Evidence Flashcards
The proof must be “highly probable” (clear and convincing) to prove _____
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)
Judicial notice is taken of indisputable facts when they are _____
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
A judge doesn’t have to admit ______ evidence (Fed. R. Evidence § 403):
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”)
Relevant evidence can be excluded if its probative value is _________ (Fed. R. Evidence § 403):
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
____ is closed out, even though it’s relevant:
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)
A witness must ______ before she can testify:
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
A witness can be impeached with prior convictions, as well as prior _____ acts for which she was not convicted:
VIC
V – VICIOUS acts
I – IMMORAL acts
C – CRIMINAL acts
The 4 ________ aren’t hearsay provided the declarant testifies:
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
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 ____
SIP3: S – STATUTE of limitations I – INCOMPETENCY of witnesses P – PRIVILEGES P – PRESUMPTIONS and inferences P – PROCEDURAL jurisdiction over a defendant
______ are self-authenticating documents:
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
An original document may be replaced by ____ when:
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
The judge when deciding whether to admit the expert testimony looks to see whether the expert wears a _____
CRAPE: C – CONFIRMED by testing R – REVIEWED by peers A – Widely ACCEPTED theory in the profession P – PUBLISHED E – Potential rate of ERROR
Non-testimonial _____ hearsay is admissible against the criminal defendant:
BEAD B – BUSINESS records E – EXCITED utterance A – ADMISSION by co-conspirator made during and in furtherance of the conspiracy D – DYING declaration
The source for federal privileges are in the _____
3Cs:
C – The CONSTITUTION
C – Acts of CONGRESS
C – Federal COMMON LAW
Confidential privileges are ______
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
No leading questions on direct, unless the witness is ____
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
Use a ______ to impeach a witness:
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
____ character evidence is admissible when a W’s character or trait of character is an essential element in a crime, civil claim, or defense:
R – REPUTATION
I – Specific INSTANCES of prior conduct
P – W’s PERSONAL opinion
A ____ can introduce prior crimes, on direct exam (Fed. R. Evidence § 404 (b)(2)):
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
A witness’s truthful character is admissible when attacked by a _____
VCR:
V – Prior VIC acts
C – Prior criminal CONVICTIONS, or
R – Bad REPUTATION for truthfulness in community
Hearsay is admissible for ____
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
The six DWARFS can only be let into court by an unavailable ______
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
\_\_\_\_\_\_ to admit the listener’s state of mind: B – BELIEF R – REASON I – INTENT B – BIAS E – EMOTION K – KNOWLEDGE
BRIBE K, B – BELIEF R – REASON I – INTENT B – BIAS E – EMOTION K – KNOWLEDGE
Judges, in considering the trustworthiness of a public investigative reports considers _____ factors:
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.
Offer the Business Records of ______
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
Business records easily allow the ______of the business to be introduced in court:
FACE F – Business FACTS A – Business ACTIVITIES C – Existing CONDITIONS recorded in the record E-Business EVENTS
Declarations against interest require _____
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
Hearsay of a “nontestimonial” nature is as easy as _____
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
