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Bar Exam Del Law > Evidence > Flashcards

Evidence Flashcards

1
Q

RELEVANCE (logical)

A

That which has any tendency to make a fact of consequence in determining the action more or less probable than it would be without the evidence

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2
Q

RELEVANCE (legal: Rule 403) - Balancing test / Exclusion

A

Excluded if
- probative value substantially outweighed by risk of
> unfair prejudice ~or~
> confusion, misleading, undue delay, wasting time, or needlessly cumulative

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3
Q

Attorney-Client Privilege

A
  • Confidential
  • Communications
  • between client and attorney for the
  • purpose of seeking legal advice are protected
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4
Q

Attorney-Client Privilege: Exceptions

A
  • Aiding the commission of a crime or fraud
  • Relevant to dispute between attorney and client
  • FORMER Co-clients now adverse to each other
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5
Q

SPOUSAL PRIVILEGE: Spousal Immunity

A

No MARRIED person may be compelled to testify against their spouse in
ANY CRIMINAL proceeding
(covers events BEOFRE the marriage)

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6
Q

PRIVILEGE:

Confidential Marital Communications

A

Confidential communication made between spouses WHILE MARRIED is privileged
(both spouses hold; civil and criminal; survives termination of marriage)

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7
Q

COMPROMISE OFFERS AND NEGOTIATIONS (Rule 408)

A

Not admissible to prove
validity or amount of a disputed claim
~OR~
for impeachment by prior inconsistent statement
(Hey, you said something else in negotiations - can’t do)

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8
Q

SUBSEQUENT REMEDIAL MEASURES (Rule 407)

A

Not admissible to prove

  • Negligence, culpable conduct,
  • defective product or design,
  • need for warning
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9
Q

LIABILITY INSURANCE (Rule 411)

A

Not admissible to prove negligence, culpable conduct, defective product or design, OR need for warning

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10
Q

OFFER TO PAY MEDICAL EXPENSES (Rule 409)

A

Not admissible to prove liability for the injury

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11
Q

Present Recollection Refreshed

A

May refresh with document (or anything!) to help them remember.

  • Not into evidence
  • other party may see it
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12
Q

Objections

A

Compound questions, fact not in evidence, argumentative, calling for conclusions, repetitive

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13
Q

Relevant Evidence

A

Makes a fact more or less likely than it would be without the evidence
- all relevant evidence is admissible

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14
Q

Character Evidence - Propensity

A

Prohibited evidence that the person acted in conformity with their character

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15
Q

Character Evidence - can be proven by

A

Reputation and Opinion

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16
Q

Character Evidence - Criminal Trials ; def character

A

Prosecution = can’t introduce evidence of Bad Character
Def = Can introduce Good character of himself / reputation + opinion only
~but (Opened the Door!) ~ then Prosecution can use SPECIFIC ACTS of bad character on CROSS

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17
Q

Character Evidence - Criminal Trials ; victim character

A

Def can introduce for Self defense / reputation + opinion only
- but-
Prosecution can rebut w/ good character of Vic and bad character of Def // reputation + opinion only

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18
Q

Character Evidence - Other Purposes ..sneaky ways

A

MIMIC
> Motive
> Intent
> Mistake (crime was not likely a mistake bc it happened 3 times before. Absence of Mistake)
> Identity- MO / signature crimes (wet bandits)
> Common Plan - scheme (series of similar crimes)

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19
Q

Habit Evidence

A

Allowed to prove acted in conformity w/ habit
Must be - routine, regular, automatic
(can be a business too - opening and stamping mail)

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20
Q

Judicial Notice

A

When there is no reasonable dispute about a fact

Trenton is the capital of NJ / Pro Sports game time + place

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21
Q

Impeachment - 5 ways

A

B-I-C-C-C

  1. Bias
  2. Inconsistent Statements
  3. Capacity
  4. Character
  5. Contradiction
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22
Q

How can you Impeach by Character

A

Reputation or Opinion

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23
Q

When can you use Specific Acts to Impeach Character?

