Brainscape's Knowledge GenomeTM

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


See full index

Law > EVIDENCE > Flashcards

EVIDENCE Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards MPRE flashcards Civil Procedure 1L flashcards
2
Q

EVIDENCE

A

an assertion of fact, opinion, belief, or knowledge whether material or not and whether admissible or not.

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

Evidence rules

A

principles developed and refined over hundreds of years, that are designed to ensure that only relevant and probative evidence is admitted in court proceedings, and that irrelevant, unreliable and prejudicial evidence is excluded, so that cases can be fairly and expeditiously decided

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

Testimony

A

refers to the oral statements made by witnesses under oath

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

A lay (or fact) witness

A

a non-expert witness who must testify from personal knowledge about a matter at issue (testimony)

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

Expert witness

A

a person who, by reason of education, training, skill, or experience, is qualified to render an opinion or otherwise testify in areas relevant to resolution of a legal dispute (testimony)

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

Real evidence

A

describes physical objects that played a part in the issues being litigated.

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

Demonstrative evidence

A

a tangible item that illustrates some material proposition (e.g., a map, a chart, a summary). It differs from real evidence in that demonstrative evidence was not part of the underlying event; it was created specifically for the trial.

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

Direct evidence

A

includes testimony that tends to prove or disprove a fact in issue directly, such as eyewitness testimony or a confession

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

Circumstantial evidence

A

evidence that tends to prove or disprove facts in issue indirectly, by inference.

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

Relevant evidence

A

evidence that tends to prove or disprove a fact in issue

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

Character evidence (propensity evidence)

A

testimony or exhibits that purport to establish a “trait of character” or propensity to behave in a particular way, such as carefulness, honesty, violence, or cowardice

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

Exhibits

A

tangible objects presented as evidence

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

The “Best Evidence” Rule

A

This prohibits a party from testifying about the contents of a document without producing the document itself.

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

Chain of Custody

A

refers to (1) who has had possession of an object, and (2) what they have done with it.

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

Hearsay

A

“a statement, other than one made … at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

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

In criminal cases, there are some instances where character evidence is relevant to the charge at hand

A

Character evidence may be admitted in criminal trials if
• character is an element of proving the act.
• The accused may offer evidence of his or her good character, in which case the prosecution may introduce evidence of the accused’s bad character
• Character evidence may be admissible to reflect on the credibility of a witness
• To show the accused’s knowledge, intent, or motive for the crime
• To prove the existence of a larger plan of which the charged crime is a part
• To show the accused’s preparation to commit the charged crime
• To show the accused’s ability and means of committing the crime (possession of a
weapon, tool, or skill used in the commission of the act)
• To show that the accused’s opportunity to commit the crime
• Threats or expressions of ill will by the accused
• Physical evidence at the scene linked to the accused
• The suspect’s conduct and comments during arrest
• Attempts to conceal identity
• Attempts to destroy evidence
• Valid confessions

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

Opinion Testimony

A

Generally, lay (i.e., non-expert) witnesses are only allowed to testify about what they have
actually experienced firsthand, and their factual observations. Witnesses provide a report on
what they know, and keep their opinions and conclusions to themselves.

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

Exceptions to the Opinion Rule NON-EXPERT WITNESSES Opinions are admissible if they pass a three-part test:

A
  • Does the witness have direct personal knowledge of the facts to which the opinion pertains?
  • Is the opinion of the common, everyday sort, i.e., does not involve specialized knowledge or tests?
  • Is the opinion NOT part of a legal judgment, reserved for the jury or judge to decide?
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Exceptions to the Opinion Rule EXPERT WITNESSES

A

Expert witnesses are allowed to give opinion testimony because they possess education,
training, skill, or experience in drawing conclusions from certain types of data or information
that lay witnesses do not possess. However, expert testimony may be excluded if it embraces
a legal conclusion. Therefore, expert opinions addressing guilt or innocence will likely be
excluded in criminal cases.

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

Demonstrative Exhibits

A

An exhibit used for purely “illustrative purposes” Such evidence is admissible if the court decides that it presents a fair and balanced summary or picture of the evidence and is not unduly
prejudicial.

