Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Bar Prep > Evidence > Flashcards

Evidence Flashcards

1
Q

Relevance

A

evidence having any tendency to make a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Prop 8 (CA)

A

relevant evidence shall not be excluded in any criminal proceeding for impeachment issues but does not apply to character, hearsay, privileges, or 352 issues

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

FRE403/CRE 352

A

evidence will be inadmissible if its probative value is outweighed by undue prejudice such as the possibility that the jury will decide the case on emotion rather than fact or the potential for jury confusion

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Personal Knowledge

A

testimony is only valid if the witness has been able to perceive what he is testifying to

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Leading Questions

A

suggest the answer in the question and only permitted on direct of an adverse or hostile witness OR on cross

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Compound Question

A

either has two verbs in the question or two independent clauses

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Calls for a Narrative

A

impermissible form of questioning that asks witness to relate a story rather than specific facts, such as “tell us what happened next”. But allowed if asking witness to recall what was discussed in a particular convo

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Argumentative Questioning

A

asks the witness to resolve an apparent contradiction in their testimony

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Assumes Facts Not in Evidence

A

asking a question regarding a specific detail that there has been no previous mention of

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Non-responsive Answer

A

when a question asks for a a yes or no answer, anything beyond that is non-responsive & likely to subject to a motion to strike

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Character Evidence

A

the use of prior conduct to infer a trait & then the use of that trait to suggest or infer that the trait makes it more likely that the party engaged in particular conduct at issue — character evidence is not admissible

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Where Character Trait Itself is in Issue (civil case)

A

evidence of opinion, reputation, specific conduct is admissible including prior acts of sexual assault. HOWEVER, prior acts of sexual assault not admissible in CA

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Where Character Trait Itself is in Issue (crim case)

A

evidence of opinion, reputation, and specific conduct is admissible including prior acts of sexual assault (for both FRE & CA). Plus in CA, prior acts of domestic/ child abuse also allowed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Mercy Rule

A

when relevant evidence is first offered by the criminal △ in the form of opinion or reputation evidence, the prosecution can then offer only relevant opinion or reputation evidence of the △’s same bad character trait

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Mercy Rule on X

A

the prosecution can ask the character witness about specific acts by the △ that are inconsistent with the character character trait the witness testified to only to impeach the character witness

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Victim Character Evidence (FRE)

A

if the △ first offers evidence of the victim’s character trait, it is limited to opinion & reputation evidence only, and prosecution can then offer evidence of vic’s good character traits & △’s same bad character trait

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Victim Character Evidence (CA)

A

If the △ offers evidence of the victims character trait, allowed in the form of opinion, reputation, or specific conduct, prosecution can then offer evidence of vic’s good character traits & can only offer △’s same bad character trait if △ says vic has a violent character trait

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Evidence of Specific Acts for Character Purposes

A

not allowed to prove character EXCEPT: 1) where character trait is in issue in civil/crim case 2) on cross to impeach a character witness’s credibility 3) in CA: evidence of vic’s character & △’s character in response to such evidence of vic’s violent behavior

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Evidence of Specific Acts for Non-Character Purposes

A

specific acts of a party are permitted for non-character purposes such as: MIAMI KOP Motive Intent Absence of Mistake Identity Knowledge Opportunity Plan & Preparation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Habit & Custom Evidence

A

habit evidence is admissible to show that a party likely acted in conformity w/ the habit. Requires a repeated same response to the same stimulus. Custom refers to a business practice

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Subsequent Remedial Measures

A

subsequent remedial measures taken after an accident or similar incident are inadmissible to prove fault, negligence, or damages in both negligence & products liability cases.

Except in CA: allowed to show defective product & thus liability

FRE: only allowed to prove: 1) ownership, 2) control, or 3) feasibility of precautionary measures/design (if in controversy or for impeachment)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Offers of Compromise

A

evidence of offers of compromise will be inadmissible to prove fault so long as there is an actual dispute (look for conditional language) as to liability or damages prior to making the offer.

Entire statement & any admissions made w/ the offer will be excluded

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Offers to Pay Medical Expenses

A

offer is excluded but any admissions made w/ the offer are admissible

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Offers to Pay Medical Expenses/ Humanitarian Offers/ Benevolent Gestures CA

A

offers to pay med expenses & humanitarian offers (e.g., offer to pay funeral) are excluded along w/ any admissions.

