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Feb 2019 Bar Exam > Evidence > Flashcards

Evidence Flashcards

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1
Q

What is Hearsay?

A

Hearsay is an out of court statement that is offered to prove the truth of the matter asserted.

  • Admissible ONLY IF it falls under an exception.
  • Nonverbal act can be statement if intended as an assertion.
  • Multiple hearsay – each level of hearsay must fall within an exception.
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2
Q

What is NON Hearsay?

A

Non-Hearsay is admissible if offered to prove something other than the truth of the statement.
Common non-hearsay statements:
(1) verbal acts of independent legal significance;
(2) to show the effect on the listener;
(3) prior inconsistent statement used to impeach; and (4) circumstantial evidence of the speaker’s state of mind.

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3
Q

What are some examples of NON Hearsay?

A

Admission by party opponent – any statement offered against a party which is made by that party (or their agents).
Prior statement of identification – declarant identifies a person as someone they perceived earlier.
Judicial and extrajudicial admissions
Prior statements made under oath – admissible if: (1) declarant testifies; (2) declarant was subject to cross- examination; AND (3) prior inconsistent statement was given under oath.

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4
Q

Hearsay Exception - Present Sense Impression

A

Statement describing an event made by the declarant while observing the event or immediately thereafter (few minutes = ok).

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5
Q

Hearsay Exception - Excited Utterance

A

Statement concerning an exciting/startling event, made while the declarant is still under the stress of the event (slight delay = ok)

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6
Q

Hearsay Exception - Business Records Exception

A

Admissible if: (1) records of events, conditions, opinions, diagnoses; (2) kept in the regular course of business; (3) made at or near the time of matter described; (4) made by person with knowledge; (5) regular practice of the business; AND (6) opponent party does not show lack of trustworthiness.

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7
Q

Hearsay Exception - Statements Made for Medical Diagnoses/Treatment

A

Not excluded by hearsay rule if statement: (1) made for medical diagnosis or treatment; AND (2) describes medical history or symptoms (past or present).

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8
Q

Hearsay Exception - Statements of Mental, Emotional, or Physical Condition

A

Admissible if statement of then-existing state of mind (motive, intent, plan) or emotional or physical condition. BUT, statements of memory or belief are NOT admissible unless it relates to the validity or terms of the declarant’s will.

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9
Q

Hearsay Exception - Dying Declaration

A

Can only be used in civil case or criminal homicide case.
Elements to be admissible: (1) declarant unavailable; (2) statement made under a sense of impending death; AND (3) statement concerned the circumstances or cause that put the declarant in the position of impending death.

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10
Q

Hearsay Exception - Statement Against Interest

A

A statement against own penal, proprietary, or pecuniary interest is admissible if the declarant is unavailable.
- If offered in a criminal case, it must be supported by corroborating circumstances that clearly indicate its trustworthiness.

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11
Q

Hearsay Exception - Government/Public Records

A

Government/Public Records – The following records are admissible: (a) record describing policies and practices of a public office; (b) observations made by someone in accordance with his duties by law (excluding police report in criminal case); OR (c) factual findings made during investigation pursuant to authority granted by law (only in civil cases or against government in criminal case).
- BUT records above will not be admitted if opponent party shows lack of trustworthiness.

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12
Q

Hearsay Exception - Past Recollection Recorded

A

Record made on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately.

  • Is admissible if: (1) witness had personal knowledge at one time; (2) writing was made or adopted by witness; (3) was made while the event was still fresh in the witness’s mind; (4) accurate; AND (5) witness can no longer remember the event.
  • The record can read into evidence, BUT can only exhibit offered by an adverse party.
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13
Q

6th Amendment Confrontation Clause

A
  • Gives a criminal defendant the right to confront witnesses against him.
  • The use of an out-of-court statement (even if a hearsay exception) violates 6th Amend. when:
    1) Statement is testimonial;
    2) declarant is unavailable to be cross-examined at
    trial; AND
    3) D did not have opportunity to cross-examine the
    declarant before trial.
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14
Q

What is a testimonial statement under the 6th amendment confrontation clause?

A

The following statements are testimonial: (a) made to grand juries; OR (b) to police whose primary purpose was to collect testimony to be used at a later trial.
- A statement to assist the police in an ongoing emergency is NOT testimonial.

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15
Q

What is an ongoing emergency under the 6th amendment confrontation clause?

A

Existence of ongoing emergency determined by: (1) nature of dispute; (2) potential harm to victim; (3) threat to additional identifiable victims; (4) generalized threat to the public; (5) weapon; (6) whether suspect is at large, located, or not apprehended.

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16
Q

What are some common evidentiary privileges?

A
  1. Spousal Immunity
  2. Confidential Marital Communications
  3. Attorney-Client Privilege
  4. Attorney Work Product Doctrine
  5. Physician-Patient Privilege
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17
Q

What is the spousal immunity privilege?

A

A witness-spouse in valid marriage may refuse to testify against spouse in a criminal case.

  • Only the witness-spouse holds this privilege – but it ends after divorce.
  • Spousal immunity DOES NOT apply in civil cases.
18
Q

What is the marital communications privilege?

A

Communications between spouses are privileged if:

1) made during course of a valid marriage; AND
2) intended to be confidential.
- The privilege DOES NOT apply: (a) in cases between spouses; OR (b) when spouse commits crime against the other spouse or their children.
- Either spouse may assert privilege – it applies after divorce.
- Privilege applies in both civil and criminal cases.

19
Q

What is Attorney Client privilege?

A

Protects confidential communications between and attorney and client if:

1) intended to be confidential
2) made to facilitate legal services
- The client holds the privilege, and may waive it by disclosing info to a 3rd party (but not waived through inadvertent disclosure).
- Corporations – generally applies to high level employee only.
- Privilege DOES NOT apply when: (a) sought to further a crime or fraud; (b) litigation related to breach of duty between attorney and client; OR (c) joint clients are later involved in civil litigation against each other.

20
Q

What is the Attorney Work product doctrine?

A

Protects from disclosure all materials prepared by an attorney (or his agents) in anticipation of or during litigation.
Exception: A party shows – (1) a substantial need for the materials exists; AND (2) a substantial equivalent cannot be obtained without undue hardship.

21
Q

What is the Physician-Patient Privilege?

A
  • Most states recognize the privilege if: (1) confidential patient communication, (2) made to physician, (3) for purpose of medical diagnosis or treatment.
  • Federal courts DO NOT recognize the privilege. However, state law governs privilege for civil cases in federal court on a claim/defense when state law supplies the rule of decision.
22
Q

What is Relevance? What makes evidence relevant?

A

Rule 403 - Evidence is relevant if: (1) it has any tendency to make a fact more or less probable than it would be without it; AND (2) the fact is of consequence in determining the action.

23
Q

When can a court exclude relevant evidence (R 403 exceptions)?

A

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of:

a) unfair prejudice;
b) confusing issues;
c) misleading the jury;
d) undue delay;
e) wasting time; OR
f) being needlessly cumulative.

24
Q

Can Subsequent Remedial measures be admissible to prove anything?

A 
Not admissible to prove:
a) negligence;
b) culpable conduct;
c) a defect in a product design; OR
d) a need for a warning or instruction.
BUT, such evidence may be admitted for other purposes.
25
Q

Are compromises/settlement offers & negotiations admissible?

A

Statements made during settlement negotiations are NOT admissible to:

a) prove the validity or amount of a disputed claim; OR
b) impeach by prior inconsistent statements.

26
Q

Are Pleas and Plea negotiations admissible?

A

The following are NOT admissible in a subsequent civil or criminal case:

a) statements made during plea discussions;
b) a nolo contendere plea; OR
c) guilty plea that is later withdrawn.

27
Q

Is paying or offering to pay medical expenses admissible?

A

NOT admissible to prove liability, BUT any related statements or factual admissions are admissible.

28
Q

Is Liability insurance admissible?

A

NOT admissible to prove liability, BUT admissible for other purposes (i.e. ownership and control).

29
Q

What kind of physical/documentary evidence is admissible? (authentication, phys evidence, voice recordings, best evidence rule)

A

Authentication of Evidence
All evidence must be authenticated before being admitted. [what is that?]

Physical evidence – through witness testimony or by evidence that shows it has been held in a substantially unbroken chain of custody.
Voice recordings – by anyone who has heard the person speak and have identified the recorded person as the speaker.
2. Best Evidence Rule – A party must provide the original document (or reliable duplicate) when a witness:
a) testifies to the content of a writing; OR
b) testified to knowledge gained solely from a writing.
- The original document NOT required if:
a) there is a reliable duplicate (a photocopy);
b) all the originals are lost or destroyed;
c) an original cannot be obtained by judicial process;
d) it was not produced after proper notice was given
to the party in control and against whom it would
be offered against; OR
e) not closely related to a controlling issue.

30
Q

Can Character Evidence be admissible?

A
  • Generally, character evidence is NOT admissible to prove propensity (that a person acted in conformity with a character trait on a particular occasion).
  • But, character evidence is generally allowed for non- propensity purposes (i.e. when character is an ultimate issue in the case - defamation).
    May be offered as circumstantial evidence to prove propensity in certain cases (know criminal and civil distinction)
31
Q

When can character evidence be offered to prove propensity in a criminal case?

A

– D can always offer evidence of his own character.
– P not allowed to prove D acted in accordance with D’s character trait unless D opens the door.

– D can offer reputation and opinion evidence to show victim’s character to show D’s innocence.
– If D presents evidence of victim’s character, P can offer evidence: (a) D possesses same character trait; or (b) victim’s good character trait.

– Not admissible – victim’s sexual behavior/predisposition – Admissible – (a) if offered to prove D was not involved in the sex crime; (b) sexual relations between D and V; (c) if exclusion violates D’s constitutional rights.

– Admissible only if D claims victim was the aggressor, P can show V’s peacefulness.

32
Q

When can character evidence be offered to prove propensity in a civil case?

A

– Character evidence to prove propensity is generally NOT admissible in a civil case.

– Admissible if probative value substantially outweighs the danger of harm to any victim and unfair prejudice to any party.
– Victim’s sexual behavior/ predisposition admissible only if the victim has placed it in controversy.

33
Q

When can you try to admit character evidence on direct examination and cross examination?

A

Character Evidence (FRE)

(1) direct examinationàreputation, opinion.
(2) cross-examination à opinion, reputation, specific acts.

34
Q

Can you admit specific bad acts to show propensity?

A

generally NOT admissible to show propensity.
- Admissible to show Motive, Identity, Absence of Mistake or Accident, Intent, Common Plan or Scheme, Opportunity, or Preparation.
- Sexual assault or child molestation – admissible in case if D is accused of such conduct.
- To offer such evidence, proponent must show:
1) by preponderance of evidence that prior act was
committed; AND
2) probative value substantially outweighs the danger
of unfair prejudice.

35
Q

When can you admit evidence of habit or practice?

A
  • Admissible to show the person acted in accordance with their habit or routine practice.
  • Habit = regular response to a repeated situation.
36
Q

When can you impeach a witness and what can you impeach a witness for?

A
  1. Prior convictions
  2. Specific instances of conduct
  3. Prior inconsistent statements
  4. Character for truthfulness
  5. Memory Loss
  6. Hearsay declarant
37
Q

Under what circumstances can you impeach a witness with prior convictions?

A
  • Prior felony/ misdemeanor involving dishonesty = always admissible to impeach unless expunged.
  • Other misdemeanors = NOT admissible
  • Felonies that DO NOT involve dishonesty:
    • Civil/Criminal Cases:
    o Admissible if witness is not the defendant
    (subject to Rule 403 exclusions); • Criminal Cases:
    o Admissible if defendant is the witness but only if probative value outweighs prejudicial effect.
  • 10-Year Exception: If 10-years have passed (from conviction or release from jail – whichever is later), conviction is inadmissible unless probative value outweighs prejudice.
38
Q

When can you impeach a witness for specific instances of conduct?

A

Witness’s credibility may be attacked on cross- examination with specific instances of conduct (prior bad acts) only if the conduct is probative of the witness’s character for untruthfulness.
- Extrinsic evidence NEVER admissible to attack or support a witness’s credibility.

39
Q

When can you impeach a witness for prior inconsistent statement?

A

Admissible to impeach a witness.
Extrinsic evidence of the statement is allowed ONLY IF: 1) Relevant to a material issue at trial (one other
than the witness’s credibility); AND
2) Proper foundation is shown (witness is first
given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it).
BUT, the above requirements DO NOT apply when extrinsic evidence is offered against a Party Opponent.

40
Q

When can you impeach a witness’ character for truthfulness?

A
  • Witness’s credibility may be attacked or supported by: a) testimony about reputation for having character of
    untruthfulness/truthfulness; OR b) testimony in the form of opinion.
  • BUT, evidence of truthful character is admissible only after attacked.
  • Extrinsic evidence is NOT admissible.
41
Q

When can you impeach a witness for memory loss?

A
  • A witness’s ability to observe, remember, or relate facts accurately may be attacked on impeachment.
  • Extrinsic evidence is admissible for this purpose.
42
Q

You can’t impeach a hearsay declarant, but what are exceptions…

A

May be attacked or supported by any evidence that would be admissible if the declarant had testified as a witness.
- Evidence is admissible regardless of when or whether declarant had an opportunity to explain or deny it.

Feb 2019 Bar Exam (10 decks)

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