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Bar Prep 2020 > Evidence > Flashcards

Evidence Flashcards

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1
Q

What is harmless error?

A

The jury would have reached the same verdict even if the error had not occurred.

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2
Q

What is a plain error?

A

A highly prejudicial error affecting “substantial rights”.

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3
Q

What is FRE 103?

A

A party may claim error in a ruling (to admit or exclude evidence) ONLY IF the error affects “substantial rights” and:

  1. A party timely objects and states specific ground, or
  2. If the ruling excludes evidence, the party enters an offer of proof.
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4
Q

What is FRE 104 regarding preliminary questions?

A

The court must decide preliminary question about whether a witness is qualified, a privilege exists or evidence is admissible.

In doing so the court is not bound by evidence rules (except those on privilege).

Admissibility = JUDGE, not jury.

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5
Q

What is limited admissibility?

A

If the court admits evidence that is admissible against a party (but not against another), the court, on timely request, must restrict the evidence to its proper scope and instruct the jury.

If evidence is limited, the court must restrict the evidence for its limited purpose.

Ex. D’s past crimes admitted to limit credibility. They could be admitted to assess his credibility BUT NOT to assess his guilt in the current crimes.

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6
Q

What is the rule of completeness?

A

(we allow opposing party to immediately clear up issue).

Where a party introduces part of a writing or recording, the adverse party may IMMEDIATELY introduce any other writing or part of the writing, which, in fairness, out to be considered in conjunction with it.

ONLY APPLIES TO WRITINGS OR RECORDED STATEMENTS.

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7
Q

True or False: When determining issues of admissibility, the judge should make determinations in the jury’s presence.

A

False.

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8
Q

What is judicial notice?

A

Judicial notice is asking for fact to be proved although no evidence was presented.

Judicial notice is a substitute for evidence whereby the court accepts certain matters as true without the requirement of formal proof.

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9
Q

What are the two types of judicial notice?

A
  1. Commonly known facts and
  2. Easily verifiable facts.

*No one questions them.

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10
Q

Example: In prosecution for felony larceny (value over $1,000) the prosecution asks the judge to take judicial notice that the Rolex in question is worth more than $1,000. Can the judge take judicial notice?

A

No.

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11
Q

What is the effect of judicial notice as a jury instruction?

A

In civil jury, jury must accept a judicially noticed fact as conclusive.

In a criminal case, jury MAY (but is not required to) a judicially noticed fact as conclusive.

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12
Q

Example: A man was on trial for the murder of his boss. The boss was killed at 3PM. At the start of trial, the man testified that he went to visit a sick friend in the hospital. The man testified that he did not have a car, took NJTransit, there was only one train that day and the man presented a timetable as evidence. The court took judicial notice of the train’s departure - is this proper?

A

Yes, because the time of the train’s departure was not subject to reasonable dispute.

*Do not be distracted by issues of weight with pure judicial notice questions. The fact can be admitted, but the other side could introduce evidence to indicate the man was not on the train.

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13
Q

What is the concept of the “burden of production”?

A

A question of WHO. Who has the burden of producing evidence???>

Plaintiff - Civil
Prosecution - criminal

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14
Q

What is the burden of persuasion?

A

A question of how much.

The degree to which the evidence must be proven to find guilt or innocence.

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15
Q

What are the 3 types of burden of persuasion?

A
  1. Preponderance of evidence
  2. Clear and convincing evidence
  3. Beyond a reasonable doubt
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16
Q

What is the traditional civil standard for burden of proof/persuasion?

A

Preponderance of evidence (51%)

More likely than not.

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17
Q

What is the standard burden of proof/persuasion for criminally related civil cases (fraud, deed/will)

A

Clear and convincing evidence.

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18
Q

What is the standard burden of proof/persuasion for criminal cases?

A

Beyond a reasonable doubt. (Guilt phase in criminal case).

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19
Q

What is a presumption?

