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Utah Essay Bar Studies > Evidence > Flashcards

Evidence Flashcards

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1
Q

Logical relevance

A

Tendency to make more or less probable

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2
Q

Legal Relevance

A

Probative value outweighs

Danger of unfair prejudice, confusing court or misleading jury

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3
Q

Authentication

A

Must produce sufficient evidence to support a finding the thing is what the proponent claims

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4
Q

Physical Evid Auth

A

Distinctive characteristics or

Chain of Custody

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5
Q

Demonstrative Evid Auth

A

If fair representation

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6
Q

Writings/Record Auth

A 
Admission
Eyewitness
Voice ID
Handwriting verifications
Circumstantial evidence
Ancient documents:
More than 20 years old
Free from suspicion
Found where they would be kept
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7
Q

Self Authentication

A 
Public docs bearing gov’t seal
Certified copies of public record
Official publications by public authority
Notarized docs
Newspapers and periodicals
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8
Q

FRE Self Auth

A

Business records AND

Trade inscriptions

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9
Q

BER

A

Requires original writing,

Photograph, or recording to be produced

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10
Q

FRE BER

A

Duplicates allowed unless content disputed OR

Unfair to admit the duplicate

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11
Q

Exceptions to BER

A 
Lost or destroyed
Proponent not acting in bad faith
In possession of opponent
Not obtainable by judicial process
Collateral matter
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12
Q

Voluminous Writings

A

So voluminous can’t be conveniently
Introduced into evidence
Summary may be introduced

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13
Q

Form of Question Obj

A 
Leading
Compound
Facts not in Evidence
Non-Responsive
Narrative
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14
Q

Witness Competency

A

Personal knowledge
Swear oath or affirmation
Understand duty to tell truth

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15
Q

FRE Age Witness Competency

A

Intelligence/maturity
Ability between truth and false
Understand importance in truth

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16
Q

Dead Man’s Statute

A

Limits ability of witness to testify about

Transactions w/ people who now deceased

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17
Q

Impeachment

A

Attacks credibility of testifying witness by one’s own testimony, testimony of another OR extrinsic evidence

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18
Q

Ways to Impeach

A 
Untruthfulness
Prior Criminal Conviction
Bias
Capacity to Perceive/Remember
Contradiction
Prior Inconsistent Statement
Prior Consistent Statement
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19
Q

Untruthfulness Impeachment

A 
By reputation or opinion
Honesty only when truthfulness attacked
No extrinsic
Specific allowed on x-exam if probative
Must accept answer
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20
Q

Prior Criminal Conviction Dishonesty

A

Crimes involving dishonesty allowed to challenge truthfulness within 10 years

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21
Q

Prior Criminal Conviction Felony

A

Admissible UNLESS
Defendant witness
Reverse 403

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22
Q

Bias Impeachment

A 
Extrinsic allowed:
Friend or relative of party
Bears grudge against party
Business relationship w/ party
Leniency on pending crim case
Financial interest in outcome
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23
Q

Capacity to Perceive Impeachment

A

Allowed to show witness
Diminished capacity to perceive
Extrinsic evid allowed

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24
Q

Contradiction Impeachment

A

Evidence to challenge underlying facts
If extrinsic, independent admissibility
Non-collateral matters only

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25
Q

Prior Inconsistent Statement Impeachment

A

Inconsistent statement material to witness’ testimony
Extrinsic inadmissible UNLESS given opp to explain or deny
If under oath, may be for substantive truth
Otherwise, impeachment
Not allowed for collateral matter

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26
Q

Prior Consistent Statement Impeachment

A

Admissible to rebut recent
Fabrication, improper influence or motive
Must be before bias or motive

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27
Q

Recollection Refreshed

A

A witness may examine any item

“Refresh” Cannot read from it

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28
Q

Lay Opinion

A

Rationally based on witness perception
Helpful to jury
Not based on scientific or technical knowledge

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29
Q

Expert Opinion

A

Scien, tech, or spec knowledge, skill, training
Reasonably relied on in field
Criminal no opinion about mental state or condition element

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30
Q

Character Evidence

A

Inadmissible to show acted in accordance

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31
Q

Other Purpose Character Evidence

A 
Allowed if: 
Opportunity
Knowledge
Motive
Intent
Absence of Mistake
Identity
Common Plan or Scheme
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32
Q

Character Evid Civil

A

Rarely allowed BUT
Reputation, opinion or prior bad acts
Allowed if trait essential element

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33
Q

Character At Issue

A

Rep or opinion if essential element

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34
Q

Character Defendant of him/herself in Crim

A

Reputation or opinion only UNLESS trait essential element
Prosecution may rebut with same pertinent trait by rep or opin
Cross-X allows specific instances
Extrinsic not allowed to contradict witness’ testimony & prosecution must accept answer