However, for benevolent gestures. The b.g. (e.g., I’m sorry for your loss) is excluded but any accompanying admissions are not excluded.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Liability Insurance

A

FRE: evidence of liability insurance is not admissible to prove fault or liability BUT allowed to prove ownership/control. absence of is inadmissible

CA: absence of liability insurance is only inadmissible if opponent argues rule 352 (probative value outweighed by undue prejudice)

26
Q

Pleas

A

FRE: offers of pleas/ withdrawn pleas made to a prosecutor are inadmissible

CA: offers of pleas/ withdrawn pleas are admissible to impeach the party if they testify inconsistently w/ the plea. Plea offer may be made to a non-transporting police officer, if accused reasonably believed officer had the authority to convey the offer

27
Q

Hearsay

A

An out of court statement offered to prove the truth of the matter asserted

28
Q

Statement by Opposing Party (FRE)/Admission (CA)

A

statement made by & offered against the opposing party, that if true, proves an aspect of the opponent’s case. Considered not hearsay under FRE, exception in CA

adoptive: where a party would be expected to object if not true unless made to party by law enforcement

authorized: statement made by person authorized by the party to make a statement on the subject (look for authority)

vicarious: admission by EE on a matter w/in scope & course of employment

29
Q

Co-Conspirator Admission

A

co-conspirator admission is admissible against opposing party so long as made in the course of & in furtherance of the conspiracy

(FRE=nonhearsay; CA= exception)

30
Q

Prior Consistent Statement

A

first require an attack on witness’ credibility by bias, interest, or prior inconsistent statement & must be made before prior inconsistent statement, bias, or interest arose

(FRE=not hearsay; CA= exception)

31
Q

Prior Inconsistent Statement

A

FRE: always admissible to impeach but admissible for truth only if given under oath in prior proceeding/depo. not hearsay

CA: admissible to impeach & admissible for truth UNLESS barred by constitution under rule 352 (probative value outweighed by undue burden) whether or not made under oath in prior proceeding. hearsay exception

Both: Extrinsic evidence only allowed if witness is given opportunity to explain/deny the statement

32
Q

Prior Statement of Identification

A

allows statements made by witness identifying the △/perp immediately after perceiving them so long as subject to cross

FRE= not hearsay & admissible in all cases

CA= exception only admissible in criminal cases

33
Q

exception doesn’t require unavailability

Statement for Purpose of Diagnoses or Treatment (FRE only)

A

statements made describing pain, cause of pain, medical history, & past/ present symptoms are admissible if pertinent to diagnosis or treatment

FRE: exception that doesn’t require unavailability

CA: not applicable

34
Q

exception doesn’t require unavailability

Present Sense Impression (FRE)/ Contemporaneous Statement (CA)

A

FRE Present Sense Impression : statement made by declarant explaining or describing an event while the event occurs or immediately thereafter

CA Contemporaneous Statement : limited to statement made by declarant to explain, qualify, or make understandable his own conduct & made while declarant was engaged in such conduct

35
Q

exception doesn’t require unavailability

Excited Utterance (FRE)/ Spontaneous Statement (CA)

A

statements relating to an objectively startling event & made while under the stress of excitement it caused

36
Q

exception doesn’t require unavailability

Statement of then existing mental, emotional, or physical condition (FRE)/

State of Mind (CA)

A

statement of how the declarant was feeling or of plan or intent

37
Q

exception that doesn’t require unavailability

Past Recollection Recorded

A

requires that

1) witness have no memory of the matter,
2) the memo was made when witness’ memory was fresh & accurately reflected their knowledge; &
3) writing may only be read into evidence not introduced as an exhibit

38
Q

doesn’t require unavailability

Business Records Exception

A
  1. must be made as part of regularly conducted business activity,
  2. @ or near the time of the event,
  3. by a person w/ knowledge, AND
  4. the time & mode of preparation suggest trustworthiness

NOTE: consider absence of business records when they are expected to exist

*If they incorporate someone else’s statement look out for multiple hearsay*

39
Q

doesn’t require unavailability

Official Records

A

made by govt EE’s w/ a duty to make such records & property records

CA: includes judgments of conviction as long as they are considered official records

(NOTE: if they incorporate someone else’s statement, watch out for multiple hearsay)

40
Q

exception doesn’t require unavailability

Learned Treatise

A
  1. includes any scholarly publication,
  2. can be introduced through any expert who considers it authoritative or used it in forming their opinion, AND
  3. can be used to impeach a witness simply by calling it to their attention

CA: medical treatises are not included

41
Q

Unavailable Declarants

A
  1. exempted/ precluded from testifying bc of privilege
  2. dead or unavailable bc of illness
  3. absent from hearing & beyond ct’s process to compel
  4. absent from hearing despite proponent’s reasonable efforts to compel
  5. refuse to testify despite court order
42
Q

requires unavailability

Former Testimony

A

requires unavailability

  1. applies to former testimony made under oath
  2. if the party against whom it is offered (or predecessor in interest in civil case) had an opportunity & similar motive to cross examine the witness

CA: may also be offered against non-party

43
Q

requires unavailability

Dying Declaration

A

FRE: statement made by declarant who believes their death is imminent & must be concerning cause/circumstances of their death. Has to be unavailable & only applies to civil & homicide cases

CA: applicable in all cases & declarant doesn’t have to be unavailable just has to be dying