A

Presumption arises where one set of facts (basic facts) once established by the proponent –> gives rise to another set of facts “Presumed facts”.

Ex. if you have been missing for 7 years, you are presumed dead.

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20
Q

What is the bursting bubble theory?

A

Once the opponent presents sufficient evidence that the presumed fact is not true, the presumption disappears and the bubble bursts.

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21
Q

True or False: Presumptions are favored in criminal cases?

A

False. Highly disfavored.

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22
Q

What is the definition of relevant evidence.

A

Relevant evidence includes evidence tending to make the existence of any fact more or less probable than it would be without evidence.

Relevant evidence is generally admissible.

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23
Q

Is relevant evidence generally admissible?

A

Yes FRE402. Relevant evidence = generally admissible, irrelevant evidence = generally inadmissible.

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24
Q

What is the standard rule for Excluding relevant evidence for prejudice, confusion, waste of time or other reasons?

A

The court may exclude relevant evidence if its PROBATIVE VALUE is substantially outweighed by enumerated dangers:

  1. Unfair prejudice
  2. confusing the issues
  3. misleading the jury
  4. undue delay
  5. wasting time, or
  6. needlessly presenting cumulative evidence
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25
Q

Note: All evidence presented against D will prejudice a jury, remember that Rule 403 is concerned only with unfair prejudice. List the standard reasons.

A
  1. Unfair prejudice
  2. confusing the issues
  3. misleading the jury
  4. undue delay
  5. wasting time
  6. needlessly presenting cumulative evidence.
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26
Q

What is the balancing test for admissibility?

A

Although relevant, evidence may be excluded if PROBATIVE VALUE IS SUBSTANTIALLY OUTWEIGHED BY danger of unfair prejudice, and five other excepts.

*The good is outweighed by danger of unfair prejudice

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27
Q

True or False: An unfair surprise is not a proper objection under the federal rules.

A

True. Unfair surprise may still be admissible if relevant.

FRE 403 favors admission rather than exclusions.

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28
Q

True or False: These are common fact patterns used to test RELEVANCE:

  1. Evidence that D fled the scene
  2. Hiding from police
  3. Failure to submit to breathe alyzer.
A

True. While there is some prejudice, it does not substantially outweigh probative value.

Relevance balancing test –> only exclude evidence that is SUBSTANTIALLY MORE PREJUDICIAL THAN PROBATIVE.

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29
Q

What is the definition of direct evidence?

A

Requires no inference (I saw it happen).

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30
Q

What is circumstantial evidence?

A

Evidence requires an inference (Mail is collected by mailman after it snowed - we saw footprints).

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31
Q

What is demonstrative evidence?

A

Evidence that is prepared in anticipation of trial to assist a jury in understand the facts which are at issue.

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32
Q

What is the definition of character evidence?

A

Character evidence refers to a person’s general propensity or disposition.

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33
Q

True or False: Character evidence is often used in criminal cases by the prosecution?

A

False. It is never used in criminal cases. It is not necessary to prove the D is a bad person to show they committed a crime.

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34
Q

True or False: Character evidence is often used by the defense in criminal cases?

A

True. It is used as circumstantial evidence of the person’s conduct on a particular occasion.

Ex. Testimony that the D is an honest person D is an honest person offered to show that the D did not commit fraud.`

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35
Q

What is the rule regarding character evidence and civil cases? (FRE404(a))

A

Generally character evidence is inadmissible to prove conduct in conformity therewith for civil trials.

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36
Q

What is the exception to the rule that character evidence is generally inadmissible for civil cases specifically?

A

Except when character is in issue. This refers to situations where character is an essential element of a cause of action, claim or defense.

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37
Q

For a civil trial, what are the permissible methods of character evidence allowed as exception?

A

ROSA

  1. Reputation
  2. Opinion
  3. Specific Acts
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38
Q

What is reputational evidence?

A

The witness establishes that they are aware of the reputation of the party in the relevant community.