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35
Q

Character Defendant of victim of Crim

A 
Rep or opin only
Prosecution may rebut by rep or opin
NOT for rape victims
Cross-X allows specific instances
Extrinsic not allowed to contradict the witness’s testimony & prosecution must accept answer
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36
Q

Character Defendant claim first aggressor

A

Homicide by rep or opin to
Rebut non-character evidence by
Defense that victim first aggressor
Cross-X allows spec instances

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37
Q

Character Rape or Sexual Assault

A

Prohibits exam of victim promiscuous or sexual activities, sexual history, behavior, and preferences

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38
Q

Exceptions to Character Rape or Sexual Assault

A

Source of semen, injury, or physical evid
Sexual acts w/ defendant for consent
Sexual acts w/ defendant by prosecution
Crim if violates defendants con law rights
Civil case if prob value substantially outweighs danger of harm to the victim or unfair prejudice to any party

39
Q

Character Sexual misconduct of accused in sex crime

A

Plaintiff/pros against
Defendant of prior, similar, wrongful sex or
Child molest acts for any purpose by spec instances

40
Q

DV, Child Abuse or Elder Abuse

A

Allows evid of prior DV, child abuse, or
More than 10 years
Inadmissible UNLESS
In interest of justice

41
Q

Policy Exclusions Evid

A 
Subsequent Remedial Measures
Insurance
Plea Discussions
Pay medical bills
Negotiations
42
Q

Subsequent Remedial Measures

A 
Remedial measures that would have made injury less likely to occur 
Not allowed for:
Negligence
Culpable Conduct
Defect in product or design
Need warning instruction
Except:
Ownership or control
Feasibility of precautionary measures
43
Q

Insurance Evid

A

Inadmissible to show neg or wrongful
Admissible to show bias or
Prove agency, owner, or control

44
Q

Plea Discussions Evid

A

Guilty plea withdrawn
Nolo contendere plea
Made w/ assistance of pros

45
Q

Exceptions to Plea Discussions Evid

A

Allowed if made in same plea as another statement that has been introduced if statements should be considered together or in criminal proceeding for perjury and statement was made under oath, on record, and w/ attorney present

46
Q

Pay medical bills Evid

A

Inadmissible to prove liability

Statements may be severed

47
Q

Negotiations Evid

A

Validity or amount of disputed claim OR
Impeach for PIS
Only excluded if made after claim filed

48
Q

Privileges Evid

A

Can limit party’s ability to demand info about specific communications made w/ certain relationships
Holder of privilege holds power to claim or waive

49
Q

Attorney/Client Privilege

A

Protects confidential conversations related to legal advice between lawyer and client
Client holder of privilege
Underlying info not privileged
Does not survive death

50
Q

Exceptions to Attorney/Client Privilege

A

Crime likely to lead to death or GBI
Breach of duty by either
Services for crime/fraud

51
Q

Spousal Privilege

A

Cannot be compelled to testify against spouse
Testifying spouse is holder
FRE: Crim only

52
Q

Exceptions to Spousal Privilege

A 
One spouse against another
Commit spouse
Establish competence
Crimes against spouse or children
Invalid marriage
53
Q

Marital Conversation Privilege

A

Spouse may not disclose
Confidential comm made during marriage
Survives death and divorce
Joint holders of privilege

54
Q

Exceptions to Marital Conversation Privilege

A 
Crime/fraud
Commit spouse
Competence hearing
Proceeding between spouses
Criminal case against spouse or for children
Juvenile proceeding
Spouse defendant  in crim and offers
55
Q

Doctor/Patient Privilege

A

Made in confidence by examination

Patient holder of privilege

56
Q

Exceptions Doctor/Patient Privilege

A 
No privilege in crim
Proceeding to recover damages for 
Patient conduct (good cause)
Crime/Fraud
Commitment 
Competence
57
Q

Psychotherapist/Patient Privilege

A

Persons who are or are reasonably believed
By patient to be someone involved in
Mental health services or counseling
Patient holder

58
Q

Exceptions to Psychotherapist/Patient Privilege

A 
Patient puts mental condition in issue
Services for crime/fraud
Dispute between psycho/patient
Patient dangerous to self/others
Therapist court appointed
Patient minor and possible crime victim
59
Q

Clergy/Penitent Privilege

A

Protects confidential communications between
Clery/penitents
Joint privilege

60
Q

Hearsay

A

Out of court statement

Made for truth of matter asserted

61
Q

Not Hearsay

A 
Non-assertive conduct
Effect on listener
State of Mind Indirectly
Impeach credibility
Legally operative fact
62
Q

Non-Hearsay

A

Prior Inconsistent Statement
Prior Consistent Statement
Prior Identification
Party Admission

63
Q

Prior Inconsistent Statement

A

Declarant testifies at current hearing
Subject to x-exam
Prior OOC inconsistent w/ current testimony
Prior statement under oath

