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Evidence Flashcards

1
Q

Relevance

A

Evidence is relevant if it has any tendency to make a fact more/less probable than it would be without it (probativeness)

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2
Q

Evidence of similar occurrences

A

Even though evidence must generally relate to the current issue…

Evidence of other issues may be admissible if you can prove..

HICIAB

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3
Q

Habit evidence

A

A persons invariable response to a particular set of circumstances

Admissible to prove D likely acted in accordance

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4
Q

Intent

A

Prior similar occurances may be used to prove D’s intent

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5
Q

Comparable sales

A

The selling price of a comparable property

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6
Q

Industry standard of care

A

Admissible to prove how D should’ve acted

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7
Q

Similar Accidents

A

If evidence relates to the same condition at issue in the present litigation and occured under substantially similar circumstances

Dangerous condition
Causation
Notice

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8
Q

Routine Business Practice

A

Admissible to prove how D likely acted
(Customary practices of an organization)

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9
Q

History of lawsuits

A

Prohibited unless
1) proving fraud
2) proving D’s act wasn’t the cause of P’s injury

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10
Q

Excluding potentially relevant evidence

A

Although relevant, evidence may be excluded if the probative value is substantially outweighed by

1) danger of unfair prejudice
2) undue delay
3) confusion of the issues
4) misleading the jury

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11
Q

Policy based exclusions (loss)

A

Although relevant, may be excluded

Subsequent remedial measures
Settlement
Offer to pay medical bills
Liability insurance

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12
Q

Subsequent remedial measures

A

Any measures taken following an accident that would’ve prevented the accident is inadmissible unless to prove

Ownership
Control
Feasibility
(if disputed)

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13
Q

Settlement

A

Settlements/offers to settle/statements re: settlement are inadmissible to prove

Liability
Impeachment
Invalid or amt. of disputed claim

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14
Q

Offers to pay medical expenses

A

Inadmissible to prove

1) negligence
2) ability to pay

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15
Q

Liability insurance

A

Inadmissible to prove negligence, but admissible to prove

1) Motive
2) Ownership
3) Intent

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16
Q

Pleas, Plea discussions

A

Inadmissible

-Withdrawn guilty plea
-Plea of nolo contendre
-Any statements made during plea discussions

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17
Q

Character evidence

A

Any evidence that D tends to possess a certain character trait

Inadmissible to prove D acted in conformity with that trait on the particular occasion

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18
Q

D introducing character evidence in a criminal case

A

Can introduce evidence through R or O, NOT SA

Then P can introduce evidence of SA on cross or call their own witness through R or O

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19
Q

Char. evidence in a civil case

A

Generally not admissible to prove propensity

unless being offered to prove an essential element in P’s claim, D’s defense

in a Child custody, defamation, negligent hiring

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20
Q

Evidence of D’s prior sexual misconduct

A

Always admissible

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21
Q

Evidence of victim’s character in a sexual misconduct case (crim)

A

Inadmissible unless to prove

1) Consent
2) Disputed evidence
3) Due process

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22
Q

Evidence of victim’s character for sexual misconduct case (civil)

A

Inadmissible unless the probative value substantially outweighs the danger of harm to any victim/unfair prejudice

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23
Q

MIMIC Evidence

A

Evidence of D’s specific bad acts can be introduced for non-propensity purposes

Motive
Identity
Mistake/lack thereof
Intent
Common scheme/plan

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24
Q

Judicial Notice

A

The trier of fact (judge) will recognize that a fact is tue without anyone presenting evidence