Ex. Relative in Florida is probably not aware of reputational evidence of D who lives in NYC, but they could testify as to their opinion.

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39
Q

What is opinion evidence

A

Character evidence, The witness must establish that they have sufficient knowledge to form an opinion about the particular trait.

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40
Q

What are specific acts?

A

Under character evidence, specific acts of a person’s conduct may be offered as well.

Ex. I remember a time when so and so did X.
Admissible if it goes to a defense or claim.

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41
Q

Civil character evidence, what are the most common triggers? (Fact patterns that character evidence is an issue).

A
  1. Defamation - plaintiffs character is in issue since truth is a defense to defamation
  2. Child custody - parent character in issue re: fitness to raise child
  3. Negligent entrustment - entrusted’s character is in issue.
  4. Negligent hiring - employee character at issue.
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42
Q

What is the general rule regarding character evidence and specific crimes or other acts?

A

The general rules is that evidence of a person’s character or character trait is inadmissible to prove that on a particular occasion he acted in accordance with that character trait.

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43
Q

True or False: The prosecution may initially introduce evidence of the D’s bad character?

A

False - they may not. Character evidence must be raised by the D - D opens the door.

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44
Q

True or False: Regarding admissibility of character evidence in criminal cases, Testimony about a pertinent trait of D must first be raised by the D?

A

True - D must open the door.

Pertinent evidence is determined by what crime the D is charged with.

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45
Q

What are the two ways a D may open the door to character evidence in criminal trials?

A
  1. Pertinent trait of D’s good character by reputation or opinion evidence
  2. Evidence of victim’s violent character - circumstantial evidence victim was the initial aggressor.
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46
Q

Example: D is on trial for homicide. A witness is called to testify, “I’ve been the neighbor for 15 years, and in my opinion, the D is a good neighbor.” Has the D opened the door to character evidence?

A

No. It is not proper for the prosecution to raise rebuttal evidence. Being a good neighbor is not pertinent to homicide prosecution.

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47
Q

Example: D is on trial for homicide. A witness is called to testify, “I’ve been the neighbor for 15 years, and in my opinion, the D is not violent.” Has the D opened the door to character evidence?

A

Yes, it is proper for prosecution to raise rebuttal evidence.

Violence is relevant to homicide and the witness use the right method (ROSA) - here opinion.

Vs. Reputation vs. Specific Acts

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48
Q

Example: The D is on trial for criminal fraud. A defense witness testifies, “I believe the D is an honest person”. Can the prosecution raise rebuttal character evidence?

A

Yes, Door has been opened. A pertinent trait (honesty) and the right method (opinion).

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49
Q

Example: D is on trial for criminal fraud. A defense witness testifies, “The D has a reputation as being a nonviolent person.” Can the prosecution raise rebuttal evidence?

A

No - door has not been opened. While repetitional evidence is valid, the trait is not pertinent. Violence is not pertinent to

50
Q

Example: D is on trial for homicide. A defense witness testifies, “I know the D is non-violent, I have seen him break up fights in the neighborhood” Can the prosecution raise rebuttal evidence?

A

No - door has not been opened. Pertinent trait (violence), but impermissible method (specific act).

51
Q

Once the D has opened the door to character evidence, what are the options for the prosecution?

A
  1. Prosecution can test, through cross examination, the witnesses credibility by asking about specific acts of the D.
  2. Prosecution can call bad character witnesses in its case in chief.
52
Q

What are the two ways the D can open the door to character evidence?

A
  1. Admit character evidence in favor of D (himself) or

2. Admit testimony about pertinent trait of the victim.

53
Q

What is the special rule for character evidence and homicidal cases?

A

The prosecutor may offer evidence of the alleged victims trait of peacefulness to rebut evidence that the victim was initial aggressor.

However, do not apply this rule unless (1) the case if criminal homicide and (2) the D is claim the victim was the initial aggressor.

54
Q

Example: D is on trial for murder. The D takes the stand and testifies that the Killing was done in self-defense. A prosecution witness is not called on rebuttal to testify that the “victim has a reputation in the community for being a non-violent person”. Is this character evidence properly introduced?

A

Yes Proper. Because 1. the prosecution is for criminal homicide and 2. the D claims that the victim was the initial aggressor.

Therefore, the prosecution is permitted to offer evidence that the victim was a peaceful person.

55
Q

Example: D is on trial for murder. The D takes the stand and testifies that the Killing was done in self-defense. A prosecution witness is not called on rebuttal to testify that the “victim has a reputation in the community for being a non-violent person”. Now the prosecution calls a witness on rebuttal to testify that - “the D has a reputation in the community as being a violent person”. Is the prosecution’s attempt proper?

A

NO. While this is a criminal homicide, the D did not open the door bad presenting bad character evidence of the victim. Rather the D claimed self-defense.

56
Q

What is the MIMIC rule of evidence?

A

FRE404(b) Evidence of character may be admissible when offered for a purpose other than to show conduct in conformity with one’s character.

*No limitation on method here, these can be delivered by specific acts

57
Q

True or False: Whether or not the D in a criminal case introduces evidence of good character, the prosecution may introduce circumstantial evidence of other crime, wrongs or acts for the very narrow purpose of proving motive, intent, absence of mistake, identity or common plan or scheme.

A

True.

58
Q

True or False: Mimic evidence is often on rebuttal by the prosecution?

A

True.

But they cannot be used to show D acted in conformity with character.

59
Q

Example: A D is charged with murder. To show that the D was the killer, the prosecution seeks to introduce evidence that the victim was the only eyewitness against the D in a pending burglary case. Admissible?

A

Yes. As MIMIC Evidence for motive.

This is example of MIMIC evidence where prosecution may introduce circumstantial evidence of other crimes, wrongs or acts for narrowly accepted purposes.

60
Q

Example. The D is found with a quantity of drugs. The D claims the drugs were for personal use. IN the past, the D has had the same amount of drugs and sold them. The prosecution offers past drug sale to show that, when the D has this quantity, D’s intent is to sell. Admissible?

A

Yes. As MIMIC Evidence for INTENT.

This is example of MIMIC evidence where prosecution may introduce circumstantial evidence of other crimes, wrongs or acts for narrowly accepted purposes.

61
Q

Example. A D’s spouse had drowned in a bathtub. If the D had two previous spouses who both drowned in bathtubs, would those prior instances be admissible?

A

Yes. As MIMIC Evidence for Absence of mistake.

This is example of MIMIC evidence where prosecution may introduce circumstantial evidence of other crimes, wrongs or acts for narrowly accepted purposes.

62
Q

Example: Buffalo bill killed young plus-sized women and removed their skin, dumping remains in river. This evidence is used by prosecution with similar facts. Admissible?

A

Yes. As MIMIC Evidence for Identity.

This is example of MIMIC evidence where prosecution may introduce circumstantial evidence of other crimes, wrongs or acts for narrowly accepted purposes.

63
Q

Example. Ds patrolled neighborhoods before holidays, posing as security guards. D’s would then enter homes and take valuables. Before leaving they would flood the house. Would these prior acts be admissible to show D’s responsible for current crime?

A

Yes. As MIMIC Evidence for Common plan or scheme.

This is example of MIMIC evidence where prosecution may introduce circumstantial evidence of other crimes, wrongs or acts for narrowly accepted purposes.

64
Q

What is the rule for habit evidence? FRE 406

A

Evidence of the habit of a person or routing practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove conduct in conformity with the habit.

65
Q

What is the key distinction between habit evidence vs. character evidence.

A

Habit is a response.

Character is what kind of person you are.

66
Q

What words will you likely see to indicate evidence of habit evidence?

A

Always, invariably. A habit is a regular response to a given situation that is done without a huge degree of forethought.

*Actions performed “frequently” or “often” do not constitute habits.

67
Q

True or False. Habit evidence needs to be corroborated?