64
Q

Prior Consistent Statement

A

Declarant testifies at current
Subject to x-exam
Prior OOS consistent with current
Offered to rebut recent fabrication OR
Acted under improper influence or motive OR
Rehabilitate when attacked for other reason

65
Q

Prior Identification

A

Declarant testifies at current
Subject to x-exam
Prior statement identifies as someone
Declarant perceived earlier

66
Q

Party Admission

A

Made by opposing party

67
Q

Vicarious Party Admission

A

If employee, spokesperson, agent

68
Q

Co-Conspirator Party Admission

A

Conspiracy existed
Defendant and declarant same conspiracy
Made in furtherance & during conspiracy
No bootstrapping

69
Q

Declarant Unavailable

A 
Cause through no fault of proponent
Prevents witness from testifying including
Death, mental or disability
Beyond subpoena power
Invokes privilege
Refuses after order
Cannot recall subject matter
70
Q

Exceptions Declarant Unavailable

A

Dying Declaration
Former Testimony
Forfeiture
Statement Against Interest

71
Q

Dying Declaration

A 
Declarant unavailable
Sense of immediate and impending death
Must relate to cause of death
Personal knowledge
Homicide or civil case
72
Q

Former Testimony

A 
Declarant unavailable
Primary issue of former hearing & current same
Similar motive and interest to x-exam
Criminal same party
Civil same or party in predecessor
73
Q

Forfeiture by Wrongdoing

A

Declarant unavailable

Must intend to deprive court of testimony

74
Q

Statement Against Interest

A

Declarant unavailable
Conscious statement against interest
Crim needs corroborating circumstances

75
Q

Exceptions Availability Doesn’t Matter

A 
Present Sense Impression
Excited Utterance
State of Mind
Medical Treatment
Past Recollection Recorded
Business Records
Public Records and Reports
Final Judgment of Previous Conviction
76
Q

Present Sense Impression

A

Made while or immediately after
Describes or explains event
Personal knowledge

77
Q

Excited Utterance

A

Sufficiently startling event
Declarant dominated by shock of event
Relates to event
Declarant has personal knowledge

78
Q

State of Mind Evid Excep

A

Then existing physical or mental state
Directly stated
Is at issue
Does not apply to memory or belief UNLESS relates to execution, revocation, id or terms UNLESS declarant’s will

79
Q

Medical Treatment

A

Statement for diagnosis or treatment
Pertinent to diagnosis or treatment
Describes medical history, symptoms, or general cause

80
Q

Past Recollection Recorded

A

Read into record if declarant testifying
First-hand knowledge at some point
Lacks sufficient recollection of event
Record of some sort
Made or adopted by declarant at or near event
Record accurately reflects facts once knew

81
Q

Business Records

A 
Record of act, event, condition, or diagnosis
First-hand knowledge
Bus duty to acquire info & report it
Made at or near event by someone w/ duty to record
Part of regular course of bus
Kept in regular course of bus
Opponent no lack of trustworthiness
Crim: no police observations
82
Q

Public Records and Reports

A

Office’s activities
Matter observed while under legal duty to report
Exception crim case observations by law enforcement
Civil case or evidence by defendant against gov’t in crim
Factual findings from authorized investigation

83
Q

Final Judgment of Previous Conviction

A 
Judgment from trial or guilty plea
Crime was felony
Prove fact essential in judgment
When offered by pros in crim other than impeach
Judgment was against defendant
84
Q

Hearsay Catchall

A

Does not fit within 803 or 804
Equivalent guarantees of trust offered as evid of material fact
More probative than other evid for reasonableness on particular point
Best serves these rules and justice
Proponent give adverse party notice

85
Q

Criminal Case 6th Amend

A

“In all crim prosecutions the accused
Shall enjoy the right…to be confronted
With the witnesses against him.”

86
Q

Testimonial for 6th Amend

A

Under circumstances which
Lead an objective witness to
Reasonably believe the
Statement would be used at trial

87
Q

Judicial Notice

A

Process of establishing facts
Without presenting evidence
Facts not subject to reasonable dispute:
Generally known within JDX
Capable of accurate and ready determination by
Source who cannot be reasonably questioned

88
Q

Civil Judicial Notice

A

Must accept

89
Q

Crim Judicial Notice

A

May find

90
Q

Presumptions Evid

A

Switches burden of proof

91
Q

Civil Presumptions

A 
Operates to shift burden of:
Producing evidence to opposing party
Rebuttable presumptions
Mail delivery
Legitimacy
Sanity
That death is not suicide
Death from seven years’ absence
92
Q

Crim Presumptions

A

No criminal case presumption
Both burdens on pros
Beyond a reasonable doubt

93
Q

Prelim Hearings Evid

A

Court decide prelim questions about witness qualified, privilege exists, or evidence admissible
MUST conduct hearing prelim question outside presence of jury if:
Hearing involves admissibility of confession
Testifying defendant in criminal case requests OR
Justice so requires

Utah Essay Bar Studies (16 decks)

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