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

A diagram (on paper or some other tangible display) can be admitted as evidence with

A

no more foundation than the assent of a witness: “Is this a fair representation of the suite where
you work?”

23
Q

Letters and faxes require a foundation to establish authorship. Depending on the document
and situation, the foundation is laid in one of several ways:

A

1) the author is present and claims authorship;
(2) a witness testifies to seeing the author write the document;
(3) with handwritten letters, a witness verifies the author’s penmanship;
(4) with typed or machine-written documents, the witness verifies the author’s signature;
(5) a witness testifies that the contents of the document point decisively to the author.

24
Q

To overcome a hearsay objection with regard to business records, you must show the
following:

A

• The document was prepared as a usual part of doing business (i.e., it was not prepared
specifically for litigation).
• The document was prepared reasonably near the time of the event it describes.
• The organisation’s way of keeping records is demonstrably reliable.

25
Q

Photographs can be tricky: they need foundation to establish their fidelity to the object they
claim to represent.

A

Generally it is enough to have a witness familiar with the object or space in a photo to corroborate, “Yes, that’s the hallway running between our two buildings.” The matter gets more complicated when a photo is controversial. This can require technical
specifications for proper foundation.

26
Q

In deciding on the admissibility of exhibits, judges can decide to

A

admit the material just as it is, admit it with alterations (such as expurgating parts of a text or obscuring certain images), or deny the admission altogether.

27
Q

A statement.

A

This includes anything intended to be an assertion; statements can be oral, written, or nonverbal conduct, such as nodding a head.

28
Q

That is made outside the court’s supervision.

A

This includes statements made at trial or during
deposition are not hearsay because they are made during court proceedings, but a statement made at work or at a crime scene is outside the court’s supervision and could be hearsay if the other elements are also present.

29
Q

That is offered to prove the truth of the matter asserted

A

A party offers a statement to prove the
truth of the matter asserted if the party is trying to prove that the assertion made by the
declarant (the person that made the out of court statement) is true.

30
Q

The Truth of the Statement Is Not at Issue

A

Any out-of-court statement can be admitted if it (1) is relevant to some aspect of the proceedings, and (2) is not offered for the truth of its contents.

31
Q

Admissions

A

Anything spoken or written by a party to a lawsuit can be entered into the record, provided
the statement can be corroborated and is relevant. Each side can use its adversary’s out-of-
court statements as evidence.

32
Q

Statement Against Interest

A

A statement against interest is a special form of admission in which a prior statement is at odds
with the declarant’s current claim.

33
Q

Business and Government Records

A

The admissibility of records rests on two criteria: whether they were prepared during regularly conducted business activity and whether they are verifiably trustworthy.

34
Q

Absence of an Entry in Business Records

A

Evidence that a matter is not included in the memoranda or reports kept in the regular
course of business may be admissible to prove that a certain event did not occur, if the matter was one about which a memorandum or report regularly was made and preserved, unless the source of information or the circumstances indicate a lack of trustworthiness.

35
Q

Recorded Recollections

A

A memorandum or record about a matter concerning which the witness once had
knowledge but now has forgotten, and that was made or adopted by the witness when the
matter was fresh in memory, and is shown to be accurate, may be admissible. Such
memoranda or records also may be shown to a witness who has temporarily forgotten the
events in order to refresh the witness’ recollection and allow the testimony to be more
complete or accurate.

36
Q

Former Testimony

A

Testimony given by the declarant at another hearing is admissible if the party against whom
the testimony is now offered then had an opportunity and similar motive to examine the
witness as in the present trial.

37
Q

Present Sense Impressions

A

Courts assume that statements made during or immediately after significant events or
condition and that describe or explain the event or condition are reliable, so present sense
impressions are admissible.

38
Q

Excited Utterances

A

There is also an exception for statements relating to a startling event or condition made while the declarant was under the stress of its excitement. Unlike statements of present sense impressions, excited utterances require an occurrence that is startling enough to produce excitement.