A

FALSE. Habit evidence does not need to be corroborated.

68
Q

True or False. A habit or routing may be proved by testimony in the form of an opinion or specific instances of conduct sufficient to show that the habit existed.

A

True.

69
Q

True or False. Evidence of a person’s habit or an organizations routine practice is admissible to show that on a particular occasion the person or organization acted in accordance with the habit or route practice.

A

True

70
Q

What is a subsequent remedial measure?

A

After incident a change is made for the good.

71
Q

What is the rule of admissibility for subsequent remedial measures? (FRE 407)

A

Evidence of SRM is INADMISSIBLE to prove negligence, culpable conduct, design defect or the need for a warning.

*Public policy is to encourage persons to fix dangerous conditions and make products safe.

72
Q

What are the exceptions to inadmissibility for SRM?

A

Evidence of SRM may be admitted for another purpose:

  1. Ownership/control
  2. Impeachment
73
Q

Example. P is hit by truck with faulty breaks. After company repairs breaks so that similar issue would be prevent in future. If truck company claims it did not own the truck that injured P, the P can introduce evidence that the truck company paid for repairs. What rule is at issue here?

A

Subsequent remedial measures, exception for ownership.

Since truck company tried to claim it did not own truck, P can bring in evidence of SRM as evidence of ownership. (An exception to the standard rule that SRM are inadmissible for public policy reasons).

74
Q

What is the rule regarding an offer to compromise?

A

Evidence of an offer to settle a claim, which is DISPUTED either as to validity or amount is INADMISSIBLE to prove liability. (Evidence of an offer to settle a claim, is not admissible to prove the validity or amount of the disputed claim).

Such evidence also may not be used for impeachment through a prior inconsistent statement or contradiction.

75
Q

What are the exceptions to the general rule regarding offers to compromise.

A

General rule that offers to settle are inadmissible is subject to the following exceptions:

  1. To show bias or prejudice
  2. To negate a contention of undue delay.
76
Q

Example. 3 cars are involved in accident. The driver of the truck is originally sued by two other drivers. Eventually, the case goes to trial and only one of the other drivers still suing. The driver of the truck calls the non-suing driver to testify that the P caused the accident.

If the truck diver and the non-suing driver settled their claim out of court - is this evidence admissible?

A

Yes. The evidence would be admissible by the P to show why the non-suing driver is testifying in such a manner today. (To show his bias or prejudice).

This is exception to general rule that evidence of offers to settle are inadmissible.

77
Q

True or False. An admission or other form of otherwise relevant evidence cannot be severed and admitted from the offer to settle.

A

TRUE.

Watch for situations where statements of guilt are made in connection with an offer to settle. There BOTH ARE INADMISSIBLE.

Neither the admission nor the settlement offer is admissible.

78
Q

Is evidence of offering to pay medical expenses admissible to prove liability?

A

NO - Payment of medical and similar expenses is inadmissible for public policy reasons.

79
Q

True or False: Any admissions of fact made in connection with offers to pay medical expenses CANNOT be severed.

A

FALSE. Unlike FRE408 (offers to settle), where the offer and anything else said accompanying that offer are inadmissible.

HERE FRE409 ONLY PRECLUDES the offer itself. Anything else is admissible.

80
Q

What is the redaction rule? (Settlement offers vs. medical bill payment offers)

A

Settlement offers cover other statements. Offers to pay medical bills to not and admissions of guilt can be severed.

Unlike FRE408 (offers to settle), where the offer and anything else said accompanying that offer are inadmissible.

HERE FRE409 ONLY PRECLUDES the offer itself. Anything else is admissible.

81
Q

What is the general rule regarding offers to pay medical and similar expenses (FRE 409)?

A

Evidence of offering to pay medical (hospital or similar) bills is inadmissible to prove liability for an injury.

