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July 2017 BAR > evidence > Flashcards

evidence Flashcards

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1
Q

What evidence is admissible?

A

Irrelevant evidence is not admissible. Relevant evidence may be admissible.

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2
Q

What is relevant evidence?

A

1) Has any tendency to make the existence of any fact of consequence,
2) to the determination of the action
3) more or less probable than it would be without the evidence.

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3
Q

does the court have discretion to exclude relevant evidence?

A

yes, if its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time.

(tip- look for emotionally disturbing evidence or evidence that can be admitted for one purpose but inadmissible for another purpose.)

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4
Q

When can the court exclude evidence for policy reasons?

A
  1. Liability Insurance inadmissible to prove culpable conduct or D’s ability to pay.
  2. Subsequent Remedial Measures or Repairs inadmissible to prove culpable conduct, and in a products liability action, is inadmissible to prove defective product design.
  3. Settlement, offers to settle and pleas. In civil case, evidence of settlements, offers to settle, and related statements are inadmissible to prove liability or fault. In criminal cases, pleas later withdrawn, offers to plea and related statements are inadmissible to prove guilt.
    (has to be threat of claim or claim filed, and dispute as to liability)
  4. Payment or offers to pay medical expenses: Evidence of payments or offers to pay medical expenses is inadmissible when offered to prove liability for the injuries in question
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5
Q

when is evidence about other people or events relevant?

A

when there are certain similarities between the evidence and the people & events at issue.

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6
Q

in what situations can certain similarities be admissible?

A
  1. similar occurrences sometimes admissible to prove causation
  2. Prior accidents or claims usually irrelevant except for pattern of fraudulent claims/preexisting condition.
  3. Previous acts relevant to prove intent
  4. evidence relevant to rebut defense of impossibility
  5. Comparable sales relevant to establish value
  6. Habit evidence
  7. Routine practice evidence
  8. Industrial Custom evidence
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7
Q

what is habit evidence?

A

describes specific conduct and makes no moral judgment. Frequently repeated conduct.

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8
Q

what is character evidence?

A

says something general about a person and conveys a moral judgment.

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9
Q

what is the four step process to attacking a character question?

A
  1. What is the purpose for which the character evidence is being offered? Three possibilities
  2. What method or technique is being used to prove character
  3. Is it a civil or criminal case
  4. Does the evidence prove a pertinent character trait?
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10
Q

what purposes can character evidence be offered?

A
  1. prove character because character is an issue in the case
  2. prove character as circumstantial evidence of a person’s conduct on the occasion in question
  3. offered to impeach or support the credibility of witness
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11
Q

what methods can be used to prove character?

A
  1. specific conduct
  2. reputation
  3. opinion
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12
Q

character evidence in civil cases?

A

character evidence in civil cases is inadmissible to prove conduct except where claim is based on sexual assault or child molestation.

character evidence is admissible to prove character (defamation, negligent intrustment)

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13
Q

character evidence in criminal cases?

A

usually two doors, door is closed when the prosecution begins the case. Usually the prosecution can open the doors.

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14
Q

admissibility of evidence of defendant’s character to prove conduct in a criminal case?

A

prosecution cannot be first to offer such evidence. except

1) in cases of sexual assault or child molestation, prosecution can be first to offer evidence that defendant committed other acts of sexual assault or children molestation.
2. where court has admitted evidence about victim’s character offered by D, prosecution can be first to offer evidence that D has the same character trait.

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15
Q

once D opens the door in a criminal case, what can the prosecuting side do in regards to character information?

A

Offer pertinent character evidence to rebut because D opened the door

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16
Q

once the door is open what type of evidence is allowed on direct?

A

reputation and opinion, not specific instance

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17
Q

once the door is open what type of evidence is allowed on cross examination?

A

reputation, opinion, and specific instance

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18
Q

admissibility of character evidence of victims character?

A

most of the same rules apply. door closed to plaintiff but D can open the door if

1) D offers evidence of victims character, prosecution may rebut
2) in a homicide case, if D offers evidence victim attacked first, prosecution may offer evidence of victim’s character for peacefulness.

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19
Q

what is the purpose of the rape shield statue?

A

to protect an attack on the witness’s reputation.

criminal: only specific instances admissible to prove third party is source of semen or injury or prior acts of consensual intercourse between the v and D
civil: reputation, opinion, and specific instances evidence is admissible if probative values substantially outweighs unfair prejudice, and in regards to reputation, only if plaintiff put her reputation in issue

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20
Q

what are the specific instances defendant’s conduct may be admitted to prove anything other than character is relevant.

A

MIMIC

Motive
Intent
Mistake (absence of mistake) 
Identity
Common plan

Mimic is a touchdown problem, have to see if it if probative value is substantially outwieghed by unfair prejudice.

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21
Q

what are the four requirements for a competent witness?

A
  1. personal knowledge
  2. present recollection
  3. communication
  4. sincerely
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22
Q

what is testimonial evidence?

A

evidence coming out the mouth of a witness.

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23
Q

how does one have personal knowledge?

A

does the fact testified to = the fact perceived

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24
Q

what are the objections to form of testimony and questions?

A
  1. calls for Narrative
  2. Unresponsive
  3. Leading
  4. Assumes facts not in evidence
  5. Argumentative
  6. Compound

(AC LUNA)

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25
Q

must objections to a form of testimony be timely and specific?

A

yes or waived

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26
Q

what is a call for narrative objection?

A

ask for specific focused questions, to stop rambling

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27
Q

what is a unresponsive objection?

A

doesnt answer question asked

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28
Q

what is a leading objection?

A

Usually no leading on direct except if witness is adverse, hostile, or needs help. Leading is ok for CROSS EXAMINATION.

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29
Q

what is an objection to assumes facts not in evidence?

A

assumes facts not in evidence

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30
Q

what is an argumentative objection?

A

argumentative not really a question

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31
Q

what is a compound objection?

A

asks more than one question at once.

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32
Q

Witness Use of documents during testimony?

A

ok refresh memory but cannot read out of court statement (hearsay)

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33
Q

may the opposing side inspect and offer into evidence anything used to refresh?

A

yes

34
Q

whats the recorded recollection exception to the hearsay rule?

A

when the witness is shown the document but doesnt remember it. i

  1. witness has personal knowledge of the facts
  2. document was made or adopted by witness (consents to someone else makes it)
  3. document was made while fresh in the witness memory
  4. document was accurate when made
  5. witness now has insufficient recollection to testify
35
Q

when may opinion testimony be allowed?

A

lay opinion and expert opinion

36
Q

when is a lay opinion testimony allowed?

A

if rationally based on witness’ perception and helpful to trier of fact. (not a legal conclusion)

37
Q

what is the requirement for an expert testimony?

A

1) helpful to jury
2) witness must be qualified
3) witness believes in it to a reasonable degree
4) opinion must be supported by a proper factual basis
5) opinion must be based on reliable principles that were reliably applied

helpful
qualified
degree of certainty

38
Q

what must expert opinion evidence be relied on?

A
  1. admitted evidence
  2. personal knowledge
  3. inadmissible evidence reasonably relied upon
39
Q

when does an expert rely upon reliable principles?

A

peer reviewed, published, tested and subject to retesting, reasaonable level of acceptance.

40
Q

what is the learned treatise hearsay exception?

A

to prove anything stated therein if it is an accepted authority in the field.

41
Q

evidence to support witness credibility?

A

inadmissible unless credibility attacked first.

42
Q

when is a prior inconsistent statement not hearsay and admissible for all purposes?

A

if made before bribe or rehabilitates witness credibility when attacked on another ground.

43
Q

what is the three step approach to admissibility of impeachment of evidence:

A

(i) Is source of impeachment extrinsic evidence or testimony at this proceeding of witness being impeached?
(ii) if extrinsic, is it admissible given impeachment technique
(iii) any other foundation requirements

44
Q

what is extrinsic evidence?

A

evidence other than the witnesses testimony given at this proceeding

45
Q

Is impeachment by contradiction allowed to contradict on collateral matter?

A

no. Can allow extrinsic evidence to contradict relevant matter.

46
Q

Is a Prior Inconsistent statement of witness admissible?

A

yes if the witness testified at trial and given oath.

47
Q

what is the foundation requirement for extrinsic evidence?

A

admissible only if witness given opportunity to explain or deny.

48
Q

is extrinsic evidence admissible if used to impeach evidence of bias, interest, motive?

A

yes if witness given chance to explain

49
Q

Impeachment with conviction for crimes involving false statement?

A

admissible, but must balance probative value vs. unfair prejudice if conviction is over 10 years old.

50
Q

Impeachment with conviction for a crime not involving false statement

A

felonies may be admissible but court may exclude for unfair prejudice.

misdemeanors - that do not involve false statement are inadmissible to impeach.

51
Q

Impeachment with Non-conviction Misconduct Evidence Bearing on Truthfulness

A

acts of misconudct that did not result in a conviction are admissible to impeach if the facts involved lying. Extrinsic evidence to prove the acts is inadmissible.

52
Q

Impeachment with Reputation and Opinion Regarding Truthfulness

A

extrinsic evidence available.

53
Q

Every item of non-testimonial evidence must be ?

A

authenticated

54
Q

what is the burden of proof for authentication?

A

burden of proof is low, sufficient to sustain a finding

55
Q

what can be used to authenticate signatures?

A
  1. admission
  2. eyewitness testimony
  3. expert opinion
  4. lay opinion
  5. circumstantial evidence
56
Q

what is the ancient documents rule?

A

1) document over 20 years
2) no irregularities or alterations
3) was found in a place of natural custody

57
Q

what writings are self authenticated?

A 
certified copies of public documents
notary documents
newspapers, 
periodicals
business records
trade inscriptions
official publications
58
Q

how do you authenticate of non-unique items?

A

establish a chain of custody

demonstrating that this is the specific item proponent claims it to be.

59
Q

what is the best evidence rule and when does it apply?

A

the rule requires the original if 1) case turns on legal document and 2) knowledge obtains from writing

60
Q

what is the exception to the best evidence rule?

A

duplicates are allowed, unless there is a genuine question to the authenticity of the original.

61
Q

what privileges are there in evidence?

A
  1. attorney client privilege
  2. psychotherapist-patient/social worker-client
  3. sometimes doctor/patient
  4. spousal privilege
62
Q

what is the test for attorney client privilege?

A

communication (1) intended to be confidential and (2) the purpose of communication must have been to facilitate legal services

63
Q

what are the exceptions attorney client privilege?

A
  1. crime or fraud exception: communication sought to further what client knew or should have known to be a crime or fraud
  2. breach of ducy between lawyer and client
  3. two or more parties consult an attorney on a matter of common interest and the communication is offered by one of these parties against another.
64
Q

what is the Psychotherapist-patient & Social Worker - Client Privileges

A
  1. communication intended to be confidential
  2. made to facilitate
    unless waived
65
Q

is there a doctor-patient privilege under the FRE?

A

No, but if its a federal court arising under diversity, you will apply state privlege law.

66
Q

when the privilege applies what is the law.

A

same as others but must be pertinent to diagnosis to treatment

67
Q

what is the exception to the doctor / patient privilege

A
  1. patient puts his physical condition in issue
  2. physicians services sought to aid in crime or fraud or to escape capture after a crime or tort
  3. breach of duty in malpractice action.
68
Q

What are the two spousal privileges?

A

spousal testimonial privilege and spousal confidential communication privilege

69
Q

when does spousal testimonial privilege work?

A

only in criminal cases

70
Q

when does spousal communication privilege work?

A

in both civil and criminal

71
Q

both do not apply in what cases

A

against each other in civil cases

crime against other spouse or kid in criminal cases.

72
Q

what matters does spousal testimonial privilege apply to?

A

any matters before or during marriage?

73
Q

what matters does spousal communication privilege apply to?

A

communications made during marriage

74
Q

what is judicial notice?

A

establishing facts without evidence

75
Q

what facts can be judicially noticed?

A
  1. generally known facts

2. facts established by sources of unquestionable accuracy

76
Q

what is the procedure for taking judicial notice?

A

party must make request, if not court has discretion

77
Q

in civil case must the court instruct jury that judicial noticed fact is conclusive

A

yes

78
Q

in criminal case must the court instruct jury that judicial noticed fact is conclusive

A

jury may but not required to accept judicially noticed fact.

79
Q

when can judicial notice happen?

A

at any time, even after appeal.

80
Q

what is the lay persons opinion testimony requirements?

A

1) rationally based
2) on witnesses perception
3) helpful to the trier of fact.

81
Q

what is the expert witness opinion requirements?

A
  1. qualified
  2. witness believe in a opinion to a certain degree
  3. helpful to the jury
  4. relied on proper factual basis
  5. opinion must be based on reliable principles that were reliably applied

July 2017 BAR (13 decks)

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