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25
Judicial Notice is taken on indisputable facts when
Manifest - Quickly and easily verifiable Notorious - Obvious
26
JN in a civil proceeding
The jury is req'd
27
JN in a criminal case
The jury may
28
Presumption in a criminal case
P must prove each element beyond a reasonable doubt
29
Presumption in a civil case
D must prove by the preponderance of the evidence
30
Qualifications, admissibility of evidence, privilege existence are all determined by
The Judge
31
Hearing re: preliminary questions in front of a jury are allowed unless
1) Crim case and D requests 2) Involves admissibility of a confession 3) Justice requires
32
Real evidence v. doc evidence
Real evidence tends to prove a fact at issue in the case Documentary evidence tends to preserve information
33
Authorization
Each party must present sufficient evidence such that a reasonable juror would believe the item offered is what it claims to be
34
Real evidence may be authenticated by
1) Chain of custody substantially unbroken (reliable procedures) 2) Witness w/ personal knowledge
35
Authenticating writings
1) Witness w/ personal knowledge 2) Handwriting comparisons 3) Solicited reply doctrine 4) Ancient document rule KCSA
36
Handwriting comparisons
Lay witness - someone with PK not as a result of litigation Expert witness Jury comparison
37
Ancient Doc
20 years Free of suspicion Found where you'd expect
38
Solicited Reply
Received in response To a prior communication
39
Self-Authenticating Documents
NON FLIPS Newspaper Official publications Notarized Foreign public records Labels Instruments Public documents Seal (Gov.)
40
Telephone convos
1) Recognized voice 2) Called and they ID'd themselves 3) Spoke of facts only they'd know
41
Best Evidence Rule
If you're seeking to prove the contents of documentary evidence you 1) Need the original 2) or an excuse
42
Proving the contents
1) Legally operative document 2) Witness learned facts solely from seeing them in the documents
43
If Lost
You can use a copy if authenticated
44
BER doesnt apply to
1) Certified copies 2) Voluminous records 3) Doc's unimportant to a material issue
45
Completeness Rule
If you're only providing "Part" of an overall document, the rest of the document is admissible for fairness
46
Competency
A witness 1) Must have personal knowledge 2) Must take and understand an oath
47
Dead Mans Statute
In a civil case An interested person cant testify against a dead person re: communications or transactions unless D doesnt object OR offers testimony
48
Excluding witnesses
Can exclude any witness unless 1) They're a party 2) Needed to properly present case 3) Statute authorizes
49
Leading questions
Questions that suggest the answer. Only allowed on CROSS. Can be allowed on direct if: Hostile Adverse Inconsequential Recall Young
50
Present recollection refreshed
You're simply showing something to try to jog the witness mother
51
Past recollection recorded
If they still can't remember, witness can read (but not show) if: 1) Prior knowledge 2) Created at a time where events were still fresh 3) Witness can attest at the time it was accurate
52
Lay witness opinion
OK if helpful and rationally based on their perception Can't provide legal conclusions
53
Expert witness cannot
Give their opinion on D's mental state in a criminal case
54
Expert opinion
Based on scientific, specialized, technical knowledge
55
Daubert standard
To determine expert reliability Confirmed Reviewed Accepted Published Error Rate Known
56
Credibility
The amount of weight given to a witness testimony based on 1) Perception 2) Memory 3) Honesty
57
Impeachment
The process of discrediting a witness by attacking their credibility
58
Who may be impeached?
Only witnesses
59
Methods of Impeachment
Prior Inconsistent statement Bias Sensory impairment Bad rep re: dishonesty/untruthfulness Crim convictions Bad acts re: dishonesty/untruthfulness Contradictions
60
Two impeachment scenarios
1) Attacking something they said/saw 2) Bringing up past acts
61
Intrinsic v. extrinsic evidence
Intrinsic: Questions on cross Extrinsic: Docum/testimonial evidence
62
Can you bring up past bad acts?
No, unless they relate to honesty/untruthfulness But no one else can be called to validate via extrinsic evidence
63
What if the witness denies the bad act?
Must move on
64
Can you bring up past prior convictions
Yes if they relate to honesty/untruthfulness Can prove via R, O and extrinsic
65
What if the witness denies conviction?
Can prove via extrinsic
66
Can you prove by a felony?
No unless: 1) Within the last 10 years 2) Passes the balancing test
67
Rehabilitation
Process of rehabilitating a witness through intrinsic/extrinsic information showing the witness is truthful
67
When is a stmt available to impeach & for substantive evidence
When the stmt is also a hearsay exception
68
Rehabilitation methods
Prior consistent statement Good character through truthfulness
69
Confidential Privileges
C H I M P S R A P
70
Attorney client privilege
1) Must actually be privileged 2) Can be speaking w/ anyone on the team for it to apply 3) Must have reasonable expectation of privacy
71
Waiving attorney client privilege
Only client can waive, survives death
72
Losing the privilege
1) Relates to future fraud/crime 2) Non payment 3) Knew a 3rd party would be given info
73
Communication privilege
Crim or Civil Things you say to spouse Survives divorce Both parties must waive -Lost if concerns any ongoing/future crime
74
Testimonial spousal immunity
Only criminal (Spouse is on stand) Can't compel spouse to testify unless testifying spouse waives
75
Doctor/Patient privilege
Any communications for the purpose of medical treatment/diagnosis are privileged unless -Waived -Condition is at issue -3rd Party -Non-payment
76
Hearsay
An out of court statement offered to prove the truth of the matter asserted Inadmissible unless an exception applies
77
Truth of the matter asserted
Party is offering the statement for the truth of what it says
78
Statements NOT offered to prove the truth of the matter asserted
Offer Acceptance Libel Slander
79
Hearsay exceptions (avaliability doesn't matter)
Evidence Sucks But Present Me Rolls Please Excited Utterance Then Existing State of Mind Business Records Present sense impression Medical Records Recorded Recollection Public records
80
Excited utterance
Statement made while under excitement
81
State of Mind
Intent (going to do..) Emotion What's physically going on right now (pain)
82
Business record
Made in the ordinary course of business (done all the time)
83
Present sense impression
A statement made while observing something
84
Medical diagnosis/treatment
Being treated/diagnosed
85
D is unavaliable
Dying Declaration Former Testimony Statement against Interest
86
Dying declaration
Impending death (must believe) Only in a homicide/civil case Stmt. about why they're dying
87
Statement against interest
A statement making D look guilty, generally by someone other than D
88
Former testimony
1) Party in a former case 2) Case is same subject matter 3) Stmt made under oath 4) Opp to examine witness
89
NOT hearsay
Admissions Prior consistent/inconsistent statements Prior ID
90
Vicarious admissions
Employees are generally making a statement about a company
91
Adoptive admissions
Silence when a normal person would protest
92
Prior inconsistent statement
Statement must have been made 1) under oath 2) at trial that's inconsistent w out of court statement
93
Prior consistent statement
Refutes the idea you're lying
94
Prior stmt of identification
Prior out of court ID by witness made immediately after perceiving
95
Demonstrative + physical evidence
All ok
96
Testimonial statements
A statement that a declarant would reasonably expect to be later used in a criminal prosecution exception -> any statements made during an ongoing emergency

MBE (8 decks)

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