civil cases, character evidence is not admissible for propensity purposes unless character is an essential element of a claim or defense.
What is the rule for character evidence in criminal cases?
In criminal cases, the prosecution cannot introduce evidence of the defendant’s bad character.
What can a defendant do regarding their character in a criminal case?
The defendant can introduce evidence of their own good character if pertinent to the crime charged.
What is M.I.M.I.C. in relation to specific instances of conduct?
M.I.M.I.C. stands for Motive, Opportunity, Intent, Absence of Mistake or Plan, Identity, or Common Plan or Scheme.
What is habit evidence?
Habit evidence is admissible in civil cases to show a person or organization acted in accordance with habit or routine.
What is impeachment in legal terms?
Impeachment is the process of casting an adverse reflection on the veracity of a witness’ testimony.
What are prior inconsistent statements?
Prior inconsistent statements are admissible to impeach a witness if made under oath.
What is the rule regarding prior convictions for impeachment?
Prior convictions can be used to attack credibility if they are felonies or misdemeanors involving dishonesty, within 10 years.
What is the requirement for a witness’s prior consistent statements?
Prior consistent statements are admissible to rebut claims of lying if made before the motive to fabricate arose.
What is hearsay?
Hearsay is an out-of-court statement offered into evidence to prove the truth of the matter asserted.
What is the non-hearsay rule?
An out-of-court statement introduced for any purpose other than to prove the truth of the matter asserted is not hearsay.
What is the unavailability requirement for hearsay exceptions?
A declarant is unavailable if they assert a privilege, refuse to testify, are incapacitated, fail to comply with a subpoena, lack memory, or are deceased.
What is a dying declaration?
A dying declaration is a statement made by a declarant who believes death is imminent, regarding the cause or circumstances of death.
What is a present sense impression?
A present sense impression is a statement describing an event made while or immediately after the declarant perceived it.
What is an excited utterance?
An excited utterance is a statement made while the declarant was under the stress of excitement caused by a startling event.
What is a ‘terance’ in legal terms?
A statement relating to a startling event or condition made while the declarant was under the stress or excitement that it caused.
The declarant’s emotional state is key.
What does ‘Present Mental State/then-existing’ refer to?
It refers to a then-existing state of mind (motive, intent, or plan) or emotional, sensory, or physical condition.
Usually used to show intent to do something in the future (but not past).
What qualifies as ‘Medical Diagnosis or Treatment’ statements?
Statements made for and reasonably pertinent to medical diagnosis or treatment, describing medical history, past or present symptoms or sensations.
Statements that admit fault will be excluded and do not have to be made by a doctor but must relate to treatment.
What is ‘Past Recollection Recorded’?
A record on a matter that the witness once knew about but now cannot recall well enough to testify fully and accurately.
Admissible if the witness had knowledge at one time, made while the matter was fresh in memory, and the witness can no longer remember it.
What are ‘Business Records’?
A record of events, conditions, opinions, or diagnoses kept in the course of regularly conducted activity of a business, made at or near the time by someone with knowledge.
Police reports are business records in civil, not criminal cases.
What constitutes ‘Public Records’?
Records and reports of public agencies regarding their activities, including records of births, deaths, and marriages.
Absence of public record is admissible to show non-existence.
What are ‘Learned Treatises’?
Statements from authoritative works admitted if called to the attention of an expert witness and established as a reliable source.
May be used to impeach an expert and as substantive evidence once established as reliable authority.
What is the ‘Confrontation Clause’?
Gives criminal defendants the right to confront witnesses against them if the statement is testimonial, the witness is unavailable, and the defendant never had a chance to cross the declarant about it.
Unless the statement was made during an ongoing emergency to aid police (e.g., 911 call), which is not testimonial.
What does ‘Attorney-Client Privilege’ protect?
Confidential communications between attorney and client to facilitate legal services if intended to be confidential and made during professional legal consultations.
Applies to legal assistance, consultant, or agent of attorney; client holds privilege and may waive if disclosed to a third party.
What is ‘Physician-Patient Privilege’?
There is no federal privilege; only states recognize it.
Applies to confidential patient communications made to a physician for medical diagnosis or treatment.
What is ‘Spousal Immunity’?
Witness spouse may refuse to testify against spouse in criminal cases.
Applies only in criminal proceedings and includes all communications and impressions.
What is ‘Confidential Marital Communication’?
Communications between spouses are privileged if made during the course of marriage and intended to be confidential.
Both spouses hold privilege, and it survives divorce, applying to both criminal and civil proceedings.
What is required for ‘Authentication’ of evidence?
Real or demonstrative evidence must be relevant and authenticated, identified as being what the proponent claims it to be.
Voice, writing, and photos can be authenticated by familiar persons.
What is the ‘Best Evidence Rule’?
Arises when the contents of a writing are in dispute; original writing/recording/photo must be produced unless the original is unavailable or it’s a reliable duplicate.
The Rule of Completeness allows an adverse party to require the introduction of the whole or other parts of the recording/writing.