82
Q

What is the rule regarding admissibility of pleas, plea discussions and related statements? (FRE410)

A

In a civil or criminal proceeding, evidence of the following ARE NOT admissible against D who made the plea or participated in a please discussion:

  1. Guilty plea that was later withdraw,
  2. Plea of not contenders
  3. Statement made during. proceeding on either of those pleas
  4. Any statement made by defendant during plea negotiations.
83
Q

True or False. A defendant’s statement made to law enforcement during plea negotiations is inadmissible to use against the D in later proceeding.

A

FALSE. This only applies to plea negotiations made to a prosecutor.

84
Q

What is the rule regarding admissibility of evidence regarding liability insurance (FRE 411)?

A

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully.

85
Q

What are the exceptions to the rule that evidence of liability insurance is inadmissible to prove negligence or fault?

A
  1. Proof of agency
  2. Ownership or control
  3. Bias or prejudice of a witness.
86
Q

What is the rape shield law?

A

In civil or criminal proceeding involving sexual misconduct, evidence offered to show the alleged victim’s sexual behavior, sexual predisposition and other sexual history is EXCLUDED.

87
Q

Under the rape sheild law, what is typically included as “sexual behavior”?

A

Sexual physical conduct, including the use of contraceptives, fantasies, and any activities that imply sexual activity.

88
Q

Under the rape shield law, what is included as “sexual predisposition”?

A

How a person dresses, lifestyle choices and speech.

89
Q

True or False: Predisposition evidence is sometimes admissible?

A

False. Predisposition evidence is INADMISSIBLE.

90
Q

What are the exceptions to the rape shield law?

A
  1. Past sexual acts WITH THIS DEFENDANT which tend to show consent.
  2. Source of semen, injury or other physical evidence.
  3. Evidence that is constitutionally required.
91
Q

Example: What exception is at issue where the Supreme Court allowed a criminal D to impeach his alleged victim by showing that an extramarital affair gave her a motive to lie? (impeach)

A

Exception to rape shield where evidence is constitutionally required.

92
Q

What is the sexual predator rule?

A

In criminal case in which D is accused of molestation or sexual assault, specific acts by the D are admissible and may be considered as the bear on any relevant matter (including propensity, likelihood, and disposition to commit sexual offenses.

*Note reputation and opinion are not permitted methods.

93
Q

What is a prior consistent statement?

A

A prior consistent statement is a statement consistent with the declarant’s testimony and which is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying. Prior consistent statements are not considered hearsay.

94
Q

True or False: Prior inconsistent statements are required to be sworn.

A

True.

Otherwise, sworn statements to the police would not determine admissibility.

95
Q

True or False: Statements offered to prove a relevant attitude are considered Hearsay?

A

FALSE.

Statements offered to prove a relevant attitude, belief, or intent of either the declarant or the listener are ADMISSIBLE AS NON-HEARSAY.

96
Q

What is the rule for recorded recollection?

A

A recorded recollection is not excluded by the rule against hearsay.

A record recollection is a record that:

  1. Is on a matter the witness once knew about but no cannot recall well enough to testify fully and accurately,
  2. Was made or adopted by the witness when the matter was fresh in memory and
  3. Accurately reflects the witness’s knowledge.
97
Q

What are the privileges recognized by federal courts?

A
  1. Attorney-Client
  2. Spousal
  3. Clergy-penitent
  4. Pyschotherapist-patient
98
Q

True or False: Except as otherwise provided by the constitution, federal statute or FRE, no person has a privilege to:

  1. Refuse to be a witness
  2. Refuse to disclose any matter, or
  3. Refuse to produce any object or writing.
A

True.

99
Q

Define attorney-client privilege.

A

The client is the holder of the privilege and may refuse to disclose (and prevent others from disclosing):

  1. Confidential communications made
  2. for the purpose of seeking professional legal advice or services.
100
Q

True or False. Observations and communications are protected by attorney-client privilege?

A

False. Communications are protected, observations are not. This includes oral and written statements and conduct intended to be confidential.

Ex. Client shows up to lawyers office covered in blood - this observation is not privileged. Also if he turned over the murder weapon, that is not privileged.

101
Q

What is the work product doctrine?

A

Work product is privileged material prepared by the attorney in anticipation of litigation.

102
Q

What is the exception to the work product doctrine?

A

Regarding attorney-client privilege, If the party seeking admission can show a substantial hardship and no other way of obtaining evidence.

103
Q

True or False. Attorney-client privilege extends to accountants/investigators/etc who are further some purpose of the relationship?

A

True.

AC Privilege extends to individuals who are furthering some purpose of the relationship, or are hired by the attorney to assist in the rendition of legal services.

104
Q

True or False. If an attorney sends a client to the doctor, the statements made to doctor fall under doctor-patient privilege.

A

FALSE.

If an attorney sends a client to the doctor, those statements made to the doctor are not protected by the doctor-patient privilege because THE TREATMENT IS NOT BEING SOUGHT BY CLIENT. However, they would still qualify as confidential communications under the attorney-client privilege.

105
Q

What is the rule regarding eavesdroppers and Attorney client privilege?

A

Unknown eavesdroppers DO NOT destroy the privilege.

However, known or anticipated eavesdroppers destroy the privilege.

106
Q

True or False: Attorney Client privilege survives the clients death?

A

True. The privilege survives the clients death and mat be asserted by an executor or the attorney.

107
Q

True or False: Can A-C privilege be waived?

A

Yes - failure to assert privilege in a timely manner results in a waiver.

The privilege is waived only to the extent to permit reasonable scrutiny of the disclosed information by the opposing party.

108
Q

When does a blanket or total waiver of A-C privilege result?

A

Only if:

  1. Waiver was intentional, and
  2. Disclosed and undisclosed information concerns the same subject matter.
109
Q

What is an inadvertent waiver?

A

Court will not find a waiver if:

  1. the client did NOT intend to waive the privilege;
  2. the client took reasonable steps to protect the information; and
  3. the client took timely steps to remedy the disclosure.
110
Q

What is transactional immunity?

A

A witness with transaction immunity cannot be prosecuted for the underlying offense. (Blanket).

111
Q

What is use immunity?

A

Statements by the witness may not be used against them, but the prosecution does not agree that it will never prosecute.

The person may be prosecuted upon independent and untainted evidence.

112
Q

What is the physician-pyshotherapist privilege?

A

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing, confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition.

*patient must be seeking help (privilege not applicable to court ordered medical treatment).

113
Q

What are the two types of spousal privilege?

A
  1. Spousal testimony privilege

2. Spousal communication privilege

114
Q

What is the spousal testimony privilege?

A

In criminal cases, encompasses the right of a witness-spouse not to be forced to testify against their current spouse.

  • -Applies in criminal cases.
  • -Protects testimony against spouse.
  • -Must be married at the time of trial.
  • -May be waived by the witness spouse.
115
Q

What is the spousal communication privilege?

A

Which protects confidential communications made during a legally valid marriage.

  • -Must be married at the time of the communication.
  • -May be waived only by both together.
116
Q

What is the clergy-penitent privilege?

A

A person has a privilege to refuse to disclose and prevent another from disclosing, a confidential communication made by the person to a clergyman in his professional character as spiritual adviser.

117
Q

What is the federal rule regarding witness mental capacity?

A

Requirements of capacity to perceive and tell the truth are abandoned; questions of mental competence - go to weight rather than admissibility.

118
Q

What are the grounds for disqualification of a witness?

A

Every person is competent. Some states may disqualify feelings, infants, mental incompetents, etc.

119
Q

Who may impeach a witness?

A

Any party, including the party that called the witness, may attach the witness’s credibility.

120
Q

How can a witnesses character for truthfulness or untruthfulness be attacked?

A
  1. Testimony about the witnesses reputation for truthfulness or untruthfulness, or
  2. Testimony in the form of opinion about that character.

Bar Prep 2020 (6 decks)

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