A

On Cross

  • Must accept the answer - no mini trial w/ evidence that they lied
  • No extrinsic evidence
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24
Q

Impeachment - Character w/ Criminal Convictions

A

– Against the Witness:
1. Crimes involving Dishonesty / false statements
Ex: perjury, fraud, embezzlement
2. Felonies - Punishable by death or over a year prison Unless - the risk of Prejudice SUBSTANTIALLY outweighs the Probative value

– Against the Crim Defendant:
1. Crimes involving Dishonesty / false statements
Ex: perjury, fraud, embezzlement
2. Felonies - Punishable by death or over a year prison Only If - the Probative Value Outweighs the risk of Prejudice

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25
Impeachment - Prior Inconsistent Statements
Any + Can use Extrinsic Evidence - allow witness to explain it. (Show Police Rept - then W- "I was shaken by the accident")
26
Rehabilitate - Impeached witness
- Prior Consistent Statement - Clarify + Explain - Reputation / Opinion of Character for Truthfulness
27
Lay Witnesses vs. Expert
Lay = Facts + Opinions Expert = Facts + Opinions + Opinion on Ultimate Issue (May say that the vehicle was defectively designed) BUT --- NO Mental State Opinions of Criminal
28
Witness - Who may testify / Competent to Testify ?
Anyone , any age, w/ personal knowledge, swear to tell truth and appreciate obligation to be truthful
29
Authentication of Evidence - Is it what we claim it is?
1. Personal Knowledge 2. Distinctive Markings / Serial Numbers / etc. 3. Chain of Custody 4. Stipulate to it 5. Self Authenticating Docs - gov't docs
30
Best Evidence Rule
Can't Describe the Document - when you can just show us - Saw video of robbery but wasn't there - must produce the video BUT if there and video - may testify to what they actually saw Exceptions ; Unavailable - lost , destroyed / Public Record = copy OK / Too voluminous = summary / Admission by party
31
Parole Evidence Rule -
Extrinsic Evidence for a Contract that Changes a Term - Complete Integration = Excluded Partial Integration = Allowed if Adds to Terms NOT if Contradicts >> Can be admitted to = Clarify, show custom, fraud, duress, mistake, illegal
32
Attorney - Client Privilege (elements)
- Confidential - Communication - Legal Advice
33
Attorney - Client Privilege : 3 Exceptions
1. To Future Crime or Fraud 2. Disputes between - Lawyer v. Client 3. Disputes between FORMER CO-Clients
34
Attorney - Client Privilege = Corp.
Employee w/in the Scope of Employment
35
Attorney - Client Privilege: Work Product
Can't get Mental Impressions | Anything in prep for litigation unless Substantial need + Undue Hardship to get
36
Spousal Privilege
Confidential Communications - Communication during marriage - Held by both + Can prevent the other from testifying - Survives after marriage Spousal Immunity - Criminal - right to refuse to testify - currently married - covers anything before or during marriage - Only Married couples > Exceptions - 1 sues other // crimes where 1 = actor vs other victim
37
Proof of Insurance only for
Ownership NOT negligence or fault
38
Subsequent Remedial Measures for
Ownership or Feasibility of a modification | NOT negligence or fault
39
Settlement Negotiations statements for
Can to Show BIAS - NOT Validity or Value of a Claim or Prior inconsistent statement
40
Past Sexual Conduct of Victim only for 3 things
1. Source of physical evidence - semen 2. Consent 3. Too unfair / unconstitutional restriction on defendant
41
Past Sexual Conduct of Defendant
Can use - propensity to act from prior Bad Acts
42
Hearsay - def
An Out of Court statement offered for the truth of the matter asserted
43
Other Uses that are Not Hearsay
- Prove the statement was said (def made a statement) - Effect on the Listener (the ins co had notice) - State of Mind (speech in French - he's fluent )
44
Not Hearsay - TESTIFYING Available Witness (3)
1. Prior Inconsistent Statements under Oath 2. Prior Consistent Statements 3. Prior ID Statements (line up)
45
Not Hearsay - Party Opponent Statement (3)
1. Party Admission - introduced against party (anything they said ) 2. Adoptive Admission - by statement (Did you rob the bank? Yes) ~or~ Silence (reasonable Person would have denied said something and denied) 3. Vicarious Admission - other people authorized to speak on their behalf = lawyer, employee in the scope, co-conspirator, (must be evidence of employment or conspiracy)
46
Unavailable Declarant - (5)
1. Exempted by a Privilege - spousal / attorney client 2. Refuses 3. Lacks Memory 4. Dead or too Ill 5. Can't be subpoenaed or found 6. NOT where the party made them unavailable ..DUH!
47
Unavailable Declarant - Hearsay Exceptions (5)
1. Former Testimony - IF - Other party had opportunity and similar motive to examine at previous trial 2. Dying Declaration - believe dying, death impenitent, statement relates to the cause of death, 3. Statement Against Interest - Reasonable person wouldn't have made the statement (exonerating must have other evidence - suspicious ..my dead friend did it ) 4. Family History - he's dad 5. Made Unavailable by the party - anything in
48
Hearsay Exceptions - People (5)
1. Present Sense Impression 2. Excited Utterance 3. State of Mind - emotional, physical, mental ~ Can be used to show action in conformance with the intent to do something (I'm going to grandma's ..intent to go + went) 4. Medical Diagnosis / Treatment statements 5. Past Recollection Recorded - can't remember , wrote when fresh, personal knowledge ~ can be read, not given to jury, Opp party can introduce
49
Hearsay Exceptions - Records (5)
1. Business Records 2. Public Records 3. Learned Treatises - scientific stuff by experts, etc 4. Other legit records, marriage, vital stats, ancient docs
50
Confrontation Clause -
Out of Court "TESTIMONIAL" Statement - NOT ALLOWED - Unless Either = Made available for Cross ~or~ Prior Opportunity to Cross
51
Impeachment of Witness - collateral Issue
Cannot use extrinsic evidence | - including another person testifying about that person being untruthful-
52
Confrontation Clause
To Admit an out-of-court testimonial statement of a declarant against a criminal Def: 1) declarant must be UNAVAILABLE ~ and ~ 2) D must have had opportunity to cross-examine declarant testimonial stmt: requires objective analysis of the circumstances, rather than the subjective purpose of the participants
53
Writing to refresh witness - Inspection by other party | Before Testimony vs Testifying
Used Before = May allow | Used While = Must allow
54
Defendant claims he did something Accidentally | - Witness testifies to rebut that several times he did something close (Character) ...yes or no ?
Yes - Shows he did it INTENTIONALLY -- -Absence of Mistake MIMIC = Motive, Intent, Mistake (absence), Identity (MO) , Common Plan
55
Past Recollection Recorded -
- CAN be Played if Tape or Read if Document - Only admit by other party - Personal Knowledge, Made Fresh, Forgets, Accurate,
56
Impeach by asking WITESS about His Own Untruthful Act
- Allowed b/c INTRINSIC ~ from his own mouth - Asking someone else about the same act would be EXTRINSIC ..not allowed ~ only allowed extrinsic by reputation or opinion
57
Impeachment by Bias - Witness or the out of court Declarant
- Always allowed to Show Bias - "Didn't the Declarant beat up the Defendant the other day?" > shows that friend / declarant might not like the Defendant and would lie about him
58
Specific Acts for Character - when essential Element of a Crime or ..Defense (Self Defense)
By Specific Instances of Conduct.- the character or trait may also be proved by relevant specific instances of the person’s conduct.
59
Testimony Evidence of Character - Defamation
When a person's character is in issue, character evidence is admissible in all forms
60
Document Evidence - Summary
May use a summary to prove the content as long as they are made available

Bar Exam Del Law (21 decks)

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