39
Q

hen Existing Mental, Emotional, or Physical Condition

A

Statements of the declarant’s then existing state of mind, emotion, or physical condition are
also admissible as exceptions to the hearsay rule. Generally, evidence rules list state of mind,
emotion, sensation, or physical condition, pain, and bodily health as acceptable subject
matter, along with extremely personalized thought processes such as intent, plan, motive,
design, mental feeling.

40
Q

Statements for Purposes of Medical Diagnosis or Treatment

A

Anything first communicated during a medical examination is admissible as a hearsay
exception. This includes medical history, symptoms, pain, and the general character of the
medical condition. These statements do not even have to have been made by the patient.
They can involve someone (parent or spouse) accompanying the patient.

41
Q

Printed Matter

A

Printed materials that support technical or professional assertions, such as commodity market
reports, stock market quotes, mortality tables, cost of living indexes, etc., are admissible if
they are “generally used and relied upon by the public or by persons in particular
occupations.” The Federal Rules of Evidence specifically mentions market reports and
commercial publications.

42
Q

learned treatises

A

The Federal Rules of Evidence also create a hearsay exception for learned treatises, providing
that an authoritative work is admissible to either support or attack the opinion of an expert
witness and the works are established as reliable authority. However, some courts limit the
rule. In these jurisdictions, specialized “treatises, periodicals, or pamphlets” can be
referenced only during cross-examination.

43
Q

Refresher Writings

A

Writing used to refresh a witness’s memory is admissible under special circumstances. Basically,
courts may permit testifying witnesses to refresh or revive their memory by referring to a
writing or anything else if the witnesses will thereafter be able to testify without depending
on the terms of the writing.

44
Q

Other Exceptions

A

Miscellaneous exceptions to the hearsay rule include things like dying declarations and ancient
documents. For those instances not specified in any rule, there remains the judge’s discretion:
anything the judge deems trustworthy for the purposes of its presentation is admissible. This is
the cornerstone of the rule. Hearsay is excluded in the first place because it supposedly lacks
trustworthiness; however, other kinds of hearsay that do not fall within any specific hearsay
exceptions may be admissible if they meet the same standards of trustworthiness as required
for the listed exceptions.

45
Q

Impeachment usually is attempted by trying to show that the witness:

A
  • Is influenced by bias or self-interest
  • Has an impaired ability to observe
  • Made prior inconsistent statements
  • Has been convicted of a felony
  • Has a reputation for untruthfulness
46
Q

Generally, the following conditions must be met before the communication will be
considered privileged:

A
  • The client retained the attorney
  • To provide legal advice
  • And thereafter communicated with the attorney on a confidential basis
  • Has not waived the privilege
47
Q

In the context of an investigation of a company, communications generally will be protected under
the attorney-client privilege if the following elements are present:

A

• The communications were made by corporate employees to counsel
• The communications were made at the direction of corporate superiors in order for the
company to obtain legal advice from counsel
• The employees were aware that the communications were being made in order for the
company to obtain legal advice
• The information needed was not available from upper management
• The communications concerned matters within the scope of the employees’ corporate
duties
• The communications were confidential when made and were kept confidential by the
company

48
Q

Attorney Work Product

A

Documents and tangible things, which are prepared in anticipation of litigation

49
Q

Self Evaluation Privilege

A

It applies if an organisation can demonstrate that it is attempting to police itself in an area of public interest, and that disclosure of the work product would prejudice such efforts.

50
Q

Marital Privilege

A

There are two forms of the marital or spousal privilege: (1) the confidential communications
privilege, enabling either spouse to prevent the other from testifying regarding a communication during marriage between the two that was intended to be in confidence; and
(2) the adversary testimony privilege, protecting spouses from being compelled to testify against
each other while they are married.

51
Q

Law Enforcement Privilege to Withhold the Identity of an Informant

A

In some jurisdictions, law enforcement agencies may legitimately withhold the identity of an
informant unless disclosure is necessary to ensure that the defendant receives a fair trial.

Law (10 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions