Brainscape's Knowledge GenomeTM

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


See full index

UBE > Evidence > Flashcards

Evidence Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

What makes evidence relevant?

A

Makes any pertinent fact more or less probable.

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

Habit distinguished from character

A

Habit describes a regular response

Character describes disposition

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

FRE 406

A

habit admissible to prove someone acted in accordance with habit on a particular occasion

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

“Jeff is a carless driver.”

habit or character?

A

character

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

“Jeff never slows down for the yield sign at the end of the street.”

habit or character?

A

habit

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

Liability insurance permissible?

A

Not for negligence or ability to pay (public policy)

Yes for ownership/control, impeachment, liability admission

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

Settlement offers permissible?

A

Not to prove/disprove validity/amount of disputed claim, or to impeach a witness by prior inconsistent statement/contradiction.

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

Subsequent remedial measures permissible?

A

Not for negligence, design defect, need for warning (public policy)

Yes for ownership/control, rebutting a claim that precaution wasn’t feasible, opposing party destroyed evidence

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

When are settlement offers permissible?

A

In a criminal case, when addressing statements made during compromise negotiations regarding a civil dispute with a government authority.

(D admissions during civil settlement with SEC are admissible in his criminal trial)

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

Are offers to pay medical expenses admissible?

A

No, but accompanying statements of fact are.

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

Does taking the stand put a D’s character at issue?

A

No, but it puts his credibility at issue.

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

When is evidence of prior acts of misconduct admissible?

A 
MIMIC:
motive
intent
mistake (absence of)
identify 
common plan/scheme
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

ancient document provision

A

document may be authenticated by evidence that it is:

at least 20 years old
condition doesn’t leave authenticity suspect
found in a place where such a writing would be kept

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

x-ray authentication

A

accurate process
machine was in working order
qualified operator

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

who may identify a voice?

A

anyone who has heard the voice at any time

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

best evidence rule

A

To prove the terms of a writing, if the terms are material, must produce the original writing. Secondary evidence (oral testimony, etc.) admissible only if the original writing is unavailable.

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

handwritten copies–what type of evidence and when admissible?

A

secondary evidence

admissible only when originals unavailable

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

when are leading questions permitted?

A

on cross

to intro new material

when witness needs aid b/c of memory loss, immaturity, physical/mental weakness

hostile witness

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

when a past recorded recollection is read into evidence and heard by the jury, is it admitted into evidence as an exhibit?

A

only when offered by an adverse party

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

present recollection refreshed and past recollection recorded–hearsay?

A

present recollection refreshed: not HS b/c not offend into evidence

past recollection recorded: HS, but falls w/in an exception

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

when is lay witness opinion testimony admissible?

A

rationally based on witness perception

helpful to a clear understanding of testimony or determination of a fact at issue

not based on scientific, technical, or other specialized knowledge

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

May lay witnesses testify whether one acted as an agent?

A

No

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

May lay witnesses testify whether an agreement was made?

A

No

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

When may an expert not give an opinion on the ultimate issue?

A

When the defendant’s mental state is an element of a crime or defense, an expert may not state an opinion whether the accused had that mental state.

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

Per federal rules, what are the limits on impeachment?

A

Anybody may impeach anybody.

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

Per FRE, does an opportunity to explain or deny need to precede the introduction of a prior inconsistent statement?

A

No

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

What discretion does a court have to bar impeachment by evidence of past crimes concerning dishonesty?

A

None

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

What convictions are inadmissible?

A

Those for which conviction or release from jail (whichever later) is more than ten years passed

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

Does FRE permit an impeaching witness to speak to the character for truthfulness of another witness?

A

Yes

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

Is a privilege waived when someone wrongfully discloses privileged information without the privilege holder’s consent?

A

No

31
Q

Does a waiver of a joint privilege holder impact the right of the other privilege holder to assert?

A

No

32
Q

Does physician-patient privilege apply to an exam made at an attorney’s request?

A

No, because no treatment is contemplated.

33
Q

Exceptions to attorney-client privilege

A

attorney’s services were sought to aid in planning/commission of something the client should have known was crime or fraud

regarding communication relevant to an issue between parties claiming through the same deceased client

communication relevant to an issue of breach of duty in a dispute between attorney and client

34
Q

Qualifications for physician-patient privilege

A

professional relationship exists

info acquired in course of treatment

info necessary for treatment

35
Q

Physician-patient privilege in personal injury suit?

A

No: the patient put his physical condition at issue

36
Q

Ho long does spousal immunity last?

A

Length of the marriage (refusing to testify against spouse)

37
Q

How long does privilege for confidential marital communication last?

A

Always (can’t divulge things said within marriage)

38
Q

When no spousal privilege or immunity applies

A

Legal action between spouses, cases involving crimes against the testifying spouse or either spouse’s children

39
Q

past recollection recorded doctrine

A

A party seeks to read into evidence the contents of a writing that was made or adopted by the witness. Requires foundation be laid.

40
Q

Is a business record prepared in anticipation of litigation admissible under the business records HS exception?

A

No; must be prepared in the regular course of business.

41
Q

What type of HS is an admission by a party opponent?

A

Non-HS.

42
Q

If a party fails to respond to accusatory statements when a reasonable person would have spoken up, is that silence admissible?

A

Yes, as an admission, therefore non-HS.

43
Q

When may the statement-against-interest HS exception be applied?

A

Declarant unavailable

44
Q

Are plea bargains admissible?

A

Yes, as non-HS admissions if followed-through; withdrawn plea bargains, no los, etc. are not admissible.

45
Q

What type of HS is an admission by a party opponent?

A

Non-HS

46
Q

Is testimony regarding a defendant’s attempt to bribe a witness admissible?

A

Yes, as a non-HS admission.

47
Q

What are the hearsay exemptions?

A

admissions by party opponents

prior statements:

  • inconsistent (if under oath at prior proceeding)
  • consistent (if rebutting charge of lying, and made before motive to exaggerate)
  • prior id: if testifying and subject to cross
48
Q

HS exceptions

declarant availability irrelevant

A 
present sense impression
excited utterance
then-existing emotional, physical, mental state
medical diagnosis/treatment
past recollection recorded
business record
public record
49
Q

May police reports be admitted as public records in criminal cases?

A

No

50
Q

When may a past recollection recorded be introduced, and on what terms?

A

attempt to refresh failed
witness wrote when event was fresh
witness may read it into evidence

only an opponent may admit the document into evidence

51
Q

“I have a headache.”
“I had a headache.”

Which qualifies for HS exception?

A

“I have a headache”

Then-existing mental/emotional/physical state

52
Q

Why are excited utterances permissible HS exceptions?

A

Excitement precludes propensity to lie

53
Q

HS exceptions

declarant unavailable

A 
PRISM
Privilege (assertion)
Refusal (to testify)
Incapacity
Subpoena (failure to comply)
Memory (lack thereof)
54
Q

Qualifications for dying declaration

A 
HS exception
declarant unavailable
must concern cause of death
 made when death believed imminent
only civil + criminal homicide
55
Q

In what types of matters are dying declarations admitted?

A

civil + criminal homicide

56
Q

Is character evidence admissible in civil cases?

A

Only when directly at issue, i.e. defamation.

57
Q

When and on what terms is a criminal defendant permitted to introduce evidence of good character?

A

At any time, when concerning a character trait pertinent to the charge (to support probability of innocence).

58
Q

When and how may courts permit evidence of a bad character trait of a victim?

A

Reputation and opinion evidence – NOT specific acts – may be offered when relevant to a charge or defense.

59
Q

When are other crimes admissible as identity evidence?

A

When they show a very unique style amounting to a signature.

Using a specific pearl knife is a signature; throwing a brick through a window is not.

60
Q

When does the Confrontation Clause block HS testimony?

A

offered against the accused
declarant unavailable
statement was testimonial
accused has no opportunity to cross the statement

61
Q

When is a statement non testimonial?

A

When the primary purpose of interrogation is to enable the police to help in an ongoing emergency.

Think 911 call

62
Q

When is a statement testimonial?

A

Primary purpose is to establish or prove past events potentially relevant to a later criminal prosecution.

63
Q

If a girl is attacked by her boyfriend, the police come and put him in the back of a car, then question her, are the girl’s statements testimonial?

A

Yes: the emergency is resolved because the boyfriend is locked up, and she is describing past events.

64
Q

If a girl is attacked by her boyfriend, the police come and put him in the back of a car, then question her, and the police want to testify as to her statements when she is unavailable at the boyfriend’s trial, may they so testify?

A

While the girl’s statements are not barred by hearsay, the statements violate the Confrontation Clause because they are testimonial.

65
Q

May a treatise be used as substantive or impeachment evidence?

A

Both

66
Q

May an expert be cross-examined with a treatise?

A

Yes

67
Q

Is a grand jury statement admissible in a subsequent court proceeding as substantive or impeachment evidence?

A

Both

68
Q

Does prior grand jury testimony qualify under a HS exception?

A

No; it’s admissible non-HS

69
Q

May a witness be asked about a guilty plea she accepted?

A

Yes; she’s not the defendant and she accepted.

The rule only applies to offers and withdrawn pleas.

70
Q

When may specific acts of misconduct be offered to attack a witness’ character for truthfulness?

A

Only on cross

71
Q

While cross examining D for assault and battery, prosecution asks whether he was convicted of fraud within the past year. Permissible?

A

Yes: D took the stand, so his credibility and penchant for truthfulness are relevant. Fraud is a crime of dishonesty.

72
Q

Does a prior identifying statement constitute hearsay?

A

Not if the witness testifies and is subject to cross.

73
Q

Foundational requirement for inconsistent statements during impeachment

A

Witness must be given opportunity to explain or deny

74
Q

HS qualification for prior inconsistent statements

A

made under oath: permissible non-HS

not made under oath: HS

UBE (9 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions