Evidence

Question 1

The proof must be “highly probable” (clear and convincing) to prove _____

Answer 1

CLAM GAP CRAP: 
C – A CONSTRUCTIVE trust (T CUP)
L – A LOST will
A – ACTUAL malice in a defamation case
M – MUTUAL mistake or fraud

G – GIFT (AID)
A – ADVERSE possession (EUNUCH)
P – PROVISIONAL remedies (LIARS)

C – A CRL (covenant running with the land)
R – REFORMATION of a contract
A – ADULTERY
P – Grounds to terminate PARENTAL rights (MA & PA)

Question 2

Judicial notice is taken of indisputable facts when they are _____

Answer 2

LMN:
L – LEGISLATIVE facts
M – MANIFEST facts that are easily and quickly verifiable by referring to an indisputably accurate
source
N – NOTORIOUS facts that are so commonly known within the court’s jurisdiction that it would waste
the court’s time for a party to prove those facts

Question 3

A judge doesn’t have to admit ______ evidence (Fed. R. Evidence § 403):

Answer 3

M-CUP
M – Evidence MISLEADING or confusing to the jury
C – CUMULATIVE evidence to prove facts already established
U – Evidence that would cause UNDUE delay (too time consuming)
P – It would have an “unfair” PREJUDICIAL effect on the jury (“ Pro SOUP”)

Question 4

Relevant evidence can be excluded if its probative value is _________ (Fed. R. Evidence § 403):

Answer 4

Pro SOUP
Pro – The evidence’s Probative value is:
S – SUBSTANTIALLY
O – OUTWEIGHED by its risk of
U – UNFAIR
P – PREJUDICIAL effect on the jury

Question 5

____ is closed out, even though it’s relevant:

Answer 5

OPENS
O – OFFERS of compromise (in civil cases)
P – Evidence protected by PRIVILEGE
E – Evidence pertaining to the EXISTENCE of liability insurance in a personal injury
case
N – A criminal defendant’s admissions in unsuccessful plea bargain NEGOTIATIONS
S – Evidence of SUBSEQUENT remedial repairs after an accident (in civil cases)

Question 6

A witness must ______ before she can testify:

Answer 6

PURR
P – PERSONALLY perceived the event; except for a witness’s expert testimony
U – UNDERSTAND and take the oath or affirmation
R – REMEMBER the event
R – Be able to RECALL the event on stand

Question 7

A witness can be impeached with prior convictions, as well as prior _____ acts for which she was not convicted:

Answer 7

VIC
V – VICIOUS acts
I – IMMORAL acts
C – CRIMINAL acts

Question 8

The 4 ________ aren’t hearsay provided the declarant testifies:

Answer 8

4 “PRIORS”
1 – PRIOR recorded recollection
2 – PRIOR out-of-court identification
3 – PRIOR consistent statement
4 – PRIOR inconsistent statement that was given under oath, subject to penalty of perjury, at a prior trial, hearing, or EBT

Question 9

In diversity jurisdiction or supplemental jurisdiction cases, federal courts adopt state procedural law and not Fed R. Civ Pro or Fed R. Evid except state law is applied by federal courts to ____

Answer 9

SIP3:
S – STATUTE of limitations
I – INCOMPETENCY of witnesses
P – PRIVILEGES
P – PRESUMPTIONS and inferences
P – PROCEDURAL jurisdiction over a defendant

Question 10

______ are self-authenticating documents:

Answer 10

NON FLIPS
N – NEWSPAPER and periodicals
O – OFFICIAL publications issued by public authority
N – NOTARIZED/acknowledged documents (except wills), where the signer appeared
before a notary, swore to truth of its content, and acknowledged execution
F – FOREIGN public records, if the custodian’s signature is certified by the U.S. Embassy
L – Products identifiable by LABEL, tag, or trademark affixed in the reg course of business
I – Negotiable INSTRUMENTS and commercial paper
P – Copies of PUBLIC documents or records, certified by the clerk of the agency or
court that oversaw its custody
S – Documents with a government SEAL

Question 11

An original document may be replaced by ____ when:

Answer 11

A DOPE
A – Its content was judicially ADMITTED by party against whom it’s being offered
D – The document has been DESTROYED or lost
O – The original is OUTSIDE the court’s subpoena jurisdiction
P – PUBLIC record
E – The original is under the EXCLUSIVE possession of the opposing party

Question 12

The judge when deciding whether to admit the expert testimony looks to see whether the expert wears a _____

Answer 12

CRAPE:
C – CONFIRMED by testing
R – REVIEWED by peers
A – Widely ACCEPTED theory in the profession 
P – PUBLISHED
E – Potential rate of ERROR

Question 13

Non-testimonial _____ hearsay is admissible against the criminal defendant:

Answer 13

BEAD
B – BUSINESS records
E – EXCITED utterance
A – ADMISSION by co-conspirator made during and in furtherance of the conspiracy 
D – DYING declaration

Question 14

The source for federal privileges are in the _____

Answer 14

3Cs:
C – The CONSTITUTION
C – Acts of CONGRESS
C – Federal COMMON LAW

Question 15

Confidential privileges are ______

Answer 15

CHIMP’S RAP:
C – CLERGY privilege
H – HUSBAND-WIFE privilege and spousal testimonial privilege
I – Privilege against self-INCRIMINATION (under the 5th & 14th Amendments)
M – M.D./PATIENT privilege
P –PSYCHOTHERAPIST-PATIENT for conversations with psychologists, psychiatrists and licensed
social workers
S – Licensed SOCIAL worker privilege
R – RAPE crisis counselor’s privilege
A – ATTORNEY-CLIENT privilege
P – PRESS privilege

Question 16

No leading questions on direct, unless the witness is ____

Answer 16

HAIRY:
H – HOSTILE, unwilling, or biased
A – An ADVERSE party
I – IDENTIFIED/associated with an adverse party
R – Unable to RECALL facts and so recollection needs refreshing
Y – Very YOUNG or old with a communication problem

Question 17

Use a ______ to impeach a witness:

Answer 17

CRIB PIC
C – Impeachment by CONTRADICTION
R – W’s bad REPUTATION in the community for truthfulness I – W’s prior VIC acts (vicious, IMMORAL, or criminal)
B – W’s BIAS
P – W’s PRIOR inconsistent statement
I – INFLUENCE of drugs or alcohol on W 
C – Prior criminal CONVICTIONS of W

Question 18

____ character evidence is admissible when a W’s character or trait of character is an essential element in a crime, civil claim, or defense:

Answer 18

R – REPUTATION
I – Specific INSTANCES of prior conduct
P – W’s PERSONAL opinion

Question 19

A ____ can introduce prior crimes, on direct exam (Fed. R. Evidence § 404 (b)(2)):

Answer 19

MIMIC
M – To show D’s MOTIVE for committing crime
I – To show D’s specific INTENT or guilty knowledge
M – To show absence of MISTAKE or accident
I – To IDENTIFY D as perpetrator
C – To establish a COMMON PLAN or scheme

Question 20

A witness’s truthful character is admissible when attacked by a _____

Answer 20

VCR:
V – Prior VIC acts
C – Prior criminal CONVICTIONS, or
R – Bad REPUTATION for truthfulness in community

Question 21

Hearsay is admissible for ____

Answer 21

ARIES’ DWARFS:
 A – ADMISSIONS of an opposing party
R – Business or public RECORDS
I – Present sense IMPRESSION
E – EXCITED utterance
S – Declarant’s existing STATE of mind
D – DYING declaration
W – WITNESS tampering (Intimidated Witness Rule) A – Declaration AGAINST interest
R – RESIDUAL hearsay exception
F – FORMER testimony
S – Pedigree STATEMENTS of personal history

Question 22

The six DWARFS can only be let into court by an unavailable ______

Answer 22

MR. POD:
M – A party who lacks MEMORY of the incident in question
R – A party who REFUSES to testify, even when ordered to do so by the court
P – A party who invokes a PRIVILEGE
O – A party OUTSIDE the court’s subpoena power
D – A party who is DEAD or too sick to come to court

Question 23

\_\_\_\_\_\_  to admit the listener’s state of mind: B – BELIEF
R – REASON
I – INTENT
B – BIAS
E – EMOTION
K – KNOWLEDGE

Answer 23

BRIBE K,
B – BELIEF
R – REASON
I – INTENT
B – BIAS
E – EMOTION
K – KNOWLEDGE

Question 24

Judges, in considering the trustworthiness of a public investigative reports considers _____ factors:

Answer 24

THEM
T – TIMEINESS of the investigation and the report
H – Was a HEARING held
E – The EXPERTISE of the investigator, and
M – MOTIVATIONAL problems, i.e. was it prepared for future litigation involving the investigative agency.

Question 25

Offer the Business Records of ______

Answer 25

TRUMP:
T – Record must have been TIMELY made “at or near” the time of the matter recorded
R – It must have been the habitual, ROUTINE, regular practice of that business to
systematically make and keep such a record
U – Out-of-court declarant must have been UNDER a duty to supply information for the record, unless
the statement falls into another hearsay exception, in which case the statement would be admitted,
provided the other 4 TRUMP elements are satisfied (“hearsay w/in hearsay”)
M – The record was MADE and the info was kept as part of the regular practice of that
business; AND
P – Business records must identify the source of the info, and the person supplying info
for the record must have had PERSONAL knowledge of the matter recorded

Question 26

Business records easily allow the ______of the business to be introduced in court:

Answer 26

FACE 
F – Business FACTS
A – Business ACTIVITIES
C – Existing CONDITIONS recorded in the record
E-Business EVENTS

Question 27

Declarations against interest require _____

Answer 27

PUMP:
P – that the OOC declarant knowingly made statement against declarant’s own
3P interest:
P – PENAL interest
P – PENUNCIARY interest ($)
P – PROPRIETARY interest
U – that the OOC declaration was made by person who is MR. POD UNAVAILABLE at trial
M – that when the declaration was made, the declarant had no MOTIVE to misrepresent the facts; AND P – that the declarant had PERSONAL knowledge of facts asserted

Question 28

Hearsay of a “nontestimonial” nature is as easy as _____

Answer 28

BCDE:
B – BUSINESS records
C – CO-CONSPIRATOR admissions by a made during and in furtherance of and the conspiracy 
D – DYING declarations
E – EXCITED utterance