44
Q

requires unavailability

Statement Against Interest

A

statement must be contrary to person’s pecuniary (financial) or proprietary interest OR would tend to subject them to criminal or civil liability

CA: includes statements against social interests

45
Q

requires unavailability

Crime Victim Complaints (CA)

A

require unavailability

  1. statements involve a threat or injury
  2. made shortly after threat or injury
  3. are in writing, recorded, or made to law enforcement, domestic abuse shelters, medical personnel, or similar agencies
46
Q

Impeachment

A

impeachment of a witness can be done by

  1. prior inconsistent statements (opportunity to explain/deny not required to introduce statement impeaching a hearsay declarant)
  2. bias (extrinsic evidence admissible if given opportunity to explain or deny OR not excused)
  3. opinion or reputation as to truthfulness
  4. prior bad acts involving untruthfulness (not in CA civil case; allowed in crim case through prop 8)
  5. convictions
47
Q

Impeachment by Convictions

A

FRE:

  • may be impeached w/ felonies commited w/in last 10 yrs BUT if W is a criminal △, then may only be impeached if probative value outweighs prejudicial effect.
  • may be impeached w/ misdemeanors involving dishonesty/untruthfulness

CA:

  • only allows impeachment in felony convictions involving moral turpitude
  • not allowed in CA civil cases & allowed in crim cases through prop 8
48
Q

Confrontation Clause

A

when prosecution offers testimonial statements against accused in crim case for a hearsay purpose, the out of court declarant must be produced for cross examination under oath OR prosecution must demonstrate unavailability & that accused had a prior opportunity to cross declarant

testimonial statement= questioning by govt officers w/ an eye towards use at trial as opposed to during emergency

49
Q

Bruton Doctrine

(confrontation clause issue)

A

when there is a joint trial w/ multiple △’s, confessions of a co△ cannot be used against the non-confessing co△even if it implicates him

confession must be testimonial in nature

50
Q

Present Recollection Refreshed

A

a procedure, NOT a hearsay issue

when a witness fails to recall something, any written thing can be used to refresh their memory but witness can’t read from it

anything used to refresh memory while on the stand, must be shown to opposing party & they can use it to cross examine witness.

if used before trial, only entitled to production if court decides justice requires it

51
Q

Authentication

A

can be authenticated by any method that constitutes sufficient evidence proving it is what it purports to be such as:

  • author of doc & custodian of records
  • questioned document examiner
  • some receives a letter can authenticate it if its in response to one they sent
  • Voice can be authenticated by someone who has sufficient familiarity with the person’s voice

Under FRE: 1) notorized deeds, 2) newspapers, 3) official records, & 4) trade labels are self authenticating

CA only certified copies of judgments are self authenticating & 1-4 presumed to be self authentic

52
Q

Best Evidence Rule (FRE)/ Secondary Evidence Rule (CA)

A

FRE: if content of the writing is in issue, proponent must produce the OG, which includes photocopies, to prove the contents of the doc

CA: expresses a preference for the use of copies rather than testimony unless writing is a true summary, OG/copy destroyed, proponent doesn’t have control of OG/copy & can’t reasonably procure it

53
Q

Waiver of Privilege

A

can be

1) conscious – by holder
2) negligent – by failing to claim in any proceeding in which holder has legal standing
3) by disclosure to third person

54
Q

Spousal Privilege

A

Privilege not to be called as a witness by a party adverse to current spouse & not to testify against a current spouse

APPLICABLE DURING MARRIAGE ONLY & ONLY HELD BY TESTIFYING SPOUSE

55
Q

Marital Communications Privilege

A

communications between 2 persons that are made during marriage are intended to be confidential. Applies to all marital communications even after marriage has ended. Held by both so either spouse can prevent the other from testifying to confidential info but not from testifying in general

56
Q

Attorney Client Privilege

A

if someone consults w/ someone who they reasonably believe to be an attorney, privilege attaches to communications between them.

Can be asserted by attny or client but only client can waive it.

57
Q

Crime Fraud Exception

A

any privileged communication made in order to enable a client, patient, spouse to commit a crime or fraud is w/in crime fraud exception & subsequently lost

58
Q

Lay Opinion

A

based on reasonable perception & whether it can help the fact finder understand the testimony. It can cover manner, behavior, etc. Witness must show adequate foundation of personal knowledge

59
Q

Expert Opinion

A

expert must be qualified in the subject matter, testimony must be of help to the fact finder, & methodology must be generally accepted in the relevant field

60
Q

Judicial Notice

A

method of establishing facts w/out necessity of a jury deciding them. Fact must not be subject to reasonable dispute in that its either

1) generally known w/in courts territorial jx (e.g. boiling water is hot, capital of a state) OR
2) capable of accurate & ready determination by resort to unquestioned accurate sources

crim case: raises inference (jury may but not required to accept)

civil case: conclusive presumption

61
Q

Vicarious Admission

A

Bar Prep (10 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2025 Bold Learning Solutions. Terms and Conditions